What Her Majesty’s Court Service didn’t mention in my jury summons was that my main duty would involve waiting. Waiting to be selected for a trial, waiting in the jury’s retiring room, waiting while the prosecution had something photocopied, waiting for the defence barrister to get to the point… It was perhaps no accident that the jury pool assembly room resembled an airport lounge, with rows of wide blue chairs and a canteen selling bad coffee and unsatisfactory sandwiches. My fellow wannabe jurors and I wallowed in enforced passivity like holidaymakers whose flight home had been delayed. During all this inactivity I had plenty of time to ponder: is the right to trial by jury really worth all the fuss?
The Lord Chief Justice’s decision last June to allow the first criminal trial without a jury sparked cries that a central pillar of our democracy was crumbling. Lord Justice Judge ruled that the trial of four defendants accused of a £1.75 million robbery at Heathrow airport in 2004 could be heard without a jury, due to the “very significant” danger of jury tampering. It was the first time that the then Home Secretary David Blunkett’s controversial 2003 Criminal Justice Act had been put into practice. The act, which allows a trial to proceed without a jury in complex fraud cases or where there is a risk of jury tampering, passed only after several safeguards were added to appease rebel Labour MPs, appalled at this erosion of our ancient right.
For all that, the vast majority of criminal cases are still heard in front of a jury. The ideal of trial by jury is usually discussed in such high-faluting terms that it’s easy to forget that juries are made up of 12 normal people who may neither care for nor understand the supposedly sacred duty that falls on their shoulders. Lord Devlin famously argued that trial by jury “is the lamp that shows that freedom lives”. That may be so, but the capacity of a lamp to illuminate depends on the bulb one puts in it. Many of the jury system’s keenest defenders, I’d wager, spend more time decrying the government’s attempts to undermine it than they do rubbing shoulders with a cross-section of potential jurors. The first thing I noticed when I walked into the jurors’ room at a Crown Court in an outer suburb of London was a table stacked exclusively with back issues of gossip magazines and popular women’s weeklies, the assorted reading material left behind by previous intakes. I immediately wondered whether I would really want a bunch of Heat magazine readers deciding my fate if I were in the dock, before chiding myself for making sweeping assumptions about the readership of such publications, primarily that they don’t share my socially liberal views. After all, juries are supposed to be representative of the general public.
The three juries I was selected for turned out to be pretty heterogeneous. Each included people of differing race, class, profession, education and intelligence — and very different levels of engagement in the process. In two of the trials we quickly came to a guilty verdict. But one, in which the accused was an illegal immigrant, was not so straightforward. When it came to deliberating the facts of the case, I was impressed by the detail of some of my fellow jurors’ notes, the level of debate and the effort to include everybody in it. But I was also annoyed that only about half of the group seemed interested in, or indeed capable of, contributing much to the verdict.
The defendant was charged with obtaining a passport by improper means. Because of his lack of education and different cultural background (he was from India), I thought it plausible that he hadn’t understood that he was doing something illegal. I was frustrated that most of the jurors couldn’t or wouldn’t make the mental effort to place themselves in his shoes. The domineering foreman (who nominated himself before we had even sat down) kept on repeating that we should make a judgment based on what any reasonable person would have thought. I countered that the judge had specifically told us that we had to determine what the defendant, not the mythical reasonable man, had thought or believed. At least the foreman, and three or four others, understood and responded to my argument. The rest seemed bored and unbothered, or made irrelevant comments about the burden of illegal immigrants on the NHS and the fact that “he shouldn’t have been here in the first place”. One woman spent more time having cigarette breaks outside than she did around the jury table. The general mood was that we had better reach a consensus soon so that everybody could go home.
Perhaps I objected only to this general lack of interest because I was disputing the majority viewpoint on tricky grounds. One of the few people who agreed with me did so mainly because she thought the judge’s summing-up was slanted towards a not guilty verdict. Privately, I thought she was wrong and that in any case jurors aren’t supposed to find according to what they believe the judge thinks. But with only one other person on our “team” and the judge having told us he would accept a majority verdict of 10-2, I wasn’t about to say so. When it came down to it, I felt obliged to argue strongly for my viewpoint, based no doubt on my own prejudices, against those strongly arguing for theirs. I didn’t persuade anybody to agree with me who hadn’t in the first place. But because nobody changed any of their minds either, it was a hung jury (9-3 in favour of guilty). It is now up to the Crown Prosecution Service whether to hold a new trial.
In my experience, a jury’s deliberations consist of rational discussion of the evidence, reiteration of people’s first instincts, and half-remembered phrases from TV. In one case, 11 of us frustratedly grappled with a man who insisted that he wasn’t convinced “beyond all doubt”, despite strong forensic evidence. We struggled to explain to him the difference between beyond all reasonable doubt and beyond all possible doubt whatsoever.
The jury system is expensive and involves a lot of hanging around. But the fact that the prosecution has to persuade at least 10 out of 12 lay people, rather than one judge, places the burden of proof much more firmly on its shoulders. Even when I disagreed with my fellow jurors, I felt that the majority had more empathy with the defendant than anybody wearing a wig did. Judges may be experts in the law, but the average juror’s life experience is a lot closer to that of the person in the dock. The provisions of the Criminal Justice Act are sensible, but it is right to keep a firm check on how it is used. Having served on one, I would certainly prefer to be tried by jury — especially if there was somebody like me on it.