When the trial of Chris Huhne’s ex-wife Vicky Pryce collapsed on Wednesday, the judge felt moved to declare that the jury had, in his opinion, demonstrated “a fundamental deficit in understanding” in the task that was required of them, an occurrence which “in 30 years of criminal trials (he) had never come across”. He was, of course, referring to a list of 10 questions submitted to him by the jury, a list which is now quickly gaining notoriety across the blogosphere and which has prompted one commentator to even label the jury as the worst “in the history of mankind”.
It is fair to say that the incompetence of the jury in this case might be an isolated one. But it does raise some pertinent questions about how juries are selected in English courts. For example, should potential jurors have to undergo a test to ensure they understand the basic workings of the court and the legal system? Whilst I think such a test would be counter-productive at best, there is certainly more that could be done to encourage better quality juries, one of which would be ensuring a better representation of society serves on them.
I myself have been summoned for jury duty. As it was in the middle of the university semester I armed myself with a letter from my department explaining why I could not fulfil my civic duty. Anecdotally, I’m sure many readers on here will have friends or relatives who have similarly avoided jury summons for a variety of reasons. This invariably reduces the pool from which the courts have to pick juries from.
Instead of placing the onus on businesses to ensure individuals can fulfil their civic duty the government should instead take on some these requirements on behalf of society which, after all, benefits from the jury service of its individual citizens. Currently, employers can ask employees to delay service “if their absence would seriously harm your business”. In addition, although individuals can claim an allowance for jury service, it is down to the employer to make up the shortfall between this and their current salaries. Instead, the government ensuring that the allowance for jury service matches the salary of the individual claiming it. Or it could include some tax relief for businesses when an employee is absent for jury service. Regardless of the means, the principle of greater government support for those serving on juries will ensure that the pool of talent available to the courts is as wide as possible, and will improve the quality of juries as a whole. Whilst this might not be a perfect solution it is certainly something to ponder in light of recent events in South London.
* Alex Paul Shantz is a former member of the Liberal Democrats who now lives in Iowa, where he most recently was a field organizer for New Jersey Senator Cory Booker’s presidential campaign. Originally from London, he previously worked in public policy in Washington, DC for the Atlantic Council, a foreign affairs think tank.
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26 Comments
Abolish juries. They’re a total disaster.
Out of interest, would you mind explaining your reasoning behind the statement that “requiring potential jurors [to] undergo a test to ensure they understand the basic workings of the court and the legal system” would be “counter-productive at best”? Surely the arena of justice is one where we can least afford to have any doubt about the quality of those making such important decisions?
I appreciate your point about wanting to increase the chances of juries being (more) representative of society as a whole, but if we’re to take that argument to its logical extension we should be extending jury duty to children and the clinically insane. Of course, I may be misinterpreting you there, if “a better representation of society” was intended to suggest that society should do more to put its ‘best’ representatives forward – ‘representing society as being better’, if you will. But if we’re accepting that suggestion, with its implication that some groups are more suitable jurors than others and that therefore not every potential juror is equal, shouldn’t we be trying to select for the ‘better’ end of the distribution? Or at least establishing a threshold of ignorance?
There were some silly questions but my other half who teaches languages asked how would I translate ‘beyond reasonable doubt’ into another language. Is it you personally would have no doubts or the mythical reasonable persons doubts? As we become a multicultural society and an educationally divided one perhaps the public school educated judges need to learn how to direct the juries.
We should have a proper evidence-based analysis of whether the jury system as it exists now is really the best tool for the job. The same should go for every aspect of our justice system. Of course such a thing will never happen, because where justice is concerned, any idea of evidence-based progress is instinctively rejected in favour of hundreds of years of tradition.
I think we have a problem in this country that most of the newspapers know that if they want to increase sales then one very effective way of doing that is to humiliate someone, whether they deserve it or not. As a result many people very easily jump to conclusions about what they think with very little supporting evidence.
The jury system tries to impose a discipline on people that many are not used to.
“prompted one commentator to even label the jury as the worst “in the history of mankind”.”
He certainly seems to have lots of knowledge from which to make this claim. Or perhaps not.
I’m not sure what people are suggesting here. When a Jury don’t understand something should they ask the Judge about or or worry more about whether they will look silly. At least one QC has taken to Twitter saying he never understood what reasonable doubt means :-). I think there are standard directions which make reference to people being sure of guilt – I would suggest a clearer test.
We can’t know for certain but it is highly possible that a number of these questions came from possibly one juror wishing to consider material not brought up at the trial – and once a discussion starts down that route the chances are others will try the same. In that case it’s probably a piece of good forewomaning to have asked the Judge the question.
I think the question to be put to the Judge is isn’t it actually worrying that this is the first time in your 30 year career that a Jury have asked such questions, rather than the other way round?
Stuart – I’m all for more research into jury deliberations and think there should be more provisions to allow them. In particular to see how well the standard directions work and to produce some advice on formulating non-standard directions as they are sometimes rather dryly put and hard to relate to by “normal” people.
I have to say that, other than the very last question (#10) — which I doubt was of interest to more than one juror — the questions put hardly justified the abuse heaped upon the jury by Mr Wickham. In fact, I found them refreshingly honest in shining a bright light upon the unexamined linguistic gobbledegook that passes for law. More educated people might not have asked those questions for fear of appearing stupid, and inviting the kind of abuse that editors and judges apparently like to throw around. But I do not think they would have understood the instructions any better.
In fact, I know many highly educated people who would be unable to make sense of a string of words like “was will overborne,” though they might find it very hard to admit it. The word “overbear” is not exactly in common use, and even when used would hardly be typically conjoined with “will”; a term which, by the way, people from philosophers to neuroscientists have yet to adequately define. These are not, as Mr Justice Sweeney claims, “relatively straightforward English words.”
I think the judge’s unwillingness to more exactly define his terms signifies, not intellectual superiority, nor a respect for the canons of the law, but the fact that he is accustomed to using terms which he has never bothered to define, and therefore cannot define for others. To say “a reasonable doubt is a doubt which is reasonable” is to substitute tautology for definition. The claim that these are plain, easily intelligible English words is one belied both by the jury’s difficulty with the formula and the judge’s inability to expatiate upon it. What is “reason” as applied to doubt? When does a doubt go beyond reason? I think that Mr Justice Sweeney all but admitted that the words are, at this point in time, no more than a tired formula, worn out by excessive repetition and no longer capable of bearing any meaning on their own; they have a ritual, rather than a strictly legal significance.
Many of the other questions seem to me to reflect a difficult internal situation within the jury, and were probable chosen with the intention of clarifying matters for a small number of jurors, perhaps even a single one, rather than reflecting a widespread ignorance of rules of evidence. And under such circumstances, asking for clarification from the judge seems like an honest and responsible course of action — surely much better than coming to a verdict based on a misunderstanding. It is much more responsible than the actions of a judge who fails to provide clear direction to a jury asking for it, and who furthermore mocks them for having the pertinacity to admit their doubt and ask questions. The whole thing reeks of snobbery.
It is amazing that a system which was good enough for the Anglo Saxons who in the main could not read or write is now too much for our modern society.
Having done jury service, most of my fellow jurors wanted to do a trial but only a short one and then go home because of the loss of earnings issue.
For most people its the most boring two weeks you can have, I have never played as much cards, dominoes etc.
In the only trial I did in the two weeks, the defendent changed his mind when he walk in the courtroom.
David Wilkinson: Anglo Saxon trials were by ordeal (you know, hot irons, water (as in “if you sink you’re innocent) etc). The concept of determining guilt or innocence based on the evidence is a much more recent one (the last few hundred years).
Thank you for the article, Alex. As a law student, I would argue that both asking what “reasonable doubt” mean, and retaining the term, is perfectly reasonable. What is not reasonable is the jury in the first place.
Society is complex enough to defy precise definition in many cases, which is nevertheless exactly the task of the Law: to codify the rules of our society. In appreciation of this the Law sometimes uses vague terms to give the courts a margin of discretion as every case must be seen within its own context. Therefore, no one really knows what “reasonable doubt” mean, and it is intentionally so, but those that have worked in the courts will have gained a feeling or general understanding of the concept, a general frame within which the term operates. Judges and legal professionals have no trouble with these terms, having gained an inherent understanding of the concepts as a whole, and other vague terms are constantly used such as “due care” in tort/delict or “causation” in both private and criminal law.
This brings me to my point: ordinary people will have a problem with these terms, and therefore should not be allowed to partake in the legal system at all – the inevitable being poor judgement as demonstrated in the article above. Many court systems operate without juries, although I am aware that it is wishful thinking that such a tradition would be abolished here in the UK. Yet, instead of throwing government money on incompetent juries, the best solution would be to throw the jury out.
There are arguments regarding elitism and the neutrality of the courts and the Law, especially in light of the need for the broader society to put a check on these vague terms. However, if one judge sometimes errs, there is a robust appeals mechanisms where several judges will look at a case and all of them are thoroughly experienced, highly trained professionals. Indeed, the legal profession is one of the most rigorous and competitive there is. So leave the courts to those folks, and save some money in the process. Their job is to judge impartially and in line with our ordinary societal values . And they also happen to know the law.
Can’t help being reminded of W Churchill’s wise words on democracy: the worst of all possible systems – except for all the other ones that have been tried from time to time. Reckon the same applies to trial by jury.
Thanks for your comments everyone. To address some of the specific points raised about my article:
@Graeme – ever the moderate!
@Alexander – The concept of trial by jury is to be judged by your peers. Our peers include people of a variety of socio-economic backgrounds, cultures, religions… and, dare I say it, intelligence. Maybe describing an IQ test as “counter-productive” was poor phrasing on my part, but I firmly believe that to restrict juries to those considered “intelligent” enough to serve on them is wrong, as it would naturally disallow some people from serving on it because they fail to meet an arbitrary standard. I’m uncomfortable with discrimination unless for good reason, which I think it is in the case of children and the clinically insane; two groups whom I’d contend have a fundamental inability to understand the facts of the case or what is required of them as a jury. I see what you’re saying about implying that some groups are better than others, but in my experience of juries (full disclosure: I have sat through one Crown Court trial from start to finish) they do work as a group, and I think ensuring this group represents as wide a range of talents and abilities as society contains is the best way to ensure that they collectively come to the right decision. If you feel there’s still points I haven’t addressed I would be happy to do so in a subsequent comment.
@Peter – I think its very difficult for a judge to make it any clearer what “beyond reasonable doubt” means without risking leading the jury, which would be instant grounds for appeal in the case of any subsequent conviction. Perhaps instead we should be testing juries for their proficiency in English?
@Stuart – Interestingly enough, I read this week, in the wake of the Pistorius case, that South Africa abolished trial by jury in the 1980s/1990s (can’t remember which) and now guilt is determined by either a magistrate bench or a judge. While South Africa’s reasons for introducing this system are arguably unique to their history (they felt juries might be biased based on race), we obviously have a system with some similarities here as most criminal convictions are handed down in a magistrates court. I’m not sure if abolishing trial by jury is something we should consider though.
@Hywel – I did acknowledge that this is a rare case. I’m happy to accept that we may all be over-reacting and that one occurrence of something like this is thirty years is no reason to panic. Still, I’m a big believer in constantly questioning traditional practices to ensure they still perform the function society wants them to.
@David – I accept legal language can be confusing to some, but I think that “beyond reasonable doubt” is fairly straightforward. Judges do, after all, interpret and explain complex legal points to the jury – but the fact they wanted a relatively simple English phrase to be explained to them further is the relevant point here. As I said before, the judge has to be careful in what he says to avoid being accused in any way of leading the jury to a decision, and he clearly felt defining “beyond reasonable doubt” risked this. I would disagree that this is simply based on snobbery – after all, the jury did ask if the defendant needed to prove their innocence, which is a fundamental misunderstanding of English law and one which would have been explained to them by the judge at the start of the trial and which they clearly did not understand.
@David W – which is exactly my point. If people weren’t losing earnings they might be more inclined to do jury service for as long as needed.
@Alex M – the jury system is a late Anglo-Saxon/early Norman concept I believe which arose out of a point of law which enabled the defendant to prove their innocence by bringing forward their peers as witnesses. I may be wrong of course, and any lawyers/law history students on the thread are welcome to correct me.
“Judges do, after all, interpret and explain complex legal points to the jury – but the fact they wanted a relatively simple English phrase to be explained to them further is the relevant point here.”
The point people still seem to be missing is that the judge had already explained many of these points to the jury (including an explanation in everyday language of what “reasonable doubt” meant), and the jurors had been given a printed copy of his explanation.
http://www.crimeline.info/news/pryce-jury-summing-up
I’m having difficulty reconciling the opinions above that ‘no one really knows what “reasonable doubt” means, and it is intentionally so’ and ‘“beyond reasonable doubt” is fairly straightforward.’ If it were really so straightforward, why the difference of opinion? And why would providing a “straightforward” definition be considered leading the jury? Appealing to “straightforward English” is leading in itself — leading the juries to go outside legal definitions and instead consult dictionaries (not necessarily written with the law in mind) or their own experiences and interpretations of words and their meanings, which may well be misleading or simply wrong.
To one person “beyond reasonable doubt” might well mean “beyond all doubt, with absolute certainty, discounting only such uncertainty as a lunatic or a deliberately perverse arguer might introduce”, while another might mean “with reasonable probability, with the possibility that it could be true,” and yet another might mean “something I would believe to be true based on a hunch.” These are all reasonable interpretations of “beyond reasonable doubt” based on common sense interpretations of English. But they aren’t rooted in the law.
Chris, in those instructions, the words “reasonable doubt” appear only one time, and they are not defined.
“As I said before, the judge has to be careful in what he says to avoid being accused in any way of leading the jury to a decision, and he clearly felt defining “beyond reasonable doubt” risked this.As I said before, the judge has to be careful in what he says to avoid being accused in any way of leading the jury to a decision, and he clearly felt defining “beyond reasonable doubt” risked this.”
It’s important to remember that the Judge won’t just be responding without having time to consider what he says. i don’t see why the Judge couldn’t have repeated the “sure” direction in response to the reasonable doubt question.
If a Judge is formulating “bespoke” directions he will usually hear representations from both sides when deciding how to direct.
“after all, the jury did ask if the defendant needed to prove their innocence, which is a fundamental misunderstanding of English law ”
It is in those terms – however this could be a misunderstanding of the way in which the defendant does have a burden of proof in certain situations (of which this is one). That isn’t the same as having to prove innocence but “reverse burdens” aren’t I suspect completely clear to people without a legal background. That’s particularly so in this case where a criminal act is admitted so in effect if the defendant cannot prove their defence they are guilty.
And we come back to the point that if the jury are uncertain about something surely asking questions is the correct approach.
Alex Macfie – the Anglo-Saxons – really? Always?
I believe the judge had explained the concept of “beyond reasonable doubt”, which is after all such a fundamental aspect of our legal system that most people have encountered it. It may be that the judge’s explanations of this and other phrases was not very clear – or it may be the jury was indeed weak. It may also be that the foreman of the jury felt unable to exercise any authority in, for example, explaining to one person why a particular question was irrelevant. I don’t know.
What is clear is that breakdowns like this are rare. Alex Paul has an interesting point about the ease with which jury service can be evaded and is no doubt right that relatively well-educated people in responsible jobs evade it more often than others – but then they’re also less likely to be uncontactable or not on the electoral register or disqualified. Maybe when someone’s reason for not serving is accepted, they should be put on a list for their name to come up again within the year.
My own experience of jury service was that jurors were conscientious and thoughtful, taking their responsibility very seriously whatever their backgrounds and education, and that the judge was very good at explaining anything likely to puzzle us.
Maybe such explaining should be part of judges’ training. Maybe it is.
Alex P,
Thanks for your reply. I can’t help thinking, however, that your defence of the current situation is relevant more to the use of a general intelligence test than to one testing jurors specifically on their understanding of the legal process as it relates to the jury. General intelligence, and even genuine expertise in one area, is by no means incompatible with complete ignorance in another area. (How many people these days can fix their own car?) Fair enough, it was a false target of my own construction, but a false target nonetheless.
If a juror genuinely does not “understand the basic workings of the court and the legal system” by which they will be judging the defendant, is that not a cause for concern? It would be discrimination, but is “a fundamental inability to understand […] what is required of them as a jury” not a good reason?
One need only look at the response of the media to see the potential physical, financial, and reputational cost to an innocent person of a jury getting it wrong, whether through ignorance of the legal process or for any other reason. I believe there are already cases of a premature headline branding a man a paedophile or murderer in the court of public opinion, ruining him even though no charges are eventually brought. And as for the reaction after sentence is confirmed… Even if a conviction is later conclusively overturned due to demonstrated jury incompetence, I very much doubt the likes of the Daily Mail and the Sun would consider it worth the same three-inch headlines as the Guilty verdict to a particularly attention-grabbing case.
@Alex
I’m not sure I’d like to see juries abolished in any or all cases. But I do think that this is just one of many aspects of the justice system that needs a long hard look at. Other ones (off the top of my head) are the ludicrous archaic procedures and costumes which surely belong in a museum or theatre, and the viciousness of our adversarial system in which defendants and their lawyers are allowed to bully vulnerable witnesses literally to the point of suicide. It’s all just a part of the game we call “justice”.
I’m only making a very general observation here that the justice system appears to be more resistant than any of our other institutions to any notion of modernisation and progressiveness. When you really think about it, this is quite odd. We wouldn’t run a school or a hospital in essentially the same way we did 200 years ago, so why do we think it’s admirable that we do so with our courts? I know that many things have changed, but not nearly enough.
“Maybe when someone’s reason for not serving is accepted, they should be put on a list for their name to come up again within the year.”
If you are called for jury service and wish to defer it you have to identify other times in the year when you will not be available. If you are called up again and it is not in one of those periods then it will be very difficult to get a second deferral.
I think there would be scope for a system where when you ask for a deferral you have to identify a 2 week period later in the year when you will be available.
For some strange reason the standard direction on the standard of proof includes two different tests (sure of guilt and reasonable doubt). I can’t believe that’s the clearest way of explaining it.
“Chris, in those instructions, the words “reasonable doubt” appear only one time, and they are not defined.”
?
Look again:
“The standard of proof that the Prosecution must achieve before you could convict is simply this – the prosecution must make you feel sure of guilt (that is the same as, but no more than, the proof of guilt beyond reasonable doubt).”
I used to be a committed defender of the jury system. Then I did jury service earlier this year.
In the first trial, for racially aggravated harrassment, two of the jurors were open racists who referred to the victims as “darkies who ain’t like us”, and were backed by 8 of the other jurors despite the very clear evidence in the case – the defence barrister very cleverly recognised a bunch of tabloid readers and planted the idea that the victims were benefits cheats from overseas. Despite the fact that the judge noted that the victims ahd done absolutely nothing illegal, and in any case it was utterly irrelevant to the trial, all the 10 idiots on the jury would talk about during deliberation was how the victims were benefits cheats. I despaired, but only one other despaired with me.
In the second trial, a man had broken his girlfriend’s jaw in two places by punching her. He admitted this. Despite it being so open and shut that at one point, the prosecution barrister asked the accused why we were bothering with a trial given he admitted he did it, there was one old guy on the jury who insisted that even though the man had thrown the punch, and caused the injury, there was doubt that he had intended to cause injury. Oh, and also, “Girls these days drink lots. They’re not like they used to be. She seemed a bit of a hellcat to me.”
In the third trial, of a drugs mule, there was unanimity over the guilty verdict – there couldn’t have been otherwise. However, two jurors didn’t really understand spoken English, especially the sort used by the barristers. A third juror argued ferociously with the clerk of the court about being forced to surrender her phone during deliberations, and told the rest of us that she would agree with any verdict as long as it was over as soon as possible. This in a trial which resulted in a young woman facing a prison sentence of many years.
I like films about noble and incorruptible juries in the USA as much as anyone. But my experience of jury service left me utterly convinced that if you aren’t willing to bite the bullet and institute an intelligence test for jurors, then it would be better to do away with the whole system.
Chris, I really don’t see that as a definition of “reasonable doubt”, and if it was intended as one, it’s possibly the worst one in the history of legal exegesis.
That is the standard direction set down by the JSB and used hundreds of times a week.
I don’t have direct experience, but from observation of other areas of human activity I suspect that a lot of the time you would have a few relatively educated, articulate and clued up jurors leading the rest (aware of their limitations) along, The questions submitted, such as the one about whether or not it is ok for “a juror” to make a decision based on matters not presented in court sound to me like they are written by one of the clued up jurors dispairing at his inability to take the others (or one other) along with him/her.
Thanks to Hywel for the reference. The judge was indeed going by the book, which says:
Standard of Proof
The prosecution proves its case if the jury, having considered all the evidence relevant to the charge they are
considering, are sure that the defendant is guilty. Further explanation is unwise.21
If the jury are not sure they must find the defendant not guilty.
Note: Being sure is the same as entertaining no reasonable doubt. See Archbold 4-384/385; Blackstone F3.37-39, for a discussion of terms.
21 Note the problems encountered in Majid [2009] EWCA Crim 2563 when the judge endeavoured to explain reasonable doubt to the jury
http://www.judiciary.gov.uk/Resources/JCO/Documents/Training/benchbook_criminal_2010.pdf