TWELVE HONEST MEN AND TRUE

First things first.  Given my recent criticisms of Alison Saunders, the Director of Public Prosecutions, I never thought I would be jumping to her defence so readily.  However, I praise her brave decision not to pursue Greville Janner to the grave and beyond following the oft-repeated allegations against him of child sexual abuse. She has justified her decision with reference to his age and ill health, as he is now 86 and suffers from Alzheimer’s. The allegations against him go back to the 70’s, so any prosecution would of necessity relive events more than 50 years ago, and in my professional experience, the only evidence to go before a jury would be the allegations of the complainant and Janner’s denial.  As he suffers from Alzheimer’s, he is unlikely to remember his own name, let alone what he was doing 50 years ago. There would be no corroboration in the legal sense, so the evidence, such as it is, could not be properly tested.  Given the “no smoke without fire” approach likely to be forced upon any jury called to try the case, the pressure on them to convict will be intense and difficult to resist, and any jury brave enough to acquit would be subjected to a media campaign of vilification from the likes of the Daily Mail and its camp followers.  On any view, that cannot be justice, but it hasn’t stopped an outcry against Ms. Saunders and threats of a judicial review of her decision. Despite the fact that Ms. Sanders has been dealt a losing hand, I hope she is brave enough to stand her ground.  These historical ‘witch hunts’ do our criminal legal system no credit whatsoever.

On the topic of juries, it may have escaped your attention that the Criminal Justice and Courts Act 2015 has received its royal assent, and lurking therein at section 69 et seq are several amendments to the Juries Act 1974.  The main thrust is against the use by jurors of ‘electronic communications devices’, also known as the Internet, to research material relevant to the case they are trying, and in addition, sharing the results of their researches with other jurors.

The aim is laudable but nigh on impossible to achieve. The ideal is that an accused person should be convicted or acquitted on the evidence presented by both sides in court and untainted by any outside influences.  Juries are told by the judge at the end of the first day that they are not to discuss the case with anybody outside their number until the end of the trial.  And what’s the first thing they do as soon as they get home? They discuss the case with their nearest and dearest!  It’s human nature. And as the trial goes on and on and on, the more they are going to discuss the evidence with their nearest and dearest and bring them up to date with the latest developments.

With the intrusion of the Internet into every room in the house, it is tempting in the extreme for the average juror to do a little research.  In many cases, the Internet is the average Joe’s only form of communication, they can’t communicate unless they are gawping at their hand held devices, and a totally vacant expression is a sine qua non. Unlike his predecessor in title, the average juror is no longer selected because of his station in life, there is therefore no guarantee that he can even read and write, let alone form any rational judgment.  It is only natural for him to seek help and guidance from wherever he can find it, and the Internet is an obvious starting point.

Back to Greville Janner.  Enough and more has already been written and exposed in the media to fill a sizeable tome. If he were to stand trial, how on earth are twelve honest men and true going to put out of their minds all they have read and heard about the many allegations? Forbidding them to research further on the Internet is slamming shut the stable door well after the horse has bolted, and a fair trial will be impossible. The trial judge will be under enormous pressure to allow the trial to proceed in the face of legitimate objections from Janner’s defence team, and in the likely event of a conviction, the appeal process will follow him into the grave.

The jury system is beset with problems.  We are now in the twenty first century, and it’s absurd to think that a piece of legislation can control the way in which juries approach the task for which they are summonsed. If further proof were needed, read the two notes sent to the judge by the jury in the unnamed journalist’s trial where his conviction was quashed by the Court of Appeal.  It’s called a travesty of justice.  I have argued before, and I argue again, for the abolition of trial by jury, and let’s have an end to this nonsense.

ABOLISH TRIAL BY JURY

Just when I thought it was safe to go back into the water, Alison Saunders bobs yet again to the surface.  I remind readers, as I remind myself, that she is the Director of Public Prosecutions, and in this role, she is responsible for serious prosecutions and when they are brought. A heavy responsibility you may think, and  one not to be undertaken lightly.

Whilst the role is an onerous one, the pressures on the incumbent are lightened in great measure by an annual salary of £200,000 together with the usual absurdly generous civil service pension.  Her predecessor in title, Keith Starmer, is now Lord Starmer of Horlicks, so Ms. Saunders has much to look forward to.  In the meantime, she blunders on.

The latest blunder to be laid at her door has been the disastrous decision to prosecute two doctors allegedly involved in female genital mutilation, or FMG, popular in many countries east of Suez but having no place in a civilised society.  In the United Kingdom, it is illegal, but then so is child trafficking by Pakistani gangs, and vote rigging, and honour killing, and slaughtering animals by slitting their throats.  Once embedded, it’s the devil’s own job to root out these evil practices.  But that’s another story, and with this ridiculous political correctness where you can’t call a spade a spade, it will remain unaddressed for the foreseeable future.

If this prosecution should never have been brought, what was the judge doing?  He does have a role to play in the conduct of the trial, and the rules are clearly defined.  If he is of the opinion that the jury, properly directed by him no doubt, could not convict on the evidence presented by the prosecution, it is his duty to stop the case.  He didn’t, so in fairness to Ms. Saunders, there was at least a case to answer.

Sad to say, I blame this and other similar cases on the judge.  Time and again, when the case cries out for judicial intervention the judge remains silent, passing the buck to the jury.  And time and again, the jury are found wanting.

The students of our legal system will know that in days of old, the jury were all male, and until recently, over the age of 21 and property owners. This last prerequisite was to ensure that jurors were respected citizens within their own community, knew something about life, and as important, could read and write.  Successive governments watered down these prerequisites, presumably in the interests of political correctness, so today we have a jury of both sexes, Joe, Jane, and even undeclared, swinging both ways, and as important, bringing to the jury box all the gravitas of a comprehensive education, which means they can neither read nor write.  The age qualification has been reduced to 18, so today’s jury can be a frightening assembly of gormless halfwits, all wearing football shirts, sitting in judgment of their peers, and receiving very little help from the judge when they desperately need it.

I have said it before, and I say it again, trial by jury no longer inspires confidence within or without the criminal justice system. It is also expensive and adds considerably to the cost of the trial, which becomes protracted beyond measure.  Trial by Judge, together with two lay assessors, is far preferable, more efficient and likely to produce the desired result, which is to ensure a fair trial and the right verdict.  It works perfectly well in the civil law, so why not the criminal law?  As now, any verdict that is deemed unsafe can be referred to the Court of Appeal, and the icing on the cake would be a reasoned judgment from the judge and his assessors explaining why they have decided to convict or acquit.  At present, nobody outside the jury room is entitled to know how the jury reached their verdict.

THE END OF MAGNA CARTA

The impending fourth trial of the “Heathrow Four” is causing quite a buzz, given the recent decision of the Court of Appeal to deny them trial by jury.

Some of the statistics behind this case are mind boggling. The “Heathrow Four” are charged with taking part in a robbery at Heathrow Airport back in 2004, which netted them £1.75 million. They have to date had the benefit of three trials, all before a jury, and costing the taxpayer £22 million and counting. The last trial was aborted when there were grave suspicions of jury tampering, although the details are far from clear.

The latest episode in this long running saga unfolded in the Court of Appeal back in June last year, when their lordships were asked to rule on the provisions of the Criminal Justice Act 2003. Those provisions allowed for trial by judge alone where there was a real and substantial risk of jury tampering. In short, they ordered the fourth trial, and hopefully the last, to proceed without a jury.

Their lordships considered the cost of protecting the jury, which was estimated between £1.5 million and £6 million, depending on the level of protection offered. The cost was not the overriding factor, nor the questionable use of police manpower and resources estimated between 36 and 82 officers who might otherwise be gainfully employed issuing parking tickets or “on the spot” cautions, but this was all grist to the mill.

The Press and Media have been flooded with comments and opinions from professionals and laymen alike. Needless to say, the professionals, in the form of criminal barristers, are to a man against the ruling, trotting out the usual platitudes about Magna Carta, human rights and fundamental freedoms, but then, they would, wouldn’t they? After all, whoever heard of turkeys voting for Christmas? There is this quaint belief, based on little reliable evidence, that those accused of crime are more likely to receive a fair trial by jury than by judge alone. I suspect this is code for the belief that juries are more likely to acquit than judges, but this is pure speculation.

I have argued in previous articles that trial by jury is coming to the end of its sell by date. By all accounts, their attention span is getting shorter and shorter, and sadly, with the deplorable lack of state education, semi literate or worse still, completely illiterate. Jurors who are able to give up six months of their time to sit in judgment on the “Heathrow Four” are unlikely to be at the cutting edge of the economy, or in gainful employment.

We need a complete rethink about crime and punishment, and not just as a cost saving exercise. As things stand, less than 10% of all criminal cases are tried by juries. The vast majority are tried by magistrates. I propose a reclassification of “either or” offences, those where the accused can elect trial by jury in the crown court, to include all offences where the maximum sentence does not exceed five years. I would leave it to the discretion of the magistrates to commit the accused to the crown court for trial if they felt it was in the interests of justice to do so, but that would be their decision, having heard argument from both sides.

I would increase the sentencing powers of the magistrates to a maximum of 12 months imprisonment from the present maximum of 6 months. These minor amendments would reduce the prison population dramatically, almost overnight, and leave the crown court to deal with the most serious offences.

I would abolish trial by jury, and replace it with trail by judge and assessors. It works perfectly well elsewhere, and I am far from persuaded that the Magna Carta has any relevance today as the cornerstone of the ‘subject’s’ constitutional rights in the face of an oppressive state.

Time to debunk the myth surrounding trial by jury, and let’s get real.

SEE THE HAPPY MORON

I remember reading a ditty the other day: “See the happy moron, he doesn’t give a damn, I wish I were a moron, My God perhaps I am,” and my thoughts turned immediately to trial by jury, that perennial hoary chestnut.

It has reared its ugly head again following a speech from Lord Judge, the Lord Chief Justice of England and Wales, where he warned that the jury system is threatened by the internet generation, who no longer get their information by listening to people speaking. As evidence of this, he cited his grandchildren as being ‘switched off’, presumably when he rose to address them over the breakfast table.

Now I don’t know what Lord Judge did in a former life to earn an honest crust, but he’s been away from the coalface since 1988, when he was first appointed a High Court Judge, so I wonder why, after all these years, he feels qualified to pontificate. I suspect it may have something to do with the need to be seen to say something, anything, to underscore his recent elevation.

On any view, these pearls of wisdom are anything but, and tackle the problem from the wrong end. The mischief is compounded by a spokesperson from the Bar Council, that antediluvian body supposedly representing the interests of barristers, who condoned the demise of “florid and colourful advocacy” in favour of the multimedia as adjuncts and tools to help the advocate make his case in the most effective way. Absolute garbage!

A little basic research would not come amiss. The reason why juries ‘switch off’ is because barristers have lost the art of advocacy, and have replaced it with prolixity. Trials have become longer and, inevitably, more boring, as advocates fail to distinguish between relevance and irrelevance, so they throw in the lot, and expect the jury to do their work for them.

The art of cross examination has been dead for many years, and final speeches would test the patience of a saint in style and content. The all comers record was a final speech lasting a full week. That’s twenty five hours! At least that particular advocate was disbarred, not because of his final speech I hasten to add, and he’s now practising his unique brand of advocacy beyond these shores. My style of advocacy could indeed be described as “florid and colourful,” I’ve never regretted it, and though I say so myself, nor have the juries I’ve addressed. I do a fair amount of public speaking, and as I rise to my feet, I remember the advice I was given when I first started out:

“A good speech should be like a woman’s dress. Long enough to cover the essentials, and short enough to be interesting.”

Arguably my most effective speech to the jury came at the end of a three week trial, delivered entirely in verse, and lasting all of eight minutes.

Go into any crown court in the land, and odds on you’ll hear boring monotonous repetition. And this is not confined to the advocates. Trial judges are equally to blame, and the likes of Lord Judge and the Court of Appeal must bear their share of responsibility. Trial judges must be far more proactive in regulating the proceedings, stamping down on prolixity and concentrating on the main issues. They are most at fault when it comes to summing up the case to the long suffering jury. Time and again, like incompetent advocates, they simply repeat the evidence, almost verbatim, throwing in the lot and expecting the jury to do their work for them and sort the wheat from the chaff.

Juries listen daily to the spoken word, usually in front of the television, and successful television producers are well practised in the art of presenting information in an interesting and digestible form, concentrating on the main issues and dispensing with verbiage. That’s what advocates should learn, so it’s back to the drawing board.

The new breed of ‘advocate’, coming as they do from the ranks of solicitors with no training in the art, and no feel for it, are the main culprits, but the Bar is not beyond reproach. Pupillage is intended to give embryonic barristers a taste of advocacy outside the lecture hall, but gifted advocates are rapidly becoming a dying breed.

I’m in favour of giving juries greater control over the proceedings. When they’ve heard enough, and they’re bored rigid, they should have an X Factor buzzer which they can press and bring the lamentable performance to an end. Now that’s what I call using the multimedia as effective “adjuncts and tools” in the trial process.

TWELVE HONEST MEN AND TRUE

In one form or another, trial by jury has been with us for the best part of eight hundred years. The principle that a man charged with high crimes and misdemeanours should be tried by a jury of his peers is the bulwark of a civilised society, or so they say.

The statistics are interesting, if statistics can ever be interesting. With the obvious exception of libel, trial by jury is now confined to crime. However, only 12% of all crimes are now tried by jury in the crown court, as most criminal cases are tried by District Judges or a panel of magistrates. Of those cases finding their way to the crown court, the vast majority settle, or the police lose the file, or the Crown Prosecution Service make a horlicks of it and jack it in at the first opportunity.

The composition of the jury has changed markedly since twelve honest men and true. First we had women, then the age qualification was dropped from twenty one down to eighteen, and now any Tom, Dick or Harry is eligible for jury service, including lawyers and judges! We have also witnessed the dumbing down of the legal system, with happy morons sitting side by side with the more intellectually gifted, and all having an equal say. Time was when the happy morons would defer to their elders and betters, but no more. As Dirty Harry once memorably quipped: “Opinions are like assholes, everybody’s got one.”

I used to be a vocal proponent of trial by jury, but recent startling acquittals have led me to question its merits as a fair way of reaching the truth. The acquittal of the monosyllabic Steven Gerrard is a case in point. You may remember the case. Gerrard was charged with affray, and tried and acquitted by a jury of his peers at Liverpool Crown Court, and this in the teeth of CCTV evidence. Bearing in mind that Gerrard is an iconic footballer playing for Liverpool Football Club, whatever possessed the CPS to allow the trial to take place within a stone’s throw of Anfield? Far better to have moved the venue to Manchester, where, after a fair trial, he would have been convicted, and would now be playing football in the prison exercise yard.

The criminal system allows the judge to direct the jury to acquit at any stage of the trial, but not to convict, so even where the accused has no defence whatsoever to the charge, the judge is powerless to intervene. It should also be remembered that the concept of fairness, much vaunted in trial by jury, implies fairness to both the prosecution and the defence. So I wonder out loud what the victim of Gerrard’s aggressive behaviour thought of his acquittal? These perverse verdicts cause considerable problems for the police in gathering evidence, interviewing witnesses, getting them to court, and putting them through the ordeal of giving evidence. It’s little wonder that witnesses to crime are so reluctant to come forward.

Times have changed since Lord Goddard, the Lord Chief Justice and the trial judge, single handedly engineered the conviction and execution of Derek Bentley back in the early fifties. Judges are now more user friendly, and in my opinion, the chances of an acquittal before a judge are just as high as they are with a jury. But more important, judges understand the complexities of the law in a way that is totally alien to the average juror, and are better placed to apply the law to the facts. This results in a fair hearing and a proper verdict.

 

But it goes further. Juries are never called upon to give their reasons for their verdicts, perhaps just as well, and the way they deliberate remains a closely guarded secret. Contrast this with trial by judge. He will invariably give his reasons, as he is required to do in civil cases, and often in the form of a written judgment, so it’s there for all to read. It’s called transparent justice.

 

The other problem I have with trial by jury is their capacity to understand directions of law. Take the offence of theft. The judge must direct the jury that before they can convict, the prosecution must make them sure that the accused dishonestly appropriated property belonging to Bloggins with the intention of permanently depriving Bloggins of it. Doh! And this is supposed to be one of the simpler directions of law.

Sadly, I must revisit my support for trial by jury, which is now an anachronism. It served a purpose, but no longer, and by persevering with it, we risk making a laughing stock out of the criminal law.