Bail reform—including the elimination of the bail system—has become a fashionable policy position for would-be wonks.
The jury system is like democracy, the worst system in the world except for all the others.
Quite often when giving evidence before a jury I have wondered how much they were taking in or even paying attention. Certainly they never dressed for the occasion; they looked rather as if they had popped out to the convenience store on a lazy Sunday morning to get something they had just run out of. Like most of the contemporary population most of the time, they looked a mess. It is probable that the defense would have objected to a juror who looked too well-dressed.
Usually on any jury, though, there are one or two jurors who take notes with fierce concentration; I presume they dominate or prevail upon their fellow-jurors in the deliberations to come, though in this I may be mistaken, for even now no one knows what goes on the jury room. At any rate juries, at least in my experience, rarely pass verdicts that are patently absurd or fly in the face of the evidence. Somehow, despite the fact that juries nowadays almost always contain people with attention deficit disorder, the terminally bored, flibbertigibbets, the drugged, the plainly idiotic, the too-young-to-care, the dreamers and the incapable (among others), they arrive at a sensible conclusion. In a way it is not only surprising, it is inspiring.
However, a recent prominent case in England cast some doubt in the public mind as to the wisdom or even viability of the jury system. It was in a case that was already sufficiently dramatic or at least newsworthy, for it involved a cabinet minister and his wife.
Some years ago a man called Chris Huhne, who later became a cabinet minister under Mr Cameron, was caught speeding by a radar trap. If convicted, not for the first time, he would have lost his driving license and as he was standing for election at the time this would have been highly inconvenient for more than one reason. So he persuaded his wife to claim that she had been driving at the time and take the penalty.
Unfortunately he then left his wife, a high-flying economist of Greek extraction, for his secretary; and, thirsting for revenge, his wife went to the press to relate the story of the speeding offense. He and she were promptly arrested; Mr Huhne confessed and awaits sentence. His wife opted for trial on a charge of perverting the court of justice, in which her defense was that of coercion by her husband, at the end of which the jury could not agree on a verdict. It the midst of its deliberations it sent the trial judge a series of ten written questions that he deemed to be lacking in the most elementary understanding of the functions and duties of a jury. The judge said that in thirty years in the criminal courts he had never come across anything like it. He ordered a retrial.
Indeed the questions did seem astonishing. Here is a sample of them:
- Can a juror come to a verdict based on a reason that was not presented in court and has no facts or evidence to support it, either from the prosecution or defense?
- Can we infer anything from the fact that the defense didn’t bring witnesses from the time of the offence, such as au pair, neighbours?
- Would religious conviction be a good enough reason for a wife feeling that she had no choice, i.e., she promised to obey her husband in her wedding vows and he had ordered her to do something and she felt she had to obey?
To the jury’s question of what constituted reasonable doubt in the phrase ‘beyond reasonable doubt,’ the judge, clearly very irritated, said that they were ordinary English words that the law forbade him from defining further. A reasonable doubt is a doubt that is reasonable: c’est tout, to use the ordinary words of another language.
In the light of these questions, the commentary in the British press called into question the viability of the jury system. If people could ask in all seriousness whether someone could be convicted in the absence of all evidence whatsoever, even after it had been clearly and explicitly explained to them – as it always is explained to them – that they are to consider in their verdict absolutely nothing that is not presented as evidence in the court, then surely the jury service was not, to use the present managerial jargon, ‘fit for purpose’?
My first observation is that the judge said that he had never come across anything like it in thirty years. Now in thirty years he must have taken part in or tried hundreds if not thousands of cases. A single instance in thirty years would not be enough from which to conclude anything about the fitness or unfitness of an entire system.
Second, and just as important, the questions struck me as cunning rather than merely stupid. Some of the press commentary drew attention to the fact that only two of the twelve jurors were white and many of them had presumably not been born in Britain. But there was no question of a deficient command of English: if anything, the questions displayed an above average command of the written language. No one who wrote or understood English haltingly could have asked the following, for example:
You [the judge] have defined the defense of marital coercion and also explained what does not fall within the definition by way of examples. Please expand upon the definition (specifically “will was overborne”), provide examples of what may fall within the defense, and does this defense require violence or physical threats?
It is perfectly obvious from this that lack of understanding was not the problem. Anyone who could have asked such a question, worded in such a way, must have been able to understand the role of a jury in an English trial, and almost certainly did understand it. What he, she or they wanted to do was to cause the trial to collapse: whether from political sympathy for Mr Huhne, or because of hatred of the criminal justice system in general or the jury system on particular, or for some other reason, I cannot say. The demand for a definition of the ‘reasonable doubt’ of ‘beyond reasonable doubt’ is that of a subversive undergraduate, proud of his own dialectical cleverness, rather than that of an immigrant with an uncertain command of English. It is the demand of someone so self-righteous and with such self-esteem that he places his own ratiocinations far above the wisdom of ages.
Let me for once end on an optimistic note. It is my belief, based on experience, that (at least in England, still in the present day with all its deficiencies) twelve people chosen at random, whatever their origins, are capable of leaving their prejudices behind them for a time and in the solemnity of a court of law are capable of attending only to the evidence before them. An exception, probably wrought by one strong personality of high intelligence and doubtful, if very strong, principles, does not alter this. The jury system, imperfect as all things human are, remains a bulwark against tyranny.