I recently read the book by Chris Daw QC, “Justice on Trial” https://www.bloomsbury.com/uk/justice-on-trial-9781472977885/lawuk , which I recommend strongly to anyone involved in the “Justice” system. The inverted commas that I use around the word “Justice” are there to imply that the system is not really about justice. For the prosecution it is about gaining a conviction or maximising the sentence. For the defence it is about gaining acquittal or minimising the sentence. To me there seems to be no one in the English system concerned about justice in the sense that the layman uses the word. There are many words in legal language that do not easily translate into everyday speech. A useful example is the word “evidence”, which we use in everyday life to distinguish fact from fiction whereas in legal jargon even an unverified piece of paper is described as “evidence”. Another one is “dishonesty” which is described by judges as undefined and left to the appreciation of the jury. One thing Chris’s book does not cover is the jury system which is the reason for the existence of this essay.
The Police and the Crown Prosecution Service (that is a name which, at least, describes the organisation’s role accurately) both work for the prosecution and, in my experience, they will go to any lengths to influence judge and jury of the guilt of the accused without necessarily taking an objective view of the evidence. They also have the tremendous advantage of being able to avoid telling the truth, the whole truth and nothing but the truth, whereas the accused is obliged to respect those constraints under threat of conviction for perjury. The defence team is made up of a solicitor, who often seems to do as little as possible, except to ensure that the maximum of Legal Aid can be obtained, a barrister who is probably struggling to make both ends meet and a QC who is frequently more concerned about his or her relationship with the legal fraternity rather than whether one of the brethren is actually not telling the truth, has not disclosed all the evidence or has not assured himself that all reasonable lines of enquiry have been pursued
There is no better example of a “beauty contest”, in my opinion, than the jury system. Whether it be the performance of the QC’s and barristers themselves or the performance of the accused or witnesses, when ordinary people are faced with a complex situation which they have little chance of understanding, given the way “evidence” and trials are organised, ultimately the jury may decide on the person and not on the facts of the case. By ultimately, I mean once all the nonsense has been thrown out of the case and there is still no clarity as to guilt. If someone states, for example, that the performance of the QC has no effect on the jury, then they should explain why all QC’s are not paid the same amount. We know that there are differences in competence between legal teams. This is one of the most dangerous aspects of the jury system, especially now that majority decisions are allowed (since 1974 according to Wikipedia). Moreover, we see occasions when the prosecution sets out to denigrate the accused by inuendo or irrelevant commentary which goes unchallenged by the judge or defence even though the clear aim is to influence the jury. If it were not the aim, why would they do it?
The rule of unanimity provided some form of safeguard. It is highly probable that out of 12 people in a jury there would be someone who has a deeper or different understanding which could make others reconsider. But, when the notion of majority opinion is allowed into the calculation, we must cope with the assumption that, because the majority believe in something, what they believe in is a reflection of what is factually true. As most people’s opinion seems to be that the prison system offers holiday camp facilities to inmates, for example, this assumption is clearly fallacious. Whilst on this topic it is worth considering the way juries are selected, or, rather, who can successfully request exemption. Whilst civic duty may be a strong motivation, a small businessman is hardly likely to want to spend 3 months worrying about someone else’s problems. The same could be said of any employee who holds a position of responsibility. Moreover, and paradoxically, the judge may well exclude people from specific jury service who might have knowledge of the background of a case on the grounds that they might show “bias”. Again, in legal language the word “bias” has a different meaning. It does not mean that the person in question has some inbuilt prejudice, but rather that they might be more sympathetic to the accused given that they understand the complexities of the case. Indeed, I dispute the archaic and aristocratic notion of trial by one’s “peers”. Is a primary school teacher the “peer” of a film maker in a tax evasion case, for example? The prosecution would deny jury service to someone involved in the film industry on the grounds of bias because the assumption is that the knowledge of that industry would cloud their judgement! However, the same prosecutor would agree to a person who has less understanding, time on their hands and possibly a real-world bias against anyone deemed to be vaguely different.
I could expand this topic to hundreds of pages but let me finish by suggesting a few quite simple fixes which would render the system fairer, more transparent and probably more efficient:
- The right for the accused to request that the jury be made up a small number of legally trained professionals or possibly a mix of professionals and laymen.
- The right of the legal team and judges to call into question the integrity of the prosecution when obvious attempts are made to denigrate the character of the accused.
- The requirement for a judge to specify to the jury what is verifiable evidence and what is merely speculation, circumstantial or presumption.