If you wanted to design a criminal trial system that was expensive, long-winded and capable of delivering indeterminate results, then ideally it should require a jury of 12 true citizens.
The jury in its early days was a genuflection towards the democratic ideal – for the fate of alleged offenders to be determined by their peers.
Over the eons lawyers and judges have set about reshaping the institution, so that the democratic idea didn’t get too far out of hand and the accused had a better chance of “getting off” – ie a fair trial.
For instance, in the middle ages relatively small populations, mostly living in villages and towns, would have had firsthand knowledge of the accused. They might even have direct or indirect knowledge of the events that produced the criminal charge.
Judging someone on that basis was highly democratic.
Times have changed. Today, a juror with personal knowledge about an accused person would be forbidden from participating at the trial. Nor would they be permitted to have their own knowledge or insights into the circumstances of the alleged offence.
The democratic ideal is fine, but not that fine. Judges want to control their patch and the current rules say that the 12 can only see and hear what the court permits. Heavens know how much interesting stuff is excluded from their ears and eyes. Today, information and knowledge are ubiquitous, which means ordinary citizen jurors are far less impermeable than they once were.
And the thirst for knowledge is unquenchable. Even if someone is instructed 17 times to just pay attention to the evidence in court and not look elsewhere, the human temptation is to reach for more.
The fragility of juries is all too evident, as Bruce Lehrmann’s rape trial shows. From a time when the system reeked of prejudice, courts are now forlornly and ineffectively trying to quarantine the risk of pre-judgment.
The only alternative is to lock juries in sealed vaults for the duration of a trial.
Otherwise, the way is invariably open for defence lawyers to mount arguments that their clients, in cases with a high public profile and great contention, should not have to face trial at all.
While citizens are susceptible to prejudice, judges are immune and, apparently, are perfectly capable to sitting alone and determining a sound verdict against a backdrop that would be regarded as injurious for the ordinary soft-minded citizen.
The juror in the Lehrmann trial was sufficiently cavalier to leave his research papers in the room, where they were discovered by the sheriff. That was the end of it. There was no need for the jurors to continue with their so far fruitless struggle to reach a verdict.
If, on the other hand, jurors had conducted extramural research in the peace and quiet of their own homes, who’s to know? A tainted verdict quite possibly would have been delivered, with the judge offering congratulations on a sterling achievement.
The world has moved on, yet juries are stranded in an artificial time warp. Defamation and crime were the two areas where community input was thought to be useful at trial. Now juries are virtually unheard of in defamation cases and non-existent in other civil cases. On they cling for serious crimes. But for how much longer? Lawyers in the common-law tradition love juries. They are the audience that must be persuaded, and the opportunities are shrinking.
And while there are more than a cross-section of the less acute citizenry to be found in a jury room, there are also the perspicacious who can smell equivocation and falsity at 20 paces.
And that’s the problem – the cause of much of the delay and inability to reach an outcome.
Scottish juries can deliver three possible verdicts: guilty, not guilty and not proven. For sexual assault cases where there are few, if any, outside witnesses, jurors have fallen back on “not proven” – regarded as a cop out for an inability to arrive at something determinative.
The French, along with other continental systems, do it differently for serious criminal cases. Usually three judges sit in deliberation alongside six lay jurors. The verdict is produced together.
Such a system horrifies common lawyers in the British tradition. After all, it is French – even through there was a fair bit of cross-fertilisation between the two.
Another continental trial characteristic is that the right to silence is limited while the focus of deliberation is on the criminal investigation itself – the dossier.
This is a file which contains all the work of the police and the juge d’instruction. An important element of the French system is an examination of the character of the accused. That might be regarded as prejudicial on home soil.
It is an inquisitorial process, rather than adversarial with its emphasis on hammering witnesses. Investigatory rather than gladiatorial.
We are brought up on the belief that our common-law way of dealing with criminal prosecutions is the very flower of fairness. Sadly, it is not, yet the players on the stage are resistant to testing other systems and dealing with a real world that is stark and unavoidable.
• Richard Ackland publishes 500 Words or thereabouts
