Last week saw the completion of two trials in which juries played a crucial role, those of Abu Hamza and Sion Jenkins. In the first the trial of a man now known to have been a serious public menace was delayed for four years because the Crown Prosecution Service felt that the evidence of the police and MI5 was insufficient to get a jury conviction.
Rather than reform this system the home secretary, Charles Clarke, intends next week to press ahead with counter-terrorism laws that will, in effect, replace independent justice with executive justice. He will argue that, since courts are slow and jurors may not convict, he must lock away without due process of law anyone suspected by the police or security services. In place of poor justice Britain will get injustice.
The Jenkins case beggars belief. After nine years, three trials, 700 witness statements and £10m in costs, the judicial system still cannot decide whether Jenkins killed his foster daughter, Billie-Jo. The nine years included six spent by Jenkins in prison under the barbaric Charles Clarke regime where prisoners who refuse to admit their guilt are denied all privileges. This medievalism survives only because Clarke is terrified of the Daily Mail and the Prison Officers’ Association, jealous of its power over prisoners.
No sooner was the Jenkins jury released and the accused formally acquitted than Thursday’s newspapers were filled with evidence that the jury had not been allowed to hear although it had been heard previously by Court of Appeal judges. This evidence, of violent rages suffered at Jenkins’ hands by his former wife, had been banned from disclosure at the trial as “prejudicial” (a word seemingly synonymous with relevant). The impact was to make the jury appear a bunch of dupes.
Jenkins duly had to endure a fourth trial at the hands of the press, with evidence in play that he had been unable to challenge in open court. As a result I doubt if a single newspaper reader now regards his acquittal as “clean”. The farrago has gone on for almost a decade and cost the taxpayer millions. Assuming Jenkins is indeed innocent, as the judge has declared, he is now a victim of public obloquy.
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Barristers championing juries portray them as all-wise embodiments of good old British common sense. Yet they then treat them as idiots who cannot be trusted with the truth. They declare jurors clever enough to hear year-long fraud cases yet not clever enough to decide for themselves the relevance of particular evidence to a case. In a recent trial a jury was asked whether a credit card had been stolen but was not permitted to know that 100 other cards were in the accused’s possession. This is not justice but charades.
Running round London at the moment is a man I am convinced is an attempted murderer, whom I as a juror freed last year. We acquitted him not because he was innocent but because we were asked to decide only whether his lawyer had beaten the prosecution lawyer in staged combat. After hours spent watching these ham actors in wigs and gowns dispute with each other, with a supporting cast of solicitors and police, the drift of the judge’s summing up was to the effect that the jury could only acquit.
As “identity” was the key issue, the admissibility of apparently relevant facts and motives was a constant battleground. Since witnesses kept blurting out “inadmissibles”, we jurors lived in constant fear of a mistrial. We felt like an audience to a whodunit, except that we were asked by the judge not who did it but whose lawyer put on the most convincing performance on the day. The jurors were like drama critics in a bar. Subsequent conversation was devoted to how long it would take the accused to go back and finish the job. Some of the jurors were foreign. They were baffled at British justice.
I have been a juryman three times and the experience, although rich in civic insight, has been tedious beyond belief. The best that its defenders (mostly lawyers) can say for it is that some people like it and “juries probably get it right most of the time”. Anyone who ran a hospital, a school, a railway or an army on such a basis would be thought insane.
Juries try less than 2% of criminal cases. They are a judicial sideshow. Given the professed sanctity of the institution to lawyers it is a wonder that they accept the fairness of the remaining 98%. Yet successive attempts to curb jury trial, including current proposals for fraud cases, have met fierce opposition. Research suggests that 90% of those electing to go for jury trial are guilty and are merely seeking delay or putting their faith in the ever-rising jury acquittal rate. The jury is presented, usually by those who have never sat on one, as a citizen’s last line of defence against an over-zealous state. It is mostly a villain’s last throw against conviction.
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In March last year the 21-month Jubilee Line fraud case collapsed after some of the jury went on strike. The court had sat for just 40% of that period. For the rest of the time lawyers argued with each other, went on holiday, got pregnant or took time off for “research”. The jury had to be discharged despite Lord Falconer, the lord chancellor, offering to bribe them with £200 a day to stay, or four times the going rate. (Jurors are still paid as if they were Shakespeare’s yokels.) When the jurors pointed out that the barristers were getting up to £3,000 a day, the judge declared the revelation a contempt of court. By the time the relieved defendants left scot-free, £14m had been spent on legal aid and £44m in other costs.
These cases are extreme. But nobody is ever held to account for this money. No barrister or judge is sacked for incompetence or fined for wasting public money. Falconer, a lawyer, threatens to fine employers who do not release staff for jury service, but he does not explain why companies should be taxed to provide work experience for his professional colleagues.
Juries date from the days of trial by ordeal, with which they bear comparison. They survive in Norman France and former British colonies but not elsewhere. Elizabethan citizens were compelled to join in civic government as constables, vestrymen, militiamen and dog catchers. Only jury service survives. Everywhere it is characterised by delay, expense and a populist addiction to imprisonment in the event of conviction. Britain and America send more people to prison and are more averse to community punishment than the professionalised, low-key justice systems found elsewhere in Europe.
To maintain that the fabric of British liberty rests on the tiny minority of cases tried by juries is absurd. To extend the remit of magistrates and judges is not some offence against Magna Carta or a capitulation to an overmighty state. Judges these days are mostly a liberal bulwark against the state. It is jurors who are taken in by cot-death experts and smooth-talking fraud lawyers or are bamboozled by court custom and practice.
As for the talk of reforming rules of evidence, improving case management and beefing up crown prosecution, that has been promised since the Roskill committee criticised jury trial 20 years ago. Juries are a make-work scheme for lawyers as medical restrictive practices are for hospital consultants.
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I can see the case for a category of “matter of opinion” cases going to citizens’ juries, such as official secrets, causing public offence or incitement to racial hatred. Here the issue is not fact but what reasonable people might regard as intolerable behaviour. Such a form of trial should be stipulated in the relevant statute. Otherwise juries should go the way of stocks, ducking stools, Dogberry and Judge Jeffreys. The criminal law should be professionalised and Britain’s hysterical obsession with gory trials diminished.
The Hamza, Jenkins and Jubilee Line cases suggest that Mark Twain was right. Juries are “the most ingenious and infallible agency for defeating justice that human wisdom could contrive”. That citizens should be pressed into service to provide an audience for a professional parlour game is archaic and ruinously expensive. This really cannot continue.
Tony Blair once promised to carry reform into every corner of the public service. Not here he won’t. He and his wife are lawyers.