What Pryce justice?

The real value of juries.

One of our national vices is to sneer at those who ask basic questions. This in turn creates a general reluctance of people to ask such questions, so as not to risk “looking stupid”. It is better to keep one’s mouth closed and be thought an idiot, we are often told, than to open it and put the matter beyond all doubt.

Yesterday it was revealed that the jury in the trial of Vicky Pryce had asked some straightforward questions of the judge. One or two of the questions seemed very basic indeed. But the jurors were right to ask those questions if there was genuine uncertainty by any one of them. A person facing a serious criminal charge should be glad of a jury which asks such questions of the judge before convicting, rather than one which has the same questions but keeps silent and then convicts beyond reasonable doubt.

We know very little as to why this particular jury asked those questions. It may be that all twelve of the jurors were equally puzzled on each of the queries posed, though this is highly unlikely. It could be that there was just one juror who was not accepting what the others were saying, and so it was decided that the judge would be better placed to give the necessary guidance in simple language and an authoritative tone. Given that the jury was unable to agree even a majority (10-2) verdict, it is probably the case that not each question was posed by all jurors together.

It would have been far better, of course, had the jury had understood all the relevant points to begin with. But the case which was tried (and will be retried next week) is not simple on either its facts or the law. The judge’s directions to the jury were some seventeen pages long. The jurors were charged with finding guilt or innocence in respect of an action many years ago to which there was no other direct witness evidence other than from the defendant and on the basis of substantial circumstantial evidence. And to these facts the jurors were required to apply the rare “marital coercion” defence, the exact scope of which remains unclear even to many lawyers. 

Juries are certainly not perfect. Any sentimentality about the wonders of trial by jury can often not survive experience of watching one in action or serving on one. My own anecdote is that I once saw a miscarriage of justice when a prosecutor put an early question in such a pejorative manner that the entire jury seemed at once to turn against the defendant regardless of his answer (the defendant was convicted, but he appealed and was then acquitted).

The real value of juries is in what they prevent others from doing. Without juries in criminal cases, decisions on serious criminal matters would be left entirely to judges. Some may say that would not be a bad thing; but when one’s defence on a serious matter depends on assessments of disputed evidence, it is better to have ten to twelve people convinced before any sanction is imposed rather than just one. And juries act as a brake on any biases judges may develop over time in respect of the credibility or otherwise of, say, police or expert witnesses.

Indeed, the main merits of the British constitution are in respect of what each part stops another part from getting away with. The best argument for the Crown is in respect of the ultimate powers others do not have because of its very existence. The House of Commons can sometimes stop the civil service and ministers getting carried away either in bad law-making or implementation of policy; and the House of Lords can be a check on sloppy legislating by the House of Commons. The Courts can review and quash bad laws and decisions, and Parliament can change the law if the Courts’ decisions are unwelcome. No part of the British polity is really that impressive on its own terms; the value of each component lies primarily in the abuses it stops others committing.  Juries are no different.

Some juries are strange, and they may be stranger than we can dare to imagine. Some individual jurors do things so patently weird that one despairs. And some jury verdicts are so perverse that one can only wonder what they are thinking, if they were thinking at all. But like Churchill’s maxim about democracy, juries deciding serious criminal matters are better than the alternatives.


David Allen Green is legal correspondent of the New Statesman

Serious-looking Victorian jurors. Image: Hulton Archive/Getty Images

David Allen Green is legal correspondent of the New Statesman and author of the Jack of Kent blog.

His legal journalism has included popularising the Simon Singh libel case and discrediting the Julian Assange myths about his extradition case.  His uncovering of the Nightjack email hack by the Times was described as "masterly analysis" by Lord Justice Leveson.

David is also a solicitor and was successful in the "Twitterjoketrial" appeal at the High Court.

(Nothing on this blog constitutes legal advice.)

Photo: Getty Images
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Let 2016 be the year that Ireland gives women the right to choose

As we commemorate and celebrate the centenary of the Easter Rising next year, we must remember that while the constitution was hard fought for it cannot be static. 

There is mounting pressure for the Irish government to look into decriminalising abortion. It has been growing since Savita Halappanavar’s death three years ago in a hospital in Galway due to complications during pregnancy. She was refused an abortion because Irish law forbids it. Earlier this month Irish women tweeted the Taoiseach Enda Kenny about their periods using the #repealthe8th in an attempt to bring attention to the issue. Now last Friday, Amnesty International published a letter calling for the decriminalisation of abortion internationally, signed by 838 doctors, most importantly this included some of Ireland’s leading healthcare professionals. This is the perfect time for political parties to commit to holding a referendum on the issue if elected they are elected and form the next government in 2016.

One part of the Irish legislative process I have always been proud of is the use of referendum and bringing serious questions to the electorate. It protects the constitution from changing on political whims or based on the beliefs of whatever party is in government. As such it remains a document of the people, it was after all put to vote before it was instituted in 1937. It also passes issues, which have proved contentious and in other countries have relied on the sympathy of lawmakers, by popular consent. Same sex marriage was legalised in a beautiful display of support, 62% of the electorate came out to vote for equality. Social media was full of pictures of Irish people living abroad going home especially for the referendum.

There has previously been a number referendums on abortion and following Savita’s death, the  Protection of Life during Pregnancy Act 2013 was brought in which allowed abortion if the mother’s life was in danger. It was important and a sensible measure to bring in. However it resulted in serious splits and some contentious situations. Lucinda Creighton defied Fine Gael’s whip and found herself stripped of her ministry and ostracised, leading to the creation of her new party Renua Ireland. Creighton was recently asked if she would agree with aborting baby Hitler. This is the ridiculous side of the debate which doesn’t help either side. Many thought that the 2013 act was too quickly done and not properly explained or understood. A referendum is the best way to avoid this. The question can be explained properly and debated to give people access to more information. Once passed, it is done so with consent from a majority of the electorate and this makes it much more difficult to argue against its legitimacy than if it is forced through. The result is also binding regardless of the current government’s stance, you can have a second vote but you can’t force people to vote the other way.

Public support for legalising or extending abortion rights is there. A RedC poll for Amnesty International in July showed 67 per cent of people thought abortion should be decriminalised while 81 per cent thought it should be allowed in more situations. 45 per cent were in favour of abortion whenever a woman wanted it. It is not an overwhelming figure but if 45 per cent of people believe this should be instituted then they ought to be listened to and the question brought to the country.

Realistically, nothing will be done before the next election which is expected to be held in early 2016. However now is an excellent time for political parties to examine their stance on abortion and look at holding a referendum and making it part of their manifestoes. The new government will then be in a position to announce a new referendum on abortion as soon as they are in power. The last one was held in 2002, meaning that many young people particularly women at the height of their fertility have never actually had a say on this matter.

As we commemorate and celebrate the centenary of the Easter Rising next year, we must remember that while the constitution was hard fought for it cannot be static. The world that its authors inhabited is not the same as the one we live in today. The constitution has changed to bring peace to Northern Ireland, to legalise divorce and same sex marriage, let 2016 be the year it changes to give women the freedom to choose.