Britons cherish the idea of trial by jury. Again and again in public opinion polls, they agree that serving on juries is an important civic duty. Whenever they perceive any threat to this cornerstone of their legal system – such as the government’s consultation, out later this month, in the wake of Sir Robin Auld’s report into the criminal justice system – they make their concern known, loud and clear.
And yet two-thirds of people summoned for jury duty get themselves excused (in London, that figure is even higher). Of those who don’t seek to be excused, half ask for, and are granted, deferments. Juries are selected on the basis of the electoral register, and that excludes for a start around 10 per cent of the adult population – the young, the transient, the homeless and those who just don’t want to participate in the political system. Juries are not representative of the population as a whole.
It is estimated that, in theory, adults in England and Wales have only a one-in-six chance of ever having to do jury service. But the figures are worse than they appear. With evasion so endemic, those civic-minded enough to serve find that they are likely to be called several times.
A few years ago, when I was working for a national media organisation, I was summoned to jury service. I took the summons to the personnel department in the naive assumption that I was letting them know when I would be unavailable for work. Instead, without consulting me, they wrote to the courts advising them that, because I was a journalist with “access” to court proceedings (which is true of every member of the public), it would be inappropriate for me to serve (anyone associated with courts and the legal system is currently ineligible). I was amazed that such a letter was written, and even more amazed that such a flimsy excuse was accepted.
So this time, when the summons came, I was determined to go. It came as no surprise to find that of the hundred or so of my fellow jurors waiting to be called in, few were from professional and business backgrounds, and virtually none appeared to be poor or young.
Auld’s report recommends an end to the automatic disqualification from jury service based on occupation. Auld also wants to widen the net used to select jurors to include not just the electoral register, but national listings such as those for driving licences and telephone directories. Perhaps most significantly, Auld suggests a system of fixed penalties, “rigorously enforced”, for those who fail to turn up for jury service without having proved “good cause”.
So one cheer for Auld. He has been less positive, though, in allowing research into juries’ deliberations. Criminologists, academics and the legal profession have a public obligation to keep the legal system under review, yet they are banned from interviewing jurors as part of their research. Surely freedom of information should allow journalists to investigate juries’ deliberations, particularly in those high-profile cases where the verdicts apparently conflict with the evidence? The current contempt of court provisions could be amended to preserve the anonymity of jurors and to maintain the confidence of the public in the process.
There’s another aspect of jury reform that Auld fails to address. Anyone who has ever watched a courtroom drama will be familiar with the formulation that the jury should convict only if they are satisfied of the defendant’s guilt “beyond reasonable doubt”. Yet when I was a juror, we were not instructed by the judge to convict based on these time-honoured words, but instead were told to convict only if we were “sure” of the defendant’s guilt.
The new wording, circulated by the Judicial Studies Board (in effect, a department of the Lord Chancellor’s Office) in 1999, said the following: “How does the prosecution succeed in proving the defendant’s guilt? The answer is – by making you sure of it. Nothing less than that will do. If, after considering all the evidence, you are sure that the defendant is guilty, you must return a verdict of ‘Guilty’. If you are not sure, your verdict must be ‘Not Guilty’.”
Research conducted for the Criminal Studies Board found that 51 per cent of the public, and even 31 per cent of magistrates and legal professionals, interpreted “sure” as meaning 100 per cent sure – which is nonsense. How can anyone be 100 per cent sure of anything? The jury on which I served became virtually paralysed by this dilemma, and in the end we had to return to the court to ask the judge for guidance as to the precise meaning of “sure”. This he declined to give but, noting our exasperation, he urged us to “use your common sense”.
The new guidelines were issued because it was felt that the “beyond reasonable doubt” formulation was difficult for juries to grasp. And this brings us back to the issue of research: in the absence of any serious inquiry into the workings of juries, how was that known? Shouldn’t we have had a little more public discussion before getting rid of the old wording? Auld’s silence on the matter is troubling. To have conducted a comprehensive review, amounting to about 700 pages containing more than 300 recommendations, and not even to have considered the issue, is perplexing to say the least.
The government is due to respond to the Auld report later this year. Let’s hope that it responds both to what Auld says and to what he has failed to say.
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