DOING without jurors for difficult court cases does not guarantee that justice will be done, writes Michael Kelly
How can a jury accept self-defence as justification for a policeman kneeing a prisoner in the face? But one did in Kilmarnock this week. To an external viewer the acquittal seemed preposterous, and it certainly astonished the recipient of the blow.
Given the exposure of various police forces in the Hillsborough case, the shooting of a Brazilian electrician, the death of Ian Tomlinson and the leaked testimony against the Tories’ respected chief whip Andrew Mitchell, many people’s experiences would lead them to doubt any policeman giving evidence. However, the two-minute summary that television news devoted to this case is no basis on which to second-guess the jury. A 15-strong panel of ordinary people sat through all of the evidence, assessed the way in which the participants in the trial said their various pieces and possibly took a wider view of fairness than simply a narrow look at the immediate facts. Possibly.
That certainly seemed to have been the case in the first Tommy Sheridan civil case. The good folk of Edinburgh decided that they liked Tommy better than the News of the World and found for him. Though that verdict led to all sorts of repercussions, subsequent evidence suggests that, in terms of justice, the jury got it spot-on.
Occasional surprising and irrational findings are to be expected from a system that thrusts enthusiastic amateurs into positions of power and responsibility. Sometimes jurors are not so enthusiastic and sometimes they are not up to the faith shown in them by society. The length and complexity of trials has even led to jury strikes and the abandonment of cases, as in 2005 when the trial of six men charged with attempting to bribe London Underground officials was deserted after two years. This led to the introduction of a bill which proposed the abandoning of juries in complex fraud trials. The proposal was blocked by the House of Lords, where Lord Kingsland said: “Jury trial has been a central component in the conduct of all serious criminal trials for about the past 700 years. Its contribution to the preservation of the liberty of the individual, and to the legitimacy of government, is quite incalculable.”
In the light of these strong views, it is perhaps worth examining the suggestion by Iain McKie to appoint professional juries. However, his proposal is that “normal people”, not “professors or people with degrees”, be trained to do the job.
That suggests either a small panel of trained people who go from case to case and become part of the legal establishment or the sending of each new juror for training – a grossly expensive proposition. In fraud cases, what we want are the professors and people with degrees in finance and accountancy who can understand what is going on. Having said that, the no-jury, all-expert-judges trial of Abdelbaset Ali Mohmed al-Megrahi resulted in the Scottish Criminal Cases Review Commission referring the case to the Court of Criminal Appeal amid grave doubt about the verdict.
In cases of crimes against people, the jury system gives more reassurance of a fair trial. Complex though murder and rape trials may be, it is surely the very purpose of our adversarial system that the legal teams on both sides clarify the issues sufficiently for the jury to make an informed decision.
If any change is to be made, it might well be that fundamental one of moving towards the more inquisitorial systems favoured for difficult cases in other jurisdictions, such as France. This can be presented as a system which aims first to get at the truth rather than deliver a verdict. However, there is no evidence this produces fairer results.
Easy access to information denied to jurors in a trial for sound legal reasons can now easily be circumvented online. One juror in England has already been caught looking for previous convictions of an accused. But the juror’s mistake was not to look it up but to disclose it to fellow jurors, who reported her. Jurors who are prepared to keep such improperly gained information to themselves are virtually uncatchable.
And that is the major problem with the proposal to cover trials by television. A judge may counsel jurors not to read reports during a trial. The only way to prevent them seeing the day’s proceeding on TV news is to lock them up in hotels for the duration. That is not only too expensive but the prospect of weeks of incarceration is going to reduce even further those willing to serve.
There are no interests to be served by the televising of trials except the prurience of the media and the public. Aamer Anwar, a solicitor not shy of publicity, is right to argue that trials would be trivialised and advocates tempted to turn to Hollywood for role models. Donald Findlay, another great media performer, put his finger on it when he pointed out that television’s wont will be to invite viewers to record their own verdict, hoping it conflicts with the official one.
Eminent QC Derek Ogg sees no advantage in it at all. The problems it would pose are significant threats to justice. In many cases there is the anonymity of the victim to protect. And there is the anonymity of the accused. If that person is found not guilty of the crime, his reputation could be irreparably damaged by evidence, even though that evidence was, at a later stage of the trial, found to be false. The trial of OJ Simpson and its miscarriage of justice is no model for Scotland.
Direct televised evidence will have much more impact on the public than the third-party reporting that is now permitted. If people are so concerned to see justice done, then they can find their way to the public galleries in any courtroom.
It is always worthwhile reviewing a system as vital to a fair society as the legal process. But many of the recent miscarriages of justice have arisen not from jury trials but from government-established inquiries, such as the first ones held into Bloody Sunday and Hillsborough. Lying professional witnesses are more of a problem than incompetent jurors. Reform there would be a better place to start.