Evidence can leave jurors traumatised, but is help at hand

In the event, pictures of the squalor in the house at the time of the discovery of Declan’s body were shown in newspapers and on TV after they were released by the Crown Office. The images will have drawn an intake of breath in most living rooms in Scotland. The jury will have seen much worse, including the mortal remains of the child.

In recent years an apparatus of supports and protections has been built up for victims of crime and for witnesses. Police and fire & rescue services have developed confidential counselling systems for staff who have dealt with terrible injuries or attended the scenes of horrific crimes.

But what about the 21,000-plus citizens who last year served on a Scottish jury?

There is a little-known scheme available to jurors who feel that they have been left with images and narrative from the case after the judge has thanked them for doing their civic duty and sent them home.

The Rivers Centre is part of the Royal Edinburgh psychiatric hospital and was set up to assist people struggling to come to terms with traumatic events in their life. The events by definition are usually unexpected and always uninvited – affecting combat veterans, refugees and asylum seekers, emergency services personnel and survivors of disasters from train crashes to earthquakes.

The director of the centre, consultant clinical psychologist Dr Claire Fyvie, says they have had a trickle rather than a flood of self-referrals from jurors over the ten years of their contract with the court service.

“The main presenting problems refer back to photographs or video footage that have been shown to the jury. They report the disturbing images intruding into their consciousness at home or at work and creating feelings of anxiety or even fear. In our experience, the upset is worst when they have been exposed to images of serious violence or when there is a child involved.”

The Rivers Centre contract with The Scottish Court Service (SCS) covers all the Scottish jurisdictions. The costs of counselling – only available after a trial is over and not during – are covered by the SCS.

“We have a range of therapeutic approaches available,” says Dr Fyvie, “but the essence of them all is to help the client process the experience and put it in its context. Very few ex-jurors meet the full diagnostic criteria for post-traumatic stress disorder (PTSD). It isn’t helpful to put a clinical label on what is a normal reaction. We would all struggle with some of the material. It only becomes a problem if the anxieties persist for more than a few weeks.”

Dr Fyvie believes that the fact of jury service provides some protections of its own against the anxieties that might be generated by exposure to the same material in another context. “Being on a jury is important. It’s a productive act of citizenship. And they are members of a 15-strong team with a single job to do.”

The main piece of UK research into juror trauma was published in 2009 by Dr Noelle Robertson and team from the University of Leicester. Originally from Forfar and taking her first degree at Aberdeen University, Dr Robertson’s paper picked up on the conflict between most people’s usual way of processing difficult experiences by talking them through with friends and family, and the strict rules of the jury room, reinforced by dire warnings from the bench against discussing the evidence with anyone else.

One suggestion from her limited sample in Leicester was a proposal that each court should employ a jury supporter authorised to talk to any juror finding evidence particularly troubling. It is not particularly high on the public agenda. “They haven’t beaten a path to my door saying thanks for suggesting something that will be an extra cost to the system,” says Dr Robertson.

She has also encountered little enthusiasm for a screening question that would allow a prospective juror with a similar traumatic experience in his or her own life to that about to be prosecuted to ask to be excused. Trial lawyers point out that the whole point of a jury is that it should be a randomly selected cross-section of the community, frailties and all. Dr Fyvie understands the point but cannot think of a screening tool. “If the armed forces don’t know how to screen for recruits who might be particularly vulnerable to PTSD, I can’t imagine it will be easier to do it for juries.”

Derek Ogg QC has recently returned to defence practice after four years leading the Crown Office sexual crimes unit. He thinks there may be some merit in the concept of the state’s duty of care to the citizens it requires to do jury duty – and believes there is a calculation to be made on how much disturbing evidence the prosecution should present and how it should be presented.

“Defence lawyers will want the jury to spend as little time as possible with a book of photographs of horrible injuries,” says Ogg. “They don’t want the jury to dwell on that aspect of the case. But it isn’t necessarily the opposite for the prosecution. If you have a book of photographs of gaping wounds or decomposing bodies, even though you ask the jury to look only at ‘number 38’ you can see that some of them can’t take their eyes off the rest. If it is particularly shocking or depraved, they may actually stop listening for the rest of that witness or even for the rest of the morning.

“I think there is an obligation of respect to the deceased not to be cavalier with images of their broken body more than is required to secure a conviction. On the other hand, I know families of the victim in a death by dangerous driving want the jury to see photographs of the injuries ‘to see what the accused did’. But the injuries are rarely significant to proving the charge which is about the accused’s driving.

“It is a calculation but I don’t think the jury’s welfare is a major factor.”

The SCS is in the process of drafting a leaflet about the Rivers Centre services that will be given to all jurors at the outset of a case.