Stephen McGinty: In defence of the jury system

Ever since first watching 12 Angry Men, I have wanted to sit on a jury. So, at the appointed hour and the appointed day, I arrived at the appointed court and took a seat along with 100 or so of my fellow citizens, including young men in track suits and trainers, old men in shirts and ties and one portly woman in bright pink. It was, indeed, a cross-section of society.

I had brought along a book. Now, choosing which book to take to court is a difficult and perplexing matter. You may be partial to true crime, but is this really the appropriate place? Or you may be an Ian Rankin aficionado, but will you then project the air of a budding novelist intent on research?

On the grounds that there could be many hours spent waiting, I opted for a book that required a bit of a long run to leap in to and it still sits on my shelves today, with the same piece of court paperwork as a book mark, namely Arthur Herman’s The Scottish Enlightenment. There is nothing like a weighty hardback to convey an air of studied gravitas and subtly signal a potential jury foreman.

The clerk of the court explained that he would draw our numbers from a bag to randomly decide who would be chosen. It was a strange game of civic bingo in which the prize was a trial scheduled to last up to two weeks, with the consolation of a free three-course daily lunch.

As each person’s number was called, they stood up and walked to the front of the court, swung open the wooden door and took their seat in the jury box. And then … well, at this point the heavy steel shutters of the law come clattering down and a phalanx of lawyers rush on to the page and usher everyone past with the words: “Move along now, nothing to see here.”

For service on a jury is the one thing – and I can think of no other – that a journalist is prohibited from writing about. He or she is not prohibited by the nature of the job, but because he or she is a citizen and – having sworn an oath and taken one’s seat on a jury – one is bound by the laws of contempt of court. Jurors cannot write or talk about the inner workings of the jury’s deliberations and how it came to its decision. What is played out in front of the jurors – the witnesses, the evidence, the closing arguments – are entirely public, but what goes on in that room when they retire to make their verdict remains a secret.

This week we learned that some juries just aren’t up to the job. When, after four days of deliberation, the jury responsible for deciding whether or not Vicky Pryce was guilty of perverting the course of justice by accepting penalty points on behalf of her husband, former Liberal Democrat Cabinet minister Chris Huhne, issued the judge with a list of ten questions, which included: “Can a juror come to a verdict based on a reason that was not presented in court and has no facts or evidence to support it, either from the prosecution or defence?” Mr Justice Sweeney packed them off home and called for a retrial.

You can be thick and serve on a jury, partially sighted, deaf, racist, prejudiced and illiterate. There is no quality control. One juror in England was recently found to have been listening to her MP3 player concealed under her headscarf instead of the prosecution. Although kicked off the jury, she narrowly escaped being charged with contempt of court after the attorney general said there was a lack of evidence.

In Scotland, jurors have fallen asleep and or have later been found to have mental health problems. Clearly, there is room for improvement but jury tampering, even when practiced by the government, is fraught with difficulties. To be tried by a jury of one’s peers has meant a lot in Britain ever since the 12th century when it replaced the ducking stool and trial by combat.

As I said at the beginning, I have always been impressed by Henry Fonda as Juror No8 in Sydney Lumet’s film of Reginald Rose’s original TV play, Twelve Angry Men. For those who haven’t seen it, the entire film, apart from a few short scenes on the court room steps and the bathroom, takes place in a closed room where the jury has to decide the fate of a Puerto Rican boy accused of stabbing his father to death with a switchblade.

An initial count has 11 vote guilty with only one hold out, Fonda, who encourages his fellow jurors to consider the case in detail as the death penalty is on the table, much to the anger of Juror No7, who has tickets to that evening’s baseball game. Over the course of the film, Fonda explores what constitutes “reasonable doubt” and piece by piece of evidence is found wanting and juror by juror examines his own prejudices and switches side until eventually a unanimous verdict of “not guilty” is delivered.

What I liked about the film was the anonymity of the characters. No-one has a name, just a number, as if they are interchangeable cogs in the machinery of the legal system and, at the end, each goes his separate way, never to meet again despite the profundity of their collective experience.

Of course, there are a number of reasons why we could never have a case like Twelve Angry Men’ in Scotland. For one, it would have to be re-titled Fifteen Angry Men on account of Scots law’s preference for a larger jury. We do not know why the figure was settled upon, but historically it was, perhaps as by having an odd number a majority verdict could always be achieved. Which brings us neatly to the second reason.

In the case of Twelve Angry Men, the jury is arguing because it has to achieve an unanimous verdict. If filmed in Scotland, the drama would be somewhat lacking and the running time considerably shorter, the first vote would have been carried and Fonda’s character would be left nursing a lifetime of regret over the poor innocent boy who was promptly sentenced to ride the lightning.

Under Scots law, seven jurors can be convinced of the innocence of the accused but are outvoted by the remaining eight with the result that a guilty verdict is delivered. This means that, when tied with seven votes each, a single person can be responsible for finding the accused innocent or guilty. Although the verdict may be guilty, the arithmetic will show that 45 per cent of the jury believed the accused to be innocent. If we consider 45 per cent to be a “reasonable” level of doubt, as many people would, how can such a verdict stand?

For, although many people mocked the jury in the Vicky Pryce case for asking what constituted “reasonable doubt”, it is clear from research carried out among jurors in New Zealand that many people do wrestle with providing an adequate definition and do attempt to put it into percentage points such as: “Is a 20 per cent doubt reasonable?” I don’t know, if a man’s liberty is on the line, is it?

The Scottish Government believes that any Scots Henry Fonda should now be given at least a fighting chance and that the majority required to secure a guilty verdict be raised to nine or ten. I would agree, but only if the jury itself was reduced to 12, as is also being considered. To fail to reduce the size of our juries, which would bring us in line with the rest of the world as well as reducing costs, would still leave a situation where a third of the jury might disagree with the final verdict.

Yet, where a Scots jury meets that of the Twelve Angry Men is in the likely presence of the “dominant jurors”. In 20 out of the 48 trials studied by New Zealand academics, the final verdict was shaped by dominant jurors. These are men and women who can bully or cajole their colleagues into viewing the case through their own personal lens.

Kenneth Roy, writing in the Scottish Review this week, alerted readers to the consequence of just such a juror in the case of Henry Burnett, who in 1963 was on trial for the murder of Thomas Guyan. While the defence pleaded insanity and diminished responsibility, a Montrose schoolteacher recognised a “bad lad” when he saw one and urged the women on jury to “do their duty”. Deliberation took less than half an hour before the jury returned to the courtroom to find Burnett guilty. A month later, the 21-year-old became the last person hanged in Scotland.

It is said if it ain’t broke don’t fix it, the problem is we don’t really know if the jury system is broke, though it does seem to operate perfectly well, given the occasional anomaly. It remains a crucial human link in the system and, anyway, I’ve always believed that the justice system exists not to give us justice, but to give us the chance of justice.