The 12 men and women who failed to reach a verdict in the Vicky Pryce trial have put the entire jury system in the dock, writes Dani Garavelli
EVER since Henry Fonda persuaded each of his fellow jurors to rethink their verdict in 12 Angry Men, the role of those tasked with trying their peers has been viewed with a degree of awe. In the UK, at least, the deliberations which take place after the judge’s summing up are a fiercely guarded secret, not only for the duration of the trial but after it, and are subsequently surrounded by an aura of mystique. What goes on when the doors close behind the dozen (or in Scotland, 15) adults who have been randomly plucked from the voters’ roll? Only those present know how well they gelled or how intensely they fought – and they must keep schtum.
Last week, however, as the jury tasked with deciding the fate of Vicky Pryce – charged with perverting the course of justice by taking speeding points for her husband, former cabinet minister Chris Huhne – asked the judge a series of basic questions, the awe was replaced with derision. Instead of being lauded as upstanding citizens performing their social duty, the jurors found themselves mocked for their “stupidity” which had cost the taxpayer dear. Not only did their failure to grasp the central tenets of the justice system make a retrial inevitable (they were eventually discharged after failing to reach a majority verdict), but it unexpectedly threw the centuries-old jury system into question.
The trial judge, Mr Justice Sweeney, said he’d encountered nothing like it in his career; former director of public prosecutions Lord Macdonald recommended more research into the way juries function; and some commentators, including Peter Hitchens, called for a tougher selection process. The scandal was also grist to the mill for those who believe that, far from representing a cross-section of society, juries are made up of the elderly and the unemployed (with middle-class professionals largely escaping service on the grounds of work commitments).
Up to a point the Pryce jury’s behaviour was genuinely gobsmacking. Could they, they asked in all seriousness, reach their verdict on the basis of evidence that was not put before the court and for which there was no evidence? Their query suggested that not only had they failed to listen to the legal instructions set out at the beginning of the case, but that they had never watched a single courtroom drama. But equally you could lampoon the judge who described them as demonstrating a “fundamental deficit of understanding”, thereby proving the point that some of those in the legal fraternity have no idea how to communicate with ordinary people.
You could also argue that since the whole point of having juries is to add the layman’s perspective to the proceedings, it is churlish to ridicule them for displaying the layman’s ignorance of legal procedure and jargon. “We’re all aghast at the jury’s questions in the Vicky Pryce trial, but then again you also have to wonder, if you encourage people to ask questions you have to allow them to do so without the fear that they might sound stupid,” says Dr Cyrus Tata, director of Strathclyde University’s centre for Law, Crime and Justice. “It’s surely better for jurors to feel that they can ask a silly question and get it corrected than to feel they should keep quiet. Can there be a danger that some jurors could now feel they can’t ask questions because they might end up being dismissed and publicly ridiculed?”
The scandal has given rise to much speculation as to the powerplay inside the jury room. Could it be that the decision-making process was being held to ransom by one Henry Fonda-inspired crusader who wanted to bring his or her own investigative skills to bear? Or was asking the judge a succession of basic queries the only way the jury could find to flag up its concern over the inappropriate behaviour of one or two wayward members?
A more important question, from a legal perspective, is what impact the controversy will have on future cases. Does the inability of a few individuals to get to grips with what was required of them throw doubt on the whole jury system? Or should we be more concerned that a knee-jerk reaction to what is an exceptional set of circumstances will lead to an unnecessary overhaul of an effective means of delivering justice?
For all the rhetoric spouted last week, jury trials form a very small part of the criminal justice system. In Scotland, where the accused has no control over how his case is heard, they account for fewer than 1 per cent of all cases. And though Lord Devlin once described juries as “the lamp that shows that freedom lives”, there are many countries which operate perfectly well without them. The South African judicial system may not have covered itself in glory during the Oscar Pistorius bail hearing over the past few days, but the Netherlands, regarded by some as a beacon of civilisation, abolished jury trials in the 19th century. Yet because, across the UK, juries try the most serious cases including rape and murder, and are the focus of so many films and TV shows, they have become culturally iconic.
In the US, jurors are allowed to speak out after the case is finished, allowing some, such as those in the OJ Simpson case, to become minor celebrities. But since the law in Scotland prevents jurors from being interviewed about their deliberations – even by academics – very little research has been carried out here.
One English report, Are Juries Fair?, commissioned by the Ministry of Justice in 2010, found that while jurors took their job seriously, many had problems grasping aspects of the case. While more than half of the jurors told researchers they had found the judge’s directions easy to understand, only 31 per cent could accurately explain all of the legal concepts involved. Almost half (48 per cent) said they either did not know or were uncertain what to do if something improper occurred in the jury room and 67 per cent also felt they should be given more information about how to conduct deliberations.
Another study conducted in New Zealand in the late 1990s discovered discrepancies in the way different juries went about their deliberations. How well they functioned depended largely on the personalities of the individuals involved. A weak foreman often left a vacuum which allowed the most forceful personalities to dominate and even intimidate.
Fundamental misunderstandings of the law emerged in 35 of the 48 jury trials scrutinised. Yet neither report suggested jurors gave anything other than their best. Are Juries Fair? concluded that overall they were efficient and effective, while the New Zealand one found that only three of the 48 had returned “questionable” verdicts.
Fiona, who has served on several juries, says everyone she encountered took their role seriously. “People do come to jury service with their own world view; they come to it predisposed to view the evidence in a particular way, and it might not be the same way you’d view it,” she says. “But I think that’s why the system works because it forces a certain level of debate.
“I also found people were prepared to listen. If you were emphasising that perhaps they had misunderstood the evidence, if you could explain clearly how they had misunderstood or how the evidence could be viewed differently or that what they were saying was speculation and hadn’t been led in evidence, people were not unwilling to say ‘yes, you’re right about that actually’.”
Fiona says she did encounter jurors who found it difficult to understand some of the legal terms, but believes they often brought something else to the table, a greater insight into the kind of lifestyles led by those on trial. “Yes, there are issues if you have a juror struggling with difficult concepts, but equally it’s a problem if you have a room stuffed full of people who have no empathy or no direct experience of the lives of those who are being tried. That’s not to say that everyone who is being tried is working class, but I think it is the mix and the randomness of it all that makes it work,” she says.
But Robert, who has also been a juror, is far from convinced that juries represent a cross-section of society. “Of the 50 people supposed to turn up for the selection of 15 people, just 33 came and some of those were going straight to the court clerk and saying, ‘I’m here, but I can’t do it, I’ve got work on’, and that was being accepted. When it came down to it I would be surprised if there were more than 25 people waiting for their number to be called – so what you are left with is people who basically had nothing else to do.” He said many of those he served with also struggled to understand basic legal concepts.
One of the key recommendations of the New Zealand study was that juries should be given a written summary of the case, with the key evidence and legal instructions clearly set out, to help them during deliberations.
“Instructions to juries have been getting more intuitive, but there’s still some way to go,” says Tata. “There doesn’t seem to be any convincing reason why juries couldn’t have a booklet containing some of the key points of principle – it shouldn’t be beyond the wit of the justice system to produce such a thing.”
The row over the Pryce jury has provided an opportunity for such innovations to be discussed. But there has also been some unease about the way in which its members were treated.
Serving on a jury, especially one as high-profile as this, can be stressful. The least you could expect is that those who take part would be treated with respect. “Serving on a jury is an imposition,” says Andrew Houston, solicitor advocate with Edinburgh-based McSporrans. “In my experience, judges and sheriffs are extremely courteous and mindful of the sacrifices juries are making to perform an important civic duty.”
Yet these jurors were derided even when their questions were legitimate. Take the issue of reasonable doubt. Although Mr Justice Sweeney’s answer that reasonable doubt is “a doubt that is reasonable” betrayed his growing exasperation, the New Zealand study found many jurors struggled with this fairly nebulous concept.
Houston says he believes most judges and sheriffs would have been more forthcoming. “The example which is often given is that it’s the sort of doubt which might cause you to pause or hesitate when arriving at a significant decision in your life – for example whether or not to get married, buy a particular house or change jobs.”
Houston says he has sympathy for the jurors who would have been aware of the publicity the case was generating. “The fact they asked ten questions – OK we can blanche at the absurdity of one or two of them – but did that perhaps reflect the enormity of it all for them?”
While Tata admits he is “ambivalent” about juries, he says the system does have some advantages. “One of them is that it requires members of the general public to take responsibility. That’s a good thing because it’s far too easy to feel cynical about the criminal justice system, to think it’s all a sham, but when you ask people to take someone’s future in their hands, most really do respond to that challenge.”
The 12 jury members who are sworn in to hear Pryce’s retrial tomorrow are likely to take up the challenge with heavy hearts. Given the storm which has raged over the past few days, they cannot fail to be daunted by what lies ahead. It is to be hoped the humiliation their predecessors were exposed to won’t impact on their critical faculties or on their determination to return the right verdict. «
• Some names have been changed to protect identities