Saturday, December 01, 2007

Time To Pull Off 12 Angry Men

We can all agree that rape is a terrible crime. We can also agree that the low conviction rate is regrettable. It's because of the latter that the Government is planning to educate juries in rape cases about such things as the ways that rape victims react, why they often delay reporting the rape, and so on. This will probably be done in the form of a booklet and video.
But this sets an intriguing precedent and undermines the whole point of trial by jury in the first place.
If the proposal goes ahead, then logically all juries should be provided with a booklet and video that explains, among other things:
- that identification evidence is often unreliable
- that police officers sometimes lie
- that real life bears no resemblance to TV cop shows
- that 'loner' doesn't equal 'psychopath'
- that people sometimes confess to crimes they haven't committed
- that an adverserial system is more about persuading a jury than eliciting the truth
- that forensic and scientific evidence is not always what it seems and expert witnesses often disagree about it
(On the last point, some members of the jury that convicted Barry George of the murder of Jill Dando have said that they would never have convicted had they known that the gunshot residue evidence was worthless.)

A lot of sentimental twaddle is talked about trial by jury. You know the kind of thing......the inalienable right of all free born Englishmen to be tried by twelve of their peers......a group of ordinary people drawn from all walks of life, exercising good old-fashioned British commonsense....
Well, thanks all the same, but I often think I'd rather take my chances with a single judge, even a fucking Old Etonian who thought Argos was a figure from Greek mythology. (which he was, but you get what I'm saying, your Honour).

Both judges and magistrates now undergo a great deal of training. The selection procedure for magistrates is both more open and more rigorous than it used to be. There are processes to try and screen out people of the 'put them up against the wall and shoot them' persuasion. And, as Peter Cook famously said, the judging exams are known for their rigour.
That's not to say that judges and magistrates don't sometimes do stupid things. But unlike juries they do so in public and there are ways of correcting them. A biased summing up can be grounds for a re-trial. Only recently, a bible-bashing magistrate who said he wouldn't place children with gay couples was told he couldn't pick and choose which bits of the law he applied because of his religious beliefs.

Juries are a relic from the days when people lived in small communities, before technology, before forensics and DNA, when the universal belief was that the sun went round the earth.
If we have training and monitoring for magistrates and judges, why would we want to pick twelve people at random from the electoral register to decide someone's guilt?
Ah, say the jury apologists, often with great condescension, you'd be amazed how seriously these 'ordinary people' take their responsibilities as jurors. No doubt some of them do. But someone who had served on a jury told me that their deliberations began with the laughing agreement that they'd all decided on the defendants' guilt the moment they walked into the dock - a presumption of guilt, they made clear to me, that was based on class, nationality and style of dress.

If you pick twelve members of the public at random, they may well include:
- the small percentage of people who don't know who the Prime Minister is
- those people who believe Eastenders is real and who assault soap actors who play villains in the street
- girls from shows like Big Brother who think Rio de Janeiro is a footballer
- every shade of bigot, racist and homophobe
- and these days, presumably, people who believe in Sharia Law

Be very suspicious of those politicians who extol the wisdom of the ordinary people. Ask them why Parliament abolished and will never re-introduce capital punishment. Ask them why they will never introduce compulsory castration and full-life prison terms for all sex offenders. Ask them why they won't completely close our borders to all immigrants. Ah well, they will explain, we have representative democracy. MPs make up their own minds on issues. If their electors don't like it they have a chance to vote them out of office every five years.
Translation: a lot of people are very stupid. Many are dangerously stupid. Democracy's fine in small doses. It's a check against tyranny and absolutism. But you'd be fucking crazy to want too much of it.
A view which I heartily endorse. As you might expect. For the freedoms I now enjoy as a gay man have all been won by ignoring the common sense, nay, the wisdom of the majority of people.
So why do we get misty-eyed about the jury system? Why do we rejoice when a jury surprises us by getting it absolutely right and forget that every shocking conviction of an innocent person has been by a jury, either through stupidity or prejudice or because the truth has been distorted by clever prosecution barristers?

The proposal to give training to rape juries concedes the points I am making. Already, child protection organisations are demanding something similar for sex abuse trials. These are two emotive issues where people are desperate to get convictions even where there is no corroborating evidence - and that's a very danerous path to go down. But once we accept that jurors need educating or training, the whole raison d'etre of the jury system is blown to pieces. And maybe that wouldn't be a bad thing.


At 10:11 AM, Anonymous cello said...

Classic Willie wisdom. Having been a juror twice - and the chairman of the jury once - I can totally endorse what you say. They were very depressing experiences and destroyed any faith I might have had in the jury system.

But I'm also very worried about the alternatives...

At 3:26 PM, Blogger Willie Lupin said...

Twice, cello! That shows they haven't yet found a way to screen out bleeding heart Guardian readers.
I agree the alternatives aren't perfect. No system will be foolproof.
Although expensive, one possibility would be to have more than one judge, as we already do in higher courts. This would help guard against mavericks and bias.

At 3:24 PM, Blogger cello said...

I think I got hit on twice because at the time I lived in East London and I think they might have been short of local people without any sort of criminal record. Or is that scandalously districtist?

My Old Bailey session was a rather boring arson case, but the Snaresbrook Court was more spicy and involved the BNP and the Anti-Nazi League. That's when I discovered how ingrained - and ugly - racism can be.

At 3:41 PM, Blogger Willie Lupin said...

cello, people with a criminal record might be quite good on a jury. They'd be alert to the devious ways of both the criminals and the Old Bill.

At 11:55 AM, Blogger Greg K Nicholson said...

Best idea ever: use a jury—right?... of judges.

And pay each one a twelfth as much.

(And then compel them to not live in London, so they don't miss the extra money.)

I am a genius.

At 9:40 AM, Blogger Willie Lupin said...

Not a bad idea. But we'd need to recruit a huge number of judges.
And what would they get up to in the jury room? They'd be re-staging the Eton v Harrow rugby match.


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