In Defence of Jury Trial

When you are slogging your guts out trying to bring some minuscule level of function to an essential but collapsing system it is wearing, to say the least, to watch people call into question a part of it that not only actually works reasonably well but is, in fact, essential. 

 Juries are not infallible. Juries are not trained. Juries are not expert. Juries do not give reasons. Juries are private. Juries don’t read The Guardian or The Telegraph, or maybe they do but you’re not allowed to know. 

 If you ask me as a barrister of 20 years’ call (and God knows, some days it feels like 40) why I think juries are so great I can’t point to an unimpeachable academic study that demonstrates incontrovertibly that they are more likely to get decisions right than judges. And no, the irony is not wasted on me that as a foot-soldier in a profession that exalts evidence over assumption, cold facts over hot opinions I can’t show my workings for my belief that juries work. 

 What I can say is that, in my experience at least, juries do work because they do the work. By that I mean juries ask questions that so often reveal that they’ve been paying attention, turning over in their singular and collective minds the evidence and how they should apply the judge’s legal directions. And it is so important to emphasise that our most serious cases are not tried by juries alone but by judge and jury. Yes, the result is in the hands of the jury but the shepherding and the guiding is in the hands of the judge. 

 I wrote recently why I felt Channel 4’s ‘The Jury’ was, at best, a misguided experiment and at worst an actively harmful distortion of the reality of jury trial (full disclaimer I’ve still not actually seen it). Since its broadcast a truly aggravating article by Simon Jenkins was published in The Guardian which, paraphrasing somewhat, denigrated trial by jury as being justice by the thick, the prejudiced and the idle. It was a piece that did him little credit, not least of all for his completely bogus claim that rape and other offences are not even tried by juries. 

 In England & Wales we have juries of 12. From time to time there are murmurings from the Ministry of Justice pondering why that number is so sacrosanct. I will venture an opinion. If you drag 12 random people off the street, which is essentially how jurors are summonsed, you would be immensely unfortunate not to have at least 1 person actually prepared to listen to the evidence, willing to take account of the judge’s directions and steer the deliberations with a proper, reasonable and reasoned consideration of the competing arguments. All it take is 1, is my genuine belief, and rare is the jury that has to make do with only 1. 

 A bad juror has to do a hell of a lot of work and damage to turn a jury of 12 bad. A bad judge doesn’t have to turn anyone and, even worse, they’re bad today, tomorrow, next week and next year. And it doesn’t even need a judge to be actively bad, a judge beaten down by the system, by the unrelenting conveyor belt of cases, shattered by the sheer grind. Where is the freshness? Where are the new eyes and the one-time application? 

 Jury duty is a very weird and novel and generally unrepeated experience in most people’s lives. And most importantly it is a duty and here I’ve saved the most important point to the last. 

 There was a time when duty dictated all our lives and, when it came to World Wars, for many of us our deaths as well. We don’t do duty any more. 

 ‘Don’t fancy it? Then don’t bother.’ 

 ‘You can’t tell me what to do!’ 

 And so it must be a shock for many when that summons arrives. Sure, you can defer, but not indefinitely. This is the state saying put your life on hold, sit in a box with your fellow citizens, not your mates, not your colleagues, not your family, not fellow Gunners, Dog and Duckers or disco dancers: 11 total strangers selected by the state. And in a few days (or weeks, if you’re unlucky) you’ll be sitting privately in a room with those strangers and asked to make a decision that could see another stranger sitting in a prison cell every single day for the rest of their lives, or see someone who was raped weekly between the ages of 10-14 finally have that abuse recognised and acknowledged, or maybe you will see that the police did cut corners and got the wrong man. 

 Whatever your decision this is your buy in. This is you making good on a social contract that you may have never thought about or thought didn’t apply to you. Voting is not obligatory in this country but the smallest manifestation of democracy, sitting in judgement of your fellow man or woman, is. Prosecutions are brought in the name of the Crown in England but justice is done by YOU for US and it is done by US for YOU. The day that you wish justice is done by them instead is the day you abandon that contract and surrender your freedom.

Why I'm not watching The Jury

 

There are increasingly few places that remain unviolated by TV cameras. Papal conclaves and jury retiring rooms are two that spring to my mind. You may struggle to name that many more. Is it for the best that we don't get to see the horse trading and strong arming that precedes the puffs of white smoke? What about murder verdicts: is it right that we should trust to blind faith that juries faithfully follow judicial directions and bring to bear sober and dispassionate analysis of the competing cases?

You can forget about Vegas it's what goes on in jury rooms that really stays behind. I've been at the Bar for 20 years and involved in literally 100s of trials and can't say with certainty what persuaded the jury in any of them. Like any barrister worth their salt I've obviously wondered what goes on, what gets said and what, in the end, counts.

So on the face of it Channel 4's 'The Jury: Murder Trial' ought to be an absolutely tantalising prospect. But unfortunately I can't bring myself to watch it. A real life murder trial restaged in front of two juries of ordinary people. Both hearing the same evidence. All deliberations filmed. Will they reach the same verdicts? In the absence of cameras filming the Real McCoy isn't this the next best thing? Well no, unfortunately it's not.

In any serious criminal trial there can be moments of real drama. But the purpose of the proceedings is not entertainment and nobody in court is under the illusion that it is. As anyone who has served on a real jury can attest large parts of the criminal trial process can be almost mind-numbingly dull. Try sitting through even 30 minutes of mobile phone cell site schedule evidence, sometimes this can go on for a whole day or even longer.

It is because real lives at stake and the jeopardy is real that attention is maintained. If you filmed that ratings would be through the floor. A criminal trial unfolds to a set sequence. Prosecution opening, prosecution evidence, defence evidence, legal directions, prosecution speech, defence speech, summing up, deliberation. There is a reason for that sequence and it is not entertainment.

I know, without watching the programme, that sequence is not maintained, I know that the jury's opinions on the case are filmed throughout, in a real trial juries are specifically expected to await the end of the summing up before commencing their discussions and deliberations. And there is no director or producer watching on anxiously hoping for controversy and dispute.

12 Angry Men is a classic drama precisely because Reginald Rose sat down and plotted the give and take of the jury room with that end in mind. If those behind the Channel 4 programme were faithfully and absolutely intent on verisimilitude then they would need to gamble upon the experiment making for turgid television. When money and ratings are at stake who is going to take that gamble?

And there's the rub. If this show is to entertain it will need to shock or subvert our hopes and assumptions about juries weighing evidence carefully and objectively. If this show is to reflect real life it has to be bold enough to bore. What it can't do is both and the danger that lies in making good entertainment is doing bad damage to the credibility of a system that works.

A paean to pupils and pupillage

 

To outsiders it may seem that it's our horsehair wigs and Victorian starched collars that are the most unusual thing about the barristers' profession. As a member of that profession I would actually suggest it's our training. We call it pupillage. Securing one can sometimes seem to law graduates as unattainable as the Holy Grail.

It's a peculiar term and for a pupil barrister their job description can seem strangely redolent of childhood. Yet more so for those undertaking work experience with a barrister, who are referred to as mini-pupils. Those instructing pupil barristers were known, until very recently, as pupil masters or pupil mistresses. Now, prosaically and colourlessly, they are known as pupil supervisors. It's a term for which I feel little affection because you master an art or a skill but you supervise a process or a production line.

Periodically it is suggested that trainee barristers should be called, well, trainee barristers. That, of course, is a term that would be familiar to anyone in or out of the profession. It does not however do justice to quite what an education it is to be a pupil barrister. And what a mighty privilege and burden it is to have a pupil.

Most barristers are self-employed and most barristers belong to chambers. We don't earn a salary. We don't have a boss. When we are not in court we work when, how and where we like. If we do our best case prep up a valley without WiFi in Cumbria in the middle of the night that is where and how we will prepare a case.

Preparing cases is a very personal exercise and barristers have to work out what works best for them. But they also need someone to show them how to do it. That is where pupil supervisors come in. In taking on a pupil a supervisor is giving their pupil the most intimate access to their professional life and working practices. If you are an intensely private person or don't enjoy having your working habits scrutinised then pupil supervision is not for you.

It was not that many decades ago that pupils paid their masters or mistresses for the not insubstantial work involved in showing a complete beginner the ropes. Quite rightly that practice, representing as substantial a barrier to the profession as purchasing commissions in the army once did, has fallen into desuetude [that's a lawyer's term]. Pupils are now paid, in fancy commercial chambers substantial six figure sums, in criminal sets rather more modest amounts.

Supervisors, on the other hand, get absolutely nothing for training the next generation of barristers. And there you were thinking all lawyers are venal and grasping, for shame. In fairness that isn't actually true at all because a good pupil can make all the difference between a practice bursting apart at the seams and a well oiled machine of prompt advice and immaculate preparation. I always say a good pupil can halve your workload, although I have heard that a less good one can double it.

It has never, ever felt like work to me. If you care about the profession and you think what it does is important then having a hand in shaping its future custodians feels an almost sacred obligation. Having a pupil certainly keeps you on your toes because your every written and oral interaction has an audience and a witness. And not merely a passive spectator but someone who is looking at your professional conduct as a template for their own.

I had a number of pupil masters all of whom taught me valuable lessons about life at the Bar but the first necessarily always leaves the biggest imprint. I was fortunate that mine was Edward Henry KC who by my estimation is one of the most powerful advocates I've encountered in my 20 years at the Bar. Since parting ways he has led me on a number of occasions most notably in the appeal of Andrew Malkinson. The teacher/pupil dynamic has become one of colleague and collaborator.

If I have had half the effect on any one of my pupils that Edward had on my sense of what a barrister should be and stands for I will count myself a very fortunate person.