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.