I spent the last 2 weeks on jury service; it left me with real doubts about the fairness of our famed English justice. This is an attempt to get my thoughts in order before possibly following up elsewhere. [Updated 13:30 30th August 2011].
Remember the description of planet Earth in Douglas Adams’ “The Hitchhiker’s Guide to the Galaxy”? Mostly harmless. Trial by jury is a bit like that – mostly fair and effective. But not entirely so; it may be good but it isn’t perfect. Even after all these years, flaws remain. Any business manager worth his salt will tell you that system design should be open to continuous improvement, uncovering the flaws and refining them out of the system, but one senses that the English judicial system has become too inflexible to allow adaptation. While there’s no obvious case for revolution, the principle of continuous improvement means there is always a case for evolution, yet the system seems too rigid to permit even the contemplation of the minor tweaks that could address the flaws. Flaws that in some cases result in justice so crude it verges on being arbitrary.
The adversarial system – a theatrical and sometimes barely civilised battle between opposing counsels for prosecution and defence – inevitably tends to create two interpretations of the circumstances of an alleged crime that are polar opposites. Prosecution paints the defendant as blacker-than-black, pulling out every shred of evidence that can be used to bring out his or her guilt. The defence, always on the back foot since the prosecution necessarily goes first, attempts to create an opposing view, re-interpreting events to put the defendant in the most positive and sympathetic light that the evidence allows. Perhaps if a simple verdict of guilty or not guilty is all that the jury is required to decide, this approach is good enough. No nuanced judgement is required, there are no shades of grey, just a simple verdict of did or didn’t the defendant commit the act of which they stand accused.
If our case had been that simple in its structure, there would have been no problem. But it wasn’t that simple.
Although there was only one incident – a stabbing – there were two charges, one an alternative to the other; unlawful and malicious wounding with intent to cause grievous bodily harm, or a lesser charge of simply unlawful and malicious wounding, without any statement of intent. The difference between the two charges has very little to do with the cause of wounding, but is about the intent behind the action. The jury is asked to determine, on the basis of the evidence, not only what actually happened, but what was in the mind of the defendant at the time. It is important to recognise that both charges are of malicious wounding – wounding that was deliberate as opposed to accidental – but the more serious of these charges concerns the intention behind the act of wounding. Did the defendant intend “merely” to hurt the victim, or did he intend to cause really serious harm?
This makes the task of the jury more complicated on two counts, compared to a simple “did he or didn’t he” verdict.
Firstly, they are asked to evaluate not only facts, but what was going on in the mind of the defendant, which they can only infer from the details of the circumstances surrounding the actions. Secondly, they have to make a fine value judgement, placing that intent somewhere on a continuum between accident (“I only meant to scare him”) at one end of the scale and attempted murder at the other. Furthermore, having placed the perceived intent on that continuum, they have to determine whether it sits on one side or the other of a dividing line called “intent to cause grievous bodily harm”. And as if that wasn’t enough, they have to figure out for themselves exactly where that dividing line itself sits on the continuum. This is a whole different ball game to the simple “did he or didn’t he” form of verdict.
Answering “did he or didn’t he” commit the act fits comfortably within the black and white framework constructed by the adversarial approach of prosecution and defence. But that approach gives very little substance with which the jury can work in that uncertain middle ground where they have to try and unpick the hyperbole and establish exact shades of grey where the only colours presented to them have been black and white. The whole thrust of the prosecution is that the defendant is guilty of the more severe charge; the defence’s line is that the defendant didn’t even carry out the act so how they be guilty of either charge? At no point in the court proceedings does anyone - neither defence or prosecution counsel nor the judge - address the evidence in a way which might shed any light on the possibility that the defendant is only guilty of the lesser charge.
To reach a fair verdict in these circumstances, the jury needs knowledge in three areas, none of which was adequately addressed:
- An appreciation of the continuum of intent (from scaring off, to murder)
- An appreciation of the continuum of harm (from a scratch, to life threatening injury)
- Sufficient evidence to be able to determine the position of the defendant’s mind on the former continuum, and his intended result on the latter continuum – i.e. what injury did he intend to inflict (which may not be the same thing as the injury actually inflicted) and did that intended injury cross the boundary into GBH? Note that there seems to be no legal definition of what constitutes GBH – the only guidance we were given is that it is “really serious harm”.
Based on the debate which took place in the jury room, I don’t believe the majority of members of the jury had either of those two appreciations; unless these could be established, any review of evidence has no frame of reference within which to make a judgement. It was clear from what was said that, in the minds of most jurors, the act of stabbing necessarily indicates an intent to cause GBH. But if that were the case, why would there be the lesser charge? The implication of the very existence of the two charges is that the law makes provision for the possibility that wounding may be malicious without necessarily being intended to cause GBH. Yet that provision was lost on the majority of the jury. It has to be said, too, that the adversarial approach tends to reinforce that viewpoint, by seeing everything from points of view which are polar opposites with no exploration of the middle ground. That exploration is left up to the jury, if they ever even realise that there is a middle ground to be explored.
Although the judge gives a certain amount of explanation to the jury before they retire to consider their verdict, that explanation still tends to reinforce the black and white view of things, with no attempt to describe the continuum either of intent or of harm. The question remains stated in simple terms which mask the complexities which underlie it - did the defendant intend to cause really serious harm? Yes or no? To the layman, who has already determined that the defendant carried out the stabbing, what other interpretation can there be but that he intended to cause GBH?
The jury, with no legal background and only cursory guidance, are being asked to make a fine judgement with enormous implications for the life of the defendant. A conviction for the more serious charge is likely to carry a sentence three times as long as for the lesser charge – 6 years as against 2. With actual time served likely to be half of those figures, and taking into account the 5 months already served in custody in this case, the effective difference is even more apparent – 31 months against 7. You would think that after 5 days of trial, the court ought to take sufficient steps to ensure that the jury has a thorough understanding of the task at hand and the parameters it has to consider when reaching a fair verdict.
This is where the flaws in the system start to become apparent, opening up the way for improvements to the process. Given that the jury can be assumed to start with no actual legal knowledge, but instead many preconceived ideas concerning all manner of legal matters and terminology, there has to be some communication to impart the necessary level of understanding. Now, communication is a 2-way process. If A wishes to communicate something to B, it is incumbent on him to verify that B has not only heard the message but has understood it. Yet in the case of a jury, the communication is 1-way only. The judge makes many statements in court but the jury must remain silent at all times. The only communication allowed back to the judge is by way of a written question, which is taken to the judge who may answer it by calling the jury back into court – where, again, they must remain silent as they receive his answer.
People reach mutual understanding by a process of dialogue – a 2-way exchange. Yet the legal proceedings are structured in such a way as to make that impossible. So we’re left with a jury whose knowledge of the parameters by which they are supposed to be determining guilt or innocence is at best both sketchy and varied, and at worst plain wrong. To this day, in spite of mulling over the verdict we reached almost every waking hour for the last three days (and I suspect for many of the sleeping hours as well) I have absolutely no idea whether the verdict we reached was fair and just, or not.