The Schalter

Written by: Ian Broatch

“Trial by jury is more than an instrument of justice and more than one wheel of the constitution: it is the lamp that shows that freedom lives.”
- Lord Devlin

After four days sitting in an incredibly grim waiting room at Southwark Crown Court, followed by another four stultifying days in a stuffy courtroom watching the evidence mount (evidence always mounts) against three teenage yobs - they were guilty all right - sending them down would be a pleasure, even if it was for the pesky, jumped-up nothing charge of affray. The prosecution made heavy weather of it and seemed generally under-prepared, but there was enough key evidence, as far as I was concerned, to make it beyond reasonable doubt. The word amongst the jurors, as we were shuffled out of court for yet another of the frequent breaks so that the legal bods could discuss a point of law, was that the lads were guilty as sin.

And then what happens? One of the defendants changes his plea. Dammit - the one thing that would have made the sorry experience worthwhile, the exercise of power, was denied us. Ah well, at least we still had the other two to send down. But no, we had been compromised and what’s more had heard evidence that referred only to the plea-changer’s case - we wouldn’t get to make any decision. We were sequestered in a little room, lest we contaminate our successors, while a clerk tried to find out if any other London courts wanted 12 disaffected jurors. Nobody did, we were free to go, our time wasted. The five younger members of the jury went off to the pub where we got thoroughly wankered. We were all disappointed; we’d got a shit case and we hadn’t even got to go through our deliberations. We agreed that all three were guilty and discussed exactly when we’d come to our decisions - we were all more-or-less in accord. We agreed that three of the older jurors were bigots, but that everybody, even them, had taken the thing seriously. We were solid.

Still, despite getting pleasantly pissed with some decent people, I went away thinking that I’d had my time wasted, not just because of the turn of events in our case, but because the whole thing could surely get along just as well without 12 poor saps sitting in one corner. The judge seemed a nice chap and he surely knew the law better than any of us and would be more skilled at shifting through the evidence. You’re more likely to get rough justice from a jury than a judge, I thought. I knew there was some great libertarian principle that meant we must uphold the jury system, but I was damned if I could think what it was.

Present a case to 12 independent men and women and ask them for a simple decision: guilty or not guilty (and in Scotland the wonderful cop-out of not proven)?

Each will view the ambiguities of the case differently; each will set a slightly different limit to the burden of proof they require for a ‘guilty’ verdict. Each brings their own special prejudices to bear. To some extent, all are a little bored by the realities of the courtroom and resent this waste of their time. Save for a bit of patronising instruction by the judge, they’ve received no legal training. The likelihood that all twelve will, independently, come to the same verdict is fairly remote. Yet this is what our system demands on the understandable, misguided, basis that if twelve different minds assess the same case and reach the same conclusion the judgement must be sound, or at least more sound than that of a single judge.

Of course, in a group situation, it doesn’t work like this, behaviour and opinions gravitate towards the mean quickly. People consciously or unconsciously fit themselves into the group, imitate the behaviour of its one or two dominant members and attempt to find their own little niches. Add to this the in-built system pressure for a unanimous verdict, which rather undermines the point of having more than one adjudicator, augment with the play-acting of counsel who prey on the better or worse instincts of jurors, and you have a system that seems the worst of possibilities. You get all the fallibilities of a sole judge, but without their expert knowledge and trained intellect.

What worth there is in the jury system certainly does not come from any sense that it is a surer way of getting the right verdict, but from the fact that it is ultimately not the state that controls the process, it is ordinary Joe and Jane Biggins. The great merit of the jury is that it is not a slave to the law, but to its own feelings. Indeed, even in the case I sat on, we could still have delivered a ‘not guilty’ verdict after the judge instructed us to find the plea-changer guilty and there isn’t a damn thing anyone could’ve done to touch us.

If you’ve ever been to the Old Bailey you may have seen the plaque commemorating the jurymen from the 1670 trail of the Quakers William Penn (of Pennsylvania fame) and William Mead, the case which finally established the independence of juries. The jury were instructed by the judge to find Penn and Mead guilty of “unlawful and tumultuous assembly” after a spot of anti-establishment preaching. When the jury refused, they were locked up without food, drink, or “so much as a chamber pot, though desired”. When they still refused, the judge fined them and sent them to prison. Eventually, one of them obtained a writ of habeas corpus and secured their release.

In the nineteenth century it was common for juries to give ‘not guilty’ verdicts to obviously guilty defendants in livestock or petty theft cases, where hanging was the statutory punishment. As conviction rates plummeted, amid much establishment grumbling about insurrection, the law was changed to be more socially acceptable.

More recently Clive Ponting’s non-conviction for breaching the Official Secrets Act over the sinking of the Belgrano led to a revamping of the act. Such independent action by juries, of seemingly minor importance, are just about the greatest check we have against unjust and authoritarian laws and (in the face of a toothless parliament) the governments who make them.

It must, however, be admitted that such cases are rare. Can you really justify taking millions of man hours per month from ordinary men and women, when in 99.9 per cent of cases a judge would be just as sound as a jury? Most European countries get by without them in all but the most serious cases. And the less elevated consequences of this disinterest in the letter of the law are far more common: the bigoted “you can see it in his eyes” attitude that at least a couple of the jury I served on displayed and I’m sure must be present on most juries is one example. Personal dislike or like of the defendant is, simply put, far more likely to sway a jury than a professional judge.

I’d certainly like to see a scaling back in the numbers of jury trials and find the government’s attempts to trim back understandable - they are incredibly expensive, wasteful and jurors do undoubtedly fuck up things where a judge would not. Yet, in my heart of hearts, I couldn’t ever condone removing anyone’s right to it. For one thing, you never know if you might want it yourself. If you were stitched up by the state, who would you rather decide your fate: a jury of your peers or a paid up member of the establishment?

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