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Jurors and asses

16 May 2013

There has been much coverage in the press of Professor Cheryl Thomas’s latest research on jurors’ apparently irresistible urge to research cases on the internet despite being in contempt of court. Published in this week’s Criminal Law Review, the results were condensed by the press into headlines such as “‘Perfect storm’ brews for jurors to commit contempt of court” (The Times) or “Quarter of jurors broke rules on using internet to research trial” (Telegraph). In fact of these quarter (recte, 23%) who “did not understand the rules on internet use”, it turns out that most simply took the overprudent view that they had better not use the internet at all during the trial; only 5% thought there were no restrictions, and a further 2% thought research which did not influence their judgment as permissible.

These numbers are rather lower than I should have guessed. What none of the accounts I read discussed was why this is occurring; the inference most journalists would like you to make is that these jurors were Lumpenproletariat, too stupid to be trusted to sit in judgement over their peers.

Now there is much to be said for and against trial by jury (and indeed much has been and will be said), but there is one aspect which you shouldn’t expect lawyers to raise, namely the artificial tasks which juries are often set. Many years ago I was cured of any desire to work as a barrister by attending a trial (for assault in an underground station) in which an entire afternoon was devoted to establishing whether or not A could see B from where he was alleged to be standing: two minutes in the location could have decided the matter. Had I been on the jury, rather than in the public gallery, the temptation just to ascertain this for myself would have been considerable (and now that the internet makes this so easy, all the more tempting). I would not have done so, both because I am naturally law-abiding, and also because I have a general understanding that the rules of evidence have been built up over centuries for very good reasons, many of which are not immediately obvious when applied in a new situation.

But lawyers have to recognise that if you ask people to do very silly things, some at least will rebel in various ways. Such rebellion is not stupidity, but a well-known response to the imposition of blind authority. “Do what I mean, not what I say” is a valuable precept we are taught as children, but one which jurors are supposed to abandon at the door of the courtroom, where they are asked to follow literal instructions even where they collide with common sense. These restrictions sit uneasily with a Protestant tradition where we refuse to accept that only priests can read the scriptures: we wish to do so for ourselves. I understand why lawyers will be averse to jurors participating in technical legal decisions, but the instincts of the juror who believes he is there to participate in a serious procedure to establish truth as best he can should be treated with more understanding.

Lawyers should also recognise that public frustration with legal procedures also has implications when the growing costs of justice are under the spotlight. I don’t want to sound like Maria Miller: justice, like the arts, makes a contribution to society which is not to be measured in money, and I deplore the efforts of the government to control these costs by withdrawing legal aid from those who need it. But I fear the legal profession has shown little will to develop more efficient ways of delivering justice (there is of course the most blatant conflict of interest for them). Lawyers and politicians are shouting across one another in this important debate. We need to take a radical look at the procedural rules that have grown up over centuries, and find ways of simplifying and speeding up justice (both civil and criminal) and aligning those procedures with common sense. And we can’t leave that task to lawyers or politicians.

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