Simon Jenkins is wrong here. Because jury nullification

Yes, yes, large numbers of jurors are fools, just like large sections of the population are (how else to explain the Labour Party?).

And yes, most certainly, it would be more efficient to have it all done by judges and magistrates and never the common people get a look see.

However, at root here, we\’re talking about freedom and liberty. Things which are not entirely amenable to that pure efficiency argument.

And the real, ultimate, power that juries have is the ability to say:

\”Yup, bang to rights, you\’ve proved he did it, guilty as sin of the accusation. However, fuck off matey for that shouldn\’t be a crime. Not Guilty!\”

This is rare, I agree. Perhaps so rare as to be almost unknown.

Yet I know of one case in my own adult lifetime where this did indeed happen. And it led to the wholesale rewriting of the Offical Secrets Act too. For the citizen jury clearly and obviously (although we\’re not really supposed to say so, for the defendant was found not guilty and was thus not guilty as sin) said that yes, the law says that that is a crime and we don\’t think it should be. Fuck off.

And that is the real point of the jury system. It\’s the final bulwark between us, the citizenry, and those who rule us. And that\’s why it should not be abolished. For abolition would leave us entirely naked and defenceless against the political classes.

A fate which the history of certain other countries has shown us is one not to be desired.

28 comments on “Simon Jenkins is wrong here. Because jury nullification

  1. One case that springs to mind was a chap whose daughter was run down by a disqualified truck driver off his head on pills. He got six months, CPS being crap I assume, and when released the father was waiting with a shotgun. The truck driver tried to use his girlfriend as a shield and survived being shot.

    The father was charged with attempted murder and the jury let him off.

  2. The problem here is that defence teams can challenge jurors when they are being selected. It is to do with arranging the mix of people in the box so that they are more likely to be sympathetic to a client. It ought to be stopped, other than for obvious things, such as a juror knowing the accused. The Pryce jury was, I think, made up of four men and eight women, not all of them culturally assimilated: such a jury could hardly be expected to agree on the time of day. They may have been thick or they may just think that the world works the way it seems to on daytime TV, but they were not suitable, as would have been obvious as soon as they started asking those imbecile questions. The whole thing should have been stopped then.

    I didn’t think it be long before someone started jumping up and down calling for the end of jury trial. Bit of a shame that it is old Jenkins. In the Pryce case, however, a ducking stool would do just as well.

  3. As I said over in the Telegraph comments, part of the problem with the Pryce case was the absurd first-wave feminist defence of “marital coercion”, which leaves a jury trying to judge the length of a piece of imaginary string. Not only is it a nasty bit of gender bias- only women can suffer this “marital coercion”, not men- it is always going to be a purely arbitrary judgement call. It might be mitigation, but that would be a matter of reducing the sentence after the woman has been found guilty of the crime, which she undoubtedly was as guilty as sin of.

    On the questions the jury asked, it looks to me like some of the jurors were trying to get clear statements from the judge to resolve arguments between factions, not an indicator that the jury didn’t understand jury trial.

    But anyway, juries work well when asked a simple yes/no question on matters of fact. “Is there sufficient evidence that the person in the dock is the person responsible for the criminal act?”. Give them a nebulous matter of judgment and it works much less well, because you’ve then got 12 people with different opinions on the matter arguing it out.

  4. “The father was charged with attempted murder and the jury let him off.”

    It’s going to be interesting to see what happens in the recent case of the Texas drunk driver who ploughed into a broken-down truck, killing the driver’s two young sons, and was promptly shot dead by the grieving father, won’t it?

  5. “The Pryce jury was, I think, made up of four men and eight women, not all of them culturally assimilated…”

    I’m amazed they could find ANYONE in a Southwark jury that was culturally assimilated…

  6. Here is the judge’s summing up

    He goes on a bit. Couldn’t he have just said little more than: I require a unanimous verdict. If you think the prosecution has failed to prove the case or if you think Pryce was coerced then say not guilty, and if you think the prosecution has convinced you beyond doubt that perverting the course of justice has happened say guilty.

    The dismissal of the jury reflects as badly on the court and the lawyers as it does on the jury itself.

  7. “On the questions the jury asked, it looks to me like some of the jurors were trying to get clear statements from the judge to resolve arguments between factions, not an indicator that the jury didn’t understand jury trial.”

    Can we make such an assumption on the evidence…? ;)

  8. @JuliaM

    Reader, I am that culturally assimilated Southwark resident (though not necessarily to the rest of Southwark). Happily, I have never done jury service and hope never to have to.

  9. Looking at the questions, they seem quite good ones. Would make a decent exam question in a criminal law paper.

    http://www.guardian.co.uk/law/2013/feb/20/vicky-pryce-trial-10-questions

    They also seem to be written by someone who knows a bit about it.

    I suspect (but not beyond reasonable doubt) that Ian B is right; some jurors indulging in pure speculation, others saying “you can’t do that, you have to follow the evidence” and getting the judge to tell them so.

  10. Julia-

    Can we make such an assumption on the evidence…?

    On balance of probabilities, but not beyond reasonable doubt :)

  11. ”The problem here is that defence teams can challenge jurors when they are being selected”

    No, that isn’t the case in England. Juror selection is a Yank thing only.

    If I were in a sarcastic mood, I’d say the problem is that too many Brits who consider themselves educated know fuck all about the actual system and systematically dodge their civic duty.

    (I’ve done jury service; glad to have done so and would have been ashamed to dodge it)

  12. It’s far more common than you might expect, I am pleased to say, for juries apparently to reach the conclusion that a defendant is strictly speaking guilty, but to hell with that, this case is a load of old moody, we’re not convicting. I say ‘apparently’ because there’s no way of knowing for sure.

  13. We used to have jury selection here, but our lords and masters phased it out. For our own good.

    I’ve never done jury service but, like John B, I wouldn’t dodge it. It’s no use people banging on about the Common Law, England’s grand heritage and so on, then doing everything to avoid participating in it.

  14. Anecdata coming up. I have direct experience of the guilty as sin but fuck off anyway factor. I did jury service way back when and sat on two juries, we acquitted in both cases, in the first because the police made a balls up of the evidence, the judge more or less told us to ignore that but we didn’t and she was less than happy. The second case involved a chap accused of smuggling cannabis into Britain ( he was from Africa and obviously dirt poor ) even the customs didn’t seem to want him convicted and the judge and prosecuting counsel were equally sympathetic, it was obvious that everyone in court thought we’d made the right decision when we acquitted him, the poor sod had been on remand for months anyway. The most amusing thing was that we were given a large bag of cannabis in the jury room to give us some idea of what he’d been smuggling, someone asked how exactly you smoked it and I and another youngish bloke looked at each other and said, well , it’s like this…

    john b

    Has that been changed ? When I did my jury service a couple of people were challenged.

  15. On receiving a summons for jury service, I recommend writing back as follows: Dear Sirs, I’m delighted to have been selected for jury service. I have long thought crime was too high and the courts too soft, and it will be my pleasure to play my small part in the administration of justice.’ You can also add, ‘After all, the police would hardly arrest an innocent man,’ though some hold that this is going too far.

  16. Ian B: I had that thought too about the juries – that someone on the jury had a BA in philosophy, or just a BA in being a PITA.

  17. Jurors can be challenged and stood down before being sworn, but broadly speaking only if their incompetence is manifest (rg illiteracy in document-heavy trial) or, for instance, a defendant thinks he might know one of them. But they cannot be selected in the way they are in the US, subsequent to being examined as to their beliefs, etc.

  18. Did you see the man recently who got off jury service by claiming to be too racist to make a balanced judgement?

    Personally I’d have refused to let him off, because if he was that racist he’d have been happy to help jail a few blacks and so kept his mouth shut.

  19. If you have 12 people then you should get some normal ones. This is important because of a friend of mine was on a jury where one of the jurors said that the accused looked like a criminal and therefore should have done it.

  20. At law school they call the phenomenon criminal equity. It’s what got rid of 200+ trivial capital offences in the 18th Century, for example. Juries just would not kill by convicting. I agree with you. It’s pure gold and must never be lost. And it’s one reason why the jury is the only remaining British institution I can trust.

  21. The simplest explanation, and by far the most compelling is indeed precisely that there were three raging imbeciles on the jury, and the other nine got fed up of trying to beat sense into them.

    Sometimes I wonder whether professional jury foremen mightn’t help with this kind of situation. The danger, I guess, is that they get revered as ‘the expert’, and we end up with systematically biassed juries.

    Did you see the man recently who got off jury service by claiming to be too racist to make a balanced judgement?

    I was called for jury service while I was in the throes of writing up my PhD thesis. Exactly the wrong time to be called (at any other time, I would serve without question), and I wrote back asking to be postponed until a considerably more convenient time. They let me off entirely. But this was going to be my line if they didn’t let me through. Turn up, squawk something appalling and wait to be sent home.

    Because if you have someone in the jury room who really doesn’t want to be there — not just a bit inconvenienced, but seriously worried about work they shouldn’t have been pulled from, or a family member who needs care, or something — then they won’t make good decisions.

  22. The right to challenge systematically US-style was finally axed in 1988. You can still challenge on the basis that the guy is clearly biased (although the bar is quite high. Shouting “I am a racist” would probably do it)

    I suspect Philip is right about what happened in this case, and that the more ridiculous of the questions asked were those of the lunatic 3.

    Sometimes I wonder whether professional jury foremen mightn’t help with this kind of situation. The danger, I guess, is that they get revered as ‘the expert’, and we end up with systematically biassed juries.

    See: 2 magistrates sitting with a district judge (stipendiaries, as they were). It’s pretty much universally accepted that the DJ sways the mags’ opinions in those cases.

  23. >I was called for jury service while I
    >was in the throes of writing up my PhD thesis.

    Ah, memories. I finished mine, and then got called up for jury duty and summoned to show up on the first day of my first job after that. I applied for jury service to be deferred on the basis that I really needed to start the job, and I was excused. They did call me up again nine months later but I had moved to a different county by then and I was not required to serve for this reason.

    That’s the only time it has ever happened to me.

  24. >It’s what got rid of 200+ trivial capital offences
    >in the 18th Century, for example. Juries just

    If you look at records of convicts transported to Australia, one of the most common offences is “Burglary of goods of the value of 39 shillings. There was a death penalty for burglary of goods of 40 shillings or more, and nobody actually wanted to execute criminals for this, so it became standard to value to goods stolen at 39 shillings almost regardless of what was stolen.

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