The debate about juries which came from nowhere

 

And so it came to pass, that a debate about the role of juries came out of nowhere.

 

Whatever we were expecting from the Huhne and Pryce trial (he pleaded guilty, she faces a retrial), it was not a discussion about the composition and function of juries. Points about reporting restrictions (the case has had many and some are still in force) perhaps, or about the scope of the curious “marital coercion” defence. But not about juries; that was a shock.

 

However, the Pryce jury’s questions prompted many responses outside of the courtroom.

 

The most detailed and fascinating of these responses was by Richard Moorhead, which should be read in full. The legal blogger Obiter J has set out a number of other links. My own contribution (the chief merit of which was the punning title) was at the New Statesman (and I also debate juries with Joshua Rozenberg, who did a misconceived and illiberal piece on juries, in the Observer tomorrow).

 

I am actually no great fan of juries. But they are better than the alternative, and their questions – however daft – should always be encouraged and not ridiculed.

 

For me, what was most interesting about the Pryce jury questions was how a combination of in-court tweeting and outside-court blogging led to an immediate and interesting public debate about juries in general.

 

For, in a week when it emerged that the Guardian law page is to become a zombie, automated site without dedicated editorial staff, the speedy, varied and relatively informed response to the Pryce jury questions shows that legal tweeting and blogging is now, in effect, the standard form of legal commentary on developments in the news. This is just as well, as soon there will be no full-time legal or court correspondents on any national paper.

 

But is legal blogging and tweeting really any adequate replacement for full-time legal journalism? On that the jury is still out…

 

 

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16 thoughts on “The debate about juries which came from nowhere”

  1. David,

    Whether my piece was misconceived and illiberal is for others to judge. As Sheenagh Pugh tweeted, “What’s illiberal about wanting one’s case considered by people who understand what they’re doing?”

    But I don’t know where you get the idea from that “soon there will be no full-time legal or court correspondents on any national paper”. Owen Bowcott remains the Guardian’s legal affairs correspondent. Is Frances Gibb leaving The Times?

    1. Joshua,

      Forgive me for applying a phrase I often use to your post. Our debate tomorrow in the Observer will take that point forward (or not)!

      As for legal correspondents: it is my prediction as to how the wind is blowing. Owen and Frances are both brilliant. But I fear they will be the last ones standing. The Times law section (on which many lawyers were brought up on) is a sad shadow of what it used to be. The Guardian law page is now to be, in effect, an aggregation site. The Telegraph – sadly – no longer has you as their legal specialist. Few newspapers now have sufficient resources for specialist reporters of any kind, least of all court and legal correspondents.

      How soon will this be? When Owen and Frances move for any reason, does anyone genuinely believe their posts will be retained? I certainly don’t.

      David

  2. I read David’s illiberal and misconceived jibe as a bit tongue in cheek.

    I do think it is interesting that Joshua hasn’t defended his article’s failure to pay any real attention to the possibility that most of the jury’s questions might have been reasonable or that the -on the face of it – more worrying ones could have been an attempt to get a rogue juror or two into line. It also states very definitely that public confidence has been harmed. Maybe, maybe not. I am surprised Joshua fell for the herd instinct on this one, but it happens (I know it does to me and it’s partly just about being in slightly different herds). Of course he may have some richer knowledge of the situation having been there. Even were that so, I’d still expect to see some of the counterfactuals acknowledged myself.

    On the broader point; I think there are twin things – blogging and the rise of the trade press (if I can call all of them that without offending), which diminishes the market for papers. Plus their declining economic base. I think this is fine for those who know where to look for their information; less so for those who don’t. Maybe a decent curator of legal news and comment will emerge which brings blogs et al together. I’d expect a publisher like Lexis to do that but they’d need to get away from the corporatisation of it and let their marketing work in more subtle ways than currently.

  3. ” legal tweeting and blogging is now, in effect, the standard form of legal commentary on developments in the news. This is just as well, as soon there will be no full-time legal or court correspondents on any national paper.”

    Just as well, or cause and effect ?

  4. I am no expert in legal matters, but I did Jury service many years ag0, I got nominated and voted foreman of the jury because I asked the the judge a common sense question on a point of law I needed to be clarified. I felt that most of the jurers were capable human beings with a good sense of right and wrong. A couple didn’t really want to be there.
    I socialise with an ex inland revenue ‘hammer man'(tax collector) who spent a lot of his working time in court. We discussed jury service some time ago and he suggested that jurors should be chosen from the public of course but with expertise in the particular legal/non legal arguments relevant to the particular cases being tried. I thought that was a good idea, but I’m not sure about it’s legality. Perhaps someone could enlighten me….

  5. Richard accuses me of falling for the herd instinct. He is presumably referring to the mood among the lawyers and reporters in court, which was as miserable as I was. He cannot be referring to the mood among the commentariat because I wrote my piece for the Guardian and recorded my comments for BBC tv news, ITV news and Radio 4 (and did live broadcasts for Radio 5, Radio Wales and Radio Ulster) before catching up with what people like Richard were writing.

    Richard suggests that most of the jury’s questions might have been reasonable. Let’s lok at them.

    1. Marital coercion. Reasonable, though answered already.
    2. New verdict of “not safe” if insufficient evidence. Utterly unreasonable.
    3. Inferences/speculation. Reasonable/unreasonable.
    4. Reasonable doubt. Reasonable.
    5. Can we decide case on reasons not supported by evidence? Utterly unreasonable.
    6. Can we draw inferences from defence lack of witnesses? Reasonable, though answered already.
    7. Does defendant have obligation to present defence. Utterly unreasonable. Clearly answered by the judge.
    8. Can we speculate? Utterly unreasonable.
    9. What evidence should we consider? Utterly unreasonable.
    10. Religious convictions? Utterly unreasonable.

    I make that a majority of utterly unreasonable questions.

    As for the suggestion that this was an attempt to get one or two rogue jurors into line, as I have already said on Twitter, this is inconsistent with the delay in delivering the questions, the number of different jurors who asked questions, and the speed with which the jury announced that its members would not be able to reach even a majority verdict.

    1. It seems to me that the questions you consider reasonable are a result of the jury floundering because of a lack of evidence. Both the prosecution and the defence failed to present any convincing evidence for their cases. (The only person who could support the prosecution case was Chris Huhne, but clearly they couldn’t call him as a witness.) And in a normal trial, if that happened, you’d give the defence the benefit of the doubt – you’d have to acquit. But in this trial Pryce had admitted taking the points so it obviously wasn’t clear to the jury whether they should give the benefit of the doubt to the defence or the prosecution. They probably started groping around for other things they could bring to bear, like: why don’t we know who else was in the room when she signed the form taking the points? Perhaps the defence knows there is someone who could disprove her story, but they’re keeping quiet about it. They probably also started thinking more about the character of Vicky Pryce: is she the sort of woman who might have religious reasons for obeying her husband? Maybe they even thought: what do we know about Chris Huhne? He’s an MP, so he clearly is (or isn’t) a person of integrity. The jury’s mistake was to put their questions to the judge and invite ridicule. My guess (as Simon Jenkins wrote in the Guardian yesterday) is that juries go in for this kind of speculation all the time, but they just have the sense to keep quiet about it.

  6. It seems to me that the definition of reasonable doubt is extremely difficult.

    At one extreme we have events that are actually impossible, although our understaning of what is and isn’t impossible may not be as good as we think. At the other extreme there are events the occurence of which are recorded by multiple independant devices and people operating on different principles. In between there is a spectrum of confidence in whether a paticular event or events occured. At what point in the spectrum does doubt become reasonable?

    I need to assess risk as part of medical device development. The risks are so varied and wide ranging, often concerning complex systemic interactions that a quantative assesment of the liklihood of a paticular event occuring is impossible. We therefore use a qualatative scale with guidance. Assesment is subjective but agreement is suprisingly good between experts as to the liklihood of events. It would be very interesting and useful to place reasonable doubt in the form of a risk that some one is wrongly convicted on this scale:

    Incredible- indistinguishable from zero
    Improbable- very unlikely to happen during the life time of the product (less than one in a million)
    Remote- unlikely to happen during the life time of the product (between one in a million and one in a hundred thosuand)
    Occasional- may happen during the life time of the product (between on in a hundred thousand and one in ten thosuand)
    Probable- will happen during the life time of the product (between one in ten thosuand and one in a thousand)
    Frequent- will happen several times during the life time of the product ( more than one in a thousand)

    The probabilities are rough guide chance if a risk occuring in a year of prouct use for products which are typically supplied in volumes of a few thousand.

    The point of this scale is to calibrate our judegments ot the extent possible. Something similar perhaps with examples would make exactly what is and isn’t reasonable doubt much easier to judge. I suspect there is a desire to present decisions as certain and hide the reality that all judgements contain some element of doubt and risk. A more specific definition of reasonable doubt would undermine this.

    As someone who has no legal background and never been on a jury reasonable doubt to me is and assesment that there is more than one chance in a hundred but I would be interested what others think.

  7. If there is insufficient evidence, the jury is required to acquit.

    The same rule applies if they are not sure the prosecution has proved its case. That’s what having reasonable doubt means. It’s really not that difficult.

    1. This explanation explains and defines nothing at all.

      It is impossible to proof anything beyond any doubt. Presumeably this is why the criteria is reasonable doubt but this seems very poor guidance to me.

      Just because it can not b e quantified does not mean there cannot be some stroong guidance on what level of doubt constitutes reasonable.

      1. This case is striking because it is particularly hard to prove a negative. The prosecution was/is being asked to prove that she wasn’t coerced. How do you prove that something hasn’t happened? Surely harder than proving that something *has* happened?

  8. Late in the day but the defence of marital coercion seems anachronistic and inconsistent.

    If two couples were accused of the same offence with one set were married and one set not with all other circumstances equal it must be wrong that the legal outcome would be different.

    If someone is coerced into an act then that should be a defence based on an assessment of the magnitude of the duress applied and the magnitude of the offence. It should also be (and presumeably is, not being a lawyer) a mitigation even if found guilty.

    What is special about being married? Many people are not married but the relationship can be just as dominating/controlling as if they are and in any case the essence of the defense is that you were forced to do something aganst your will and this can occur in many contexts not just that of marriage.

    Having said that there must be a presumption that people are responsible for their actions unless there is strong evidence to the contrary.

  9. My take on the jury verdict is that the jury was having to consider a defence which nobody, other than a handful of criminal lawyers, had ever heard of before.

    The marital coercion defence is probably derived from the wife’s oath to “obey” her husband, which appears in fewer and fewer marriage vows these days. It looks to me like a couple of jurors had this in mind – they wondered whether this vow had been in the Huhnes’ vows. Questions 1, 3, 4, 5, 7, and 10 make sense in this context.

    It’s possible that the confusion has resulted as everybody knows about reasonable doubt in the context of the defendant having done the crime, but are a little shaky as to the standard to be applied when considering a defence. The reasoning would go “She hasn’t provided this defence (of vowing to obey), but she’s not required to say anything in her defence, – she is a married woman so I wonder whether she did vow to obey and if so she shouldn’t be found guilty”.

    Juries are not good at dealing with unfamiliar issues, and this marital coercion defence should be more clearly defined by statute.

    1. And it seems from what I’ve read since that, before the trial began, the judge heard representations from both the defence and prosecution lawyers as to where the burden of proof should lie. Traditionally in a marital coercion case, it lies with the defence, but the judge decided it should lie with the prosecution, because the Human Rights Act enshrines the presumption of innocence. No wonder the jury were confused.

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