JUSTICE, JURIES AND JURISPRUDENCE

In 2010 there was much attention paid to Lord Judge, Lord Chief Justice and the judiciary`s then main man.  And when he commented on the jury system everybody listened.   But critical comment was………… pianissimo. The good lord had explained his discomfort in that jurors might seek further knowledge from outside the courtroom when considering facts pertaining to a case. In other words they might seek to increase their knowledge by the common man`s most accessible source of information……the internet……. which might offer many things but in general terms is an enormous fantasamagorical library with an indexing system easy enough for Joe Blogs to find in seconds eg the Italian musical term for playing softly. But in the good old days only toffs and so called intellectuals had shelves full of books which contained information that was or could be useful for or of interest to them.  In effect the LCJ was complaining that ignorant jurors trying to fulfil their task were seeking knowledge outside the courtroom which others in their group might already have possessed by virtue of their education, profession, general or specific knowledge or quite simply a higher IQ.

Of course in those days old or good most such folk declined to serve on juries; they were too busy or considered themselves too important to judge their fellow man. Now that`s all changed and everybody……..or is anybody a better description?……..can be chosen for jury service. And that`s the point. There is no consideration of anybody`s intelligence or ability to follow the performance, to appreciate the hurdle “beyond reasonable doubt”, no test to ascertain the limits of anybody`s understanding of the English language or anybody`s capability of balancing the credibility of witnesses or the facility for anybody to comprehend a judge`s summing up. Truly anybody can be a bit thick but then that`s why we have a jury of twelve people who can be anybody. Of course under current attitudes supposedly handed down from Magna Carta and modified for current times peer review by any other term is what determines a defendant`s guilt or innocence.

Lord Justice Moses  also entered this debate. He advocated that trial judges should rule on matters of fact, and juries, instead of weighing all the evidence as at present, should simply be given a list of questions to answer. It is not unreasonable to infer that he was alluding to an inclination that complex argument might be beyond the wit of some jurors. I agree. Members of the legal profession were and are  unlikely to be supportive. They would deny that pecuniary interests serve their opinion. Magistrates at the very bottom of the judicial pecking order are well acquainted with defendants on either way matters selecting jury trial over summary trial; they consider that they are more likely to be acquitted…..a statistic which is open to question. With crown court legal aid rates higher than those at the lower court to dismiss legal pecuniary interest out of hand in court matters would be presumptive in my opinion. Universal jury service is now an outmoded concept and sooner or later a senior member of the judiciary, probably after retirement, will step into the public arena and say so. This is not to say I am advocating judge[s] only courts……I am against the practice of single District Judges acting in trials as both judge and jury. I am suggesting that the concept of juries now constituted is not an 11th commandment notwithstanding the recent paper Are Juries Fair?    Another interesting paper taking a wide historical perspective is A Historical and Comparative Perspective on the Common Law Jury .

To bring the arguments forward five years, today`s Times behind its paywall

reports that the outgoing government`s dying spasms included the Criminal Justice and Courts Act and  amongst other iniquitous features of that Act it makes it incumbent upon judges to investigate during trials the possibility of jury misconduct.  The question will be for the new government as to how much criticism by the judiciary it will take to make amendments and for the judiciary how much it can be seen to oppose parliament.

THE BUCK STOPS AT ALISON SAUNDERS

The buck stops where?  According to the originator of that phrase; Harry S. Truman President of the U.S.A. the answer was “here” in his office at his desk.  And that is exactly why we hear of so many corporate cock ups........C.E.O.s and senior managers do their best to ensure that they are well placed to avoid being anyway near that buck.  Anybody who viewed the Parliamentary Public Accounts Committee questioning the big wigs at the BBC, or the bosses of HSBC or, nearer to home, the contract with Capita plc for interpreters in English courtrooms can be left in no doubt that arse covering is a major pre occupation for those at the top of corporate trees whether commercially or publicly funded.  At the top of the Crown Prosecution Service is one Alison Saunders who must now be wondering just how long she has left in her job after the calamitous prosecution failures following the Savile case and the acquittals resulting from Operation Elveden.  On a more down to earth matter the decision to prosecute a 17 year old boy for having sex with a girl approaching her 16^th birthday when both were drunk must rank as an error of judgement of the highest order.  Where was the public interest in bringing this case to court?  The boy now has a criminal record for an action which is as common nowadays as was smoking behind the bike shed at school was in my teenage years.  

My frequent references to the political forces driving prosecutions for violence in a domestic context apply equally in this case.  I can only offer praise to the judge for being so forthright in her criticism of the CPS.  Would that similar comments be made publicly when required and that they have an effect where they matter.

OATH OR AFFIRMATION OR JUST THE PLACIBO EFFECT?

A friend of a friend was referred to me to explain what she could expect when being a witness at court.  On discussing the oath she stated that she was agnostic.......neither believer or non believer.  This set me thinking and I discovered this court case from February.

Believers and non believers rarely change their opinions or reject their beliefs. It is upon the fear of a divine retribution that oaths have existed since the dawn of civilisation. It seems to me that the application of oaths to witness testimony in our courts is as archaic as a belief in the gods living in Mount Olympus.

The number of those in England describing themselves as Christian can cautiously be estimated as 50% + or – 10% depending on definitions. About 10% adhere to other religious denominations and about one third are atheist. If regular church attendance indicates the strength of Christian belief only about 10-15% of so called Christians attend church at least once monthly. In my experience when witnesses with surnames of apparent Pakistani or Arab origin are asked to take the oath they rarely affirm; they swear on the Holy Koran. When Orthodox Jews are “sworn” generally they decline the Hebrew Bible and affirm. They are not questioned as to their choice which could be construed as having a lesser value irrespective of the religious reasons for so doing. Affirmations are therefore generally from the white majority ethnic group. My point is to question the value of the religious oath without the court knowing the depth of religious attachment to the particular faith. Therefore from my point of view the religious Jew and the witness who affirms are being up front about their evidence……..they are telling us quite simply that they will tell the truth. We believe their evidence or we don`t. Those who swear on a holy book as if by rote and with no belief can feel free to lie. They are not constrained by fear of divine retribution. The February case could be used as an example of the placibo effect.  Was not the belief  itself that the correct holy book was used for taking the oath not sufficient? With a charge of perjury virtually non existent in magistrates` courts proceedings is it not time to re-think the oath?

THERE IS A WAY BUT NO WILL

I was appointed to the Licensing Committee a short time before the powers of magistrates` courts to control the opening of licensed premises were removed to the local authority.  Further “simplification” of the process and changes “to reduce costs” were initiated by the outgoing government.  This is the published "consultation" that all local authorities based their responses upon.  Excuse all the quotation marks.  1984 has certainly caught up with us where words now have at least two meanings when used in government documents: the traditional and historic interpretation and that bestowed by Whitehall Weasels. Now five years later lo and behold that arch supporter of civil liberties Sir B. Hogan-Howe Met Commissioner is calling for licensing reform.  This whole sorry story is a perfect example of the myopia of government.  Appealing to the booze industry as the so called reform was meant to do has made the job of police so much worse than it need have been.  Depending on whose statistics are believed at least 50% of all crime is alcohol driven.  In Scotland the figure is as high as 70%.  There simply must be more done to reduce drinking by those under 21.  Unfortunately owing to political expediency whilst there is a way there is apparently no will.