Trial of the Peerless

Trial by jury is a cornerstone of the British judicial system, and one which heralds back (like a surprising number of traditions) to ancient Greece. In the Greek play Eumenides it is Athena herself who appoints a jury of 12 and declares that in the event of a split, the decision must be acquittal. It is not hard to see how this has, over centuries, factored into our own views on innocence-before-guilt, and perhaps even the composition of a jury itself. 

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But today we are confronted with a Jury which has fallen so far from the proverbial tree that they were required to ask a judge what a 'reasonable' doubt was, and more concerning, if a decision could be reached based on a reason that was not presented in court, and for which there is no factual basis. While I accept that the most likely explanation for the difficulties in the Vicky Pryce trail lie with a minority of jurors failing to grasp their role (an intractable 3 out of 12 would result in an inability to rule), the situation does neatly provide an opportunity to consider the role and nature of our juries.

Admittedly I am not the most unbiased of observers when it comes to the legal system of the United Kingdom, I learnt the basics of criminal proceedings at school age, pursued Law at A-levels, and briefly flirted with the idea of taking a degree in the subject. I am therefore, perhaps, not a sensible yardstick for an 'average' individual, and herein lies the core deficiency in the modern legal system.

As laws have become increasingly comprehensive and institutional the role of jury has changed from acquiring information and reaching a 'sensible' conclusion, to mapping an abstract and specifically defined legal concept into a real world situation. Legal knowledge, a strong grasp of the English language (and the extent to which it can be both bent and clarified), and a degree of abstract conceptualisation are now key requirements in a juror. With no selection process, and no minimum requirements, it is becoming increasingly likely that juror's lack the knowledge and ability to execute their roles appropriately.

Since presenting a problem without a solution would make me a democrat (in the words of Denny Crane), I will offer two such solutions.

Firstly; having been selected at random for jury service, each potential juror could be required to take a standardised test to ensure a level of English (spoken and written), and a core understanding of fundamental legal principles (such as the presumption of innocence) sufficient to undertake the role. While a counter-argument may be made that this would potentially exclude under-educated or non-English speaking segments of the population from the jury process, the only alternative seems to be to accept jurors knowing that they are unable to return a fair and reasoned verdict. Of the two evils, it seems that limiting the field is more in the defendant's favour - using the example of Ms Pryce's trial it seemed at least some of the jurors failed to grasp the concept that an individual is not required to defend themselves - they are innocent until their guilt is proven beyond all reasonable doubt.  As such I would argue that restricting possibly jurors to only those who know and understand the rights ascribed to a defendant can only benefit them, whereas introducing jurors who assume guilt (or apply a balancing test as in civil cases), would be prejudicial. Since a fundamental principle in our legal system is the primacy of the defendant, then minimum requirements for jurors is a (relatively) cheap and hopefully effective tool to reinforce our judicial system.

The second, more radical, option (and where would one of my posts be without radicalism), is to remove 'random' jury service, and make a professional jury service. Historically jurors were hereditary (it went hand in hand with certain other obligations of local nobles), and it can expected that they therefore received some form of training and initiation on how to conduct investigations and discussions. Likewise the experience built up over hundreds of trials is retained within the system. A professional jury service would provide an opportunity for jurors to gain a significant level of legal expertise (to enable them to better understand the interpret legal documents and evidence), and allow for 'specialisations'. One of the problems facing both defense and prosecution in complex fraud or other 'white collar crime' trials is the inability of the average jury to understand what the accused fraudster has actually done, or why its illegal, specialised "financial crimes" jurors would be able to build up the expertise needed to understand these cases, and make informed rulings.

The downside would be the potential monopoly on juries of certain segments of the population. It is easy to see how "juror" could simply become another middle-Britain profession along with accountants, architects, solicitors and engineers. This may lead to bias towards (or against) certain groups or crimes. While no system is perfect, it would seem some system of psychometric (or even MRI) testing to try and screen out the exceptionally biased would help combat this issue. Likewise, it is not immediately obvious that the bias would be towards guilt - after all plenty of legal graduates every year choose to pursue careers in defense to 'save the innocent' rather than prosecution. (I'm sure the larger salaries have nothing to do with it!).

 
Leaving aside the issue of how to acquire more qualified juries there is another point to consider here. The principle behind jury is "trail by your peers." In essence, you are judged by the community in which you are a part. This made sense in ancient Greece, where trials included potentially hundreds of jurors from the city in which you lived, it made sense in medieval and renaissance Europe where your 'jury' was made up of local free-man and nobles who probably knew you, your family, and were intimately acquainted with the local area. But is it still comparable to today's metropolitan world? Wiki estimates that 12% of the British population is not born in Britain. This figure quite possibly doubles if you include the children of non-British immigrants who have grown up in ethnically and culturally diverse communities. That could easily mean that the people who determine whether you spend the rest of your natural life in an 8 by 8 cell share neither your language, culture, religion nor history. Are these people truly a reflection of your "peers?". Likewise the medieval peasant or tradesman, tried by a group of other craftsmen and farmers, leads a broadly comparable life. Are the jet-set investment banker, the brain surgeon, the unemployed arts graduate and the median 'administration' worker truly 'peers' for one another?

I believe the answer to this is a firm "no". From a philosophical and ethical stand point I consider my entire worth is bound up in my knowledge, my experiences, the codes by which I lead my life, and by which I judge myself and others, and the decisions I freely make. Those codes and decisions are likewise bound up in my heritage, my culture and my shared history. Just as I would not insult those who lived through the struggles and triumphs of Russia's Great Patriotic War, or China's rebirth as the world's new super-power, or the war-swept ruins of Syria's collapse, by claiming to be their 'peers' I likewise take exception when those who claim to be mine without any understanding of the price and reward of unravelling reflexive thoughts, the emotional pride in nation which once defined an Empire, or the glory in a crystal cold winter night. Ultimately our motivations and actions are known only to ourselves, and if we judged ourselves more harshly, perhaps we would have less need of the traditional juries causing so many problems.

/Z