Another one of those weird documentary/social experiment/dramatisation/re-enactment/reality TV series about jury deliberations dropped on Channel 4 earlier this month. The weirdness stems from the need to navigate century-old case-law and statutory restrictions (Criminal Justice Act 1925 s 41, for those interested) on broadcasting Crown Courts trials in England and Wales. To navigate this, we’ve got two real juries, neither knowing the other exists, watching the same case which they believe to be real. Everyone else involved in the case is an actor, so the juries are basically watching a play. However, the play is actually a word-for-word re-enactment of a real murder trial. An intern at Channel 4 had clearly pissed someone off because despite the case being perfectly replicated, they had been given the futile task of anonymising it. (If you Google the show the real case is result #5.) The issue before the juries was whether the defendant was guilty of murdering his partner, or guilty of manslaughter by reason of loss of control.
“THE DEFENDANT LOOKED LIKE THE ASOS MODEL VERSION OF DANNY DYER, AND WAS A BIG FAKE CRYER”
The first inaccuracy that immediately struck me was that the actors playing the barristers looked far too clean. They looked like they get paid a decent wage and work social hours and have altogether a healthy work-life balance. Their wigs and cloaks were in pristine condition, their skin was glowing and their teeth gleaming. Clearly, these actors hadn’t properly examined the haggard, brow-beaten bunch sporting moth-eaten cloaks and fraying wigs practising at our criminal bar presently. The second inaccuracy was that they took to striding around the courtroom, when really this is something only done by actors playing lawyers and not by actual lawyers (unless they are walking off a cramp or need the loo). On the topic of acting, it was all pretty dire. The defendant looked like the ASOS model version of Danny Dyer, and was a big fake cryer. Even one of the jury members at one point rolled their eyes at his performance and sighed ‘here come the waterworks again’.
On the topic of anger and losing self control, some of the jury members were very forthcoming. Maybe slightly too forthcoming. Ricky, a bloody big bloke and exactly the type you wouldn’t want to lose their self-control if you ever met them, seemed quite proud of how he used to get angry a lot, lose control and see the ‘red mist’. He was well ‘ard and macho though so it’s cool I guess. Gary, a 66 year old retired school caretaker, was eager to announce that he had once lost control and hurled a cup of coffee and a few plates at his wife, Amanda. It’s okay though, she had lost control with Gary once and hit him. With her car. She had run him over. Leaving him, as described by Amanda, with his foot all mangled and legs sprawling on the floor.
More twists and turns followed as it was revealed that the victim had been a manipulative partner who knew exactly how all men ticked, knew how to push their buttons, play on their insecurities and drive them all to distraction. Although, I’d argue there’s a pretty thickly drawn line (probably with permanent marker) between being driven to distraction, ‘oh look at that, what a pretty rainbow’, and being driven to murder ‘I’m going to strangle you and hammer your skull’.
The bad character of the victim, including some previous cautions and convictions for common assault and burglary within the context of past relationships, was to have a massive influence on the juries. This effect was seen most palpably in Neil, an IT Manager. Neil had formed the following proposition on camera: ‘There has to be a good person and a bad person in this story’. At the start of the trial he’d believed the defendant to be the bad person, and therefore (by his own compelling logic) that meant that the victim had to have been the good person. However, now that the victim had been portrayed as the bad person, Neil was forced to deduce that the defendant must be a good person and was therefore innocent of all charges. Oh Neil, who will be the next victim of your cold binary logic?
THE JURY DELIBERATES
It is a hallowed principle in our legal system that jury deliberations should be secret. Interestingly, the initial rationale for this rule in 1795 (case of Vaise v. Delaval [1795] 1 T.R. 11.) was to protect jurors from self-incrimination. So that the Gary’s and Ricky’s of the world could talk openly about the times they had lost their self-control and murdered previous partners and that, in their experienced opinion, it was actually surprisingly easily done.
FACT FROM FICTION
The most illuminating insights into jury deliberations came in the final episode. The first came in the form of an exasperated outburst from Richard, a 36 year old training manager. He was having it put to him by Ricky that they had to consider the fact that the defendant couldn’t remember clearly what happened whilst he was attacking the victim, and that this fact pointed toward loss of control. At which point Richard comes out really rather sensible with the following:
‘Can we all just agree something here because this has been doing my head in for the past couple days. At the moment we’re basing fact on his story, and he could be lying. He says he can’t remember, but that’s not a fucking fact’.
The response to this reasonable statement was explosive. The jurors all pounced on Richard and started screaming that ‘we have to take them as facts because that’s what we’ve been directed to do’. This was all so extreme that the foreman decided to call a tea break.
Now, either the judge had misdirected the jury or the jury had misinterpreted the judge’s direction. Either way, we can blame the judge for not clarifying the difference between what is a fact and what is evidence. It is a fact that in court that day the defendant said ‘he couldn’t remember the attack’. What the defendant actually said, that he ‘couldn’t remember the attack’, was not a fact but was merely evidence that the jury could decide to believe or disbelieve. It’s very concerning to think that (owing to deficient judicial directions) some juries could be making this honest, yet critical, mistake and taking what is said in evidence as fact.
FEAR OF BEING HUNG
The second illuminating insight was revealed by virtue of the rather tragic character-arc of Laurel, a 24 year old student. The jury on which Laurel was sitting were unable to reach a unanimous verdict so the judge had instructed them that he would accept a majority verdict of 10 to 2. The jury, as it stood then, was 9 in favour of murder and 3 in favour of manslaughter; Laurel being the only one of those 3 susceptible to persuasion (the other two being pig headed blokes who saw concession as a sign of weakness). Laurel was under a lot of external pressure from the other 9 jurors to change her vote; as well as a huge deal of internal pressure not to be the cause of a hung jury, stemming from a fear of letting the victim’s family down and causing undue re-trauma.
Is it acceptable for jurors to change their vote simply because they don’t want to be the cause of a hung jury? No. It’s admittedly a very human factor to take into account, and arguably that’s why we have the jury system, however not wanting to be the cause of a hung jury has nothing to do with whether or not the defendant is guilty. The jury’s function is for each individual juror to make up their own mind as to the defendant’s guilt. Although a hung jury will probably result in a retrial (unless it is the latest in a succession of hung juries in which case the crown might be inclined to drop the case altogether) which is annoying for everyone involved, this is not the juror’s concern. It is the duty of the juror to be the cause of a hung jury if that is the position they find themselves in. That is their function, and an important function of the jury system. Equally as important as reaching a verdict. What might be required, then, is a judicial direction to this effect in cases where it becomes apparent that a unanimous verdict cannot be reached.
THE AFTERMATH (A PRELUDE)
Spoilers, the juries reached different verdicts and lots of newspapers have used the series as concrete proof that the jury system is shit and we should bin it. I believe the reaction of The Guardian to the show (and similar reactions) to be a symptom of the phenomena which I’ll call ‘Mr-Bates-vs-The-Post-Office-ism’. The idea that a television series has uncovered some great legal injustice which calls for an immediate response from the government. Firstly, I’ll say that Mr Bates vs The Post Office was an anomaly. Generally speaking, although television can be a useful and powerful medium for socio-political critique, very rarely will it establish an actual case for change. Simon Jenkins’ sensationalist click-bait-enticing article titled: ‘Like a pub argument on Love Island – The Jury TV series shows all that’s wrong with Britain’s judicial system’ seems to think otherwise. According to Jenkins, this single TV series, combined with his experience serving jury duty, has revealed all that is wrong with Britain’s judicial system. Literally, everything wrong with it. There isn’t a shadow of doubt left in his mind or a dark corner of our judicial system left unpenetrated by Jenkins’ enlightenment. And to think that all it took was a four-episode mediocre-at-best docu-series on Channel 4. Please read his article, I’ll put a particularly silly bit right here for you:
‘For all its heightened drama, what the programme revealed was the central failing of British justice. The courtroom trial is dominated by an unreal Socratic dichotomy of good and evil, represented by costumed barristers. At no point did experts in criminal behaviour sit round and discuss a middle ground, a sensible way forward to help the man, his family and society out of what had been a ghastly tragedy. Everyone had to be simply for him or against him’.
Let’s take his point on the unreal Socratic dichotomy of good and evil represented by costumed barristers first, and briefly. Like our doomed logician Neil in the programme, Jenkins also seems bewitched by the good and evil narrative. Whereas some costumed barristers might attempt to exploit this narrative to get the best possible result for their client, the judge frequently reminds the jury that evidence doesn’t come from the barristers, they are mere facilitators, but from the witnesses/documents/etc. That isn’t to say that some jurors aren’t influenced by the narrative barristers weave, but rather that the free-thinking juror (unless you’re Neil, sorry Neil) is entitled to reject that narrative based on whether it accords with the actual facts and evidence of the case. Again, we come back to that clumsily clarified distinction between what is fact, what is evidence, and also what is mere rhetoric from barristers.
As to the point ‘everyone had to be simply for him or against him’, this is plainly a stupid point. You don’t have to be for or against anyone in the case, not as a juror. You can hate the defendant whilst simultaneously finding them innocent, and vice versa. You could easily form a reasoned verdict as a juror without deciding whether you actually like the defendant or dislike them, deciding whether you’re for or against them. Although bad character may be an important factor for jury members to consider in determining the defendant’s guilt and interpreting the evidence, it is never conclusive of either innocence or guilt.
Finally as to Jenkins’ point about experts; this was not a throwaway comment but was actually the thrust of his article. Jenkins argues that juries should consist of judges and experts instead of ‘amateurs from off the street’. There were many alternatives to our current jury system suggested throughout the course of the series. Leslie Thomas KC thinks that we should either give juries better training or otherwise reveal their deliberations. Nazir Afzal OBE likes the Danish system where jurors are trained and paid for 12 months to hear as many cases as fairly as possible before being deployed in an actual trial.
Fundamentally, the above comments encapsulate why I think the series was a good thing (even if done poorly). We should encourage constant critique and self-reflection on our judicial processes. We should compare our judicial system with others around the world - to borrow and share ideas about how best to deliver justice. We should not grow complacent, just because this jury system is the one that has stuck for the longest doesn’t mean it ought to have done, or ought to continue to do so. If this series encouraged any level of self-reflection on our judicial processes, no matter how superficial or uninformed, then that can only be a good thing.
Whether our current jury system ought to continue in its present form is a topic for future Nicked conversation, keep an eye on the blog and Issue #2 for a more substantive conversation on the jury system when I’ve actually done a bit of research on the topic.