Much has been said and written about the fact that the jury in Vicky Pryce’s trial for perverting the course of justice was discharged on the basis that they would not be able to come to a majority verdict. In particular, much attention has been paid to the fact that the jury presented the judge with a list of 10 questions which Mr. Justice Sweeney said belied “absolutely fundamental deficits in understanding”.
The publication of these questions, the dismissal of the jury and the subsequent need for a re-trial (which has since resulted in a conviction) has even led some to the drastic conclusion that the jury system should be abolished. After all, magistrates and judges may be just as likely to convict the guilty and acquit the innocent – and they do so without the complication and expense of a jury trial.
This response is unwarranted. Not simply because cases like this are extraordinarily rare, but, more importantly, because the reasoning underlying the conclusion reduces the case for the jury trial to its ability to deliver the right result. That is, the extent to which it can ensure that those genuinely guilty of crimes are convicted while those who are innocent are not. The tendency of any aspect of the criminal justice system to ‘track’ justice in this way is, of course, a very important consideration, but it is certainly not the only one.
Another significant feature of the jury trial is the fact that it gives citizens a stake in the decision-making process. In this sense, the jury system has a similar justification to the democratic system: it is not just important that the procedure delivers the correct answer; neither system can guarantee that and, in any case, people will often disagree. In such a context, it is also crucial that all citizens are able to participate in making that decision. This is simply to say that both the democratic and jury procedure have intrinsic as well as instrumental value.
The Vicky Pryce case also led to some rather sneering mockery in the media concerning the apparent ignorance of the jurors and elementary nature of their questions. Again, this seems unfair and unwarranted: for one thing, perhaps the questions were not all as ignorant or elementary as they seemed.
Take the much ridiculed question: “Can you define what is reasonable doubt?”. To which the judge responded (rather unhelpfully, I think), “doubt that is reasonable”, adding “[t]hese are ordinary English words”. But I suspect the thinking behind this question was that, when asked to shoulder the immense responsibility associated with judging the guilt or innocence of a fellow citizen, it is quite difficult to put your finger on exactly what “reasonable” amounts to.
If so, it is not so much that the jury did not know what the word meant, but more that they quite accurately perceived “reasonable” as a somewhat ambiguous term at the best of times, imbued with the ideas of fittingness and good judgement. Therefore, the jury’s problem was not with understanding English but with exercising good judgement.
Replacing the requirement to be “beyond reasonable doubt” with the demand to be “sure” is no help either, and is simply to elide all of the genuine complexities just mentioned. To be “sure” of something is, presumably, to be confident and comfortable that all of the remaining doubts on the matter are not “reasonable” (because doubts will remain, of course). The kind of doubt that is reasonable will differ from case to case. Making the distinctions between different cases requires the kind of judgement that can often be hard to muster, and will sometimes generate a great sense of responsibility on the part of the individuals involved.
It is entirely proper that a juror should feel this sense of responsibility when performing his or her role. Indeed, the more general point that the Vicky Pryce case reveals is the profundity of the juror’s role in our society. Not many things are as serious as deciding the guilt or innocence of a fellow citizen, with the possibility that they may lose their liberty. And the range and number of questions from the jury in the Vicky Pryce case, however elementary some might seem, indicate that they were keenly aware of this seriousness.
So why is more effort not put into developing good jurors? If we believe that the office of juror is important and that all adult citizens are potential jurors, surely we must put more effort into ensuring they are able to perform the role effectively. In particular, this means educating young people before they are eligible for jury service.
One crucial thing to bear in mind is that the judgement required by jury trials is the kind of thing that you learn by doing. You cannot simply be taught good judgement in a lesson: it is the kind of thing that you acquire and develop by observing and being asked to judge many different cases on many different occasions. In this sense, good judgement is a virtue associated with a certain kind of character, and is to a large extent developed through habit: the doing, and doing, and doing again of certain activities until they become second nature.
How can we develop this kind of character in our young people? One way is to introduce them to the difficult judgements involved in the legal process through the Citizenship Foundation’s Mock Trial Competitions. The Magistrates’ Court Mock Trial and Bar National Mock Trial Competitions involve teams of students, aged 12-14 and 15-18 respectively, battling out a defense or prosecution for a specially written case. This helps to develop young people’s analytical, public speaking and team working skills. Just as importantly, it requires them constantly to weigh up competing reasons in favour of different positions. This kind of exercise is necessary for developing good judgement.
Through these Mock Trial Competitions and through our Lawyers in Schools programme, the Citizenship Foundation is determined to help young people access the legal knowledge and understanding that they need to develop as active and effective citizens.
It is all of society’s responsibility to ensure that young people have this knowledge and understanding. If they don’t, we will only have ourselves to blame.
Also published in edition #57 of ‘the barrister’ magazine.