James Morton looks at the effect on jurors of fines for words and deeds that disrupt cases, and also ponders the legality of adultery


I seem to have upset a number of would-be judges in the Crown Prosecution Service with my comment that being an effective prosecutor will not necessarily make for a good judge.


What I had hoped to point up is that experience of both prosecuting and defending is good training for the bench. Those who have made long-term careers out of being on the side of the angels are likely to have difficulty changing their mindsets. It is no use trotting out the old rhubarb about not winning or losing. ‘Just the facts, ma’am’, as sergeant Friday used to say, simply doesn’t cut the mustard. It is the same at the bar – many of the most robust and best defenders are those who do not have one eye on a judicial appointment. Is incompatibility the correct word? If your long-term goal is a judicial appointment, then structure your career from the off.


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We are now to have legislation that will lead to heavy fines being imposed on the press (and others) whose words and deeds disrupt cases. The announcement comes hard on the heels of the story of the woman juror fined £300 for walking out of her second stint of jury service after being distinctly unhappy with the first. She was quoted as saying that too may trivial cases end up in front of juries when they could be dealt with by a single experienced district judge. One who has only ever prosecuted, madam?


The juror was lucky she made her protest when she did. Under the proposed legislation, she might well have been made to pay the whole of the costs of the trial. In fact, she seems to have been the quintessential example of someone who might be a biased, and therefore unsuitable, juror. Of course, that has not been part of the criteria for selecting jurors. Random, not unbiased, is the keyword.



And what will be considered as disrupting a trial? Merely because details of a man’s previous convictions are disclosed in, say, the Daily Mirror, does not mean it would be impossible to empanel an unbiased jury. Back in the 1950s, the Court of Criminal Appeal (as it then was) was quite firm when it rejected an argument that an article published in a tabloid between conviction and appeal might affect them. There have been far too many supine decisions by judges to stop trials without proper investigation of the knowledge of a juror in a high-profile case.



Of course, if they actually want to serve, not all potential jurors – especially in the US – tell the truth about their prior knowledge. Some years ago, I watched the jury selection in a high-profile murder case in California (no, not OJ). It had been all over the newspapers and on television for weeks, yet surprisingly one after another juror denied not just that they would be influenced by the coverage but that they had read or seen anything of the case at all. Of course, they may not read newspapers and the attention span of the television viewer can only be a couple of minutes at the most, so they may not have been fibbing.


One student at the local university begged not to be excused and was quite prepared to suspend her course. She thought that the jury experience would be more ‘life meaningful’. Personally, I thought one might be able to mount a challenge for cause on that statement alone.


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The Turkish parliament has abandoned legislation that would have made adultery an imprisonable crime.


In case any other country takes up the idea, perhaps their legislators might like to think of the potential damage to the tourist industry. Will the airlines be obliged to provide details of passengers travelling together and hotels of those with different names sharing a bedroom? What standard of proof will be required? Sharing a bed?



That was sufficient in the old incest case of Ball (1910) – but rather less so today, when sleeping in the same bed can no longer necessarily be regarded as an act of consent to sex.



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I wonder what sort of kudos Britain’s youngest armed robber will derive from his peers when he shows them the recent tabloid headlines of his exploits with a sawn-off shotgun.


Some years ago, one of my assistants went to see a boy on remand. He had an unusual request: ‘I want you to write a letter to me saying I’ve nicked a Roller’. ‘But that’s what you’re charged with,’ replied my assistant. ‘Why do you want a letter?’ ‘The others here don’t believe me,’ was the disarming reply.



James Morton is a former criminal law specialist solicitor and now a freelance journalist