Lawyers and juries

The government is considering lawyer jurors as it attempts to beef up its war against crime.

But will this idea really work? James Morton is unconvinced and suggests the problem of falling conviction rates goes far deeper

Irecently asked a criminal law specialist silk whether he would like to sit on a jury.

He thought he would not mind, but there would be a bit of a problem when the defendant did not put his character in evidence.

That started me thinking of other problems that could arise from lawyers sitting on juries.

For example, it is highly likely that any silk on a jury will know both the prosecuting and defending barristers.

There is the problem of inadmissible evidence that the trial judge excludes.

Lawyer jurors are potentially far more likely to draw conclusions from the fact that they know certain evidence has not been allowed.

Of course, lawyers and others are being considered for juries as part of the government's war on crime.

But what does not seem to have occurred to politicians is to ask why there is a declining conviction rate.

It is all very well to convict more people if you can be sure you are convicting the right ones.

After all, over the years successive administrations have brought in more and more legislation to up the conviction rate - majority verdicts and the attempted end of the right of silence are just two - and still the acquittals go on.

Now it seems that under the guise of getting everyone to do their civic duty and sit on juries, the idea is that the introduction of the middle class right wing will put a few more people in the cells.

But will they be the right people?

There are many reasons for acquittals and one of them is that people do not trust the police any more.

Fifty years ago people did not believe that the police could lie.

Now time and again it has been shown that they can lie as well as, if not better than, many defendants.

Successive scandals over the years have weakened our trust in decent honest policemen.

Take Sir Robert Mark's comments in his autobiography In the Office of Constable, where he says that in Manchester one 'very successful, fairly senior' detective had his own version of the judge's rules.

'Will you talk or be tanned?' was the question put.

And if the suspect remained silent he was taken to a lavatory and '...his head jammed down the bowl.

It usually took two to hold him whilst a third repeatedly pulled the chain until a waggling of the feet indicated a more compliant attitude.

He then signed a form headed by the usual caution against self-incrimination'.

He adds that no one did anything about this or other practices because there 'seemed no obvious way to achieve a fair balance between the public interest and the rights of wrongdoers'.

For this lawyers are at least partly to blame.

Years have slipped by where a policeman had merely to say something and the judge backed him - even in the face of incontrovertible evidence that things could not have happened the way the policeman related the story.

Take the compilation of note-books.

Nowadays, who would even begin to accept that officers remembered what had been said and independently wrote it down exactly word for word in the canteen nine hours later? For decades, defence barristers knew what was going on but when they went on the bench they did nothing to eradicate the practice.

No wonder there was a higher conviction rate in those days.

Today, people are better educated and more sophisticated.

Many come from situations where they or their friends have been the subject of a sting.

It is unsurprising that they bring a bit of street experience to the jury.

Will judges and lawyers on juries actually help? Well, of course we do not know because no one is allowed to do any proper research into what juries think - if, in fact, they do think.

All we have is a stream of anecdotal evidence.

I have been speaking with two women who have been sitting on juries fairly recently.

One was in England and she said that the jury appeared to vote on purely racial grounds: Jamaican defendants represented by black counsel, the black jurors voted not guilty.

The other was in New York and this woman, perhaps foolishly, admitted she was a lawyer.

From that moment, she was taunted by the others.

'Let's hear what Little Miss Lawyer has to say'.

'Perhaps Little Miss Lawyer can tell us what the law is'.

When she was called a second time for jury service she did not make the same mistake.

If the avowed intention is to increase conviction rates then no doubt a few lawyers on juries who are tougher than my friend Little Miss Lawyer will help.

They will be able to tell their fellow jurors why the defendant has not put his character in evidence and that those long spells in the jury room are because the defendant has made a confession and his lawyers are trying to cheat justice by having it excluded.

There may be much wrong with the jury but no one is willing to examine how jurors think and act.

I remember watching a case in Colorado where, with the permission of the judge after the decision, both the prosecutor and defence counsel and I got to talk to some of the jurors about their verdict.

What they wanted to know was why the prosecutor had not called some evidence which they thought would have been conclusive proof.

I am sure we could learn from that approach.

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