Until yesterday’s shambolic collapse of the trial of Vicky Pryce, juries were the last of the sacred cows. As I discovered for myself a few years ago, any criticism of their performance is likely to be greeted with roars of disapproval.
Tommy Sheridan was wretchedly unlucky on two counts. His trial finished a few weeks before the resignation of the hostile witness he called in his defence, the prime minister’s press secretary, who was subsequently arrested on suspicion of perjury, an accusation that Mr Coulson continues strenuously to deny. And it finished just before Christmas, the most distracting season of the year.
A deeply split Glasgow jury, after a complicated case, wasted no time in convicting Mr Sheridan by the odd vote. I wrote that, had it not been Christmas, the jury would have stayed in their room rather longer than they were disposed to do in a week of jollification, retail therapy and universal hysteria. I called their return indecently hasty and suggested that it had been their duty to deliberate for as long as necessary to arrive at a more satisfactory – by which I meant a more decisive – outcome. Mr Sheridan went down for three years.
Help. The fires of hell came raining down on me for this mild reproof. How dare I challenge the integrity of a Scottish jury? Our learned friends were particularly offended by the piece. One said I should be ashamed of myself.
I still can’t quite understand the terrific resentment provoked by these remarks of mine. They were based on a sound working knowledge of the system acquired from years of reporting the Scottish criminal courts. Long experience taught me to be sceptical of juries and even to wonder if I would care to be judged by a random panel of my peers. Unfortunately, no-one has ever devised a more reliable system and so we are stuck with it. But it is very far from perfect. Juries can be maddeningly thick and alarmingly perverse.
Even when the stakes were at their highest, and capital punishment was still mandatory for some categories of murder, juries were sometimes inclined to take a relaxed view of the consequences of their decisions. In the case of Harry Burnett, the last man to he hanged in Scotland, they were back with a conviction in 45 minutes. Burnett was clinically insane and not responsible for his actions. But the foreman of the jury turned out to be a Montrose schoolmaster with a one-dimensional view of human nature.
At Aberdeen railway station after the trial, the foreman happened to be in the same queue as the prosecuting counsel and his assistant. They muttered words of sympathy, saying how difficult it must have been for the jury. Not at all, he replied briskly. He knew all about bad boys and had come to the conclusion that Burnett was bad. He had so informed the wobbling women on the jury and exhorted them to ‘do their duty’. Burnett was duly hanged.
The jury is the master of the facts while the judge is the master of the law. This is an important distinction, but I doubt that juries always fully comprehend it and I know that judges do not always respect it. Most juries will defer to what they see as a nod or a wink from the bench. In the case of George Pottinger, the St Andrew’s House civil servant who was tried for corruption in the 1970s, it was more than a nod or a wink. The judge at Leeds Crown Court left the jury in no doubt about his own view of Pottinger’s culpability.
Late in the trial, when Lord Craigton, a junior minister in the Tory government, was being questioned about the ‘advice’ Pottinger had given to his co-accused, the dodgy architect John Poulson, about how to obtain an honour, Craigton agreed that such advice had been ‘improper’. This careful word was not in the same class as the more damning ‘corrupt’. It might have left Pottinger clinging to a slender hope, but the judge quashed it at once with a gratuitous interjection. He said to Craigton that the advice looked very bad coming so soon after yet another lavish gift from Poulson to Pottinger (who was in the habit of receiving such gifts). This was not the judge purely as master of the law, but the judge doing the jury’s work; and it would been an unusual jury which was not swayed by such blatant partiality. Sure enough, the gates of Armley Prison were soon closing on Pottinger.
The jury in the Pryce trial seems to have been exceptionally obtuse, and it would be tempting to dismiss its failure to reach a verdict as an aberration. It would also be wrong. It is possible that the judge’s instructions were above the jury’s heads. These instructions are often couched in lawyer language fit only for other lawyers.
Too much is taken for granted of people who have just walked off the street. Even the concept of ‘beyond reasonable doubt’, with which most of us are familiar as the threshold for determining guilt or innocence, is not easily grasped by lay people. Judges need to be humble enough to take lessons in communication.
Meanwhile, Vicky Pryce faces the ordeal of a second trial on a scary-sounding but essentially minor charge. Will it be a fair one? The aborted trial, in much embarrassing and salacious detail, has been all over the papers for a fortnight. There will be few potential jurors for whom it is not fresh in the memory. The potential for prejudice is glaringly obvious. The case is a mess. It should have been dropped. But if it leads to a review of how juries operate, and how judges instruct them, it will not have been wholly in vain.
Kenneth Roy is editor of the Scottish Review
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