Saturday, 3 February 2007

An explanation... and a rant.

Francis's perceptive comment about my last post made me consider its comprehensibility. I assumed that it would be obvious why juries don't get to know some things. This is what I shall explain in a moment, using the same example as before.

My point, summarised from previously, is this:
  1. Judges, and other lawyers, bring their legal experience to the jury-room, where it has no place.
  2. They can do so either consciously (according to Lord Phillips), or unconsciously.
  3. This is important because the jury might start to talk about and consider what they shouldn't know.
  4. Or worse, they might conjecture at it.
  5. This renders convictions unsafe.
  6. Thus it's a bad move by the Government.

So why shouldn't juries know all the facts? I'll give you an example.

One of our principles of justice is that the crime must be proved, not just likely. This is called the 'burden of proof'. It is very important. Fundamental.

Let me tell you a story. I'll do so using the vivid words of Lord Denning, one of the greatest legal writers of the modern age. And a graduate of Magdalen College, Oxford.

He describes the court-room when the jury return, agreed upon their verdict:

'Everyone waits expectantly. You could hear a pin drop. The foreman stands up. The clerk of the court asks them:

"Are you all agreed upon your verdict?"

Answer: "We are"

"Do you find the accused 'Guilty', or 'Not Guilty'?"

Answer: "Guilty"

...Before the sentence was passed, a police officer would come into the court to give the prisoner's record. Often enough he would give a list of previous convictions. The jury look at one another well satisfied. Their decision has been right.'

This response from the members of the jury is perfectly understandable. Those who have broken the law are likely to do so again; why should we not be pleased to have caught a hardened criminal for yet another crime?

But such sentiment has no place in determining whether the accused is guilty or not.

You see, if it does, the logic must follow this route:

  • The man is a ciminal: he has committed a crime before
  • Therefore, he is likely to do so again

This has two consequences:

  • Firstly, the jury will look at all evidence to support the prosecution favourably. 'It is likely that that's true', the juryman will say, 'because he's committed a crime before. Why should he behave differently now?'
  • Secondly, that the jury will disbelieve the defence. 'A criminal is not trustworthy', they say, 'so how can you expect us to trust him instead of what a policeman says'?

Why is this important? Well, the policeman may have made a mistake. He may have made the same assumption that the burglar just released back into the community is responsible for the new outbreak. He might not look for the young, white, middle-class family that's just moved into the village with two teenage boys.

And isn't prison supposed to reform people, anyway? I know it doesn't often happen, but it does occasionally.

Now that I've told you that, you might find it interesting to know that the government's recent reforms allow previous convictions to be put before the jury, who use them in their considerations.

That enough is delporable.

But to return to the start:

Legal proffessionals can cause the jury to conjecture. Imagine that they're sent out of the court-room for part of the prosecution case. There's a solicitor in the jury. He mentions that it could be because they're discussing previous convictions. Actually, they're discussing an obscure point of law. The jury are then wrongly influenced, both in fact and in how they apply the 'fact'.

Any clearer now? Probably not.



Francis said...

Yes definitely clearer. Are you actually trying to write like Denning? :)

Phil' said...

No. But when I read his work, like it, and then write about Law, I sometimes can't help it.

It clears the thought processes well.

Gavin said...

How do you feel about the right of judges, under the Criminal Justice Act of 1994, to instruct juries to make inferences from a defendant's silence, which did not exist before?

Phil' said...

It did exist before; though it was rare to instruct them as such.

I may be wrong, but I know of no prohibition against the Jury taking account of the accused refusal to answer an incriminating question.

As I said, do correct me; I've not done my degree yet. But I'm not sure it's that great a change in reality.

Gavin said...

Apparently before 1994 judges were obliged to instruct juries not to infer anything from a defendant's failure to speak, under the right to silence. Unless Mr Cornall is wrong, whiche he might well be!