A lot of interest has been generated by the approach
taken by the jury in the recent trial of Vicky Pryce, in particular the
apparent inability of the jury to grasp fundamental aspects of their role in
the trial.
My mind was cast back to the one criminal jury trial
with which I, as a then trainee lawyer (in fact a then articled clerk, my mind
had to go back a long way) was involved.
My then law firm carried out a lot of commercial, property and liquor
licensing work for a brewery who asked us to represent one of their relief
managers accused of assaulting a drinker in the Manchester pub he was
managing. We were no more than ten
minutes into the trial when a juror raised a hand, asking if she could have a
pen and paper to make notes. Furrowed
brows ensued and the barristers for defence and prosecution exchanged glances
and sotto voce amazement that the
jury could read. Half a day later and
the prosecution case lay in tatters. The
first prosecution witness gave evidence for the defence, and the second, the
alleged victim, was dismantled by the forensic equivalent of a three-card trick
by our barrister. At this point the
prosecution counsel asked for a word in private, during which he asked to stop
the trial and withdraw the charges. The jury was then reconvened and told that
while the prosecution had decided to withdraw the charges, only the jury could
find the defendant not guilty and so the judge asked them to give a formal
verdict of not guilty. Lacking a foreman,
the judge appointed the man nearest him, explained he was now speaking for the
whole jury and asked him for the formal verdict of not guilty. Judicial eyes revolved in their judicial
sockets when the man said that he could really only speak for himself. Eventually after a rather lengthy explanation
of the formal role of the jury in doing what they were told, no more and no
less, we got through the ritual and our man was set free, his reputation
upheld.
Having spent two decades as a commercially focused
in-house lawyer, one of the last places I would ever want to be would be
sitting was in the defence team at a Crown Court, and I am pleased to say I have thus far succeeded in my aim and have
not stepped inside a criminal court room since.
So I am not well placed to comment on the details or criminal theory of
the jury's approach in the Pryce trial, other than to compare it with my own
experience in that Manchester courtroom. (For more informed
discussion of the role of the jury I would recommend reading pieces by David Allan Green - http://www.newstatesman.com/politics/2013/02/what-pryce-justice
and Richard Moorhead - http://lawyerwatch.wordpress.com/2013/02/21/is-the-trouble-with-juries-juries/. )
Reading the initial headlines, I thought the jury may
have had the same level of incomprehension of their role as my jury from all
those years ago. But reading the actual
questions reveals a different position.
The questions are well written, clearly by intelligent people. Some of the questions are quite searching and
even the more surprising ones ("what do you mean by 'reasonable
doubt'?") make sense outside a courtroom, and in the courtroom this was
supposed to have been explained to them.
Perhaps one of the jurors got confused on the bus home to Clapham.
So my take on this is, how can apparently intelligent
people be so apparently wrong? I think
it comes down to frames of reference - we all interpret the world around us
based on the sum of our experiences to date, each giving us a unique frame of
reference against which to set new experiences.
No doubt the jury experience was new to most of not all of the jurors,
so they would each use their own experience of normal life as their reference
point until someone explained why, in a particular case they should not.
There are good reasons why courtroom practices follow
certain patterns even if they seem highly artificial. There was a good reason why the judge in my case
required the jury to find my brewery client not guilty, so that his reputation
was upheld by the instrument set up to examine it. And there are good reasons why we have
contempt of court rules to prevent jurors' minds from being swayed by careless
newspaper reporting. But if as a juror
you think about the case you are about to hear in advance, it is almost
inevitable that you do so not as a criminal lawyer but rather as the plumber,
estate agent or dare I say it, commercial lawyer that you are. If we designed a criminal court process from
scratch today, without all of the learning and practice we have had since
juries were chosen to replace the hot iron bar in the trial process, it is
quite possible that we would reach different conclusions about issues like
whether jurors can use information obtained from outside the courtroom to
influence their decision. (As lawyers we
might see the risks inherent in allowing this, but with most decisions in life
we would not think twice about introducing other information to guide us on a
decision so, if you are an intelligent layman, why not in the courtroom?)
So the intelligent juror comes to the court hearing
with an approach which is conditioned by their own background and thinking
about their role - their frame of reference.
And it is this frame of reference which establishes how they see the
trial, including judicial directions to look at things in a different way from
how they might have expected to do so as well as to suggest how to fill in gaps
in the picture. Perhaps the surprise
here shouldn't be that the jury acted as they did in R v Pryce (1) but
rather that it happens (or at least is reported) less frequently.
All of which brings me to my own perspective on the
Pryce case, which is that we must always think about the frame of reference of
the people we engage. As an in-house
lawyer most of the people I work with aren't lawyers; their frame of reference
is consequently different from mine and so they come at issues with a different
perspective, different analyses, different expectations and often different
objectives from mine. Constantly
checking what I am saying to make sure that it takes account of these
differences, and makes the best use of them, so that we don't end up with two
different views of the same conversation, is hard but essential to get the best
interaction between professionals. (It
cuts both ways - as a listener it is always valuable to remember that the other
person's frame of reference will colour what they have to say and to do your
best to strip away the coloration which results.) This goes beyond merely avoiding legal jargon
- just as the Pryce jury had questions of approach as well as questions of
definition - but extends to trying as far as possible to understand the whole perspective
of the other person. The most successful
lawyers I have come across (in-house and private practice) all share this
approach of, in effect, thinking their way into the other person's shoes. What is more surprising is that all lawyers
aren't able, or aren't minded, or aren't trained, to do the same. But then as the Pryce jury questions show us,
these gaps of understanding arise, with damaging effect, more widely than one
might think.
