On Matters Legal: Rebalancing the Scales - Public Opinion and Jury Competence. A Research Proposal

“...trial by jury is more than an instrument of justice and more than one wheel of the constitution: it is the lamp that shows that freedom lives.”
(Patrick Arthur, Lord Devlin PC)

The ultimate credibility of the British legal convention that is the presumption of ‘innocent until proven guilty’ lies in the very nature and attendance of the jury, creating a judicial transubstantiation of ‘mere slogan’ into ‘real presence’ (Devlin, 1956; Hitchens, 2003). The authority of the jury and its resilience to political attack, interference and perversion – which has been increasingly curbed since the 1960s - lies not in any codified constitutional document (though many incorrectly cite Magna Carta), as in jurisdictions such as France, Canada and the USA, but in ancient custom making it vulnerable to attack on grounds of competence, cost, confidentiality and consumption of court time (Darbyshire, 1991; Darbyshire, Maughan and Stuart, 2002; Erastus-Obilo, 2009; Hitchens, 2003; Thomas, 2010).

Though public confidence has historically erred on the side of favour - and at times heated defence - of its existence, cases in recent memory and others viewed in hindsight have raised many questions about the competence of a given jury and reignited the debate on whether the Justice System is indeed ‘fit for purpose’, casting doubt on the legitimacy of the prohibition on empirical research into the very area that would resolve those issues (Jackson, 1996) and if Lord Devlin’s lamp that bears witness to the freedom of our society is, as Darbyshire suggested, “really worth the candle”? (Banks, 2012; Darbyshire, 1991; Hitchens, 2003; Padfield, 2008).

LITERATURE REVIEW

The jury as an institution has at times come under attack from both the fires of ideologically motivated government policy interventions parading as ‘reform’, such as the introduction of majority verdicts and the abolition of qualification based on (psychological) maturity,( level of) education and (degree of) responsibility and of the ‘rebalancing’ and ‘modernising’ of the criminal justice system, such as the July 2002 White Paper following Lord Justice Auld’s recommendations including the abolition of the right to trial by jury and a law to definitively establish that no jury has the right to acquit a defendant “in defiance of the law or in disregard of the evidence” (Auld, 2001; Hitchens, 2003 p200; Zander, 2001).

Our knowledge of how juries come to their verdicts and the nature of their deliberations - including what has been used to direct and influence their decisions - is sparse and at best ‘informed guesswork’ (Padfield, 2008). While the paucity of research into this area is both understandable (see s.8 Contempt of Court Act 1981) and academically frustrating, those that advocate lifting the proverbial veil from obscuring public scrutiny find an ugly reality check in the words of Prof. Sir John Smith (1998, p 105) in his damning with faint praise of the jury system and the fact that much of public opinion is based on (potentially ill founded) assumption.

Smith (1998) concedes that holding up the jury system and its deliberation processes to public scrutiny may be philosophically desirable, but warns that we risk further undermining public confidence in the jury in so doing: at what price would this come? What impact would be felt by learning that things which in the cold light of day would be deemed as legally inconsequential and ethically unsound were what swayed the jury to acquit a defendant for whose blood the public had been vociferously baying outside of the court (Padfield, 2008; Smith, 1998)?

Concerns and ideological criticisms aside, that there is a credible need for more research into the inner workings of the jury room and the psychology of ‘the jury’ is not the academic (and at times legal) bone of contention; it is the nature, scope and focus of the research. Investigations into the competence of the jury are important not just when dealing with matters criminal as they also have the task of establishing liability and setting remuneration in certain civil and financial cases, although the replacement of the jury with a panel of experts (judicial and financial) is occurring more often because of concerns raised from within the legal profession, the Bar and the Bench (Levi, 1993; Padfield, 2008; Erastus-Obilo, 2009).

Sanders, Young and Burton (2010) argue that even though s.8 of the Contempt of Court Act (1981) is lauded by many for its role in protecting the individual members of the jury from threat of retaliation and preserving the finality of their verdicts, its actual purpose was to “preserve public confidence in regard to the adjudication of issues of fact” (Jaconelli, 2002; Sanders et al.,2010).

But can we be sure that it has successfully done that? Sanders et al (2010) ask an even more interesting question that is inextricably linked with the issue of public confidence vis-à-vis the jury: do juries deserve public confidence? It is suggested that the right questions are not being asked and any systematic observational (direct or indirect) research has been greatly impeded by an all-encompassing preoccupation with protecting the secrecy of the jury which, until the Contempt of Court Act , existed only in legal convention as the precise legal position was less than clear.

What we know of the jury is that their deliberations are conducted in private, and they are under no statutory obligation to qualify the verdict they return. This, suggests Sanders et al, ought to be considered in the discourse surrounding jury competence, comprehension and public opinion. The question of the jury deserving public confidence is as equivocal as that of their competence.  Any attempt to ‘obtain, disclose or solicit...opinions expressed, arguments advanced...in the course of their deliberation’ will result in the researcher being found in breach of s.8 and in ‘contempt of court’, but without such research or investigation, how can we be sure that the juries set aside their prejudices, seek hard evidence of guilt, and apply the appropriate standard of proof?

Individual juror prejudice, discrimination or bias provides not just an a priori impediment to carrying out its role of representing society, and injecting what Lord Birkett (1958) described as “ordinary standards of common decency” into the judicial process as, he continued, “…the jury introduces into the law an element of community sentiment and fairness: a jury can do justice where a judge ... has to follow the law…” (Birkett, 1958; Jackson 1996, p.340) and thereby bringing the entire system into disgrace, but it can also flavour the style and substance of the deliberations and by extension the resulting verdict (Jackson, 1996).

The issue of jury comprehension is especially important within an adversarial system where the scales of justice are tipped in favour of what can be proved against what actually happened (Sanders et al, 2010). The barrister’s primary duty is to win, not ‘seek truth’: even if that involves resorting to the ugly reality of socially accepted – and lazy – stereotypes, or bombarding the witnesses with loaded questions designed to confuse, intimidate, lead or trap. Consider the barristers understanding of linguistic and grammatical rules governing double negatives or multiple-clause questions and that of the average member of the public, and its impact on their deliberations.

It is within this context that this study finds its philosophical motivation.  By focusing on the public’s perceptions of the jury’s competence and credibility, whether or not the assumptions held are of any truth, it may be possible to identify causal links between certain factors and variables that might improve public confidence in the jury without finding oneself in breach of the Contempt of Court Act (1981) and the lugubrious waters of criminal responsibility. As the jury is made up of members of the public, who previous to and following their jury service will constitute part of the ‘public’ to whom the study makes reference in regards to competence and legitimacy, it was felt that the public themselves were the most appropriate and pertinent subject of study.

RESEARCH QUESTIONS/HYPOTHESES

The main aims and objectives of the study are to investigate and seek to establish whether the education of ‘sworn jurors’ in areas such as i) the legal process ii) basic civil/criminal law iii) civil/criminal justice procedure and iv) police process under statutory provision and regulation by an appropriate academic body would increase public confidence in the wider British Justice system.

Given the sensitive nature of discussions of and investigations into the jury, and the hurdles of silence and secrecy notwithstanding, this particular study seeks to bypass all of that by focusing specifically on the public perception of the jury’s competence to deliberate rather than the actual deliberations themselves,  and the potential perceived impact and ramifications that educating a jury would have on public opinion and confidence in ‘trial by jury’ and the British adversarial justice system.

It was important that this study was approached from the right position. As the existing literature was reviewed, a number of questions presented themselves quite naturally. Each question stood independently but was also inextricably linked with the others. It was evident from the very beginning that whilst there is no lack of academic interest in the workings of the jury, there was an embarrassing paucity of research concerned with the public and its attitudes thereto.

• ·         Is a panel of twelve ‘peers’ selected at random and without qualification from the electoral register competent to act as ‘sole arbiter of fact’

• ·         What can be done to improve public opinion of and increase public confidence in the jury?

• ·         Would the statutory education and training of jurors increase public confidence in the British adversarial justice system and ‘trial by jury’?

 METHODOLOGY

Dealing with the concept of ‘public perception and opinion’ of an independent body within the institution that is the ‘British Justice System’ , this study falls squarely within the remit of constructivist ontological research (Bryman, 2008; Robson, 2011).

The method of data collection for which it was deemed most appropriate to opt was the ‘questionnaire’. Questionnaires make information gathering relatively quick, although under certain circumstances designing the questionnaire can be as time consuming as its application and analysis. Questionnaires present themselves as one of the most objective methods, as they permit the responses to be collected in a reasonably standardised manner (Carter and Williamson, 1996; Foddy, 1994; McColl, Jacoby, Thomas, Soutter, Bamford, Steen, Thomas, Harvey, Garratt and Bond, 2001; Milne, 1999; Neuman, 2005).

At the same time, it is recognised that a disadvantage of this method is that if the questionnaire seems to be too time consuming the study participants may provide superficial answers so as simply to complete it. Further to this, participants may not have reservations or concerns about the questions themselves and not be willing to answer them: this could be due to concerns in revealing certain information, or that should they answer a question in a particular way (honestly, for example) they might face penalisation (Carter and Williamson, 1996; Coolican, 2009; Foddy, 1994; Milne, 1999).

A further accepted weakness common to questionnaires is the lack of scope in probing the responses. By their very nature, questionnaires are controlled. They provide for little elasticity in the manner that participants may respond which impedes qualification of answers, if the participant felt it so necessary. This design flaw can be partially overcome by providing space for qualification and comment – though this would increase the amount of time taken to complete the questionnaire. Comments are among the most helpful of all the information on the questionnaire, and they usually provide insightful information that would have otherwise been lost (Carter and Williamson, 1996; Coolican, 2009; Foddy, 1994; McColl et al, 2001; Milne, 1999; Neuman, 2005).

To overcome these issues, it would be prudent to pilot the questionnaire on a smaller group of friends or colleagues to generate feedback on how to improve upon it. Study participants would also receive a complete briefing before they began: told why the information was being collected and how the results would be beneficial and how they would be used, that they should answer honestly and sincerely even in the event that their response was negative, as this is equally as constructive as a more positive response. Participants will also be assured of the anonymity of their participation (Carter and Williamson, 1996; Coolican, 2009; Foddy, 1994; Milne, 1999; Neuman, 2005).

In order for the questionnaire to provide the best results, the questions selected must be carefully thought through. In order to find any significant correlation between public opinion, the competence of the jury and the British justice system, questions would need to be asked on each of the three areas. In order to be as faithful as possible to their positions, thoughts, opinions and feelings and to give a reasonable amount of flexibility, the participants would be offered a framework within which to respond: the participants would be presented with a series of written statements, and a scale of 1 – 5 with boxes to tick to identify their position and space to qualify the answer if necessary.

 e.g.  ‘Trial by Jury’ is an important part of the British Justice System

       1 ⊠ DISAGREE STRONGLY

       2 ⊠ DISAGREE

       3 ⊠ NO VIEW/INDIFFERENT
       4 ⊠ AGREE

       5 ⊠ AGREE STRONGLY

       Comment:...............................................................................................................................................................

ACCESS

Accessing a sample group consisting of serving or former jurors for the purposes of social research relating to their competence would be both potentially insulting and a breach of s.8 CCA (1981) that could result in some form of criminal responsibility or judicial sanction, not to mention logistically difficult. However as the subject of this particular study is public opinion, and by extension perception of competence, this is not an issue.

In fact quite the opposite: access to the preferred sampling group in this study is relatively easy to obtain:

• ·         Access to the university campus is guaranteed

• ·         Appropriate location is available

• ·         Significant numbers of potential participants are available

Permission of course would need to be secured from the lecturers whose students were being used as participants, as it would be in their time that the students would be approached – to facilitate distribution and collection of the questionnaires.

For reasons of logistical convenience and likelihood of finding respondents, the sample group will be 2^nd year undergraduate 'Faculty of Arts and Human Sciences' students (or equivalent) at an inner-London University.

SAMPLING.

The heterogeneous make up of the student body of an inner-London university, with its blend of national and international, mature and non-mature students from across the socio-economic and philosophical spectrum presents itself as the most natural population from which to draw a purposive sampling group. 

As the jury is supposed to represent a cross-section of the public according to a set of criteria as established by statute (Sanders et al, 2010), it is against these same criteria that the sample group would be selected, that is to say:

• ·         Registered electors aged 18 to 70 (Including the Republic of Ireland and Commonwealth countries)

• ·         Resident in the UK for at least 5 years since age 13

• ·         Not deemed mentally disordered

• ·         Not having been in prison or youth custody for any amount of time within the last 10 years

• ·         Not having been in prison or youth custody for more than 5 years (at all)

(Juries Act 1974, s.1, as amended by Criminal Justice Act 2003 s.321/ Sch.33)

·        

• Not having previous experience of jury service

• ·         Not having served, or currently serving as a Magistrate

For the purposes of this study only it was felt that no previous engagement in a judicial/court based public service capacity would help to preserve the ‘assumptive’ nature and foundation of the sample group’s opinions.

ETHICS

The questionnaire format can be used to explore contentious and deeply personal areas, opinions and sentiments more easily than other methods through its anonymity and potential to be completed in total privacy. This naturally increases the likelihood of participants completing the questionnaire honestly, as they feel no intimidation from a researcher being present (Carter and Williamson, 1996; Milne, 1999; Neuman, 2005).

Complete anonymity will be provided for all participants: no form of identification other than a numerical reference for data analysis will be present anywhere in the study’s documentation. This removes completely the likelihood that identifiable data would be shared with other researchers, prevents any breach of the ‘duty of confidentiality’ (BCS, 2006), and makes impossible the transfer of identifiable data to any third parties with or without the participants’ consent.

Participants will be briefed and debriefed to obviate any fears of potential complicity in conduct in contravention or breach of s.8 CCA (1981), of which they are in no danger as previously stated: this study does not deal with observations of jury deliberations, and excludes serving magistrates and individuals who have served on the jury.

The opportunity to withdraw from the study is not a realistic one, as there will be no way for the researcher to identify which questionnaire was completed by any given participant.

CONCLUSION

Most existing literature, as well as previous researchers future considerations, suggest that evaluation of ‘trial by jury’ should focus on jury decision-making, but not be confined to an examination of the inner-workings of the jury. Much of the literature deals with the jury’s predisposition to the crime control or due process philosophies (Padfield, 2008; Sanders et al, 2010).

Very little research dealing specifically with the impact that perceived jury (in)competence has on public confidence in, and opinion of, the British legal system has been conducted. Public confidence in the legal system has increased over a period of time (Smith, 2010) and the public are more inclined to ‘trust’ the legal professions in as far as they have achieved academic and professional competence. The legal professions are regulated, accountable, independent and bound by a professional code of ethics – breaches of which can result in being removed from their position (Padfield, 2008; Sanders et al,2010; Smith, 2010).

That s.8 CCA (1981) has had a stifling effect on criminological research, and has impeded the advancement and dissemination of such knowledge that by its very nature could significantly ameliorate the legal system, and both increase public opinion of and maintain public confidence therein, was recognised by the Runciman Commission (1993). One of the Commission’s recommendations that was most widely and unequivocally accepted by the academic community was the amendment of s.8 CCA (1981) to provide for ‘proper and direct research into real jury decision-making’ (Runciman, 1993; Sanders et al, 2010)

When faced with the argument that the fact that the jury is without legal training really should be of no consequence as the judge is the ‘sole arbiter of law’: they in turn are the ‘sole arbiter of fact’ including questions of reasonableness and so on that are eminently suitable for decision by ordinary people, Baldwin and McConville (1979) presented quite concisely their ‘logical’ case for the prosecution: twelve individuals, often with no prior experience of the judicial process or HM Courts and Tribunal Service, are selected ‘at random’ to hear witness testimony and evidence (sometimes of a highly sophisticated and technical nature) and to decide upon matters affecting the life, liberty and good name of those having been charged with a criminal offence. No training is provided to undertake this task, the deliberations are conducted in secret, they return a verdict without qualification, and they are accountable and responsible to none other than their own conscience and moral compass. Following the trial’s conclusion they fade away into desuetude, returning to the community from which they are drawn.

It is my contention that the most appropriate and only logical balance and check mechanism to the independent, qualified and legally literate judiciary and legal profession within the adversarial system that can both inspire and maintain public confidence, is an independent, qualified and legally literate jury.

“If we cannot protect the integrity of the system,
 there is no system”