Juries: checks and imbalances
Marcel Berlins
When the American black activist Bobby Seale came to trial in 1970, it took four months for a jury to be empanelled. More than 1,000 jurors were rejected in the process of finding 12 who were acceptable to both the prosecution and defence. Until recently, such a grotesque perversion of a system, which is supposed to have as its basis the principle of random choice, would have been unthinkable in England. It is still very remote, but a decision last week on the right to make inquiries on potential jurors has brought the prospect of the United States practice much closer, and raised disturbing implications on two separate grounds.
The controversy over the vetting of jurors first surfaced last year when, during the trial of Messrs Aubrey, Berry and Campbell on official secrets charges, it was accidentally revealed that the prosecution had been checking on people on the jury list with the Criminal Records Office and the Special Branch. The Attorney General at the time, Mr Sam Silkin, was then obliged to reveal publicly the .guidelines under which such vetting was governed. He admitted to 25 cases within three years in which permission for the prosecutiqn to vet jurors had been granted. They related to 'serious offences where strong political motives were involved such as IRA and other terrorist cases and cases under the Official Secrets Act; and serious offences committed by a member or members of a gang of professional criminals.'
In those cases, the guidelines suggested, potential jurors 'may be susceptible to , improper pressure or may, because of extreme political beliefs, be biased against either the prosecution or the defence.' A juror's political connections would normally be irrelevant 'unless they are of so extreme a character as to make it reasonably likely that they will prevent the juror from trying a case fairly or that he may exert improper pressure on his fellow jurors.'
This clearly put the defence in such cases under a disadvantage. Already the prosecution could get rid of any number of jurors by asking them to stand by for the Crown, whilst the defence only had three peremptory challenges. Now, the prosecution was being allowed to vet potential jurors whilst the defence, in theory having the right to challenge any number of jurors by showing cause whey they might not be impartial, were in practice denied the opportunity of finding out whether or not such reason existed.
The issue has now come to a head. The prosecution in a conspiracy trial with political connotations scheduled to start this week asked a judge for permission to conduct a check on jurors on the list from which the trial jurors would be chosen. The defence argued that, if the prosecution were granted the right to vet, then so should the defence be entitled to carry out its own investigations into jurors, and, what was more, be entitled to legal aid to pay for those inquiries.
The judge agreed, but clarification was then sought, and last week he gave a ruling with extremely important repercussions. Judge Gibbens said, in effect, that he did not have the power either to grant or refuse permission to vet jurors because it was the right Of both sides to make what investigations they wanted, provided they kept within the law. Once the names on the jury list became known (the list is normally handed out the day before a trial, but can be obtained in advance on application to a judge) the court could not restrict what inquiries were made about the people on it: 'Anyone may do anything the law does not forbid.' The judge expressed clear disapproval of private detectives asking questions about a juror's background, opinion and habits, but made it clear that he could not forbid it, as long as what was done did not break the law. He did, however, restrict the amount of legal aid that would be available.
The decision is highly significant. If the judge's interpretation of the law is correct, the right of either side to conduct checks on jurors is not limited to the classes of sensitive trials set out in the Attorney General's guidelines, but applies to all cases. Whilst the prosecution may have constraints placed on its freedom to vet by the Director of Public Prosecutions, the defence seem to have total freedom to investigate potential jurors.
The whole point of a jury is that it should be chosen at random. Once juries are selected too carefully, as is the case in the United States, they are no longer representative of the community as a whole and, if that happens, much of the justification for retaining jury trials disappears. Of course there have had to be deviations from the principle of total randomness. Some categories are excluded from jury service altogether (servicemen, lawyers, MPs, doctors); others are exempted for reasons personal to them, whether physical infirmities (deafness), job circumstances (running a one-man business), or a particular link with a participant in the trial. In general, however, English juries are random juries. They cannot easily be packed, or manipulated to represent a narrow interest or prejudice. If Judge Gibbens is right, it is only a matter of time before that ceases to be true.
There is another, no less important, issue. Being called up for jury service is, for most people, an irritating, time-wasting, sometimes disruptive but occasionally interesting experience, which, on the whole, is accepted as a necessary duty to the community. It is not seen as anything to fear. But if jury service were to entail private detectives making inquiries in the juror's neighbourhood, questioning local shopkeepers, chatting to neighbours, or speaking to colleagues at work, a new and potentially frightening dimension would be introduced. From merely performing a tiresome task, a juror would be in danger of having his privacy invaded, and his reputation and status in his community adversely affected, even where the checks have found nothing to his detriment. The very existence of private detectives snooping around may be enough to damn him in the eyes of his community. Quite apart from the implications to the individual's civil liberties, knowledge that such vetting takes place is bound to affect people's attitude towards serving on a jury, intensify their attempts to avoid doing so, and bring the jury system into suspicion and disrepute. Defence lawyers point out with some justification that the prosecution ought not to have the advantage in being able to influence the composition of a jury. If it is desirable to have parity of access to information, the choice must be made between both sides having the right to vet, or neither. But it is better to take the chance that the occasional injustice will occur because no vetting at all is permitted (remembering that with majority verdicts of 10-2 being accepted, it would need three jurors to prevent a just verdict) than to allow the standing and efficacy of the entire jury system — and therefore the administration of criminal justice — to suffer..
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