THE JURY SHOULD KNOW THE TRUTH
Ronald Payne argues that
the crimes of those on trial should be revealed
IT CAME as shock to a London jury of eight women and four men 'good and true' who had just found Patrick Reilly not guilty of murdering a small girl named Leonie Darnley to be told that he was already known to be guilty of brutal rapes. Not surprisingly, some of them wept in indignation. Their feelings were under- standable, but tears are not an adequate response to the sins of omission in our legal system.
Trials in this country are fairly and strictly run on an adversarial system which gives a chance for highly skilled barristers to display their undoubted talents on be- half of both defence and prosecution. The court and the jury are treated to a fine display of intellectual jousting under rules as strict and formal as those controlling the mediaeval sport.
The disadvantage is that everybody in court — police, lawyers and judge, even the ushers — knows a great deal more about the man on trial than they are permitted to let on to the jury. As the Reilly affair proved, and it is by no means the only such case, there is a conspiracy to keep the 12 people in their jury box in `holy ignorance' so as not to prejudice a fair trial. Yet they are the ones with the awkward task of deciding on guilt or innocence.
They are treated with great politeness, but it is the kind of patronising courtesy afforded to children who must be shielded from secrets of the adult world. If, for example, a witness lets slip some casual remark about the accused such as, 'I first met him in Wormwood Scrubs', alarm bells ring, the jury is sent away. In its absence it is argued that the accused now stands no chance of a fair trial and the case against him grinds to an end.
As Nicholas Fairbairn QC, a former solicitor-general for Scotland, was quick to point out, the time has come to consider whether there is not a different, a better way of helping the jury in its difficult job.
Scottish law practice ensures that jurors are made aware of all the charges facing a defendant, which would have made the embarrassing business in London last week impossible. In Europe, where Roman law prevails, juries are treated in even more grown-up fashion. In France a professional examin- ing magistrate prepares a complete and detailed dossier on the accused. As the trial starts, and before coming to the cir- cumstances of the alleged crime, jurors first hear the full, unexpurgated story of the life of the person brought before them. They learn of his good parts and his failings, of his trials and tribulations and even, should he have a criminal record, of his misdeeds and punishments.
As a result they are able to make a rounded judgment of a person on trial, not simply on guilt or otherwise in one particu- lar incident, but on the basis of a whole biography. They learn about circumstances which may have contributed to causing that incident of which he stands accused. I have attended famous trials in France, the Drummond murder affair, for example, where it was perfectly plain that informa- tion about the past misdemeanours of the accused did not prevent the jury from coming to a fair verdict. On the contrary, detailed information helped them to make a fair judgment.
Of course, even to suggest that similar procedure might be considered in a British court brings cries of shocked alarm from traditionalist lawyers. 'It just is not the British way,' they intone, thumbs in their gowns; 'we do not conduct our trials like that because people must be tried only on a specific count.'
Yet outside the courts, in normal life, men and women do take into consideration what has happened in the past before passing judgment on their friends or peo- ple they work with. Fairness is not des- troyed by information. Knowledge and understanding can bring compassion, as when you say, 'Yes, my boss is totally unreasonable and he should not have done that, but his wife is ill and his house did burn down last week'. Circumstances can extenuate as well as condemn.
Any reasonable person gives the benefit of the doubt for misdeeds and aberrations on the basis of what is known to them of the background. Juries are held to be composed of reasonable and just people, capable of making up their own minds so long as the facts and circumstances of a case are made available to them. So why treat them as inferior creatures to be shielded against unsuitable information, indeed even from the truth, by superior persons in gowns and wigs who sometimes give the impression that they resent the intrusion of jury-outsiders in their cosy world?
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