Judging The Jury

1st February 2013

Clare Finney gets sworn in…

“Excuse me, I was wondering who I address my appeal to serve on a short-term case to? Because, y’know, I really can’t afford not to work for more than two weeks. I’ve got deadlines. Plus there’s my rent. The court expenses payment isn’t enough to cover it. And I’m just worried…”

“I’m sorry, madam, but you’ll have to tell that judge. He’s the one you appeal to when the time comes.”

“The judge?”, I thought, panicking…

As you’ve probably guessed by now, I was one of the 485,000 or so people aged between 17 and 70 who each year have the mixed blessing of being called to serve as jurors. My boss was supportive of the summons (he’d no choice, of course, given that the Criminal Justice Act 2003 which made it nigh on impossible for me to avoid it also made it illegal for employers to prevent employees from attending court without good reason) but I knew that the last thing we needed was a lengthy murder trial. We needed a robbery, straight and simple and over in a fortnight. I thought getting that would be easy.
I was wrong.

Five hours and as many cups of lukewarm tea later I was in a courtroom surrounded by a group of some 40 jurors-in-waiting. The judge explained that we’d been summoned in such a large group – a pool, it’s called – because the trial was expected to be at least eight weeks long. Eight weeks. He needed twelve jurors, and he suspected that most of us would object. Jury service is expected to last ten working days, but more serious or complex cases – chain robberies, multiple murders and the like – can go on much longer. In this case, in order to ensure a jury that could commit to the time frame, he would consider each individual plea as our names were called.

Prior to the Criminal Justice Act 2003, the means of escaping jury service were many and varied. More often than not you could be pardoned even before you got to the court and the judge. There are still, under this new Act, some excuses that may mitigate how long you serve, provided the judge agrees. If you were self-employed, our judge explained, your case would be considered seriously; likewise if you had a pre-booked holiday, a religious festival or a new baby on your hands. All the same, he reminded us soberly, this was one of the most important and serious duties that we would ever be called upon to carry out as citizens. “Jury panels are one of the pillars of democracy. I ask you to consider this, please, when you make your decision as to whether or not you can serve.”

The first judge who delivered this sermon – and I consider myself fortunate to have only endured two of them – interpreted the grounds for excusal leniently, though, despite his stern words. Having insisted that matters such as work and childcare would not constitute exonerating circumstances – “these are inconveniences we all suffer, and are compensated for by the court” – he then proceeded to let many people off the hook without a moment’s thought. My name was called, I stood, explained about my commitments and was told to leave again. A man with a poorly brother-in-law, a new mother, a girl working for an exhibition soon to be launched and several schoolteachers were similarly waved away. “My son is a teacher, so I’m probably biased,” the judge smiled, “but I believe it’s unfair on the pupils for their education to be so disrupted.” I agreed with him – but I did, for a moment, wonder that judges could be so easily swayed.

I didn’t wonder much longer, however. No sooner had we left court than another jury ‘pool’ was called forward to be sifted for another eight-week trial – and if the first judge had been soft, this one’s hand came down as hard as the law he served. Mother-with-young-child, girl-with-exhibition and man-with sick-brother-in-law (as they came to be known among the rest of us) were signed up immediately; all the schoolteachers but one, who taught A-Level classes, followed suit. I was put on stand-by, and mercifully escaped unneeded. Yet when we came to assess the final selection, one thing struck us more than anything else: it was far, far more balanced a jury than that chosen by the judge in the previous court.

In many ways, this was why the Criminal Justice Act 2003 was drawn up in the first place. Prior to its introduction in 2004, over half of the 485,000 potential jurors selected were declared ineligible because the list of persons who could avoid jury service was so extensive: judges, police officers, people with public duties, to name but a few. Of the 200,000 who were eligible, only a third actually served; the other two-thirds were excused latterly for medical reasons (40%) or care of dependents (20%); even of the third who served, half deferred because of holidays or ‘professional commitments’. The result, concluded commentators, was a jury selection net through which the professional, holiday-making, white-collar middle classes habitually and deliberately slipped.

Of course, up until the time comes to make your excuses to the judge, the entire process of becoming a juror is random. Since 2009 people have been selected for service by computer using electoral rolls, and other than the checking for criminal convictions before issuing a summons, or the considering of requests for exclusion or for deferral when and if they arrive, no one other than the computer has any say in what eligible names appear in the jury pools, or when that happens, or the order in which those names are called out in court.

So it should be, of course: a jury that is prejudiced by any individual choice is absolutely no use to anybody. Although Lord Justice Auld concluded, in his review of the old system, that ‘the risk of partiality or prejudice could never be eliminated’, the effect of the 1993 Act on widening the range of people who could be called to the box can only serve to mitigate this effect. The bigger the pool you can fish in, and the more impartial the rod, the broader the catch you’ll get, runs the theory.

However, once you are up in the box, this system can start to break down. No-one knows if you have young children or are self-employed – another potential get-out clause – and no-one in court has time to check your excuse. Even then, the decision as to whether it’s good enough is wholly down to the personality and mood of the judge on the day. The first understood the teachers’ excuses because he had a son who was one. The next didn’t – and, by the end of the two selections, I was glad. While the first judge’s jury box was filled largely with students, the unemployed or retired (in other words, those who had no excuse not to serve), the composition of the second constituted a range of ages, genders and – by extension – perspectives: the first and most fundamental reason we insist upon a jury of twelve.

That was my first lesson. I was to learn many more during that fortnight. I did get a two week case, and I did participate in a balanced, intelligent jury – including, incidentally, a police officer, a teacher and a man who was self-employed – in the end. We reaped the benefits of our diversity when it came to deliberation. It was a disturbing experience, if enriching. But the serious need for a willing, focused, balanced jury was what stuck with me most of all: reinforced first by the speeches, secondly by the sight of that first jury box, and thirdly – and most powerfully – by a conversation with my grandmother: “They really shouldn’t end up with so many retired people you know. My friend Doreen would find any one with a tattoo, or dyed hair, or piercings guilty soon as look at them – never mind what any evidence might say…”

No-one wants to do jury service, and we all think our own rationale for evading it is justified – but when you get that summons letter, and you’re considering how to respond, I recommend thinking hard about who you’d want in the box if your time came.

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