The Clue is in the Question

Nigel Williams, 21 February 2013

‘Can a juror come to a verdict based on a reason that was not presented in court and has no facts or evidence to support it, either from the prosecution or defence?’

This question was put to Mr Justice Sweeney by members of the first jury to hear the trial of economist Vicky Pryce on a charge of perverting the course of justice. It is a question so well framed that the judge cannot have needed long to consider his answer. Members of the jury are prohibited from disclosing their private discussions. So it is purely my conjecture that this question reveals one juror’s concerns about the conduct of another. If that conjecture is correct, it brings some credit on the jury system. Within a group of twelve, there were enough ‘good men and true’ to prevent a vocal minority from deciding on an inappropriate basis.

It is always possible that a jury will refuse to convict even when the legal system clearly requires that they should. That is considered a final safeguard. The jury is sworn in to judge the defendant but to an extent they also judge the legal system. If they convict, they are saying that they have no reasonable doubts about the facts of the case and that they are satisfied that the court is fit to try it. That second part is almost universally taken for granted but the safeguard still exists. A celebrated case of 1670 , ‘Bushel’s case’ follows an instance of a jury’s refusal to convict. Bushel had been a juror, willing to say that two Quaker defendants had addressed an assembly in Gracechurch Street, but not that the assembly had, in the words of the charge, been ‘unlawful’. The jury was defending their religious rights against the law of the time and Bushel eventually won his case. Juries could not be punished for their verdict.
It is asking a lot of a jury to confine its deliberations to what they see and hear in court when a lot of very public events have happened since. Meanwhile we are encouraged to judge many things, whether they are within our competence or not. Are we justified in passing comment on proceedings against Oscar Pistorius currently taking place in South Africa? ‘Sub iudice’ laws there are less strict since they have not employed juries since 1969. Once you have got used to voting by text for your preferred pop singer it may feel like a short step to passing comment on a murder case abroad involving two celebrities. Today (21st February) the South African City Press is running a poll about whether the chief investigator in the case is credible. Yesterday 506 people answered another City Press poll to say what substances were found inside the defendant’s home.

Another short step makes it appear reasonable, a loaded word in this context, to make judgements about two British public figures. But it is far from a small step. British juries are still expected to stick to the facts in court and we have laws about contempt of court that are intended to protect them from undue influence. A ‘reason that was not presented in court’ could represent just such an undue influence . The juror that framed that question may deserve our congratulations for recognising the distinction.