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The British ruling class are no longer good sports

The typical member of the British ruling class of yesteryear was complacent, arrogant, and a hypocrite. However his public school had at least imbued him with one particular virtue, or, failing that, had imbued him with the desire to appear to have that one virtue, which does well enough for most purposes. He wanted to be seen as a good sport. A chap who played the game. A chap who would not shoot a sitting duck or a grouse out of season, and who would never hit anyone who by reason of sex, age, or any other cause, could not hit back.

We have dispensed with all that foolishness now.

It is contempt of court for a juror ever to describe the deliberations of the jury of which he or she was a member. Thus the members of the jury held up to public scorn (“…a fundamental deficit in understanding … in 30 years of criminal trials I have never come across this at this stage, never”) by Mr Justice Sweeney for asking stupid questions cannot defend themselves.

Not playing the game, sir, not playing the game at all.

Related: Sexual and financial privacy and the bully pulpit.

19 comments to The British ruling class are no longer good sports

  • [...] Natalie Solent, from the always good Samizdata. [...]

  • RogerC

    Disclaimer: I’m a layman, not a legal professional. The below may therefore contain factual errors, which those in the know are welcome to correct.

    That said, I was under the impression that a jury could reach whatever verdict it wished, even if that verdict was contrary to the letter of the law as applied to that case. If that verdict is “not guilty”, then that’s the end of the matter. If it’s “guilty”, then there’s the appeals process.

    This principle is called “jury nullification”, and it provides the means for juries to effectively nullify what they see as unjust laws. As such, it’s one of the few powers left to ordinary citizens that allows us to directly check the power of the state.

    It’s also not widely known as the judiciary has spent the last century or so keeping very quiet about it, which may perhaps go some way towards explaining the jury’s apparent confusion in this case. Every courtroom drama I’ve ever seen describes the jury’s role as that of a cog in the machine, with responsibility to weigh the evidence and return a verdict, but with no discretion in the interpretation of the law.

    If I was a juror looking at a case, under the impression that I had to interpret the law strictly, but perhaps felt that the case was unfair, I might ask a lot of bloody stupid questions too.

  • Jaded Voluntaryist

    Let’s assume the judge was right and those people were too stupid to be jurors. If that is the case, how much of the British population would also fit this criteria?

    Before you know it we’ve done away with a jury of your peers, and instead have appointed a panel of experts who judge your guilt or innocence. Sound familiar? Still, I’m sure nothing could go wrong with such an idea……

  • Jason

    If memory serves, in the Clive Ponting case in the 1980s the judge directed the jury to return a finding of ‘guilty’ which the jury duly ignored, returning a ‘not guilty’ verdict, not because he was – according to the letter of the law – but because the jury felt the law to be unjust.

  • Friday Night Smoke

    From recent experience, it only takes one stupid and vocal juror to ask a stupid question of the judge, along with a foreman who considers it prudent to let the judge tell them just how stupid their question is.
    Also I find the scorn from the media (and others) to be a bit rich, essentially a load of armchair lawyers are mocking people, who were almost literally grabbed from the streets at random and shown a 5 minute video on the jury system, for not knowing the intricacies of the job they were ordered to do.

  • Andrew Duffin

    Jaded Voluntarist has it. Judge Sweeney’s remarks, whether he knew it or not, are part of a campaign to get rid of juries altogether. Life will be so much easier for the elites once these annoying ordinary people can’t stick their oar into the workings of the justice system. No more inconvenient acquitals, and no chance of the doing of the court being made public.

    Oh, and RogerC: “If that verdict is “not guilty”, then that’s the end of the matter” Not any more, it isn’t; Blair abolished the double-jeopardy protections, remember? If they don’t like the verdict now, they can keep on trying you until they get the result thet want – rather like an EU referendum.

  • llamas

    Let’s not forget that the selection of jurors can be a skilled art, and that, in some cases, lawyers for one or both sides will try very hard to use the tools at their disposal to get a jury that they feel may well come down on their side of the issue.

    In many cases, sadly, this means trying to create a jury that is less-sophisticated, and which may be more-responsive to appeals to emotion and concepts of ‘fairness’.

    I have been told, by persons that I believe, that the only thing I have to do to be discharged from any State venire in which I am called is to clearly state my occupation during voir dire, and that all I have to do for any Federal venire is to wash carefully in the morning, so that my gender and ethnicity are not in question. Crudely put, defense lawyers do not want educated white men on juries. In this state, three failed voir-dires and you’re sent on your way with the thanks of the court.

    Based on what I have read about this case, I wonder if some of that went on here. I used to live and play rather a lot in the area from which this court would venire, and I do not believe that the make-up of the jury accurately reflects the pool from which it was drawn.

    llater,

    llamas

  • RogerC

    Andrew Duffin wrote:

    Blair abolished the double-jeopardy protections, remember? If they don’t like the verdict now, they can keep on trying you until they get the result thet want – rather like an EU referendum.

    I think they have to present new evidence, but you’re right. I’d forgotten about that. I very much doubt that it’s difficult for the crown to come up with new evidence, or at least evidence they did not present at the original trial.

    What happens next presumably comes down to who gets to decide if the newly-presented evidence changes the prosecution’s case sufficiently to warrant a fresh prosecution. However, as I know nothing of this part of the process, I can’t really comment further.

    Those pesky juries. They just keep on chipping away at them…

  • Johnathan Pearce

    In my distant past I worked for a while as a court reporter, and covered dozens of jury trials of varying types. There were one or two cases where a jury, via the foreman, asked a question to the judge in a note. In one case – I think this was in Ipswich – the judge reminded the jury they could only base their decisions on the facts presented, and was pretty fierce about it, but not rude.

    The reason why this particular case has attracted so much publicity is the number of questions that the jury asked. The judge might have handled this better; had he had any idea early on that the jury were struggling to grasp was required, he could have done something about it.

    Yes, there is a risk to trial by jury, and this is part of a creeping process of undermining the Common Law traditions in this country. The issue of juries being confused, or stupid, or otherwise lacking, is not new.

  • Sam Duncan

    I daresay there is a quiet movement to get rid of jury trial among the legal profession (I know my own father, a retired lawyer himself, looks on it with open disdain), but it’s hard not to agree with the judge in this case. Juries like that are their own worst enemy.

    Having said that, I’ve served on one jury so far, and I was pretty impressed by their grasp of things. Then again, we were well directed. The judge simply told us (paraphrased slightly), “My job is to determine what the law says. Yours is to provide common sense.” I liked that.

    Llamas, I was told the best way to get thrown off a Scottish criminal jury was to carry a copy of the Telegraph. Didn’t work. :) (To be honest, I ended up enjoying it. Might have been different if it had been a more serious or complex case, but thankfully it was over in a couple of days.)

  • llamas

    @Johnathan Pearce, who wrote:

    ‘The reason why this particular case has attracted so much publicity is the number of questions that the jury asked. The judge might have handled this better; had he had any idea early on that the jury were struggling to grasp was required, he could have done something about it.’

    With respect, I think that the publicity results, not from the number of questions, but because some of them were so inane, and showed that some jurors didn’t understand the process and their role in it. At all.

    I’ve seen jury trials where the jury sent dozens of questions to the judge – admittedly, trials about much-more-complex issues than this, but still – and all were treated with respect and answered fully. I don’t think many judges would cavil at fair questions about legal niceties, no matter how many there are. But when a juror asks “can I decide based on what I read in the papers?” or words to that effect, you can see where patience might be exhausted.

    There was one corruption case around here where the jury sent endless questions to the judge, and all were answered, until finally, a question came up along the lines of ‘we have one among us who will not participate in deliberations but who simply states at every vote that she will not convict the defendants, no matter what (and then the judge redacted some content). Can we get rid of her and take up an alternate?’ and the judge lost his rag entirely, and blistered their behinds somewhat – I think he got reprimanded by the JTC over it. Which seems unfair, since it was actually a fair and honest question about jury process, not about the case.

    llater,

    llamas

  • Natalie Solent (Essex)

    A letter to the Times suggested that the nature of the questions was consistent with this scenario: there is only one jury member who is unclear on what constitutes reasonable doubt, relevant evidence or whatever. This person is delaying and frustrating the others, and is unresponsive to argument from fellow jury members. So, in what must have seemed a perfectly reasonable move, the more clued-up jury members seek the backing of the judge in the hope that answers coming from him will have the extra authority necessary to persuade the recalcitrant one. If you look at the questions, they do suggest that such a scenario is highly likely. If so, it backfired spectacularly and has unfairly impacted the reputation of the majority of the jurors.

    But whether that supposition is correct or not, he could have discharged them if he felt it necessary without the public shaming. He didn’t have to pontificate away about how dim he thought they were when it was obvious that because of the public interest in the Huhne / Pryce case his remarks would have a wide audience – and when he of all people knew that they could not offer their opinion of him.

  • So let me get this straight: on the one hand, they force people to sit on the jury, while on the other hand they’d much rather disperse with the juries altogether. And the jurors are the dumb ones?

  • Natalie Solent (Essex)

    Another thing, most of the questions are not that stupid at all. My husband and I, both educated people (and former jurors who managed not to get discharged) had a long discussion on what would and would not constitute marital coercion. The words quoted in the first question, ” was will overborne” are rather outside the normal vocabulary of most ordinary people, whatever the judge may think. The distinction between the drawing of an inference and speculation is also, I think, a good deal more obscure to most ordinary citizens than it is to a man such as a judge who makes such distinctions daily.

    Only question 5 is really dumb – and as I said above, it looks to me like that was someone who knows perfectly well what the answer is trying to get backup from the judge.

  • Laird

    With respect, Natalie, other than the first one I think those questions were pretty stupid. If I were the judge I’d have gotten pretty frustrated with them, too.

  • Julie near Chicago

    Apologies for length, but I’m in a thorough mood. :>)

    Overall impression:

    It seems to me that most of those questions might have been asked by anyone with an analytical turn of mind, that is, by people who need to distinguish the exact meaning intended and are uncomfortable unless they feel they thoroughly understand.

    One example would be the recent cross-examination by Yours Truly of RRS and Laird and anyone else who would weigh in on the meaning of “‘normative’ Libertarianism.”

    For example, “reasonable people” can and do argue heatedly over whether some proposed conclusion to an argument is speculation or an inference. One man’s logical conclusion is another’s non sequitur. (See recent Samizdata arguments over taxation or “free will.”)

    Furthermore, any conclusion by the jury is going to depend on what interpretation of the events it finds most persuasive. And I promise you, EVERY interpretation to which you were not a party will have speculative elements. On a good day, they’re trivial and their effect on one’s judgment of the whole case should be negligible. But they do exist…and not every day is a “good day.”

    But the most important question the jury asked, the one whose answer is least self-evident, is, “What constitutes a reasonable doubt?” As a general question, the answer to this is not at all clear, and people’s answers to the that question differ. The difference between that standard and the standard of “beyond a shadow of a doubt” is even brought up every so often in thrillers.

    Almost all those questions could have been asked by an intelligent person with an analytical turn of mind, who wants to be SURE to get it right in terms both of understanding of the legal requirements and of doing correct justice.

    Brief for the Jury:

    Q1 & Q10: Judge Sweeney’s answer to Q1 opened the door to the asking of Q10. (Imagine this had been a shariah-murder case, where the husband told the wife to kill the daughter. If one believes that justice requires each of us to be responsible for his actions–”I was just following orders, as my religion compels me to do” doesn’t work–then his answer to Q1 was wrong. There is a difference between “I had no choice” and “I felt I had no choice.”)

    Q3 & Q8: Difference between between inference and speculation. Good question. –For heaven’s sake, the evidence may be undisputed as heck, but two logical people as often as not will draw different inferences, depending on their worldviews, their experience, and, yes, their understanding of the technical matters–meaning of words AND understanding of mechanisms: i.e., their background knowledge.

    Q4. “What is ‘reasonable doubt’?” A very important question which, unfortunately, is all but impossible to answer in general. In concrete cases it’s sometimes obvious, sometimes not.

    Q5. Myself, I sometimes ask questions like that because I can tell from Q&A that the questioners and the answerers are simply not communicating; asking the question is my way of clarifying matters without offending anyone. YES, I have had an audience in a crowded theater laughing at me and swearing at me–”That question has been asked 800 times! Pay attention!” Lo & behold, this time the people onstage answered differently. The audience was AMAZED. (I still feel a bit set up when I remember that. *grin, blush*) Something like that could have been the case here. No way to know.

    Q6 & Q7. “Must the defendant present evidence in his favor, or may we draw conclusions from the fact that he doesn’t?” Even that’s not necessarily “dumb.” (Actually, the proper word is “uninformed”: the conclusion that the juror is stupid is itself speculative since “uninformed” explains the juror’s problem equally well–absent other evidence, of course).

    Q9. A “being SURE I understand”-type question, with a sensible answer from the Judge.

    Brief for the Judge:

    We can only speculate, based on the facts before us. Observations:

    1. We have nothing to go by but the printed words on the page. No clues from tone of voice or delivery; nor from facial expression. Taken individually, then, we cannot interpret the Judge’s emotional state nor opinion of the questioners from the evidence presented.

    2. Some, but not all, of the Judge’s answers seem possibly irascible.

    3. Some of us get an overall impression that the Judge is “scornful” of the jury.

    4. Some of us don’t particularly get that impression.

    5. Some of us would give the judge the same benefit of the doubt that we give to both the jury and the accused.

    Case remanded to the Sanhedr–er–to Samizdatists for disposition.

  • Julie near Chicago

    Should better have said, “…any conclusion by the jury is going to depend on what interpretation of the evidence it finds most persuasive.”

  • RAB

    As an ex-executive in the Lord Chancellors Dept I have summoned and spent time with juries. The prevailing attitude to Juries as far back as the 70s by the Legal profession in general was that they were of low calibre. This was based largely on the ease with which those summoned for Jury Service could get out of it, avoid it or otherwise be exempted. What you usually had left were those without the wit or the wherewithall; those on the dole or housewifes whose kids had left home.But funnily enough, juries usually come up with the right result.

    Now the “Right result” as far as the authorities are concerned is conviction. Well you don’t want to spend all that money to find someone innocent now do you? And money is finally what it is all about. The purpose of the court system is to process as many cases as quickly as possible at the least cost and the maximum conviction rate. You didn’t naively think Justice and Fair Play came into it did you?

    Which is why the powers that be would love to scrap the Jury system and move to a Continental one of Magistrates and Judges alone deciding guilt or innocence. Give the Great Unwashed a look in and they may cock it up.

    But the galling thing about juries is that they still seem to work towards that old ideal of Justice, by flying in the face of the facts now and again and, as has been said above, bringing in a not guilty verdict even though the defendant is obviously technically guilty, if their gut feeling is that the Law is wrong in the first place. The Technocrats would never allow that.

    My advice is, and has always been, if arrested plead not guilty and go for a jury trial. Your chances of an aquittal are 100% better than that of being tried by a bunch of professional box ticking experts.

  • Julie near Chicago

    RAB, “Justice and fair play?” What are those?

    I remember also the time I was talking to our small data-processing business’s attorney, and the talk turned to The Law, and the L-word came up. You know, the L-word: Logic.

    And the guy (youngish twerp, probably around 30, don’t even remember his name–800 years ago) said, “You don’t think the law’s about logic, do you? It’s about who can tell the best story.”

    Sigh…the disillusionments of youth….

    Lots of talk over here about getting the citizens educated enough to be able to go for jury nullification, if they think the law’s an ass.