crowd sourcing criminal justice and swearing as democracy
By Mike McGuire
Having recently been called to Jury service for the first time, the significance of the jury and its function as a feature of civil society is something which I had a fair amount of time to reflect upon. A very fair amount. I hadn’t appreciated quite how much waiting around jury service appears to involve. Waiting to be searched on the way into the court; waiting in line to show ID and to get my £1.45 lunch token (10p short of the only available main meal option at £1.50…), then waiting (and waiting, and waiting) in the jury room for something to happen. From time to time the jury foreman showed up, read out some names and off went a group from the large pool of potential jurors also assigned to sit around and wait with me for the 14 day call up period. It was two days before my name was finally called and after assembling with my fellow members in the corridor outside, we were led on a long and winding road through the bowels of the Inner London Crown Court. But having arrived outside our assigned court no grand trial was awaiting. Instead, a legal technicality meant the judge had adjourned the case – so back we all went for some more waiting. As I did, I reflected upon how, of all the (often peculiar) institutions which go to make up our civil society, amongst the oddest – and certainly one of the oldest – is the jury. The idea of deferring judgement upon normative violations to a body representative of the community is an old one, though it has been managed very differently across different societies. In 5th century Athens, between 500 – 1500 citizens chosen randomly (by lot) heard trials in the Peoples Court. The body was composed entirely of males over 30 but jurors received a small payment which permitted poorer Athenians to participate. Elaborate safeguards were taken to prevent bribery – crucial given the authority granted to the jury. There were no judges and often no relevant statutes to guide juries who were simply expected to ‘exercise their best judgement’’ to arrive at a majority (rather than a unanimous) verdict. Privilege played a greater role in the Roman system with Praetors making an annual selection of senators, knights, or other respectable citizens, to sit in judgment. Verdicts were again decided by a majority but as well as ‘guilty’ or ‘not guilty’ decisions jurors could also say that they were ‘uncertain’’. This would usually mean that the case was deferred; though if the verdict was ‘hung’ i.e. votes for acquittal and condemnation were equal), the accused could also be discharged.
Anglo-Saxon justice opted for wider participation in decision making than the relatively small numbers on a jury – sometimes involving the whole tribe. A more community based form of justice resulted – for example if enough people came forward to vouch for an accused’s innocence they could be acquitted without further trial. However trials were not usually decided in terms of the quality of evidence presented, rather by ‘ordeals’ that were assumed to indicate the preferences of divine judgement. For example ordeal by battle (with the victor taking the legal spoils) or ordeal by physical mutilation (such as immersion of the hand in boiling water or fire) where innocence was established by the rate at which wounds healed. It was with the Norman Conquest that the scene was set for the more rational approach to collective adjudication over guilt now familiar to us. Their tradition of ‘inquests’ where 12 or more knights could be summoned to provide information on suspected criminals in their area set the template for what followed. In 1166 Henry II began to use this body to resolve land disputes and it was the requirement to swear an oath to provide honest information which gives rise to the term jury (from the Latin “iurator” or “swearer”). By 1215 the Church had decided that fire and water ordeals were probably rather imprecise methods for proving guilt or innocence and banned them. When, in the same year, the right to trial by jury was enshrined within the Magna Carta the stage was set for the shift towards the jury as we know it today. Though their more active legal role in providing evidence which characterised the Norman inquest system diminished, the jury became the most important collective institution for securing justice. As a result, safe guards upon juror conduct were in place very early – in particular the requirement to be kept away from any outside influences. The 16th c prosecution of jurors found with raisins and plums on their person (whilst sworn in) is an example of how seriously these safeguards were taken!
In spite of its venerable roots the jury now stands as one of the most important remaining ways in which citizens participate in the governance of society. Its mode of governance also has some surprisingly contemporary aspects. Whilst deferring to 12 individuals is not quite ‘crowd sourcing’, the extent to which jurors are trusted to make choices and be the final word in complex decisions that may have serious impacts is a model of participatory democracy – especially in a world where citizens are increasingly treated as risks to be managed rather than responsible members of a shared social collective. Almost inevitably then, the jury in an institution now facing various threats – with Lord Devlins 1956 observation that trial by jury is “the lamp which shows that freedom lives” looking increasingly precarious. Such threats have even led the Lord Chief Justice, Lord Judge to suggest that we may soon see ‘the end’ of the jury system as we have known it. Lord Judge was referring to the pressures of technological change – specifically court-based tweeting and misuse of the internet. The six month jail sentence imposed upon a lecturer at the University of Bedford for researching a defendant online during a trial, or the 8 months handed out to a juror who exchanged Facebook messages with a defendant shows how common – and challenging – this problem now is. But there are other less publicised but far greater challenges technology is beginning impose. In particular, the increasing dependence upon expert witnesses to explain technical evidence has suggested to many that juries are now irrelevant to many kinds of trials. Other pressures are, inevitably, financial. Jury trials have been estimated to cost up to five times more than those conducted without a jury and – as the recent shift towards cutting legal aid for certain types demonstrates – politicians are more than happy to use financial reasons for curtailing the power of an institution which so challenges their authority.
When I finally I did make it into a trial it was not quite the legal blockbuster I had been hoping for. But it was still about as fascinating a piece of social reality as I have ever experienced. The case seemed to be rather an open and shut one involving an incompetent burglar who had been caught red handed in a property but who had subsequently claimed he was only there because he had ‘seen an open door’ and had entered ‘in order to help out’. It was around this that point that I began to fully appreciate just why the threats to our jury system need to be properly confronted. The fact that this man’s (ostensibly ridiculous) claim was being discussed at great length, at great cost and in painstaking detail by grown men (they were men) in gowns was reason enough to defend it. The fact that all this effort was being directed at the rather motley bunch chosen to represent UK PLC to pass judgement was even more significant. Because when that door closed and the jury retired something rather wonderful happened. What was previously a diverse, disengaged and frankly rather uninterested section of the British population changed before my eyes into a thoughtful and committed group of individuals, engaged in serious argument and genuine debate about the morality of human behaviour. I even found myself asking, what if the guy happened to be telling the truth? What if the evident disadvantages he faced in life meant that his intentions were not quite as clear-cut as they had seemed at first? My fellow jurors were less sympathetic and after a brief debate I had to conclude that they were probably right and my over worthy attempts to find some vindication in his actions were probably wrong. There were just too many questions about his actions and, in the end, too many inconsistencies in his account for it to be credible. But though I was overruled, I realised that the debate which took place in that room was everything that our contemporary democracy should be about, but rarely now is. Not surprisingly, current research on the jury has not focused very much on its role as a mechanism for participatory democracy, or as a model for transforming atomised 21st century apathy into citizen engagement. Rather it is more abstract topics such as juridical fairness which have tended to dominate the literature. (See for example Muller-Johnston et als’ recent study of Jurors’ Interpretation of Criminal Standards of Proof or the (2010) MoJ study of whether juries are fair. Whether RCUK would agree with me that research into the role of juries as models for contemporary governance is now desirable is another matter. But at the very least we can see why Durkheim’s brilliant insight that crime should be regarded as a positive feature of healthy societies rather than a pathological aberration continues to be relevant. For just as the reaction to crime helps forge the bonds of community so too does what happens to people when they are trusted to deal with the consequences of crime. And this is certainly a lesson which might be applied more widely.
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