Thursday, October 18, 2007

On the Road (to extinction?)

It is one thing to approve of the existence of trial by jury, but another to want to serve on a jury one’s self. Reluctance to serve on juries has caused problems in Britain, to such an extent that recent reforms have increased the pool of potential jurors by around 4 million. This has been accomplished by adding to those eligible to serve on juries people such as constables and lawyers, including prosecuting lawyers. The New York Times observed, as long ago as 23 November 1854, that “Trial by jury is in process of gradual extinction in England.” Do the state’s efforts to preserve jury trials, by widening the range of people eligible to serve, threaten the right to a fair trial?

This was the question underlying three appeals heard jointly in R v Abdroikof [2007] UKHL 37 (17 October 2007). In two of these unrelated cases, a police officer had been on the jury, and in the third one of the jurors had been a lawyer who worked as a prosecutor.

It was unanimously held that in the first appeal there had been no appearance of bias, because the case did not involve a contest of credibility and in the circumstances it would have been hard to argue that any unconscious bias on the part of the juror who was a police officer would have disadvantaged the accused.

However, the House of Lords split 3-2 on the other two appeals. The majority (Lord Bingham para 26-27, Baroness Hale para 45, and Lord Mance para 82) held that in both these there was the appearance of bias. In one, a police officer was a juror and the case involved a credibility contest between the accused and a police witness who worked in the same area as that juror (but they did not know each other; Lord Mance at para 83 thought that the conflict in evidence would not necessarily create the appearance of bias, but the working area aspect was important particularly as it was a breach of a police instruction); it was likely that instinctively the juror could have preferred the evidence of the police witness simply because the witness was a police officer. In the other case, where a prosecutor was on the jury, there was apparent bias: a reasonable person acquainted with all the circumstances would have concerns about the impartiality of the proceedings.

The minority, Lord Rodger and Lord Carswell, would have dismissed all three appeals. Purporting to apply the test of what the fair-minded and informed observer would think (while, I suggest, actually applying a test of what the fair-minded and informed Law Lord might think), Lord Rodger reasoned at para 32 that since there are lots of reasons a juror might be biased, for example men on rape juries might be sympathetic to the accused, a juror who had been sexually abused might sympathise with the complainant in a sexual abuse trial, a gay juror might be sympathetic to claims of assault by a gay man against a homophobic accused, or a homophobic juror might not be sympathetic to a gay complainant, an undergraduate juror might be sympathetic to another undergraduate of the same university, a black juror might sympathise with a black witness, a juror involved with drugs might sympathise with a person accused of drug offending; these are all risks that have always existed and which are regarded as risks that can be managed, so Parliament’s addition to the categories of eligible jurors is merely a recognition that similar risks can be managed. Furthermore, reasoned Lord Rodger, one way of managing these normal risks is through the number of jurors who must collectively (or by a permitted majority) reach a verdict: the informed observer would realise that “the mere fact that there is a real possibility that a juror may be biased does not mean that there is a real possibility that the jury will be incapable of returning an impartial verdict” (para 33). He continued, para 34:

“The reality therefore is that the jury system operates, not because those who serve are free from prejudice, but despite the fact that many of them will harbour prejudices of various kinds when they enter the jury box. In the United States a voir dire is held to try to select jurors who are free from relevant prejudices. In Britain, with its very different history, such a procedure has not been adopted - indeed it has been specifically rejected. If experience had shown that British juries, made up of people drawn at random from all kinds of backgrounds, could not act impartially, the system would long since have lost all credibility. But Parliament must consider that it works, since it has not abolished it or introduced a new procedure for selecting jurors, even though it has had opportunities to do so. Juries also seem to enjoy the confidence of the general public. The fair-minded and informed observer will be well aware of this.”

One must wonder, however, whether such an observer of the system would ever find apparent bias in a jury. The argument extends to the conclusion that all British people are capable of being members of juries that appear to act impartially.

The appearance of impartiality was, of course, the point of difference between the Law Lords. Lord Bingham, at para 14, cited the famous dictum of Lord Hewart CJ in R v Sussex Justices, Ex p McCarthy [1924] 1 KB 256, 259:

“…it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.”

In the present case it was not suggested that the relevant legislation contravened the Human Rights Act 1998[UK], so it was necessary to avoid saying that there would be apparent bias whenever a police officer or a prosecuting lawyer was a member of a jury. This required analysis of the particular circumstances of each appeal. Lord Bingham suggested that Parliament intended what had not been done here: the parties should have been alerted to the juror’s occupation before the trial began to provide an opportunity for judicial scrutiny before jury selection: para 24 (Baroness Hale agreed, para 52, but Lord Rodger did not, para 43). The circumstances were such that, in relation to the appeals that were allowed, Lord Bingham accepted

“…the central thrust of the case made by Mr Richard Carey-Hughes QC for the appellants: that these cases do not involve the ordinary prejudices and predilections to which we are all prone but the possibility of bias (possibly unconscious) which, as he submits, inevitably flows from the presence on a jury of persons professionally committed to one side only of an adversarial trial process, not merely (as the Court of Appeal put it) "involved in some capacity or other in the administration of justice”. … [the] expectation that each doubtful case would be resolved by the judge on a case by case basis is not, he pointed out, met if neither the judge nor counsel know of the identity of a police officer or the juror, as appears to be the present practice.”

The split between the judges here was resolved by Lord Mance, who had read the opinions of his colleagues. He observed, para 81:

“The differences of view in the present case illustrate the difficulties of attributing to the fair-minded and informed observer the appropriate balance between on the one hand complacency and naivety and on the other cynicism and suspicion.”

Without giving reasons, he expressed agreement with the opinions of Lord Bingham and Baroness Hale. This leaves us with the impression that the two appeals on which there was disagreement could easily have been decided differently. Perhaps, as British society becomes more accustomed to having police officers and prosecutors on juries, a future but similar appeal will be decided differently. Will there be a “gradual extinction” (to borrow the New York Times’s phrase) of sensitivity to the appearance of bias?

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