Behind bars | Common sense and a sharp eye

It is always a wince making moment for criminal practitioners when a jury makes a pig’s ear of a case and the tabloids go large on their idiocy. It adds fuel to the never quite extinguished fire that simmers under the surface – that juries are a waste of time and money; that they let too many people off; that they are an expensive luxury we can no longer afford. It also feeds into the debate about who actually serves on juries. For those who have never set foot in a courtroom, they are of course the unemployed, housewives, and the idle. Those of us whose feet are rarely anywhere else know that juries by and large are both diverse and characteristic of the citizenry as a whole: a mix of young and old, women and men, soft hearted and hard boiled, scruffy and well dressed, black and white, Guardian reading and gravely illiterate, with the occasional narcoleptic snoozing in the back row. What is extremely surprising is how rarely that mixture throws up a duff jury. Every barrister has at best only one or two anecdotes about silly juries: mine was a jury which after three hours retirement sent the judge a tear stained note asking whether they were allowed to reach a verdict on the basis of who they believed. Told crisply that yes, they could, they spent another three hours deciding they didn’t believe anyone and we all went home.

Fresh eyes

What is rarely talked about is how much sharper they can be than the professionals ever so slightly patronizing them from counsel’s and judge’s bench. In a recent case of mine a question from a juror had everyone – experienced judge included – slapping their foreheads and saying “Bugger me, why didn’t I think of that?” The answer to the question had the defence briefs hastily rewriting their closing speeches to make the most of it. Sometimes, with CCTV, there is a sharp eyed juror who notices a detail missed by everyone else. At times like that the court feels interactive, involving – as if the jury is part of the performance itself.

Juries are though strictly enjoined against too much joining in on the fun. ?The preliminary directions by judges now take an age, what with counselling them against doing their own research, using the internet, tweeting or looking things up. You can see their faces fall as they take in the bad news: you sit and listen and that’s it. But what the Judicial Studies Board directions, and the culture of the court room itself doesn’t really bargain for is a jury, or a juror, who are deeply knowledgeable about the subject matter of the trial itself. Barristers frequently prattle on about something called common sense and how blessed juries are to have it, and how lovely it is for us all that they do – but what about uncommon sense? What about deep technical knowledge in one or more jurors? What happens if they don’t need to look anything up because they know it already?

Unconcious bias

That was the situation in R v Ramin Pouladian- Kari (EWCA 2013 Crim 158, 22 February 2013) a case involving the breach of a requirement to get export licenses for electrical switchgear which could be used for civilian or military purposes, and was therefore subject to controls under the Customs and Excise Management Act 1979. The case began with an extensive opening by the Crown, and evidence from freight forwarding agents. At lunchtime on the second day a juror wrote a note to the judge setting out not only his own professional involvement in that precise field, but saying that there were details in the opening which would have ensured, for him, automatic rejection of the transaction on compliance grounds. He went onto to say that while he understood his duty was to judge the case purely on the evidence he heard, he couldn’t forget his own expertise. He was also concerned he might drive the conclusions of his fellow jurors in his own conclusions. The Crown said that was all perfectly fine, and, as with barristers and judges serving on juries, he could serve without imparting his own special knowledge to the deliberations. The defence objected on the grounds of possible bias and contamination. The judge didn’t discharge the jury, who convicted.

The Court of Appeal quashed the conviction on the grounds there was a real possibility of unconscious jury bias. That case relied purely on the juror himself taking his duty seriously enough to disclose the problem. But what to do when a juror knows a subject intimately, and doesn’t tell? Should we check out their skills and occupations beforehand? Or rely on their much vaunted common sense to only use that?