Why the reasonable should doubt jury competence

It is time to subject our flawed jury system to impartial judgment, writes Paul O’Brien.

THE statistic was staggering. Some 43% of the jurors said they had failed to grasp everything that had gone on in the courtroom.

Legal terminology was one problem. Alarmingly, a number of jurors made reference specifically to the term "beyond reasonable doubt", which they found "confusing".

They felt that evidence was not always presented in the clearest way.

Then there was a handful of jurors who claimed they could not even hear the evidence properly, while others didn't know if they could ask questions or take notes.

The findings were contained in a report on jurors' "perceptions, understanding, confidence and satisfaction in the jury system" which was published in January.

The research, carried out by academics at Middlesex University for the Home Office, was looking at the British jury system.

Yet anyone looking to study the Irish jury system would have to look to this and other international studies for reliable analysis because there is an appalling dearth of research on our system even though people's lives are inalterably affected by the outcome of jurors' deliberations.

The Department of Justice is unable to point to any research on the issue, the Law Society likewise. Individual lawyers and academics similarly fail. "There's none I'm aware of, I have to say," says one practicing solicitor.

An academic, meanwhile, suggests it is not even a topic that features in conversation. "I haven't heard it being discussed," he says.

But is it not a terrible indictment of both the judiciary and academia that there is no research into a system upon which people's futures rest?

Not guilty, say both. They defend the glaring lack of studies by pointing to the Juries Act of 1976 which forbids jurors from speaking of their deliberations once a trial ends.

But England's Contempt of Court Act 1981 also prevents any discussion of what happened in the jury room, and yet the Middlesex researchers were able to overcome that obstacle.

They asked generalised, and not case-specific, questions; reminded respondents they were not allowed to discuss their deliberations; and produced an invaluable piece of research.

So is it just an unwillingness on the part of an inert legal community in this country that the jury system has not been adequately researched?

Or is it simply that there is an unquestioning acceptance that the system works as it should?

In the case of Justice Minister Michael McDowell, the latter seems to be the case.

"His belief is that the jury system is the bedrock of our criminal justice system," a spokeswoman said. "He has full confidence in it."

But how well-placed is that confidence? Seeing as Britain's jury system is very similar to ours, the questions raised in the Home Office report must be applicable to Ireland, too.

Are all jurors capable of dealing with evidence that might arise, say, in a complex fraud case or criminal trial?

And juries never have to explain why they arrived at a verdict. So how can we blindly accept that they have reached the right conclusion?

We can't, argued Mr Justice Rory O'Hanlon. "A judge sitting alone must give judgement not only announcing the verdict but outlining how the evidence has led him to this verdict," the former High Court judge said two years before his death in 2002.

"When (juries) go wrong, it is very difficult to show that they have gone wrong, and how they have gone wrong, since the jury never has to justify its verdict by explaining how it arrived at it."

The chances are if jurors were allowed to speak out, what they might say would not prove very reassuring.

In the US, jurors in federal cases are sometimes invited by the judge to speak out afterwards. After US domestic goddess Martha Stewart was convicted of four charges relating to an insider-trading scandal, juror Chappell Hartridge told how the appearance at the trial of Stewart's celebrity friends possibly backfired.

"If anything, we may have taken it a little as an insult," he said.

Worse, Hartridge told how Stewart's decision not to testify had left a bad impression on the jurors, despite the judge specifically ordering them not to read anything into it.

Jury competence, though, is just one problem. There are others.

For instance, under the Irish system, the onus rests on the potential juror to state if they are somehow ineligible for service.

"You don't know their level of sanity, you don't know if they have a criminal record; that is an inherent frailty of the system," said Chief Justice Ronan Keane.

While he qualified his remarks, adding "I still think trial judges will say they are happy about the way that juries do their work", it does not take away from the fact there are glaring question marks over the jury system.

In a submission to the Oireachtas Committee on Justice in December, the Director of Public Prosecutions James Hamilton said there were "many issues concerning juries which should be addressed".

For example, not all convicted of offences are prohibited from serving. People who committed offences in other jurisdictions or received suspended sentences can be jurors.

The DPP said reform of the Juries Act was "overdue", and urged that an expert group be established to look at such reform.

This weekend, Mr McDowell's spokeswoman said he was considering a review of the jury system. But, stressing his utmost confidence in the system, she said any review would only seek ways of strengthening it.

Such a review, therefore, won't answer won't even ask the most important question of all: is the jury just an archaic institution which should be done away with entirely.

As has always been the case with "the bedrock of our criminal justice system", it seems we will rely on other countries to debate that one for us.