Having been dragged slightly into the justice system by a jury summons, but then discharged without serving, I can now outline what I learnt about the system.
Forensic science evidence
The House of Lords Science and Technology Select Committee’s 3rd Report published 1 May 2019 (1) provides ample evidence of the unsatisfactory nature of forensic services. The UK no longer has an independent forensic service, let alone an adequately funded one. Given the pressure on the police to achieve convictions it is asking for trouble to allow them to provide their own forensic evidence. Nor is the dysfunctional market for private forensic services an adequate alternative.
One problem seems to be that unqualified experts can offer flawed opinions - a problem the Serious Fraud Office thought would worsen as digital evidence became more common. In addition, the dire lack of funds for legal aid creates a bias against defendants - apart from those rich enough to employ their own experts. A forensic expert who gave evidence to the House of Lords said he had “been commissioned by the police, by prosecuting authorities something like 160 times in my career and I have been commissioned by defence counsel three times. This reflects the level of funding that is available to challenge specialist forensic evidence.”
Systemic bias
A police bias in favour of convictions is understandable even without political pressure to increase the number of convictions, and the Crown Prosecution Service acts as the ‘Police’s Prosecution Service’. This seems a more accurate name as there is no need to implicate Charles in corrupt police evidence. Injustices are to be expected as there is no comparable Defendants’ Service to provide checks and balances that guard against injustices, e.g. the Post Office scandal. The main test used by the CPS is whether a jury is likely to convict, so decisions to prosecute take advantage of juries’ inadequate knowledge of the pro-conviction biases in the system.
Juries are meant to provide justice despite the huge power imbalance between defendants and the prosecuting state. Incredibly though, since 2003 police officers have been eligible for jury service - thereby allowing an officer to help his or her colleagues achieve a conviction. In effect a member of the prosecuting side can be planted within the jury, and the police have form when it comes to being embedded in groups not aligned with the state. Evidence given to the Spycop enquiry showed that police spied on over 1000 groups including environmental, anti-apartheid and civil rights groups as well as trade unions and the family of Steven Lawrence. Allowing police on juries has ended their historic role as independent arbiters of justice.
A Canadian website (2) said “all publicly elected politicians, judges, lawyers, coroners, persons confined to an institution, and all persons working in the justice system, such as police and probation officers, are disqualified from serving on a jury.” So not all societies are as disinterested in justice as in the UK. I gather the minimum size of jury in ancient Athens was 200, and they had no police force. I suspect a more subtle bias also exists. Jurors will often think a defendant is likely to be guilty, but if a juror has reasonable doubts they may be reluctant to say ‘not guilty’ when they think the defendant probably is guilty: not guilty obviously usually means innocent. So if the aim were to guard against pro-conviction bias and make verdicts clear, juries could instead be asked “Is the jury sure of the defendant’s guilt beyond reasonable doubt? Please answer Sure of guilt or Not sure.” This would avoid conflating ‘being found not guilty’ and ‘not being found guilty’.
We should also stop saying ‘innocent until proven guilty’. If defendants are innocent then why, for example, are they asked to plead guilty or not guilty? Being innocent they should all plead not guilty. This daft saying ignores the fact that defendants are under suspicion before their innocence or guilt is established. A sensible way to make the intended point is to say ‘not guilty until proven guilty’.
Eye witness evidence
I have often read that eyewitness accounts are unreliable, but the extent of the problem had eluded me in until I spent hours reading the evidence. The study (3) that struck me most was one summarizing the results from 6,734 lineups in 11 different international jurisdictions. 36.8% of witnesses positively identified one of the “fillers” in the lineup known to be innocent and 35.5% made no identification. So the eye witnesses agreed with the police’s idea of the culprit in only 28% of cases.
Laboratory study results though suggest witnesses perform better. Two meta analyses of such studies (3) suggest that witnesses may be right about half the time, i.e. witnesses correctly identified the culprit. However in laboratory studies the true identity of the “culprit” is known whereas in police line-ups the wrong culprit may have been arrested. False memories are another source of serious concern, as are the excessive delays before witnesses are called to give their evidence.
I gather judges should warn jurors at the end of a trial about eyewitness evidence, but by then jurors may have constructed a narrative to explain the evidence they heard. Moreover hearing a warning is not the same as studying the evidence and then allowing time for the gulf between the evidence and our prior beliefs to sink in. Jurors should properly understand the problems before they hear the evidence.
The jurors’ oath
The video for jurors (4) says “It’s vital your opinion is based purely on what you see and hear in the courtroom and you aren’t influenced by any outside factors.” This is echoed by the statement (5) “As a juror you have taken a LEGAL OATH or AFFIRMATION to try the defendant based ONLY on the evidence you hear in court.” This deters people who have spent days on prior research (e.g. reading accounts of corruption in the cases of Andrew Malkinson, Stephen Lawrence, Hillsborough, Orgreave etc. and the Miscarriages of Justice Registry) from using their knowledge. I doubt that the median length of jury hearings (which seems about 12½ hours) is sufficient to include balanced explanations of the nature of the justice system, especially to young jurors.
As human understanding is based on a lifetime of neural development we interpret the world through our past. So we can’t interpret information heard in court based “ONLY” on the information heard in court. If an oath were able to return the brains of jurors to their factory settings - so they were not “influenced by any outside factors” - the jurors would be of no more use than babies.
Also, if each juror is to take account ONLY of the evidence heard in court then there seems no point in juries deliberating in a jury room. A juror may say for example they think a particular piece of evidence is important, but although the evidence was heard in court the juror’s opinion was not. So jurors must ignore anything that other jurors say. I asked the local court for the legislative reference for the oath but they wouldn’t oblige. Either the state has changed the traditional oath (which still seems to be used elsewhere in the Anglosphere) thereby making a mockery of jury trials, or else it uses its video and webpage to lie about the actual oath used - presumably to try to trick jurors into not using or sharing their knowledge of the system’s problems.
Identifying suspects
Prosecutions by the head of state (currently the king of course) imply they are by the whole state. But delegating prosecutions to the police would allow another part of the state to support defendants. Such a body should be regulated by a citizens’ panel and could take the strain from groups such as APPEAL who successfully battled against the state’s injustices to Andy Malkinson.
The comments of individuals in the jury room should obviously remain secret. Jury opinions might also be used by the CPS to increase prosecution rates, but this could be countered by a defendants’ service that offsets prosecution bias. If juries were asked to record the basis of their decisions this would help when appeals are subsequently heard. Juries’ ratings of judges and advocates could also be used to improve the justice system. In an age when feedback is commonly used to improve private and public services it seems a pity the jury process is left out. There ought to be ways to reduce wrongful acquittals as well as wrongful convictions.
Even without any jury feedback jurors could be shown videos that adequately explain the pros and cons of the justice system and the reliability of evidence. This would also minimize the time needed for lawyers to explain such basic matters in court. However, to try to understand why the system has so many failings we could use the investigative dictum to ‘follow the money’.
I am sure there are many virtuous lawyers, but is it a coincidence that the income of this powerful group rises with the time they spend in court, and in particular with the number of appeals, retrials and inquiries that arise from miscarriages of justice?
By A L Smith
Andrew Smith is a retired civil engineer with an interest in politics and the failures in many important public institutions and services.
Please let us know if you think that there is a mistake in this article, explaining what you think is wrong and why. We will correct any errors as soon as possible.
References
Comments