Jury trial – a Pryce worth paying?

February 2, 2013

A lot of interest has been generated by the approach taken by the jury in the Vicky Price trial, in particular the apparent inability of the jury to grasp fundamental aspects of their role in the trial.

My mind was cast back to the one criminal jury trial which I as a then trainee lawyer (in fact a then articled clerk, my mind had to go back a long way) was involved with. We did a lot of commercial, property and liquor licensing work for a brewery who asked us to represent one of their relief managers accused of glassing a drinker in a Manchester pub. Ten minutes into the trial and juror raised a hand, asking if they could have a pen and paper to make notes. Furrowed brows ensued and the barristers for defence and prosecution exchanged glances which were best interpreted as shock that the jury could read. Half a day later and the prosecution case was in tatters. The first prosecution witness gave evidence for the defence, and the second, the alleged victim, was dismantled by the forensic equivalent of a three card trick by our barrister. At this point the prosecution counsel asked for a word in private, during which he asked to stop the trial and withdraw the charges. All very sensible. The jury was reconvened and told that while the prosecution had decided to withdraw the charges, only they could find the defendant not guilty and so the judge asked them to give a formal verdict of not guilty. Lacking a foreman the judge appointed the man nearest him, explained he was now speaking for the whole jury and asked him for the formal verdict. Judicial eyes revolved in their sockets when the man said that he could really only speak for himself and found the defendant not guilty. Eventually we got through this arcane ritual and our man was set free, his reputation unimpugned.

Having spent to decades as a commercially focused in-house lawyer, one of the last places I would ever want to be would be sitting in the defence team at a Crown Court, an ambition I am pleased has thus far been realised. So I am not well placed to comment on the details or criminal theory of the jury’s approach in the Pryce trial, other than to compare it with my own experience above. Reading the initial headlines, I thought the jury may have had the same level of incomprehension of their role as my jury from all those years ago. But reading the actual questions reveals a different position. The questions are well written, clearly by intelligent people. Some of the questions are quite searching and even the more surprising ones (“what do you mean by ‘reasonable doubt’?”) make sense outside a courtroom where this has supposed to have been explained to them. Perhaps one of the jurors got confused on the bus home to Clapham.

So my take on this is, how can apparently intelligent people get this so apparently wrong? I think it comes down to frames of reference. There are good reasons why courtroom practices follow certain patterns even if they seem highly artificial. There was a good reason why it required the jury to find my brewery client not guilty, so that his reputation was upheld by the instrument set up to examine it. But if as a juror you think about the case you are about to hear in advance, it is almost inevitable that you do so not as a criminal lawyer but rather as the plumber, estate agent or dare I say it, commercial lawyer that you are (perhaps with a side order of James Cagney or Judge John Deed). If you designed a criminal court process from scratch today, without all of the learning and practice we have had since juries were chosen to replace the hot iron bar in the trial process, it is quite possible that you would reach different conclusions about issues like whether jurors can use information obtained from outside the courtroom to influence their decision. (As lawyers we might see the risks inherent in allowing this, but with most decisions in life we would not think twice about introducing other information so, if you are an intelligent layman, why not in the courtroom?)

So the intelligent juror comes to the court hearing with an approach which is conditioned by their own background and thinking about their role – their frame of reference. And it is this frame of reference which acts as a prism through which they see the trial, including judicial directions to look at things in a different way from how they might have expected to do so as well as to suggest how to fill in gaps in the picture. Perhaps the surprise here shouldn’t be that the jury acted as they did in R v Pryce (1) but rather that it happens (is reported) less frequently.

All of which brings me to my own take on the Pryce case, which is that we must always think about the frame of reference of the people we engage. As an in-house lawyer most of the people I work with aren’t lawyers; their frame of reference is different from mine and so they come at issues with a different perspective, different analyses, different expectations and often different objectives. Constantly checking what I am saying to make sure that it takes account of these differences, and makes the best use of them, so that we don’t end up with two different views of the same conversation, is hard but essential to get the best interaction between professionals. (It cuts both ways – as a listener it is always valuable to remember that the other person’s frame of reference will colour what they have to say and to do your best to strip away the coloration which results.)

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