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The Jury's Out


“I don’t like the idea of being tried by a group of people too stupid to get out of jury duty.”

I can’t remember who said that, but I do remember the first time as a young lawyer I came across an actual jury. It was the High Court, Edinburgh where my client faced a charge of hamesucken -the crime of breaking into a person’s home with the intention of assaulting them. It’s a crime once regarded serious enough to merit a prosecution in Scotland’s highest criminal court. Today the same case would be dealt with at summary level in the Sheriff Court without a jury. It saves a lot of money that way.

As the jury were led off to consider their verdict, I said to the late Ian Simpson Q.C. that I didn’t think the jury had been very receptive of the defence case, to which he replied. “Don’t worry. It’s amazing how often they come back with the right verdict.” And they did, for my client at any rate.

I was recalling the case when I read about the acquittal of two Irish rugby players charged with rape. Up until then, I hadn’t heard of the case, and unless they have very large courtrooms in Ireland, like me, the hundreds of placard-waving people outside the court protesting at the verdict, hadn’t sat through the trial either. That was the job of the jury.

Not that juries always get it right, I’m sure. But what is the alternative? I didn’t see any placards suggesting progressive root and branch changes to the criminal justice system, or advocating the discontinuation of the jury system and ideas on how it should be replaced.

Although the presiding judge at the rugby rape trial was a woman, it has been pointed out by some that only three of the eleven jurors were female. Which brought to mind another case, this time a charge of rape in which Frances McMenamin Q.C. was instructed for the defence. As the jury was balloted and more and more women came forward, eventually making up a jury of four men, eleven women, my client grew anxious. “Tell him to stay calm,” Frances said. “The more women the better. Men look at the complainer and see their daughters. Women look at the dock and see their sons.”

Undoubtedly, jurors bring their own prejudices with them into the jury box; however, they also each bring a lifetime of experience and discernment and an understanding of the world that allows them to come together as a unit and decide if the evidence they have heard is sufficiently compelling so as to allow them to deny one of their fellow citizens the right to liberty.

Democracy has been described as, ‘eight stupid people telling two clever people what to do.’ Likewise it has been said that, ‘Democracy is the worst form of government, except for all the others.’

The same goes for the jury system. It’s not perfect. But what’s better? From experience, I’d rather put a self-defence to a jury than a judge. The fact is, the jury system is the best we can come up with, and jurors will keep coming back with verdicts some people don’t like. In any criminal trial, one side always loses. All we can ask of a jury is that they adhere to their oath to well and truly try the accused in accordance with the evidence; as opposed to try the accused in a manner that will please the newspapers and the supporters of one side or the other.

I can’t comment on the Irish rugby players’ trial. I have no opinion on their guilt or innocence. I didn’t hear the evidence. What I know of the case is gleaned from newspaper snippets and comments on social media. I suspect the same is true for the protesters gathered outside that Irish court building, to whom I say, before any more boards are nailed to sticks and branded with #IBelieveHer, you should know that by your actions you are not supporting one woman, you are directly attacking the integrity of the men and women who fulfilled their civic duty, listened to the all of the evidence, deliberated, and, in what must have been an extremely difficult case, unanimously returned what in their considered opinion was the correct verdict.

It’s called justice. It just might not be the justice some people were looking for.

William McIntyre

April 2018