Here come the Thickos

The dismissal of the jury in the Vicky Pryce trial means that R. vs. Pryce is likely to feature in the legal textbooks long after anyone can remember who Chris Huhne was (a satisfactory form of revenge, even if Ms. Pryce is eventually convicted). This is because of the unusual plea of "marital coercion", though you'd be forgiven for thinking the issue was the poor calibre of jurors to judge from the many calls to reform, or even abolish, trial by jury. On last night's Question Time, Peter Hitchens suggested that only the educated should be allowed to be jurors (this being a "better" solution that simply reverting to a property qualification), while today Simon Jenkins suggests that juries should go the way of ducking stools and vestry duty, and Melanie Phillips advocates IQ tests (which seem to be language tests, i.e. tests of how foreign you are).

The coverage of the decision to order a retrial, and in particular the list of questions the jury asked of the judge, has generally implied that the jury were thick (though the Daily Mail naturally got to the point by doing a black and Muslim headcount). This was influenced by the judge's direction that they suffered "absolutely fundamental deficits in understanding". Any speculation on why they asked these questions, and what that indicated about the internal dynamics of the jury or their level of understanding, can only reflect prejudices, hence the way the QT debate quickly morphed into one about English language competence (amusingly, even the DM ruefully reported that none of the jurors "appeared to struggle" with the English-language oath, though I'm sure the Phillips test would weed them out). Jenkins aired the popular suspicion when he offered an anecdote from his own jury service (hardly a statistically significant sample) in which he criticised a Nigerian immigrant for her poor English and limited grasp of the law, before admitting that she was one of the few whose view on the guilt of the defendant matched his own. Right for all the wrong reasons.

Melanie Phillips' logic is as nasty as ever, claiming that unless we restrict juries to the qualified we risk losing the jury system altogether: anti-democracy offered as the defence against authoritarianism. Simon Jenkins' rant is standard Tory misanthropy, accusing the justice system of being a racket, beholden to the vested interests of the legal profession, and jurors of being vulgar gawpers, googling the background of the defendant and witnesses. He quotes Professor Cheryl Thomas of UCL to this effect, giving the impression she may share his contempt for all and sundry, which is amusing as she pops up elsewhere in the same edition of the Guardian to say: "More than 99% of the time juries reach a verdict. A hung jury is extremely rare. There are very few lessons from this case ... All the evidence I have from a decade of research is that the overwhelming majority take their job very seriously".

The issue that this episode highlights is the over-dependence of the jury on the direction of the judge. The purpose of a jury is to provide a counter-weight to the procedural monopoly of the legal agents, i.e. the judge and barristers, and by extension the wider justice system, i.e. the police. If you disempower juries, you necessarily increase the power of the other actors. This is a real danger. In 1975, the direction of the judge in the original Birmingham Six trial, specifically in relation to the forensic evidence, was crucial in securing a guilty verdict. In 1980, Lord Denning famously refused the Birmingham Six leave to appeal, and thus secure a fresh jury trial, on the grounds that their success would show the police to be guilty of perjury and violence. A couple of years later, in respect of a trial relating to the St. Pauls riots in Bristol, he suggested that some members of the black community were unfit to serve on juries, which led to his eventual resignation. There are many forms of thickness.

While the debate over the R. vs. Pryce jury's questions has focused on general knowledge no-brainers, such as what does "beyond reasonable doubt" mean, less attention has been given to the primary question of what constitutes "marital coercion", a defence available only to a wife. This is because the term is arcane and anachronistic. It dates back to an era when the balance of power between a husband and wife was such that a woman could face real danger if she disobeyed, from being committed to an asylum, having all her property estranged, or being beaten and raped (rape within marriage was only made illegal in England in 1991). The question of law, which is likely to recur even with a jury made up exclusively of PhDs, is whether marital coercion still exists in any meaningful sense, or whether the gradual equalisation of rights means that a wife today is no more likely to be coerced than a husband is.

The point that Hitchens failed to make, in his thumbnail sketch of the history of English juries, is that a property qualification was rational (if not fair) when the law was largely concerned with crimes against property. A jury, now as then, has to empathise with the victim of the crime, as much as they need to imaginatively sympathise with the accused. The move to democratise juries (women were admitted after 1919) reflected the gradual shift in the concern of the law from crimes against property to crimes against the person. This exactly mirrored the gradual reform of the franchise.

The structure and practice of the justice system reflects social and economic power. In the medieval era, when the Church was effectively a para-state co-existing with the Crown, clerics could only be tried in separate church courts. The subordination of the Church in England was played out in the gradual disempowering of ecclesiastical courts as much as in the sudden dispossession of the monasteries. The move to drop trial by jury for complex fraud cases, which was defeated in the House of Lords in 2007, reflected an era in which the complexity of finance was a given, with the corollary that this justified superior rewards and sympathetic regulatory oversight. Since that unfortunate business in 2008, the idea has been quietly dropped, despite the ostensible grounds for reform, that such trials often run into the sand, being as relevant as ever.

Peter Hitchens' suggestion of an educational qualification (and a higher age limit) is a bad idea for three reasons. The first is the class bias of education, i.e. the middle classes and above will be disproportionately represented. Hitchens didn't specify the level of educational attainment he considered adequate, though the related suggestion of an age limit of 21 might imply degree-level. However, as a Daily Mail columnist, I suspect he'd plump for GCSEs in English and perhaps Govian History, though he might push for the "gold standard" of A-levels. The higher the level, the more class bias this would entail - something that is likely to get worse as tuition fees rise and the attraction of further education for poorer kids declines. Even with greater social mobility, we should recognise that education inevitably inculcates middle class values, which is probably the attraction of such a qualification for Hitchens. In other words, imaginative sympathy with working class defendants is likely to suffer.

The second reason is that class bias is inevitably a property bias too. It is natural to feel more sympathy with people you identify with, hence in a case involving a middle class victim and a working class defendant, tried before a middle class jury, a guilty verdict would be more likely than if the roles were reversed. But bias is also likely to show at an aggregate level in respect of the type of crime, i.e. the propensity to convict, over and above the social class of the participants. Just as the historical shift to democratic juries reflected a growing belief that people were more important than property, so the attempt to reverse this trend reflects a belief that property deserves more respect. The demonisation of those on benefits is a species of this, in which public property (taxpayers' money) trumps sympathy for the poor.

The third reason is that qualifications for jury service tend to change in step with qualifications for voting. Ceding our right to sit on a jury is the thin end of the wedge. If someone is deemed to be unqualified to determine guilt in a court of law, then it is only a matter of time before they are deemed unqualified to determine who their local councillor or MP should be. In this regard it's worth noting that the "no representation without taxation" meme is quite open in the equation of rights with property. While Hitchens currently rejects the old-style property qualification (not finally abolished till 1972) in favour of educational attainment, I suspect he'd accept "being an income taxpayer" as a compromise.

The threat to trial by jury does not come from the dim, or first-generation immigrants with an accent, nor from religious nutters or the uneducated. As the history of the assault on jury trials for fraud before 2008 indicates, it comes from those who believe there are spheres of public life and justice that cannot be trusted to the hoi polloi. In their different ways, this is an elitist view that Peter Hitchens, Simon Jenkins and Melanie Phillips all share. Talk about thick.