Are expert juries fair?

New rules mean judges and police officers can be called for jury service. Critics fear the move could put justice at risk. Robert Verkaik reports
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The Independent Online

John Dyson is one of this country's sharpest legal minds. After a distinguished career as an advocate at the bar he was appointed to the bench where he became the presiding judge in the technology and construction court. He now sits as a Court of Appeal judge and has delivered judgements on a number of landmark cases. But last month he made legal history in his own right when he became the most senior member of the judiciary to be called to do jury service under government reforms aimed at compelling the middle classes to play a bigger part in the criminal justice system.

John Dyson is one of this country's sharpest legal minds. After a distinguished career as an advocate at the bar he was appointed to the bench where he became the presiding judge in the technology and construction court. He now sits as a Court of Appeal judge and has delivered judgements on a number of landmark cases. But last month he made legal history in his own right when he became the most senior member of the judiciary to be called to do jury service under government reforms aimed at compelling the middle classes to play a bigger part in the criminal justice system.

As a judge, no one has ever questioned Lord Justice Dyson's impartiality but there is growing concern that the very presence of a judge or barrister sitting among 11 lay jurors could lead to a miscarriage of justice. This unease is widely reflected among the judiciary and the Bar. The new rules abolish traditional restrictions on people in certain professions who were once thought unable to deliver impartial verdicts when trying a criminal case. These included judges, police officers, lawyers and almost anyone else who knew too much about the workings of the criminal justice system. Senior judges and barristers want to know what has changed suddenly to make it acceptable to sweep away this safeguard.

Last week a judge discharged a senior barrister from a jury at the Old Bailey because he believed his presence might be prejudicial. Judge George Bathurst-Norman said the QC's knowledge of court procedure would allow the lawyer to understand a legal matter that other jurors would not pick up. He warned that the same might apply to anyone with specialist knowledge sitting on a jury and said he did not know how new legislation allowing barristers and judges to sit on juries was expected to work. "Where do you draw the line?" he asked. "I have to ensure a fair trial. I don't know how this legislation is going to work if judges are to sit on juries."

Judge Bathurst-Norman's comments may apply just as well to other professionals who work closely with the criminal justice system. For example, police officers not only understand some of the mechanics of the criminal law, they also work in a profession whose raison d'être it is to secure convictions. What policeman can honestly say that he or she will be able to leave their prejudices outside the jury room? Many crown court judges and criminal barristers and solicitors may also have a jaundiced or cyncial view of the case for the defence. After all, they sit through dozens of trials each year listening to very similar lines of defence delivered by the same old faces. The attrition rate of guilty verdicts must eventually take its toll on the objectivity of even the most fair-minded of judges.

Judge Barthurst-Norman is not the first to raise this concern. Other judges are also known to oppose these new rules and Judge Stephen Clarke, who sits on the North Wales and Chester circuit, recently described the idea as unworkable.

Defence lawyers have quickly woken up to what is a potentially rich seam of appeal points. While some will now undoubtedly challenge the juror and apply to have him or her removed on "specialist knowledge" grounds, others will wait until after the verdict before deciding whether to rely on the complexion of the jury as a point of appeal. This means that the new reforms are creating ready-made challenges to defendants who want to appeal their convictions.

Judges who are summoned for jury service are also being placed in an invidious position. What if they know the judge presiding in the case in which they are called to sit as a juror? And how much influence should the judge-juror have in the jury room?

These are questions which the head of the judiciary, Lord Woolf, the Lord Chief Justice, is already tackling. Soon all judges will be issued with guidance on jury service and how to conduct themselves in the jury room. A spokesman for Lord Woolf said judges should be treated like any other member of the public called to perform their civic duty. Under the new guidance judges called for jury service will be advised that they can apply to defer their appearance to another date or court if they know the judge or the lawyers involved in a particular trial. Judges may also be able to make similar applications if they are currently presiding in a trial.

Oba Nsugba QC is a criminal barrister and member of the Bar Council's professional conduct committee. He argues that each case must be treated on its own particular facts. But he concedes that where the juror is a criminal lawyer he or she may bring certain perceptions to the jury room that may create an adverse influence. "With an intimidate knowledge of the system the specialist would be able to second guess what is going in the court - for example the way one of the trial barristers was doing a certain thing in the case. But this interpretation may not be the correct one." If the other jurors are then swayed by this flawed analysis of the trial it is easy to see how their eventual verdict could become distorted.

So why have ministers rushed through these changes before waiting for the results of research into the workings of the jury? It was another Court of Appeal judge, Lord Justice Auld, who first mooted that the long list of exemptions for jury service should be revised. He had been greatly impressed by the American trial system and argued that if it worked there then it could work here.

At the same time government studies showed that under the old rules the middle classes were successfully dodging jury service. In one piece of Home Office research it was discovered that two thirds of those called had managed to escape service by exploiting loopholes in the system.

In his report, Justice For All published in July 2002, Lord Justice Auld proposed increasing the pool of potential jurors including those who, until now, have been excluded based on their profession rather than personal circumstances. The proposal was supported by Government and amendments to the Criminal Justice Act were debated in Parliament.

A statement from the Department for Constitutional Affairs last week made it clear that the Government has no intention of returning to the old system and brushed aside concerns of judge and lawyers. "The Government is satisfied that these concerns are unfounded. The American experience where, in a number of states, judges, lawyers and others holding positions in the criminal justice system have sat as jurors for some time, is that their fellow jurors have not allowed them to dominate their deliberations. In England and Wales, a large number of people with extensive knowledge of the criminal justice system - legal academics, law students and civil servants working in criminal justice - currently do jury service. There is no evidence to suggest that the involvement of any of these groups in jury service has been a problem."

But in the end it will be up to the Court of Appeal to rule on the question of whether or not lawyers belong in the jury room. The experiences of Lord Justice Dyson as a lay juror will no doubt be of great interest to their lordships when they eventually come to settle the issue.