Andreas Whittam Smith: Juries show society at its fairest

Racism in Britain, while deeply unpleasant, is superficial
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The Independent Online

What an unusual pleasure it is to find something important organised by the state that is working well – trials by jury. Opinion polls consistently show strong support for them. Now an extensive piece of groundbreaking research, which involved among other techniques the quantitative analysis of the outcomes of half a million charges against defendants in all Crown Courts in England and Wales, shows that the system passes every test.

That is a rare double: we value jury trials and they do their job. We revere Parliament, too, but we don't think it is particularly effective any longer. We strongly support the NHS but it lets us down a bit too often. We don't mind paying for the BBC, though we have our complaints. Probably only the monarchy is up there with jury trials, good in principle and good in practice.

Professor Cheryl Thomas's report, "Are Juries Fair?", commissioned by the Ministry of Justice, has a wealth of new information. It turns out that juries return guilty verdicts on almost two-thirds (64 per cent) of all charges. Of course it is hard to decide what the right proportion would be – not so high that juries give the impression of being too easily swayed by the prosecution's arguments, nor so low that they appear unduly lenient. But the figure quoted above becomes the more satisfactory the more it is analysed. The highest jury conviction rates are achieved where strong physical evidence is presented against the defendant as in cases of theft, drugs, falsification and deception.

It is much more difficult to secure convictions, for instance, in cases where the state of mind of either the victim or defendant is an issue. The offence of threatening to kill requires the jury to be sure of what the alleged victim plausibly thought was going on. In cases of attempted murder the jury must similarly be convinced that the defendant intended to kill someone, not just cause harm or injury. These are often difficult calls for juries, faced as they may be with conflicting testimony. So it is perfectly rational for the conviction rate to be lower.

The crucial test for the jury system is rape. It is widely assumed that the result is too often "not guilty". But this is incorrect. Juries find the defendant guilty in 54 per cent of cases, a higher rate of conviction than for other serious offences such as attempted murder, manslaughter, grievous bodily harm and threatening to kill.

But the question, "Are juries fair?" cannot be left just there. For these figures may disguise variations caused either by the ethnic composition of juries or the ethnic backgrounds of defendants or victims. This is obviously a difficult matter to appraise. To cut through to reality, Prof Thomas's team used simulations. Trials were filmed and edited so that only a specific factor (such as the race of the defendant) was altered in different versions of the case. Each version of the case was then shown to a large number of "juries" to decide. This is an artificial procedure but it is hard to imagine how else the team could have got near the truth.

Before coming to the results of the work on racial factors, there is a further consideration. Black and minority ethnic people are arrested and charged more often than other groups. Some 29 per cent of all jury trials feature black and minority ethnic defendants, a proportion that is three and a half times their share of the general population. In particular, black defendants appear five times more often than their share of the population. So if racial prejudice were a factor, it would undermine the system in a very serious way.

Remarkably, however, there is no evidence of racial stereotyping in the courtroom. Jury verdicts showed insignificant differences based on defendant ethnicity. The analysis found an overall jury conviction rate of 65 per cent for black and minority ethnic defendants and 63 per cent for white defendants. Black defendants had a 67 per cent conviction rate compared to 63 per cent for Asian and white defendants.

The report takes this test further. Suppose that a particular Crown Court is situated in an area where there is little ethnic diversity but yet hears a large number of cases involving black and minority ethnic defendants. It is likely that juries at courts like this, selected randomly as they are from local people, will be predominantly white. But still no meaningful differences in conviction rates show up. But suppose, to go a step further, the charge concerns a racially motivated crime. Even in these cases, white defendants are no more likely to be acquitted by all-white juries than by racially mixed juries.

This colour blindness in jury trials is an extraordinary discovery. For it runs counter to the received wisdom that racial prejudice is pervasive in British society. From the stands at football matches, for instance, come taunts aimed at black players. Are we to suppose that these same supporters leave that all behind when they enter the jury room? Jokes at the expense of ethnic minorities are common currency. Do these wits likewise forget their wisecracks when they sit in the jury box?

The Metropolitan Police was once famously described as "institutionally racist" and only the other day, Alfred John, the chairman of the Metropolitan Black Police Association said that the Met remains "without doubt" institutionally racist. Yet if the Met really were deeply racist, wouldn't that show up in the conviction rates for black and ethnic minority defendants? The prejudiced police would have made sure, wouldn't they, that the evidence was overwhelming? Yet not a trace of racist manipulation shows up in the convictions rates however you slice and dice them.

I accept Prof Thomas's findings at their face value. I take them to mean that racism in this country, while deeply unpleasant, is superficial. When there is serious work to be done, such as deciding whether somebody is guilty or not guilty as charged, then it falls away. During my single experience of sitting on a jury the judge told us to ignore a particular consideration. In the jury room, I blithely mentioned it and I was immediately told by my fellow jurors that I was out of order. We had an important job to do and we would do it properly.