C4’s ‘The Jury: Murder Trial’ - what’s the verdict on our jury system?

The programme The Jury: Murder Trial being broadcast on Channel 4 is already proving to be fascinating viewing.

The programme, being aired in four parts on consecutive nights this week, follows the deliberations of two juries as they observe a murder trial. Despite the obvious flaws (the presence of cameras, the selection of jurors not being entirely random as in real life, and the lack of “jeopardy in a case where the “defendant” is an actor), it still provides a glimmer of insight as to how juries deliberate and reach their verdicts (in England and Wales).

Research into juries, or at least how they reach their verdicts, is limited. This is largely due to section 8 of the Contempt of Court Act 1981, whereby it is an offence for a person to ask for or make public any opinions or arguments put forward by a jury member in the course of making a decision.

Programme makers looking at this subject are therefore required to take a creative approach.

Channel 4 piloted a similar idea back in 2007 when I was one of the legal advisers (with a cameo role as the solicitor advising at the police station). That programme, Consent (Century Films) filmed a randomly selected jury deliberating on a rape trial, using real lawyers and actors playing victim and accused. The Guardian’s review of the programme concluded “all credit to Channel 4 for airing the issue, which needs a lot more informed public debate, in such a perceptive way.”  

The new programme by ScreenDog productions differs in two significant ways. Firstly, it uses actual transcripts from a real case (in this case a murder trial); and secondly it has filmed two juries both watching the same trial, each jury unaware of the presence of the other. We the viewers can watch the two juries deliberate. Will they be persuaded by the same points of evidence, and critically, will they reach the same verdict?

Every criminal lawyer has at some point wished they could be a “fly on the wall” in a jury room, and now we have that opportunity, and a chance to see on display the interactions of jury members: - the dominant characters, those bringing their own issues and experiences to the table, those who are quick to pre-judge (it remains to be seen who may change their mind and why) and even some examples of prejudice.

The chance of being called to do jury service once in your lifetime is around 40%. I have yet to be asked. A citizen without experience in the justice system and yet to be called up as a juror, may find The Juryman’s Tale by Trevor Grove, or film dramatisations such as 12 Angry Men illuminating. There is also a treasure trove of great jury stories and anecdotes that will enlighten, enthrall and entertain if one chooses to research them.

A common thread is that we tend to associate juries with our longstanding commitment in this country to the rule of law and justice.

In his famous and often cited, robust defence of jury trial, Lord Devlin said:

“The first object of any tyrant in Whitehall would be to make parliament utterly subservient to his will; and the next to overthrow or diminish trial by jury, for no tyrant could afford to leave a subject's freedom in the hands of 12 of his countrymen. So that trial by jury is more than an instrument of justice and more than one wheel of the constitution: it is the lamp that shows that freedom lives ...”

His words reflect the notion we have long held true – that juries are regarded as a key plank of our democracy, and it is often assumed that juries usually reach the right decision when it comes to an innocent or guilty verdict.

System imperfect

Of course, if the jury system were perfect, we would not have miscarriages of justice. However, many miscarriages are not the fault of the jury - they can arise from perjury, police bias, inadequate disclosure, and other failings in our justice system (increasingly as a result of wholescale underfunding by consecutive governments).

A good system of justice is one that recognises that juries do not always get it right and looks how best to correct errors with a robust and fair appeal system, while also maintaining confidence by allowing an examination of the issues. Because a jury does not give reasons for their verdicts, it affects the way in which an accused person can appeal against their conviction, typically focusing on the adequacy and fairness of the judge’s directions to the jury if challenged, rather than whether the jury understood or followed them.

As Mark Twain once observed there is “probably no remedy for a jury that lacks common sense.”

While there is always room for improvement, public attitude surveys have shown continuing strong support for the jury system, trust that a jury would come to the right decision, and a belief that a criminal trial by jury is fairer.

We can only hope that this programme reinforces those sentiments and does not undermine them. Initial TV reviewers have praised the fact the jury system looks “astonishingly democratic” (the Inde) but also raised the prospect, this may make us feel “a little less confident about the workings of the British justice system” (the Telegraph).

Viewing the first episode of this programme certainly does not inspire confidence. Ironically in a case where there is evidence presented that the victim was a “bit of a bully”, there are some pretty dominant personalities who sometimes seem to speak over others. There are also examples of many jurors bringing their own issues and prejudices and applying them to the case, with overt expressions of sympathy for one side or another, expressed as definite views long before the evidence has concluded.

What will be fascinating to see will be how those views develop as the case progresses, particularly at the point where the jury members have to make a collective decision -guilty or not guilty?

Another important question will be whether the jury system itself has been given a fair trial by this programme. I will form my own view at the end, but for the moment “the jury is definitely “still out”.               

further information

For any further information on the issues raised in this blog, please contact Greg Foxsmith or another member of the Criminal Litigation team.

about the author

Greg is a Legal Director in the Criminal team. Greg is a highly regarded and experienced lawyer and advocate with over 25 years experience. He returns to criminal litigation after a stint as a senior advocate in our regulatory team, dealing with misconduct  cases across a wide range of professions, particularly in health care. His expertise in both fields will be invaluable in defending professionals facing allegations that have both criminal and regulatory consequences.