The Decline of the Jury

Am I going to have to fall out of love with juries? For decades I have defended these curious committees, which can ruin a man’s life in an afternoon. It has been a romance as much as it has been a reasoned position. Most people get their best lesson in jury trials from the 1957 movie Twelve Angry Men. In that version, a single determined juror, played by Henry Fonda, gradually wins the rest of the panel round to an acquittal, at great cost in emotion and patience. But what really won my heart was Thomas Macaulay’s account of the Trial of the Seven Bishops, in which a London jury defied the wishes of the would-be autocrat King James II in 1688. It was an astonishing event, a monarch’s authority challenged by—of all unlikely things—a collection of Anglican prelates. Their acquittal, perhaps more than anything else, led to James’s fall a few months later. It was the beginning of true constitutional monarchy in Europe, the genesis of the English Bill of Rights and the forerunner of the very similar American document of the same name. It could not have happened without a jury.  

For without a jury, any trial is simply a process by which the state reassures itself that it has got the right man. A group of state employees, none of them especially distinguished, are asked to confirm the views of other state employees. With a jury, the government cannot know the outcome and must prove its case. And so the faint, phantasmal ideal of the presumption of innocence takes on actual flesh and bones and stands in the path of power. Juries grew up in England almost entirely by happy accident, and no government would nowadays willingly create them where they do not already operate. A brief fashion for them in 19th-century Europe was swiftly stamped out by governments that understood all too well how much they limited their power. I believe the last true Continental juries, sitting in the absence of a judge, were abolished in France in 1940 by the German occupation authorities. People in Anglosphere countries, unaware that true independent juries rarely exist outside the English-speaking world, have no idea what a precious possession they are. 

I remember actually pounding the arm of my chair with delight as I read Macaulay’s account of the response of the bishops’ attorney, Francis Pemberton, when threatened by the chief Crown prosecutor, the solicitor general: “Record what you will. I am not afraid of you, Mister Solicitor!” So this was England after all, and even the majesty of the Stuart Crown could not overawe the defense. This was wholly thanks to the fact that the trial took place before a jury—which duly acquitted the bishops of “seditious libel,” the ludicrous charge by which James had hoped to crush opposition to his plans to reverse the Reformation. Without a jury, the king would of course have won his case, and England would have gone down the road to absolutism (already followed in France, Prussia, Russia, and the Habsburg dominions) with incalculable consequences for the whole world. Instead we had what came to be called the Glorious (or Bloodless) Revolution.  

And my blood still runs faster when I recall this and other moments at which the mere existence of juries has made us all more free. Yet I also have terrible doubts. Is the independence of juries possible in the modern world, in which the English Bill of Rights is all but forgotten and a new dispensation reigns? All too often, I read reports of trials in my own country that fill me with doubt. I did my fair share of court reporting as an apprentice journalist many years ago, and I have a good understanding of how these things used to work and ought to work. Something has changed. There is a worrying number of sex cases now coming before the courts in which clear forensic proof of guilt is often unobtainable. 

The alleged crimes themselves are repulsive, and the mere accusation is enough to nurture prejudice. The defendants have often been arrested in the scorching light of total publicity, in spectacular dawn raids totally unjustified by any immediate danger they present. Pre-trial media reporting has further undermined the presumption of innocence. In England there is still officially a strong rule against the media taking sides before the jury delivers its verdict. But this is not enforced as it once was. The prosecutions are frequently as emotional as they are unforensic, the opposite of the proper arrangement. Yet the defendants are often convicted even so (sometimes by majority verdicts, which in my view violate the whole jury principle). The state seems somehow to have turned the jury—often swayed by emotion—into its own weapon. And it is worse than the alternative. A wrongfully-convicted defendant, pronounced culpable by a jury of his peers, must feel a far deeper despair than one cast into prison by a mere panel of judges. 

I had been concerned about this for some time. I knew that, since the introduction of majority verdicts in 1966, and the abolition of the old property qualification in 1974, English juries had not been what they were. Majority verdicts effectively made impossible the stand by the Henry Fonda character in Twelve Angry Men. The judge would simply have accepted the guilty verdict of the majority. The property qualification—which required jurors to be householders—tended to ensure that they were older and more experienced. But it also meant they were mostly male, and mostly well-off, and it is easy to see why it was removed. The problem was that it was replaced by nothing at all. Nobody, it seemed, could devise an educational or age qualification that did not violate some principle of the new egalitarianism. This means that anyone on the voters’ roll may now be a juryperson, and your whole future could in theory be decided by a room full of 18-year-olds who have never worked, paid taxes, been abroad, broken a bone, or raised a child. I do not find this reassuring. 

In 1907, when the English Court of Criminal Appeal was first set up, there were warnings that it would undermine the authority of the jury, since it could overturn a guilty verdict (though not an acquittal). And it is easy to see why some defenders of juries were worried. A principle can be undermined from more than one direction. But as it happened, the danger to juries came from a different source—from the increasing egalitarianism of society itself, and the resulting politicization of so many trials. Judges became less elitist and more political, as did prosecutors. The sexual revolution created a whole new class of crimes, and created a whole new set of procedures to try them. It granted anonymity to accusers, a change that met with surprisingly weak opposition. 

I did not really understand the force of this until I found myself unexpectedly defending the long-dead Bishop George Bell against ancient charges of child sex abuse. Bishop Bell could not be tried because he was deceased. But the Church of England’s treatment of his case very much reflected the new arrangements. He was more or less presumed guilty. His unnamed accuser was designated a victim and a “survivor,” not an alleged victim, before any inquiry began. The procedure that adjudged him guilty, in private, did not follow the presumption of innocence and made no serious effort to discover if there was a defense (there was). I found to my shock that an inaccurate claim—that he would have been arrested if alive—persuaded many apparently fair-minded, educated, and intelligent people of his guilt, though an arrest is evidence of nothing at all. Thanks to some truly dedicated and determined work by many selfless people, and some very good legal work as well, the thing was more or less set right. But a grudging Church of England has yet to make full restitution. 

So when I saw the case in Australia against Cardinal George Pell, it was not just the similar name that aroused my interest. I knew from a recent visit to Sydney that Australia had undergone an anti-religious revolution. I knew very well how powerful allegations of child abuse had been in weakening the Church. My instincts were to believe that George Pell, who behaved like an innocent man, had been wrongly accused. But what if this was just bias? I sought to keep an open mind. I would presume the cardinal was innocent, but would not let my Christian sympathy close my mind to serious evidence against him. I had taken the same view in the Bell case. I resolved at the beginning never to be afraid of the truth. If the evidence against George Bell was convincing beyond reasonable doubt, then I would have to change my view of a man whose brave and selfless actions I had much admired. I would have to accept that the world was a bleaker, worse place than even I had feared. I knew well enough that there were pedophile priests. The same had to apply to Cardinal Pell. 

And then a strange silence fell over the trial. I know that there were valid legal reasons for this silence, but it still seems to me that some way should have been found for a case of such moment to be heard openly and reported openly, while it was going on. When Pell was convicted, I felt I had to accept the verdict because I was in no position to dispute it, and had not heard what the jury had heard. But the whole sky darkened at the news. If such a man was guilty of such a filthy thing, and a jury had agreed upon this after a fair trial, then the forces of goodness were in rapid and frightening retreat.   

And then, amid the dismal suppression of freedom and the economic lunacy now gripping the world, came a sudden shaft of light. The High Court of Australia overturned the verdict and freed Cardinal Pell. And then I read what they had said. It was startling and disturbing, not because there was any ambiguity in it, but because of something else. A court statement declared, 

The High Court found that the jury, acting rationally on the whole of the evidence, ought to have entertained a doubt as to the applicant's guilt with respect to each of the offences for which he was convicted, and ordered that the convictions be quashed and that verdicts of acquittal be entered in their place.

 The judges ruled: 

On the assumption that the jury had assessed the complainant's evidence as thoroughly credible and reliable, the evidence of the opportunity witnesses nonetheless required the jury, acting rationally, to have entertained a reasonable doubt as to the applicant's guilt in relation to the offences involved in both alleged incidents. 

This seems to me to be a very polite way of suggesting that the jury did not entertain that reasonable doubt. I may be very grateful that the High Court took this view, because it seems to me that justice was done when George Pell was freed. But will there always be such High Courts, and will most people be able to reach them? In this egalitarian world, in which a series of inglorious revolutions has wholly changed the nature of justice, I am not sure that the old English jury is much of a defense anymore. And I cannot begin to say how sad this makes me.

Peter Hitchens is a columnist for the Mail on Sunday.