Thursday, 16 June 2011

Those opposed to Jury Trial will raise a glass to Joanne Fraill

Malpoet raised an interesting discussion point recently with his piece titled 'Abolish the Jury System'. Though I remain as instinctively opposed to his line of argument as I was beforehand, one of the points he raised was particularly difficult to counter. Essentially, a jury is made up of a wide cross-section of society, some of whom will be considerably better at absorbing and understanding the facts of the case than others. Many will be respectable and responsible men and women, but then again a few might not be. The likelihood of a jury consisting of 12 individuals all possessed with high levels of mental aptitude and undoubted integrity is slim to none when one looks at the situation from that angle, ergo - the scope for a miscarriage of justice increases if those passing judgement comprise of a large element who are either dumb, dishonest or both.

So was Joanne Fraill dumb, dishonest or both? Well what has become clear from her conviction and eight month sentence for contempt of court is that she had more than an inkling that by contacting recently acquitted defendant (Miss) Jamie Stewart, there was the risk of some serious legal consequences. While discussing the case with Stewart online, Fraill reminded her new Facebook friend that "pleeeeee dont say anything cause jamie they could call mmiss trial and I will get 4cked to0". Once the text speak is unravelled then it becomes pretty cut and dried that Fraill knew what she was getting involved in by contacting one defendant and carrying out 'research' into another. Stewart immediately told her solicitor of the conversation, and with it triggered the collapse of a £6 million trial that was still ongoing.

Gary Knox, Stewart's girlfriend and one of the defendants on whom no verdict had been reached at the time of Fraill's Facebook foray, is currently serving a six year sentence following a conviction for corrupting a police officer. However, he is planning an appeal on the basis of the farce into which the original drugs case descended. You can't really blame him for trying, and there will be at least some chance of this appeal being successful. I happen to see the lucrative nature of narcotic distribution as pretty firm evidence for the legalisation of them. However, that's for another day and what appeared to be proven beyond reasonable doubt last December was that Knox had PC Phil Berry in his pocket and had bought himself sensitive police information icluding the names of potential 'grasses'. Both men were rightly jailed - Berry for 'misconduct in a public office' and the accompanying 'conspiracy to' on Knox's part.

There are many who have expressed sympathy for Fraill in the wake of her conviction and the eight month custodial sentence which followed. Stewart, who herself received a suspended sentence, was amongst them, "I really feel for the woman. She's got kids. She apologised and she's not a bad lady." This of course raises two separate points. If she had not wanted Fraill to end up in chokey, she could always have er...not told her solicitor about their Facebook conversation...just a thought? From a distance it looks like her overwhelming concern was collapsing the trial of Gary Knox, and that the potential fallout was of secondary importance at best. As for "she's got kids", well I've heard this nonsense enough times in a multitude of cases to stop being genuinely annoyed by it.

The logical conclusion of that sentiment is that we should have two parallel sets of laws with requisite sentencing guidelines - one for the childless, the unmarried and the single, which is a draconian rulebook backed up by punishments akin to 'hang, flog or lock up and throw away the key'. The alternative legal framework contains exactly the same set of offences, but completely excuses some and results in much less severe punishments for others when applied to those who "have kids, or a family, or dependants". Of course under this system, nobody with children, or a husband/wife, or an elderly dependant can be given any form of custodial sentence, regardless of what they have done.

Next time someone attempts to tug at your heartstrings by wheeling out this argument, try to remember the natural endgame of what they are suggesting. Yes, Fraill has children, and it will indeed be horrible for them to live without a mum for four months or so. Naturally, I feel for them because of the position that their mother's stupidity has put them in, but that sympathy does not extend to Fraill herself, and no amount of emotional blackmail is going to bring it about. Did she stop and think about her kids before dabbling in a bit of Diagnosis Murder online, and compromising a £6 million trial? Clearly not, and so it baffles me when 'personal circumstances' like these are taken into account in any case. What's wrong with one law that applies equally to all without fear or favour? Can someone please tell me why someone's gender, marital or maternal/paternal status should ever be brought into the equation?

I support jury trials and always will - they are as someone once said on another subject, "far from perfect but a damn sight better than the next best thing". Coming from a political position that is predisposed towards suspicion of the state, I've seen the growth of a new form of totalitarianism masquerading under the cloak of a 'democratic' society. The thought of politicised justice scares me half to death, and that's why I think Malpoet, a man for whom I have enormous respect and agree with on many issues, is badly and dangerously wrong on the subject of juries. Replacing them with appointed inqusitive judges will take away the right of people like you and I to set free a man or woman whose prosecution was motivated by a political agenda rather than a legal one. It will also leave those inquisitors with a vested interest in pushing through such cases to placate those who appointed them in the first place.

However, we have to get juries to a point of being as close to perfect as possible. It would completely undermine the principle of trial by your peers to start suggesting that only people 'intelligent' enough to be jurors should take part, as some would have it. Exactly what the test would be to determine fitness for jury service escapes me, and the unwilling could always supply the 'wrong' answers on purpose, couldn't they? What we can of course do is ensure that jurors are honest and stick to their task of absorbing the facts of the case to the best of their albeit varied abilities. Moreover, the remit of a jury and its component parts needs to be made clearer than ever in a shrinking world where information, and indeed misinformation are available at the click of a mouse - ie you're here to hear the case, not play private detective and solve it yourselves.

The brilliantly-named Lord Judge appeared to be taking steps in this regard in his ruling in the Joanne Fraill case, "her conduct in visiting the internet repeatedly was directly contrary to her oath as a juror, and her contact with the acquitted defendant, as well as her repeated searches on the internet, constituted flagrant breaches of the orders made by the judge for the proper conduct of the trial." The key element in this case appeared to be the fact that however much her actions owed to naivety, she clearly knew that they were illegal, and likely to collapse the original trial. The alternative to jury trials is hideous in my view, but for them to work they need to maintain the ongoing confidence of the public to deliver just outcomes. With that in mind, it is logical to conclude that Lord Judge's ruling was a brave and correct one, and that jury trial itself was the winner of this case.


  1. So, a juror who was merely exercising her basic human rights of freedom of speech and freedom of association gets eight months because she pressed a few keys on her mobile phone when she wasn't even in court.

    How on Earth did she break the law? Yes, she ignored the judge's directions; but these aren't law...merely his interpretation.

    She swore an oath as a juror? Well, since she was forced to sit on the jury in the first place she was acting under duress and so the oath is null and void.

  2. Lee hits the nail there in a very few words.

    Daz has a very acute analysis on most things, but on this the flaws are glaring. "I support jury trial and I always will." Very dodgy ground Daz. Whenever you have got yourself to a position where you say that you are blind to any prospect of accepting a future case for change, you are at serious risk of putting aside new knowledge without even evaluating it because you have no intention of accepting it however persuasive it might be. That is not a good place to be.

    What we have here is a woman compelled by the state to carry out an unpaid job for which she is untrained, unskilled and ill suited to perform. Having been forced into this position under the threat of legal penalties if she refused she is then required to swear an oath to do things that she may well have lacked the capacity to fully understand.

    After spending a lot of her time embroiled in the complexities of the dealings of bent coppers and criminal manipulators in the alien world of the court and judiciary, Fraill reverted to those things that should was interested in. Gossip, sharing little secrets and making new friends on the Internet.

    Aside from the unfathomable boredom of the courtroom where she 'drew little pictures' to make it appear that she was making notes, Fraill exercised the power that she had acquired in her enforced role. She had information that she knew would interest Sewart and she had some power to affect the future life of Sewart's boyfriend. Fraill never asked to be put in this position, she was forced there by the state. That she was unable to contain her instincts in this situation is not her fault, but the crime of those who coerced her into responsibilities which she could not manage.

    Anybody who thinks that this is uncommon in jurors is closing their eyes to reality. As always with so-called exemplary sentences, this display of vengeance by the judiciary on a lay person who is seen to expose the inadequacies of their system, will not achieve anything other than screwing up the life of a person who had no part in the legal process and would never have had any involvement with it by her own choice.

    "Exactly what the test would be to determine fitness for jury service escapes me" There is a very good reason for that Daz. It is impossible and it will continue to escape you just as it has always escaped those who administer the judicial system. It really ought to be self evident that to conscript an untrained and unskilled person to carry out a highly complex and critical task requiring the detailed evaluation of technical evidence and law is an utterly bizarre thing to try to do.

    Sewart must have thought all her birthdays had come at once when she was contacted by Fraill and she was presented with the opportunity to collapse her boyfriend's trial on one of those technicalities so beloved of criminals and lawyers. In the mad game of adversarial 'justice' they had just been handed the killer weapon and, of course, they used it. Bingo! Alleged miscreants walk free and unwilling bystander goes to gaol. A sick joke.

    You are a very good libertarian Daz with a sharp awareness of how the state diminishes individual freedom.

    How do you reconcile conscription of jurors with freedom?

    How is it right to punish a juror for failing to carry out duties which she had not volunteered to undertake and which she was in no position to fully understand?

    As a libertarian I want freedom under law. The state will never make me swear an oath to do an unpaid job for them, but I doubt that they would risk punishing me for my refusal. Their rotten edifice will not stand it.

    More important than that, for our society to work we need to stop criminals from escaping justice by the ease with which the wealthy and powerful among them can produce a nice spoiler to win an acquittal against all the evidence of their guilt.

  3. Dear Daz,

    I must congratulate you on a very interesting article and also thank you Malpoet for your insights.
    As someone who has in fact served in the criminal system, I feel that many elements are too antiquated to deal with the modern world.

    The accessibility of information clearly tries the limits of a jurors impartiality. The speed of media can convince a jury of guilt before the trial (For example: DSK, the ex-IMF boss will be found guilty since he never got his side of the story out before the press were calling him a rapist, whether or not he really is will probably never be known).

    I believe that some simple solutions can however overcome some of the issues faced today:
    In the image of the Magistrates, we could create a voluntary list of people willing to be jurors which would guarantee that only people who are willing to help the community and are serious can join, thus insuring willing and diligent participation.
    Also we can look at other systems, a tradition carried out by all progressive minds dating back to Aristotle himself. The American system uses jurors even in civil cases and posses insurance mechanisms such as the ability for the parties to reject certain jurors that seem partial, dishonest or uneducated.

    Finally the greatest problem in today's world is a question of time. Trials take too long. And in that length of time the possibility for a juror to do something he shouldn't increase. I would advocate for the implementation of more courts and "pre-trials" where a single 'investigative' judge sets the trial in order so that when the day comes it is much faster (to be seen to some extent in the French legal system.
    Time also impacts the money spent and can amount to huge sums such as the six million in the present case. In this area the only solution is to increase the number of courts to clear the backlogs. Today we have the same number of criminal courts as a hundred years ago, but our population has doubled and with increasingly efficient investigation a greater proportion of cases are being brought to trial. The result would be cheaper as it is drawn out trials which are costly; better for the accused since he/she would not wait in uncertainty for his/her fate to be decided; and better for justice since the court rooms would not be full of overworked judges and bored, overtired and unwilling jurors which results in so many 'procedural errors'.

    I humbly hope to have contributed somewhat to your meditations and wish you a pleasant day, I fell that I shall revisit your Blog in the future since I found it most refreshing.


  4. Thanks Peter and all for your comments

  5. Malcolm

    You make an excellent case for getting rid of jury trials and I have to say that the prospect of my guilt being decided by the equivalent of the next twelve people I meet on the street is a powerful driver to stay on the straight and narrow.

    However you do not say what you would replace juries with.

    A European inquisitorial system?

    Who appoints the judges?

    How do you ensure they are not politicised?

    The excellent film linked to by Griff on the lack of legal basis of the US income tax laws featured a juror who had refused to accept the instruction of a judge that the defendant, who had not filed a return, had to be convicted.

    I accept such happenings are rare, but at least they provide a potential protection to the individual from the tyranny of the establishment.

  6. >However you do not say what you would replace juries with.

    I have elsewhere:

    >A European inquisitorial system?

    Broadly yes. They vary from country to country, but I favour a system based on the Napoleonic code with some modernisations.

    >Who appoints the judges?

    Judges should work for themselves in the same way as barristers. solicitors, doctors, etc. They could work alone or associate in practices, chambers or whatever they want to call them. They don't need to be appointed. As with other professionals, they get themselves accredited after gaining the necessary qualifications and then offer themselves for work at the fee provided.

    >How do you ensure they are not politicised?

    Their independence is the best protection. The separation of powers is essential to freedom under the law. British governments claim to support this principle, but in fact we do not have separated powers in this country and the existing judicial system is politically influenced.

    >The excellent film linked to by Griff on the lack of legal basis of the US income tax laws featured a juror who had refused to accept the instruction of a judge that the defendant, who had not filed a return, had to be convicted.

    >I accept such happenings are rare, but at least they provide a potential protection to the individual from the tyranny of the establishment.

    Rare is a very big understatement. Not even a potential protection, but the illusion of protection.

  7. Dear Malpoet,

    I would like to answer some of the points you made during your last post.

    - To the idea that British Judges are not politicized: I would answer that the conception of a British Judge is somewhat different from lets say a French Judge. The British Judge is a counter to a very powerful executive and is seen as a defense mechanism against an omnipotent ruling party. Furthermore the British Judiciary does show its independence time and again and has clarified or countered numerous laws (they were responsible, for example,for the clarification of the Abortion laws or the reduction in the 'time without trial' laws passed by the Blair government), something one cannot say for a country such as France with its 'separation of powers' which was strikingly seen in the famous parliamentary commission in the Outreau case.

    - Your proposal for a fee based Judiciary: if the parties could select the Judge then Judges in competition would seek to favor parties regularly in litigation so as to ensure future jobs. The fee based system is used in ADR (Alternative dispute resolution) and has seen several cases of partial arbitrators or conciliators due to this precise factor. It would also contravene article 6§1 of the European convention of human rights under which any citizen has the right to a fair trial. This includes having an access to a Judge. By introducing a fee, the Judiciary would risk being removed from the less favored, which is a slippery slope.

    - Finally whilst the European Inquisitional system (as I stated in a previous comment) should to some extent be imported there have been many problems associated and it is far from perfect. A single preliminary judge with extraordinary powers has seen some great miscarriages of justice happen in Europe. There powers would need to be substantially limited for a pre-trial judge, but the adversarial system kept for the actual trial.

    On an end note, to imply that a code system could be imported into a country based on precedent would open a Pandora's box that only a complete revolution of all British institutions could resolve.