By Stephen Gilchrist
Back in the mid-nineties, I almost got into hot water with the then Lord Chief Justice, the late Peter Taylor,or, as he should more correctly be described, Baron Taylor of Gosforth PC. The LCJ reported me to the Attorney General for writing an article in The Lawyer criticizing His Lordship and his Appeal Court brethren for the way in which they had considered s.8 of the Contempt of Court Act 1981 in the infamous “Ouija board case” involving my then client, Stephen Young. Students of criminology may recall that financial adviser Mr Young, who was alleged to have shot to death one Harry Fuller and his wife Nicola for the money, was tried by a jury who, once sequestered in a hotel overnight, used a Ouija board to try and contact the victims. At the séance it was suggested that the late Mr Fuller (who, in life, was dyslexic) spelt out the name of his killer and urged the jury to “vote guilty tomorrow”. The subsequent guilty verdict was overturned but a new jury (without spirit manifestation) returned Mr Young to jail.
The Court of Appeal had decided that they could consider the evidence relating to the use of the Ouija board because it was outside the jury room and at a place where the jury had been sent for the night and at which they were not formally deliberating. Thus it did not contravene s.8 which (and I paraphrase) says one cannot canvass the views or votes of a jury, and in fact makes it an offence to do so. The rationale behind s.8 is that it precludes bribery and blackmail, making little sense of offering inducements where a jury’s decision cannot be checked. However, the secret ballot approach also leaves open the very real possibility that juries reach decisions on entirely the wrong premise, which will never be discovered and never questioned. That brings me to Vicky Pryce (whose conviction now leaves me free to write this) and her first jury whose questions (and thank God they asked them) would not be out of place in an episode of Fawlty Towers, attracting the judicial comment that the 12 good persons and true, suffered from “absolutely fundamental deficits in understanding”.
Regrettably there is no empirical research in this country on the extent to which jurors understand directions on the law delivered by the Judge at the end of the trial. Both the current and most recent Lord Chief Justices have raised the issue of the best approach to directing juries to ensure understanding (Judge LCJ in 2008; Phillips LCJ in 2007). In February 2010, Professor Cheryl Thomas conducted research and case simulation into the topic “Are Juries Fair?” for the Ministry of Justice (www.justice.gov.uk/downloads/publications/research-and-analysis/moj-research/are-juries-fairresearch.pdf). One of the issues addressed was whether juries understood judicial directions, oral or written. During the case simulation, the research explored this issue in relation to the Judge’s direction on self-defence by examining:
– jurors’ perception of their ability to understand the Judge’s legal directions;
– jurors’ actual comprehension of the Judge’s legal directions;
– and whether juror comprehension is improved by a written summary of legal directions.
All jurors who took part in the case simulation studies at different court locations were asked to indicate (on a scale of 0 to 5) how easy or difficult they felt it was to understand the Judge’s oral directions on ABH and self-defence. All jurors heard the exact same instructions. But it was demonstrated that there was not a consistent view among jurors at all courts about their ability to understand the judicial directions. The key findings of the research included, amongst others,that:
– most jurors thought the Judge’s legal instructions were easy to understand, but a majority in fact did not completely understand them in the terms used by the Judge in his instructions;
– a written summary of the legal directions given to jurors during the Judge’s oral directions improved juror comprehension of the law.
As Professor Gary Slapper has pointed out in How the Law Works, the Stephen Young case raised serious issues about s.8 and how juries reached their decisions. Whilst I am not convinced (as some have argued) that prospective jurors should undergo IQ tests, surely it is now the time to consider an amendment to the Contempt of Court Act to enable limited research to be conducted into how real juries reach their decisions in real cases, and most importantly whether and to what extent jurors not only understand but actually implement judicial directions.
This article was originally published in Criminal Law & Justice Weekly, Volume 177, March 2013