FACTion-6.1-web-version

A few other slightly better definitions of a jury which I’ve come across recently. One’s a journalist called Robert Frostwho suggested that “the jury was a system where twelve people decide who’s got the best lawyer”. Mark Twain hadan even better one: “the most ingenious and infallible agency for defeating justice that human wisdom couldcontrive”. I think that’s probably true in some respects.So the CCRC’s written submission to the Justice Committee Review of the CCRC in 2014 is, again, rather tragicbecause the problem with the CCRC is, it can be sympathetic, but they are stuck with this statutory straitjacket Ithink: the real possibility test. But the problem is they don’t seem to mind that, in fact it seems to help them. Itmakes it the easiest thing in the world to say, ‘This isn’t new, this isn’t a point of appeal’. It gives them the perfectway out to knock cases on the head.And this was part of their written submission in 2014:To overturn a jury’s decision, taken after they have heard all the evidence tested forensically in a court oflaw, we need something more than “all thinking men (sic) agree” to go on.(CCRC Written Submission to Justice Committee 2014, p.9)Now there are two things wrong with that statement. Firstly, the jury don’t hear all the evidence. What the jury hearis a carefully choreographed and edited version, of two versions of the same argument by the defence andprosecution. That’s the first problem.Secondly, ‘all thinking men agree’: well, when you get these cases of lurking doubt you’ve often got journalists,you’ve got lawyers, sometimes you have an innocence project, you’ve got campaigners, all of whom have studiedthe case in great detail, they’ve spent years and years, much longer than any jury has ever spent on it, without allthe confusion that occurs from the courtroom process. So it shouldn’t be dismissed so lightly as that.So we’re in a situation where we believe two different things at once. We think, if we accept the Court of Appeal’sposition, its right that we can’t query a jury decision but we know of course that jurors are going to make a mistakesometimes. So we need to sort it out because its “doublethink”; as Orwell wrote in “Nineteen-Eighty –Four”,describing a concept he called ‘Crimestop’ (aimed at preventing anti-establishment thoughts occurring) , it requires“an athleticism of the mind and ability at one moment to make the most delicate use of logic and the next beunconscious of the crudest of possible errors. Stupidity [is] as necessary as intelligence and as difficult to attain.”Now, we were in a meeting the other day with the barrister, with our client, talking things through and he was quiterightly preparing our client for the difficulties of the Court of Appeal if he gets there. And he said, “Well you know,you’re dealing here with some of the most intelligent people in the country.” We spent the rest of the meetingtrying to get through to our client the logic of how his case may be dismissed on the basis of an incredibly stupiddecision that they might make. So with these intelligent people you nonetheless have to be prepared for almostincomprehensible stupidity – that is doublethink is it not?So, here we are now in 2015. I’m not going to dwell on this slide because I think Felicity covered quite a few thingsthat seem very similar in New Zealand. It’s pretty much parallel in this country: the loss of the corroboration rule,sexual behaviour no longer being considered as an element of defence, a whole raft of things in the 2003 CriminalJustice Act and various other issues – the CCRC backtracking, the Court of Appeal backtracking on Pendleton whichwas a helpful judgment in 2001, the reductions in legal aid and this one-dimensional victimology – and I really feltthat today sitting in on one of the groups this morning. About victims: Kier Starmer spoke in this room last year andhe talked about victims one-dimensionally. There were victims; and there were perpetrators. And you know hewasn’t really prepared to talk about the kind of victims that we were listening to this morning. But I’ve been listeningto that sort of thing for a long time; but even today in that room I felt, you know, there’s something more there. Youlearn a little more each time about just how bad it is and how bad your situation is when you are falsely accused.So we are in justice in crisis again - we had a massive miscarriage of justice ages ago in the Birmingham Six and theGuildford Four and yet really nothing’s been done about it, things seem to be getting worse. We have this ‘We willbelieve you’ philosophy in relation to sexual abuse accusations, which was talked about by the speakers today. Andof course, if you believe the victim, logically it implies you’re not going to believe the defendant, you’ve alreadymade that decision.FACTion 26 Volume 6.1