WHAT NOW FOR SCOTTISH JURIES?

WHAT NOW FOR SCOTTISH JURIES?

JUSTICE OR INJUSTICE: ONE WOMAN’S UTTER DISILLUSIONMENT

by Lorncal

TWO television programmes these past weeks, and recent events, have brought me to a place I never thought I would find myself, albeit I knew, based on my reading of American jury studies years ago, that flaws in the system were very likely to be endemic and enduring: one was Channel 4’s ‘The Jury Murder trials’ (four parts); and the second was STV’s ‘The British Airways Killer’.  Both were English cases.  The first explored how two simultaneous juries came to very different decisions based on the exact same facts, and the second concentrated on how what appeared initially to be a cut-and-dried case of pre meditated murder was reduced to manslaughter by a jury which the judge thought must have been wilfully deaf and blind, as they apparently ignored all the prosecution evidence and the judge’s summing-up and direction.

In Scotland, as in England, jury trials are being questioned as costly and time-consuming while often displaying prejudice and waywardness.  It has been known for a long time (from the studies carried out in America) that juries are notoriously cognitively compromised by pre conceived bias because they are comprised of human beings who bring their societal and personal prejudices into the jury room.  Television pieces such as these cannot be taken as gospel, because they do want to engage the viewer and not churn out hopelessly boring programmes, but even if half of that which was shown was correct, and the transcripts would suggest that procedure was followed to the letter, we really do need, perhaps, to look again at juries and the service they provide, even if we end up with training for jurors.

After watching these two programmes, I was left in a state of horror and anger.  Firstly, in the Channel 4 four-parter, the two juries, the Red and the Blue both sat in the same courtroom, deliberating on the same case, but apart from each other, behind soundproofed compartments, unaware of each other’s existence.  The defendant (the accused, in Scotland) was being tried for the murder of his wife of two months, and the television programme was based on the court witness statements and documents, in transcript form, although the actual verdict in the case was not divulged.  The point was to see whether juries follow very particular, and, sometimes, very peculiar, so-called evidential paths to come to their decision.  It seemed here that emotion and persuasion by dominating personalities played a huge part in the final verdict

What was very disturbing from the beginning was the power play that took place in both the Red and Blue juries, more so in one, with certain individuals dominating throughout the case, although one jury was very obviously more dominated than the other, and these people were able to persuade the other members to their point of view.  Equally disturbing was the pre conceived ideas of gender stereotypes, with the female stereotype being casually, and in extremely sexist terms, prevalent in both juries.  The split by sex class was patently obvious, with the males, largely, pushing the agenda (not all) either way, more so in one jury than the other, and, alarmingly, the females, to a great extent, were overly and erratically empathetic and swayed by rhetoric, tears and regrets from the defendant when he gave evidence.  Too many jurors, both male and female, never questioned his veracity at all, accepting what he said as gospel.

His defence was based on the partial defence of ‘loss of control’ (ostensibly, provocation).  He had had a noisy argument with his wife, she had thrown and smashed crockery and other items, been shrieking and screaming at him, abusing him verbally, and he had tried to throttle her initially, stopping when she turned blue and became unconscious.  He then went outside to his workshop, several yards away, picked up a large work hammer and returned to the house and to his prostrate and unconscious wife, where he hit her very hard three times and smashed her skull.  The break in the action was crucial (you might have thought) where a case of murder could be reduced to manslaughter (culpable homicide, in Scotland) but both juries skated over it apart from one or two sharper individuals who saw the break in the action as a negation of the continued ‘loss of control’ from the argument to the attempted strangulation to the hammer blows.

Had the murder been the argument to the (successful) strangulation, or if the argument had gone straight to the crushing of the skull in a frenzy, you could see where manslaughter could be a mitigating factor because the defendant would have gone directly from the provocation of the argument and the abuse and the smashing of the crockery, etc., to a ‘loss of control’, but that break in the chain of action should have left room for doubt that the verdict could be manslaughter rather than murder.  It was quite appalling that so few jury members, in either jury, gave that any credence.

In the end, one jury brought in a verdict of ‘Not Guilty’ of murder (and, therefore, guilty of manslaughter) and the other brought in a verdict of murder.  Interestingly, the jury which was most obviously dominated by one individual whose prejudices against women were deep-rooted (she was not up to much, he thought, because she had had three children to three previous partners before her marriage); and her nagging and argumentative nature, her aggressive smashing of the crockery and her claimed spendthrift ways established by other witnesses for the defence, was the kind of thing that drove men to kill, he stated confidently, implying that she deserved all she got.  It was extremely chilling to listen to, and to witness the nodding donkeys who simply went along with it.

We heard little from witnesses for the prosecution, which made the programme somewhat lop-sided, but I can only assume that the television people did not want us to second-guess the actual jury verdict in the real trial during the programme instead of concentrating on the two randomly-selected juries made up of local people.  Few of the defence witnesses had a good word to say about the victim, and the family and friends of the real victim were angry that the (television) prosecution case had left them out, as they had much to say in her favour, they claimed, which we, the viewers never heard.

The judge evidently disagreed with the manslaughter verdict (judges cannot, by convention, overturn a jury decision) which appeared to have been the real verdict because, instead of the normal two-year tariff, he handed down a sentence of seven years, showing, perhaps, that judges, who know the law, as opposed to random citizens who do not, can be much closer to the truth, more objective and less swayed by emotion and the tears of the defendant?  That is what I took from it, anyway, and it was unsettling because I have long believed in the jury system, albeit I have also been aware that juries are mercurial and can be peculiar in their decisions which, sometimes, bear no relation to the actual events, as was so chillingly presented in this programme, although I have to say, in all fairness, that the defendant showed no signs of pre meditation until the actual incident itself, and I did not believe that he had had the necessary mens rea for murder up to the point when he broke the chain of action by leaving the scene and returning with the hammer and battering to death an unconscious and helpless woman.  That was my conclusion, anyway.  Others may have come to a different conclusion.

The second case, also based on the trial transcripts, was, if anything even more chilling and has made me doubt even more that justice can be achieved universally for half the human race, from our justice system as it stands.  The defendant in this case (the STV showing) was an apparently manipulative man (that is how he came across in the transcripts, although I do not know the actual case or the man involved) who was certainly manipulative and persuasive and appeared to show no remorse; he had also killed his wife, ex wife, although the circumstances were very different.  It seemed to me that, based on the evidence presented, it was a clear case of murder, pre meditated, and that he had the necessary mens rea for such.

The jury disagreed and brought back a verdict of ‘Not Guilty’ of murder, but guilty of manslaughter, normally carrying a two-year sentence.  In this case, the police believed that the man had dug a grave for his wife, (that is where she was discovered) and dropped a large chest into the ground ready to receive her body.  They ascertained that it must have taken him about a week or so in total to dig the hole (he was an airline pilot and often away from home, and the weight of earth would have necessitated several trips to dispose of it).  The grave was in a wooded area close to his former home, still occupied by his wife and two children.

On the night of the murder, he had brought his two children home after a stay with him and his pregnant girlfriend and an argument had ensued, he said.  He believed he should have received more financial support after the divorce from his ex wife who was independently wealthy.  He also bludgeoned his ex wife with a hammer and he was seen by his young daughter carrying her mother to the boot of his car.  The statement the child gave to the police was utterly devastating, chilling and so unutterably sad because she had seen her mother’s limbs hanging down and suspected she was dead.  He drove the children to his new home, in his car, with his ex wife’s body in the boot, telling them that he was going to take her to the hospital – which he had not done, of course.

Evidence, by friends of the ex wife, of prior domestic abuse was given at the trial but he denied it, claiming that his ex wife had made it up, and no other evidence of abuse was offered.  In the witness stand, he smiled at the jury members and gave a very succinct statement, explaining that the hole he had dug, the chest, etc., had been to hold all the divorce papers and all documents and items relating to his marriage, from which he wanted a clean break, painting himself as a much put-upon victim of his wife’s financial abuse and disaffection with him, which witnesses for the prosecution stated was nonsense.

After the jury had brought in its ‘Not Guilty’ of murder verdict, a gasp came from the courtroom, as the ex wife’s relatives and friends could not believe their ears.  That, of course, had been the real verdict from the real jury.  Neither, seemingly, could the judge believe his ears, and he ordered the jury to be present at the sentencing, when he went through the case again, point by point, and according to those who were in the court at the time, he appeared to be very angry at the jury’s verdict, the assumption being that they had not followed the evidence logically or reasonably and that they had ignored his direction.  On-lookers said that one woman was holding her head in her hands.

Rape cases where previous convictions might have brought a guilty verdict, but the accused’s prior record cannot be disclosed, are common enough, even where the woman or girl has had her reputation shredded and her every word and action placed under a proverbial microscope by the defence.  A recent Scottish murder case, brought after many years, where a great deal of evidence pointed to the accused at the time, was solved eventually through DNA evidence, although evidence of many sexual assaults by the accused had been placed before the police at the time of the murder and other evidence had held him to be known at the scene of the crime. 

The judge handed down a sentence in excess of 20 years in the real case reconstructed by STV, a tariff unheard of in modern times for manslaughter (or culpable homicide, in Scotland), stunning the TV defendant (actor) and very likely the real defendant who had been expecting a two-year tariff.  We could not know what the real jury had deliberated on and how and why they had reached the verdict they did, because jury deliberations are secret, but it appeared to be received with incomprehension by the judge, given the evidence against the defendant.  We must suppose that an appeal was out of the question because it might well have led to a minute scrutiny of the case and the defendant could have ended up with an even higher sentence.

In England, the jury comprises 12 persons (with a majority of ten); in Scotland, it is 15 for criminal trials and usually 12 for civil cases.  In England, it is in the Crown Court that murder trials and the more serious common law offences are tried, while, in Scotland, it is in the High Court of Justiciary (which is peripatetic and moves from city to city) where serious common law offences such as murder or rape are tried.  In England, the prosecution is carried out by the Crown Prosecution Service (CPS); in Scotland, it is the Crown Prosecution and Procurator Fiscal Service (COPFS).  Scots Law has two types of criminal procedure: 1. solemn (serious offences, such as murder and rape) and these cases are tried before a jury; 2. summary (less serious, such as theft, assault) and these cases are tried before a judge/sheriff without a jury.

It has been mooted by our elected representatives that we might dispense with juries entirely and that even serious cases, normally solemn procedure, would become summary, in effect, i.e. without a jury.  Even a few months ago, I would have been completely opposed to this.  Truth to tell, I am coming round to the belief that women and girls in Scotland, in the UK, will not receive justice whatever happens.  Males will be allowed into women’s prisons to mix with female prisoners and for recreation purposes, apparently, despite Amy George and Isla Bryson.  How much evidence do our politicians need?  Scarcely a cheep from them, even when women’s lives may be at stake.  If a woman is raped or injured in prison, what are the chances of her receiving justice?  Little to none, I should think.

What was witnessed in those juries, in those programmes, was blatant and deep-seated misogyny, and even in death, females are denied respect and dignity.  I have now come to the conclusion that any form of justice for females is impossible to achieve, however we fiddle with the system because the hatred of females is so all-pervasive, so deep-rooted in some quarters, and so wilfully blind to reality.  Our elected representatives collude in the blatant removal of the rights our grandmothers and mothers fought so hard for so that they may be handed over to men who take everything from us.

I never thought to see the day when I, who have believed in the rule of law and democracy, freedom of speech and open debate my whole life, would come to this state where I have no confidence at all in our legal system, our justice system, our political system, in any of our institutions whatsoever or in the people who participate in, and run, these systems and institutions.  Like so many other women, I have believed in independence for Scotland almost for the whole of my life, like generations before me – and I still do, passionately – but I must now question the relevance of independence for females in Scotland when our rights are being taken away with impunity by men who want to be us?  What kind of Scotland would we be entering where our rights mean so little?  I think every female in Scotland has to ask herself these questions and ask, too, why our rights mean so little to the body politic, the body financial, the body legal, the body social?  

No doubt exists in my mind that juries in Scotland, made up of my fellow citizens, bring now, and would bring in the future, the same prejudices and deep-seated misogyny as those English juries, and , every day that passes, I am becoming less and less sure about where I stand on much at all now because every institution has let women and girls down so badly it feels that quicksand is beneath my feet.  Have we deserved this? Have we asked for too much?  Is it too much to want juries to not bring their prejudices into the jury room with them?  Why, in the 21st century, do they still have them?  Is it too much to ask for all biological men to show us basic human respect because, without it, we are vulnerable to losing everything, including our lives, potentially?   How have we reached this place where every right has to be fought for all over again through the courts, the very courts that have let us down so badly?  Why are women and girls expected to conform to male stereotypes of who and what we are, how we should behave?  Would it be the end of the world if juries no longer existed?  Would judges who know the law be any less misogynistic than juries that do not?  If those two cases and the three juries on them are anything by which to judge, the answer must be a qualified yes.  However, I should imagine that many men, who appear, in general, to be treated strangely leniently by so many juries, would not agree and would demand that their rights be respected while trampling on ours.  Yet again, the split in opinion runs along lines of biological sex.    

 
MY COMMENTS

The above article is the ultimate proof that I run this blog on the basis of free speech. I strongly disagree with Lorna’s article and I am totally opposed to removing the safeguard of judgement by your peers rather than in the hands of a single or handful of judges. When I get some time I will pen a full article explaining my reasoning on this but in the meantime I offer Lorna’s article for your consideration.

I am, as always

YOURS FOR SCOTLAND.