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Balancing the scales of justice
(Filed: 16/04/2005)

Harry Mount reviews The Trial by Sadakat Kadri.

Next time you're up for mass murder, look closely at the jury. If they're laughing, you're in the clear. One of the criminal law's golden rules is that a laughing jury is an acquitting jury.

When the publishers of the underground magazine Oz were prosecuted for obscenity in 1971, their lawyer, John Mortimer, did all he could to make the jury giggle. George Melly was called to define cunnilingus. "'Sucking' or 'blowing', your Lordship. Or 'going down' or 'gobbling' is another alternative. Another expression used in my naval days, your Lordship, was 'yodelling in the canyon'."

Cue explosive laughter from the gallery; but, crucially, none from the jury. The judge, His Honour Major Michael Argyle, also played his own accidental part in injecting humour into the proceedings. When one defendant finished an interview with the words, "Right on!", Argyle, who had been taking a longhand note, peered up from his pad. "Write on?" he asked. "But you had finished?" "Not W-R-I-T-E, my Lord, but R-I-G-H-T," said the policeman giving evidence. "It is a revolutionary expression."

All good, rollicking stuff, but there is a serious point to it. With all this ludicrous theatre, how on earth do you work out whether somebody's dunnit or not? In the Oz case, the prosecutor made such a good case of draining most of the humour from the trial that the jury convicted; but, on appeal, the defendants were let off because the appellate judges thought Argyle's summing-up had been wrong. Who's to say, in this three-way ping-pong match between judge, jury and appellate judges, who's right?

In his cherry-picking account of the great trials of history, Sadakat Kadri, a half-Finnish, half-Pakistani member of the New York and English bar, with law degrees from Cambridge and Harvard, points out the idiocies of our system, but still thinks it the best way of deciding things, faute de mieux. But, then again, he would, wouldn't he?

Planet-sized as his brain is, Kadri's views are extreme liberal ones, as befits a member of Doughty Street Chambers, favoured stamping ground of the intellectual, Left-wing lawyer. His colleagues include Geoffrey Robertson (who appeared in the Oz trial and is Amnesty International's pet barrister, as well as being Mr Kathy Lette) and Edward Fitzgerald, whose clients include Derek Bentley (the last man to be hanged in Britain), David Shayler, Jamie Bulger's killers and Myra Hindley.

Kadri certainly wears his political colours on his sleeve; at one point, apropos of nothing in particular, he mentions that the invasion of Iraq was "madness". Still, you don't have to agree with Kadri's political views to find his history of the trial engaging stuff. And even people who think jury trials are ludicrous must agree that juries are marginally better than what they replaced in the 13th century: trial by fire or water, when the clergy had been happy to scald and drown suspected sinners in return for a small fee.

We can be pretty smug that, as our jury trials developed, most European countries, inspired by the Spanish Inquisition, stuck with confessions - what they called regina probationum, the queen of proofs. And the best way to get hold of confessions was with helpful judicial devices like the rack, the thumbscrew and the strappado, where the victim is tied to a rope and made to fall almost to the ground when he is stopped with a jerk - a sort of medieval bungee jump.

Things had been fairer under the Greeks and the Romans. Socrates's show trial may have been a pretty monstrous miscarriage of justice, but at least he was allowed to administer his own punishment: Athenian law allowed capital offenders such as him to buy poison from the state.

By the time Cicero came along a few hundred years later, the basic art of modern advocacy had been invented: as he put it, the trick was to advance points that look like the truth, even if they don't correspond with it exactly. Cicero was said to have boasted twice of winning acquittals by throwing dust into the judge's eyes. The late George Carman had his own way of entrancing juries with his stage-managed tricks (remember the video of Gillian Taylforth sucking the frankfurter, or the Lolicia Aitken airline ticket pulled from the hat at the last minute, denying her then husband, Jonathan, his alibi?) a couple of millennia later.

Even after the jury trial was introduced in 1215, it took a few centuries before oddities in the system were ironed out. Homicide verdicts went on being recorded against mischievous objects, from haystacks to locomotives, for centuries. In 1590, witchcraft cases were still flourishing; the offence was abolished only in 1735.

The jury system is still full of problems. Only last month, a juror was caught giggling at Little Britain on a portable DVD player during deliberations in the trial of the murdered Nottingham jeweller, Marian Bates. The golden rule about criminal law and laughing juries was broken: the defendants were sent down for 13 years.

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The Trial: A History from Socrates to O.J. Simpson
Sadakat Kadri
HarperCollins, 25, 474 pp
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Jonathan Sumption reviews The Trial