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.