IN THE FINAL scene of the final play of the Oresteia trilogy (The Eumenides) by the Greek playwright, Aeschylus, Orestes is at the Areopagus in Athens facing trial by a jury of twelve. The play was first performed in 458 BC and is probably the first reference to trial by jury in the history of man.
Aeschylus (525-456 BC)
Juries have been used in the English legal system for over 1000 years (set up in the 12th century by Henry II), representing a person’s right to trial by ‘the lawful judgement of his peers’. By the middle of the 15th century, juries had become independent assessors and assumed their modern role as deciders of fact. Well, I say ‘independent’, in the famous Bushell’s Case of 1670, it had to battle for such independence.
The case came about from a previous case involving two Quakers, William Penn and William Mead, who had been charged with unlawful assembly. The two Quakers were challenging the Conventicle Act, which restricted certain religious practices. The judge had charged the jury that they “shall not be dismissed until we have a verdict that the court will accept.” (note: ‘that the court will accept’!). When the jury decided to acquit, the judge was not willing to accept it and sent them back to reconsider, fining them in the process. Edward Bushel, one of the jurors, refused to pay the fine and so the judge threatened him with, “You shall be locked up without meat, drink, fire, and tobacco. You shall not think thus to abuse the court; we will have a verdict, by the help of God, or you shall starve for it.”
Bushel took the case to the Court of Common Pleas (sort of equivalent to the Queen’s Bench Division of the High Court today) where it was established by Sir John Vaughan that a jury could not be coerced into giving a particular verdict. This case established unequivocally the independence of the jury.
Sir John Vaughan (1603-1674)
Despite this, well into the 19th century, some jurors were locked up without ‘food or fire, water or candle’ until they reached a verdict – any verdict would do now , not necessarily as expected by the court. There are numerous interesting cases in which deliberations went on in this manner for so long that jurors fainted and doctors were summoned.
However, the very fact that a jury system is steeped in time has led to the debate over whether it has become outdated. Certainly we know of some pretty odd decisions being made – and many, I imagine, that we don’t know about. In one case, R v Young, in 1994, the jury found the defendant, Stephen Young, guilty of the murder of Harry Fuller and his wife, Nicola, after four of its members (during an overnight stay in the hotel …. and some alcohol) had contacted one of deceased victims by way of a séance and a Ouija Board! This only came to light because one of the jurors panicked and reported it. Generally we would not know how or why a jury comes to its decision and its deliberations are private – so you may be found guilty by the toss of a coin. Hardly in the spirit of justice. (Young was in fact retried and found guilty again, presumably without the assistance of either Harry or Nicola).
Ouija Board – win some, lose some!
In some instances juries completely ignore the law and go for what is called a decision of conscience. One such case was R v Ponting (1985) in which a civil servant was charged under the old Official Secrets Act 1911 for leaking information to an opposition MP about the sinking of the General Belgrano in the Falklands War. There was no doubt he had committed the offence and, despite the judge ruling that there was no defence, the jury refused to convict him seeing as he was acting for ‘public interest’. In other words, the public had the right to know if the government was being economical with the truth – and rightly so. Who needs laws ….
Clive Ponting – in the public conscience …..
In his 1985 book, What Next in the Law?, that great judge, Lord Denning, said, “… the chances, by sheer weight of numbers, are loaded heavily against the jurors being sensible and responsible members of the community.” Far be it for me to comment further. However, juries have made critical mistakes. Take R v Bentley for example. In that case the Court of Appeal decided in 1998 that Derek Bentley was not guilty of the murder of a policeman as decided by the jury in December 1952. Unfortunately, as a result of the jury’s decision, Bentley had been hanged in January 1953.
Lord Denning (1899-1999)
The American comedian, Norm Crosby observed, “When you go into court you are putting your fate into the hands of twelve people who weren’t smart enough to get out of jury duty.” Mind you, Grouch Marx once said, “I was married by a judge. I should have asked for a jury.”
Want to know more about juries and the English Legal System? You should do. If you haven’t already (why not?), find out more by downloading onto your kindle, iPad, phone, or whatever, my fascinating e-book on the subject, Do you know your law from your elbow? Click here.
Next week: Thomas Edward Booth of the Booth Museum, Brighton
Artemus Smith’s Notebooks
I continue my research of the notebooks of Dr Artemus Smith, archaeologist of great courage, determination and fiction. Here is another extract:
My good friend, the Very Reverend Uriah Doorstopp, told me of a tale of his cousin who was an archaeologist. Apparently he (the cousin) was in the deepest jungle and suddenly found himself surrounded by what he perceived to be a bloodthirsty group of headhunters. Upon surveying the situation, he said quietly to himself, “Oh God, I’m in big trouble.” There was a ray of light from heaven and a voice boomed out, “No you are NOT in big trouble. Pick up that stone at your feet and hit the head of the chief standing in front of you.”
So his cousin picked up the stone and proceeded to hit the chief over the head. As he stood above the lifeless body, breathing heavily and surrounded by 100 possible headhunters with a look of shock on their faces, the voice from above boomed out again, “Okay, NOW you’re in big trouble.”