Law for all?
Sometimes I think people forget what the law is for. There are lawyers, I am afraid to say, who think the law is there so they can make a living, a very good one in some cases. Government ministers seem to think it is either a drain on the public purse or a means through which liberal trouble makers can block or upset their policy initiatives. And some newspaper columnists seem to think it’s only for the educated.
But it is, believe it or not, for everyone, from the unborn child to the dying man, from the homeless teenager to the richest duke. And it pervades everything, as Professor Gary Slapper has written:
'It exists in every cell of life. It affects everyone virtually all of the time. It governs everything in life and even what happens to us after life. It applies to everything from the embryo to exhumation. It governs the air we breathe, the food and drink that we consume, our travel, sexuality, family relationships, and our property. It applies at the bottom of the ocean and in space. It regulates the world of sport, science, employment, business, political liberty, education, health services, everything, in fact, from neighbour disputes to war…'
So not just for clever people then. Which is why the rubbish written in the last few days about the collapse of the trial of Vicky Pryce is so infuriating. If the Pryce jury had to ask the judge some pretty basic questions about their role then we should not be blaming them, but the professionals and officials who had not explained themselves clearly enough.
It’s probably my fault for even looking at the Daily Mail, but I am sure I am not alone at finding it quite insulting to suggest these jurors, any jurors, were displaying a ‘breathtaking level of ignorance and stupidity’. The whole point of a jury is that it reflects society - we can’t all be high court judges or, God forbid, op-ed journalists.
In reflecting society there will probably be thick and uneducated people on juries. You could, as some have suggested, try to weed them out by making potential jurors take an IQ or a literacy test, although I can imagine this would present some serious practical problems as well as being generally undesirable. But while this might get rid of stupidity it won’t, for example, get rid of bigotry as I am fairly sure there are some really quite clever people who harbour prejudices of one sort or another.
The problem, if there is one, lies with lawyers who have forgotten that the purpose of the law is not simply to further their own professional aspirations. The words of Lord Woolf in his 1995 Access to Justice report about litigants in person still apply today and could just as easily apply to jurors:
'Only too often the litigant in person is regarded as a problem for judges and for the court system rather that the person for whom the system of justice exists. The true problem is the court system and its procedures which are still too often inaccessible and incomprehensible to ordinary people.’
More recently, the president of the Supreme Court, Lord Neuberger, called for judgements to be clearer and more concise to ensure the public maintained confidence in the justice system. He said:
'The public are the real audience, even if the public seems happily indifferent about almost all court judgments...Every judgement should be sufficiently well-written to enable interested and reasonably intelligent non-lawyers to understand who the parties were, what the case was about, what the disputed issues were, what decision the judge reached, and why that decision was reached.'
This strikes me as common sense, but then I am not a lawyer. Many in the profession seem unduly attached to the ‘traditional’ way of doing things, prancing about in gowns and speaking in tongues to bamboozle the rest of us. If this is a bit unfortunate when it comes to trying to modernise legal language it is a godsend for the jury system.
Most of those calling for the abolition of juries aren’t lawyers, who on the whole recognise the value and importance of people being judged by their peers and witness that most jurors take their role seriously and pay attention. No, that typical over-reaction has largely been left to the commentariat and those sufficiently unconcerned about the importance of the independence of the trial process.
This is not to suggest the jury system can’t be improved, maybe by encouraging them to ask more questions or asking them to explain how they reached their decision. But we also need to address the wider issue of who the law is really for and we should be teaching it to our children more rather than relying on a need-to-know approach.
Making jurors take some kind of fit-to-judge test would also make our courts the preserve of lawyers and an Oxbridge-educated elite. Therein lies the path to chaos.