Tribal law

Juries, like vinyl records and 1980s jeans are staging a comeback. It’s not quite like Victorian and Edwardian times when verdicts in big trials stopped the music halls mid-performance but the recent “not guiltys” in the Colston statue and Shadwell DLR trials, involving respectively Black Lives Matter and Extinction Rebellion activists, remind us of juries’ singular ability to dispense justice and cause trouble all at the same time. 

The “Colston Four” are the BLM activists who pulled down the statue of slave trader Richard Colston and in a celebratory procession roly-polyed him into Bristol Harbour. When the jury acquitted them, the government and its supporters were scandalised.

“I think anybody watching those scenes cannot fail to be disturbed at the very least, and appalled by what happened,” said former justice secretary Robert Buckland. Judging by the expressions on the faces of the crowd cheering the rollers on, they were very far from outraged. Even if you think it was the wrong thing to do, there are a lot of statues in this country, perhaps too many, and one fewer – especially of a notorious slave trader – should not have an ex-justice secretary clutching at his pearls and looking like a jackass.

The statue isn’t really the issue, as Buckland well knows. The government is targeting the right to protest. It’s about sending a message, politics by other means and using the threat of the criminal courts to squash dissent. The jury, by refusing to convict, spoiled the wheeze. 

The “Colston Four”, who were charged with criminal damage, raised three defences. One, they had a “lawful excuse” because the presence of the statue amounted to a breach of the Public Order Act and its removal was a prevention of crime; two, the statue amounted to an “indecent display” and, three, convicting the defendants would be a disproportionate infringement of their rights under articles 9 (freedom of thought), 10 (freedom of expression) and 11 (freedom of association) of the Human Rights Act. Suella Braverman, the Attorney General, is considering referencing the law to the Court of Appeal. 

What she can’t “reference”, though I suspect she’d like to, is the jury. The jury in British courts is the tribunal of fact who apply the facts of a case to the law as set out by the trial judge. Just because a defendant raises a legal defence doesn’t mean a jury has to accept it. Juries have rejected many of my client’s defences, often very speedily.

The reality is that in the criminal courts, juries hold the power. They have no training, no professional stake in the proceedings and don’t care what anyone thinks of them; they are lady and gentlemen amateurs picked at random.

Splice this randomness to their power and you can see why things might get fraught. It’s not just politicians who find them bewitching, but the barristers too. They decide who gets off and who gets a “bird”. Watching your client climb into a prison van, it’s hard not to wonder whether a different randomly-chosen jury might have found them not guilty.

For barristers, juries are like mum and dad in Philip Larkin’s poem This Be The Verse, they are there to – well, you get the idea. We have developed a sort of courtroom PTSD and have odd coping strategies. Some draw a placement of juror names and places in the jury box. I prefer thumbnail sketches. I know it doesn’t help but I can’t stop myself. “Juror one has a secret second family. Juror two doesn’t like cats. Juror three sleeps with a knife under his pillow.  Juror four is a stone cold JILF…” Good old Juror four. 

Juries look at trials in the round. Context is everything. This, of course, includes the defendants and whether they like them or not. The Extinction Rebellion activists who delayed the Shadwell DLR train consisted of two priests, one aged 79, and their 85-year-old mate.

The 79-year-old climbed on top of a train in a protest against environmental destruction. The 85-year-old superglued his hand to the train and said he’d done it for his grandchildren. You can imagine how it went in the jury room: “That priest is a game old bird, shinning up a train.

She should get an MBE, not a criminal record.” “What about the old geezer with the Superglue, right snowy-haired grandfather he was. He’s not a criminal. He’s a total legend.” The Supreme Court reviewing another case put it more dryly: “There should be a certain degree of tolerance to disruption to ordinary life, including disruption of traffic, caused by the exercise of the right to freedom of expression or freedom of peaceful assembly.”

The really bad news for the likes of Robert Buckland and Suella Braverman is that the “little platoons” of small “c” conservative England aren’t fundraising for the church roof or grassing up bin-cheat neighbours: they’ve gone “woke” and juries are right behind them.

The other piece of context in a jury trial is the people making the complaint, otherwise known as sticking a finger in the eye of the rich and powerful. A classic recent-ish example is the Grillo fraud trial. On one side, two working class Calabrian women, the Grillo sisters, and on the other, Charles Saatchi and his then wife, Nigella Lawson.

The Grillos, who worked as the help for Lawson and Saatchi, were accused of spanking his credit card out of £685,000 in unauthorised transactions, including a pink fur coat, designer handbags, and a cab to the polo in Berkshire. There was no dispute they’d spent the money and were unwilling and unable to pay it back.

The issue for the jury was whether the Grillos had been acting dishonestly, or whether they had implicit permission. Nigella Lawson’s two cooking assistants had used the credit card even more heavily than the Grillos.

Juries have a sense of natural justice and are good at knowing when a trial smells wrong. The law isn’t just black letter statute and court judgments

Sensationally the trial revealed the Lawson-Saatchi household to be a world of incontinent spending and drugs. There were books hollowed out to store cocaine, half-demolished drug wraps wedged behind the lavatory and a Mother’s Day card with a presentational spliff “ready to enjoy” stuck to the front.

Saatchi knew the result before the trial had started, writing to Lawson, whom he unkindly referred to as “Higella”: “Of course, now the Grillos will get off on the basis that you… were so off your head on drugs that you allowed the sisters to spend whatever they liked and, yes, I believe every word the Grillos have said, who after all only stole money.”

Let’s not single out Lawson and forget Saatchi. Even though not stoned, he was unaware that his own accountant had increased the monthly limit on his card from £50,000 to £100,000. The Grillos established their bona fides with the jury by being grafters whose duties included maintaining Saatchi’s unusual diet of boiled eggs and frappuccinos.

They had dedicated their lives to Lawson and Saatchi, and all for £25,000 a year each. Defence counsel in her closing speech said: “It’s a case with no winners.” Hardly! She and the Grillos, who were found not guilty of course, came out on top. The clear champions were the jury. They rolled up at Isleworth Crown Court, a place so drab it makes Novosibirsk look like Capri, with their hearts in their boots, and in a sweet reversal got three weeks’ of LOLs and a story to tell their friends. 

Juries have a sense of natural justice and are good at knowing when a trial smells wrong. The law isn’t just black letter statute and court judgments, there’s a spirit to it as well and that needs feel, which comes from life experience, reasonableness and a bit of common sense. They wouldn’t design a legal system with juries today. It’s much more likely a government would want to curb juries to get more results and make life easier. They’d give good reasons too, modernness and the smooth administration of justice, but they always give good reasons when they want to take power away from ordinary citizens. Being on a jury, sitting in judgment on your peers, is a civic duty; in a divided country it is something that binds us together.

Alex McBride is a writer and criminal barrister. He is author of “Defending the Guilty”, and co-creator of the BBC2 comedy of the same name. He also writes for the BBC1’s crime drama, “The Mallorca Files”