We're the jury, dread our [folly, fury, prejudice]?

So the jury acquitted Neil Lennon's assailant of assault, deleted the religious aggravations, and prompted a collective "what the deuce?" from the nation. Was the jury packed with football partisans who knew precisely what they were doing, or nincompoops set on undermining the jury system by dint of their daffiness? Alternatively, did these fifteen deliberators discharge their task perfectly properly, shown evidence which the rest of us missed, bedazzled by the incriminating footage of Wilson flopping onto the field of play? There are occasions in life when guilt is obviously contestable: where witnesses disagree, where the CCTV footage is grainy and indecisive, where the material evidence doesn't paint the accused's hands red.  In other ways, even superficially clear cases can become embroiled in legal doubt. Even where ten witnesses see me stick a poignard in the bladder of an antagonist, killing him dead, it's not immediately obvious that I am guilty of murder. In legal jargon, the actus reus may have been despatched, but we have to enquire into my mens rea: into whether or not my mind is as guilty as the hand that handily disembowelled my foe.  Different jurisdictions approach that question in different ways, but in Scotland at least, there are a range of legal reasons that might see me acquitted of a murder charge, news which might  provoke credulity in the ranks of the many witnesses who clearly saw me kill the man. 

In addition to these legal bolt-holes through which I might slip, there is always the possibility of appealing beyond the law, to the trier of fact. There is even a (rather pompous) term for persuading juries to return acquittals, despite believing the soul in the dock is guilty as sin: jury nullification.  Whole television shows are based on this premise. Anyone who has ever watched Boston Legal will be familiar with the extent to which its central conceit - commentary on broader American social and political life through summings up by defence lawyers - only functions because the show's fictional juries are almost entirely willing to yield to the (often totally irrelevant) eloquence of Alan Shore, week after week. Appeals to emotion and to patriotism, are Shore's speciality.  It'd be a rather different sort of programme, if his Sheridanesque perorations routinely got his clients banged up for their trouble, rather than routinely upending the law, humiliating the invariably swaggering prosecutor, and vindicating the wisdom and common sense of the common men and women in the jury box, who can be relied upon to put feeling justice before the quibbling logic of the law.   

Wholly benign, Boston juries might be, but I doubt it. Far more often than the surprising acquittal of a guilty man, I suspect, the same cavalier attitude towards the demands of law sees reasons which have nothing to do with apprehensions of legal guilt pressed into the service of a conviction.  Reasons may be manifold. Misplaced faith in the authorities - "if he hadn't done it, why would he be here?"; prejudice attaching to a potentially staggering range of features of the accused or witnesses for or against him: "Where's he from? Those Schleswig-Holsteiners are weel kent for their larcenous tendencies..." - "A well brought up boy like him? There's no way he could have done it..." - "I know his type. My next door neighbour, Elsie told me..." - "rape victims cry, she didn't cry. She just seemed cold..."; unanticipated solidarity with the situation of the accused, more or less comprehensible in its character: "Lothian polis are bastards, last year they stopped me too..." - "Lochgelly United fans stick together: not guilty"; a curious willingness to treat knowledge from one's own life as superior to that adduced by expert evidence - "That doctor had it all wrong. I read this article on wikipedia..." - "where is the forensic evidence? On CSI..." - and so on. By dint of the Contempt of Court Act, it is impossible to research jury deliberations, so the following are speculative - but not implausible - examples of the sorts of ideas which actually inform verdicts, owing little to a stern summing up, and a legal understanding of the evidence.

Incidentally, very similar phenomena have been identified in studies researching how administrative agencies go about their work. Professor Simon Halliday, now of Strathclyde University, conducted research several years ago on the operation of Homeless Persons Units, finding that the demands of law were routinely ignored by staff in their decisions and dealings with applicants. In some cases, this had benevolent consequences. Folk who by strict law were not entitled to relief of their homelessness were granted rooms. In others, free-wheeling conscience allowed homelessness caseworkers to indulge in racist suspicions and deny people housing who were legally entitled to it, displacing the values of the legal regime and supplanting them with their own sense of what was just, proper and fair. 

As to the specifics of John Wilson's acquittal, I wanted to commend a couple of pieces to you which admirably cover the issues. Firstly, solicitor-advocate Chris Fyffe asks "Neil Lennon verdict: why have a trial?" Fyffe scourges through the press reporting to attempt to construct a plausible explanation for Wilson's ostensibly very strange acquittal.  He concludes, in a pleasingly contra mundum spirit...

"It’s not for me to say that the jury were right or wrong.  All I am saying is that there may have been a very good reason for the jury to have acquitted – a reason that was not based on football allegiance, sectarianism, prejudice or confusion.  It may have absolutely nothing to do with the passages of evidence I mentioned.  It is important to remember that our system of justice relies on the public to carry out this important function.  To imply, as many have today, that the “fault” for the acquittal verdict lies with a corrupt or inept system of justice misses the point that this was an acquittal by fifteen ordinary people.  They examined the whole evidence.  That’s what a trial is supposed to be, not justice via YouTube."

Secondly, from Scots Law Thoughts, "Neil Lennon was not assaulted by the man who admitted assaulting him!" I was particularly interested in the implications of Paul's point that...

"As has been made repeatedly clear by successive Scottish administrations, there are certain types of criminal offence which are of particular concern and which the police and prosecuting authorities focus on stamping out. Offences motivated by prejudice, such as those aggravated by racial or sectarian hatred, domestic violence, and knife crime are all areas where the decision has been taken that extra effort is required to reduce, or even end, these blights on our society. As a result, prosecutors have been given ever more strict guidelines as to how to deal with cases where there is one of these elements alleged to play a part. This can mean that prosecutors no longer have discretion, on a local basis, to remove such a part of a charge, without clearance from Crown Office in Edinburgh."

I made a similar point a long while back now, about Holyrood's Sexual Offences (Scotland) Act 2009.  The legislation recodified the Scots Law on a range of sexual offences. Like rape, there is a strong and understandable desire to attach the evaluative vocabulary of sectarianism and racism to our law. In all three cases, naming is taken to be important, buttressed by the idea that the law should in some respect reflect the experiences of victims.  Certainly, the law reform process around the 2009 Act was dominated by this sort of thinking. It was basically a consensus position that "If victims believe they have been raped, the law must be "modernised" to reflect that understanding." Appended to this was the hope, without much reason for hoping, that the new legislation might increase rates of conviction. However, unasked in all of this is a rather more difficult question. Our politicians mostly seemed to assume that the two distinct interests - improved conviction rates, and a legal "recognition" of the claims of rape victims - are harmonious. What if this is not so?  In the context of the Scottish reforms to sexual offences, this point was made by advocate Ronnie Renucci...

"Rape, he argued, “is regarded, in many ways, as one of the most serious offences below murder.” However, precisely because of the strongly negative appraisal associated with the charge, Renucci believes that “juries will be reluctant to convict people of that offence if it is called rape.” The prevailing wisdom of the Holyrood reforms has been that whatever its deficiencies as a primary mechanism for cultural transformation, the new legal regime will not aggravate existing difficulties. Indeed, some more hopeful souls contend that the legislation will exert a positive influence, allowing judges to direct juries in crisp, transparent, and crucially, readily repeatable terms on the elements of crimes and doctrines of free agreement. Of course, this can only be informed speculation at best. Labour MSP Johann Lamont shared this view of the essential virtue of the new Act, saying that while “the conviction rate is as low as it is can lead to despair today we are taking a significant step forward.” Given the paucity of knowledge about jury deliberations in rape cases, can we share Lamont's confidence about the onward, striving direction of the reforms? How can we assume that the new explicit statutory definitions are neutral instruments? While pessimistic critics can fairly return our attention to the rates of successful prosecution in Scotland, and query the possibility of things becoming worse, this is more glib than substantive."

In some jurisdictions (such as Canada), concerns similar to those articulated by Renucci have seen criminal laws drop the language of rape altogether, replaced by a broader category of sexual assaults. In the context of the case against Lennon's acquitted attacker, Paul's niggling doubt suggests an issue which ought at least to be considered in the context of deliberations on the Scottish Government's new Offensive Behaviour at Football etc (Scotland) Bill. Ironical and accidental though it would be, is the aim of increasing conviction rates for sectarian-inspired offences potentially inhibited by attempts to increase the rates of conviction for specifically sectarian-labelled offences?