1 September 2011

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?


  1. I was discussing this with some slack-jawed disbelief in the pub last night, does the aggravation in the charge mean that the jury convict cannot convict on the assault part alone?

  2. A courtroom is a place of law and testimony, not of 'justice'.

    It's a game of checkers and morality is often the casualty.

    However, I'm surprised with the video evidence that a not guilty verdict could be returned.

    It's a dirty job and someone loves to do it.

  3. The Crown should have stuck with a plain assault charge. Indeed the defendant admitted assault in open court. Making it a sectarian assault was a mistake as it's one man's word against another ( steward v defendant). And that means 'not proven'. The new sectarian laws will see these miscarriages of justice escalate in the future.

  4. 'does the aggravation in the charge mean that the jury convict cannot convict on the assault part alone?'


  5. "It is therefore the role of the prosecution to produce enough evidence, whether direct or circumstantial, which must be relevant, admissible and of enough weight to procure a prosecution. Where the prosecution fails in this role, the jury will feel doubt as to the guilt of the accused and cannot return a verdict of guilty. Therefore, the 15 jurors can declare a not-proven verdict, alerting the prosecution to the fact that its performance and/or evidence and/or witnesses were poor." Scottish Law review

    So the verdict 'not proven' is given on guidance from the judge.

    Further the term Fenian when used colloquially in Scots usage simply refers to someone from Southern Ireland. Hence where is the religiously aggravated assault?

    Fenians prior to the 1780 rebellion were an open society pressing for Irish Independence and contained a membership of diverse political and religious backgrounds including Edmund Burke MP - a protestant.

    I suggest what is shocking is Lennon's ignorance of the role the Fenians played in the development of the cause of Southern Ireland.

    The judge was correct to advise the jury on this issue there was no evidence to substantiate a religiously aggravated assault. The stupidity of the prosecution left only a charge of breach of the peace for Wilson to face as indicated by the 'not proven' verdict on the more serious charge.

  6. Lol the term Fenian when used colloquially does not simply refer to someone from Southern Ireland. It refers to Irish Catholics, whether they are from Southern Ireland, Northern Ireland - or Glasgow.

  7. Hi there,

    Possibly the jury considered that the steward had misheard the word "Fenian" when the phrase "fine yin" had actually been used by the accused - a term of admiration rather than abuse. In the light of this possibility it is easily understood how the rest of the evidence could equally have been interpreted by the jury as having been "misrepresented" by the crown in attempting the achievement of a "popular" prosecution.

    I'm with the jury.


    ps for the avoidance of doubt, my tongue was lodged firmly in my cheek when I wrote the above.

  8. This case will not have helped the SNP win over Catholic voters.

    It lends weight to the views expressed by Paul McBride referred to in this article in the Scostman.

    'Catholic QC warns of bigotry after split from UK'


  9. Dammit, your blog is still not letting me comment here with my Wordpress account (well, I know that's not your fault but I do wish webby shit would work).

    Anyway, started a comment giving my anarchist and feminist perspective on this post but it got so looooong I did the right thing and wrote it as a blog post on Village Aunties rather than gumming up your comments section. I hope you won't mind popping over for a read- I write long, but The Worrier can hardly moan about that, now can he? ;-)


  10. I suspect those of a similar ilk of madjockmcmad's prolifferated on this jury. It behoves me to suggest that perhaps the jury even sought guidance to bring about a verdict that it was catholic schools wot done it. In that poor Mr Wilson had been forcibly torn from the bosom of his best pal wee Franny between the hours of 9 and 3 every day sent tae wan ae they Catholic schools. They had to spend the rest of the day efter their Maw's had put oot their dinner consoling themselves.

    I digress..............The crown (oh ef the crown?!?!) were quite correct to proceed with the prosecution as to it's aggravation. How are we ever to send a message that anti-Catholicism will no longer be tolerated in this great nation (as it so obviously has and still is) if the fiscal refuses to seek justice for all, fenian or not.

    After the conversations I have had at the weans fitba training last night and online with various other fellow fenians. The case that I forever argue - that Scottish society is moving - on has hit the buffers, was this our OJ moment as someone pointed out? exaggeration? perhaps, hyperbole? I'm mot so sure!

    LPW, I understand the rationale of your argument, and of taking a specific course, justice in it's fullest will not always be done. However in light of our current circumstances and taking all into account, justice must be seen to be done.

    A clearer cut opportunity (which only allows the madjock's of the world to howl at the moon and defend the indefensible) could not have been more forthcoming and I'd even suggest that from now on cases of this kind are heard north and east of a Dundee-Inverness axis. And not in the deep, deep south!

  11. In answer to a few points...

    Aidan, and anyone else who have been asking the same question, anonymous is correct.
    The jury could have deleted the aggravation and convicted Wilson of assault.


    While I wouldn't go along the whole way with you, I certainly have sympathy with the idea that we should approach the justice of legal proceedings gingerly, conscious of law's artificiality, and its limits.


    Because of the contempt of court laws, it is very difficult to say what prompted the jury to reach its decision. Some folk may be tempted to interpret the result as expressing anti-Catholic bigotry. Just as they would struggle to produce firm evidence of that, so too one can't produce much definitive evidence exploring alternative explanations.


    Blame blogger - one suspects professional jealousies may be responsible! Am obliged for the link to your post, I will add a wee comment explaining my point of view to your post, rather than here.


    I may compose another post, explicitly and more clearly discussing what I was getting at in the last section of this one.

  12. My understanding is that he was accused of calling Lennon a fenian wanker and he claimed that he called Lennon a fucking wanker.

    If you say those two phrases aloud - and imagine in the background the normal level of noise you get at a football match - it would be hard to be sure what was said I think.

  13. Indy

    That would have justified the jury deleting the religious aggravation part of the indictment and returning a guilty verdict for simple assault.

    It's not like they hadn't understood that they could do so. That's what they did with the breach of the peace charge. They deleted the religious aggravation element.

    This case has lifted a stone on life in contemporary Scotland and exposed things some people were either ignorant of or sought to deny.

    What is incomprehensible is the notion that the SNP's proposed legislation is going to address the problem.

  14. Indy

    Taking all the relevant circumstances into consideration.

    -Lennon is a hate figure amongst the unreconstructed for being an uppity fenian. Hardly a militant republican considering that he played for the occupied six counties team until forced out by lieu of death threats for being a fenian and daring to flaunt it by signing for Celtic

    -He and his family was living under 24hr armed protection after the security services no got wind of credible plots from those who used to recreationally target fenians, ie. alphabet soup unionist murder gangs like the UDA, UVF, RHC etc

    -Hearts is a hotbed of vitriolic rule brittania unionism and anti-Irish nutters, they have a history of anti-Catholic behaviour that many believe to be on a par with Rangers. I do not believe most Hearts fans to be like this, but this is the prevalent dominating atmosphere there.

    -There was a credible witness, the head steward of hearts, not Celtic where some with their own agenda may well suggest that he could not be trusted. This witness stood firm and told the truth and for that was rewarded by being publicly branded a liar. The defence would have been deficient in their work if they had not put to the witness your very suggestion you make that he misheard.

    Having read your comments here and 'better nation' for example where interestingly (and on topic) my mild criticism of allowing Stuart MacLennan to guest blog went unprinted and unanswered. I asked if someone who aired anti-semitic, gay or black views for example would be given this priviledge. I'd be in agreement with you over pretty much everything that I can remember. However where we seek obfuscation, we will surely find it. I often argue that the reason why so many people wish to spread this sectarianism blame wider, and onto Catholics and Celtic fans in general is that it precludes further introspection of where the problem lies.

    Sometimes if it walks like a duck, farts like a duck...............it's a friggin duck. I'm sure there is a story to be had here, this jury may well be full of ducks'. Hopefully the truth will out.

    Aw best.