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26 May 2017

The Trial: A Murder in the Family (Part Five)

As the week drew to a close so too did the trial of Simon Davis, accused of murdering his wife Carla by strangling her in the hallway of their once shared marital home. Over the last five nights, Channel 4 has depicted the inner workings of a Crown Court trial and, most crucially, the interactions of the jury as they were led through the prosecution and defence cases.

Episode five saw the jurors being placed in the limelight, focussing firmly on their deliberations, interspersed with a dramatic reconstruction of what actually happened to Carla Davis on 24 September 2015. We discovered the development of her affair with her estranged husband, her happiness at the unexpected pregnancy, her decision to leave both partners and escape to Scotland with her children and the defendant’s uncontrollable rage at the news, which led to her death.

We also saw the rise in tension which pervades any court once the jury have retired to consider their verdict. Barristers and defendants alike are left in a state of limbo during this time. Defence Counsel took the opportunity to advise their client about what would happen once the jury returned, and the process that would unfold in the event of a guilty verdict. It was correct to advise Mr Davis that the starting point of his sentence, if convicted, would likely be 15 years based on a lack of evidence as to pre-meditation (e.g. taking a weapon to the scene) and the absence of other significant aggravating features in the way on which the murder was alleged to have been carried out. However, in reality, a discussion as to sentencing would have been much more developed and this advice would have been provided earlier on in the proceedings by his legal team.

The audience were left guessing to the end about which jurors had reached the “correct” conclusion. Given the strength of opposing views in the jury room, it came as no surprise that the jury were unable to reach a verdict on which they were all agreed, or even on which the majority agreed. It may have come as an unwelcome surprise to the audience that the jury was split 8-4 in favour of a not-guilty verdict given the truth that was revealed to them, and some may have found themselves questioning whether the jury system is in fact fit for purpose.

Interestingly, in a public vote run via The Trial’s Twitter page, nearly 75% of viewers said that they would have found the defendant not guilty. Following the showing of the reconstruction, and the final decision of the jury, 61% of viewers said they would no longer trust a jury of their peers.

All week, associates from Corker Binning have been watching the trial unfold and providing a written commentary on the legal and procedural points arising from each episode. This morning, I asked each author to share their final views on what has proved to be a fascinating legal experiment.

Kim Potts (author of Part One), on the jury’s deliberations

“It was disappointing to see a lack of focus on the actual evidence from some of the jurors during their deliberations. We observed a number of jurors applying only their own life experiences to assist them in reaching their conclusion on what they considered could have happened. We also saw a pre-occupation from some jurors about ‘finding justice’ which, whilst understandable in a murder trial, led them to incorrectly believe that if they could not be sure of Lewis Skinner’s guilt then Simon David would have to be convicted.”

The subjectivity of the jury is one which has been a marked feature of this week’s experiment. It has been concerning, if not altogether surprising, to see how their own experiences and preconceptions have taken precedence over the evidence presented to them.

Whilst we did not see the full gamut of directions given by HHJ Barker QC to the jury, we would reasonably have expected this to include a clear warning not to indulge in speculation of any kind. Whilst the defence introduced the possibility that Lewis Skinner may have been responsible, it was not for the jury to decide between the two candidates or to consider which may have had the greater propensity to violence. The discussions behind closed doors show that perhaps juries are not quite as able to adhere to these directions as one would hope.

Maia Cohen-Lask (author of Part Four), on reasonable doubt

“The concept of reasonable doubt exists because we have a criminal justice system which rests on the presumption of innocence. If the state wants to lock you up they need to be able to prove that you committed the crime. Unfortunately, in some cases they cannot do this, but this is not a failure of the jury system. The absence of a conviction in this case was the right result on the evidence that they had been presented with.”

Maia’s point echoes a principle which any law student will be painfully familiar with, known as Blackstone’s ratio. The logic goes that it is better that ten guilty persons escape than one innocent suffer. Whilst this can be difficult to reconcile with the desire for justice and punishment in the wake of unforgivable crimes, one only has to look at those miscarriages of justice where defendants have been failed for decades by the system to understand why the proper application of reasonable doubt is so crucial to the trial process.

Ben Henriques (author of Part Three), on the disclosure of “the truth”

“The hung jury was a perfectly legitimate outcome. I think it was unfortunate that the programme producers disclosed what had actually happened, because it gave the impression that the jury had somehow made a mistake, whereas in fact on the evidence before them, the majority view of not guilty was entirely supportable.”

As was explained by John Ryder QC in last night’s episode, there are in fact three perfectly possible outcomes in any jury trial. The jurors seemed disappointed that they had somehow failed to reach a verdict, and in fact the word ‘failure’ is one which is often used by those engaged in the trial process when a jury cannot decide.

The fact that the producers of this show chose to show what actually happened is also one which sadly served to somehow diminish the legitimacy of the decision which the jury came to. Of course, in a real criminal trial, neither the jury nor the lawyers involved would be told whether the decision is in fact ‘correct.’ In reality, a hung jury in this instance would result in the Crown attempting to prosecute the case again in front of a new jury. Convention (but not law) dictates that a case will be tried twice.

If both juries consecutively cannot reach a verdict, then the Crown will usually ‘offer no evidence’ and the defendant will be acquitted formally by the Judge under section 17 Criminal Justice Act 1967. It has been noted on several occasions by the Courts (see e.g. R v Bell [2010] EWCA Crim 3) that the ‘two trial’ rule is not absolute, but must be “exercised with extreme caution in…the very small number of cases in which the jury is being invited to address of extreme gravity.”

Edward Grange (editor-in-chief)

“In the words of Horace Rumpole: “It is the duty of the Judge to tell you as a jury what to do, but you have the power to do exactly as you like. And what you do, Members of the Jury, is a matter entirely between God and your own consciences….””

Overall, Channel 4’s foray into the criminal justice system has provided much food for thought. Inevitably, the audience at home saw only an edited fraction of the evidence presented to the jury and the requirements of drama clearly played a key role in shaping the series. Nevertheless, this was a brave and impressive attempt to bring the cameras to bear on the heart of the legal system.

It was a shame therefore, and a detraction from what appeared to be the original aim of the series, that the producers chose to introduce at the very end of last night’s episode the theme of gender bias in the jury system. The fact that two women are killed by a partner or ex-partner every week was linked with the observation that the four jurors voting “guilty” were also women. This was an unhelpful correlation to make without proper analysis, and served to cast a different light on what had otherwise been a fair representation of the inner workings of a diverse and randomly selected panel of twelve ordinary people, irrespective of gender.

None of the jurors, men and women, were able to completely abandon their personal prejudices, but all demonstrated a genuine desire to find the truth. The airing of their competing views and the collective wisdom they produced were a credit to the jury system. It is to be hoped that The Trial has sparked as many lively debates in British living rooms as it did in the jury room, and indeed within the Corker Binning office itself.

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