|Q&A with John Cooper
||[Nov. 18th, 2009|04:56 pm]
Battle of Ideas
John Cooper is a member of the criminal and human rights Bar and is considered one of the leading barristers in London. He was recently nominated as Human Rights Barrister of the Year and has just been Instructed to represent some of the families in the NIMROD aircraft litigation in their European court challenge to the Government, relating to violations of Article 2 Right to Life issues. He is also a writer and broadcaster. |
John spoke to with trainee barrister and Battle of Ideas committee member Luke Gittos.
Luke Gittos: It is often argued that the jury trial is fundamental to the justice system, with many calling for it to be included in a new bill of rights. Why is it so highly regarded and is it still important?
John Cooper: The jury trial is the most important fundamental of the criminal justice system. Performing jury service is often referred to as the most important civic duty of a member of the public, outside of war time. This is not overstated. The jury allows for the participation of the citizen in the criminal justice process and acts as a vital break upon the State. If the State make an accusation against the citizen, and assert, through a charge, that a citizen should be criminalised, then it is a requirement of any democratic process, that a jury of our peers should decide whether or not the State has proved its case.
In spite of a commitment to 'democratic process' in the trial systen, lawyers and judges seem desperate to manage exactly what the jury do and dont hear in the courtroom, and this need to control the flow of information has itself led to the development of swathes of new law. This also carries with it the demand to reform existing law, such as that around contempt of court, to exert greater control over what the jury hears. Is this trend towards the 'regulation' of the courtroom something you recognise? Does this have a positive or restrictive impact on the role of the jury?
It is important that the jury only consider the evidence that all parties are aware that they have before them. This will be tested before the jury to forensic standards. Equally, the jury must consider the evidence in a trial together, as a unit, and not individually. The verdict is formed of the combined views of the jury, all equally and together, participating in the process.
The flow of evidence, admissible evidence and not unsubstantiated theory or even worse, gossip, is regulated to preserve the integrity of the jury and most importantly, the ultimate verdict.
The rules as to contempt of court are designed to protect the impartiality of the jury and the safety of a verdict. Sometimes, the reporting of a case, which may have implications for the fair trial of future defendants, must be curtailed, although this should not detract from the primary principle of open justice.
Much has been said recently about the juror's ability to handle complex evidence in trials for offences under the Fraud Act. Legal commentators have also expressed worries about the impact of expert witnesses on the objectivity of the jury. Should the trial system adapt to the increasing complexity of crime? Is there a role for experts in the trial process, and if so, what should this role entail?
The trial process should and does adapt to the increasing complexity of crime and the wave of new criminal offences created over the last 15 years or so. In complex fraud cases, the courts regularly use computer presentation of the evidence, which enables the jury to fully understand the nuances of detailed evidence.
The role of experts in criminal cases is controversial, and will be the subject of a Law Commission Report very shortly. There has been some concern over the quality and qualifications of some expert witnesses who give evidence and it is anticipated that new guidelines will be issued to direct the court to satisfy itself in advance of the expert going before the jury that they have the requisite experience and qualifications.
There has in the past been too much use of witnesses purporting to have expertise and the new guidelines should act as a form of quality control ensuring that juries are assisted where they need to be by expertise but not innundated by it.
Even though many lawyers argue the virtues of the jury trial, many seem to balk at the idea of any further powers being granted to the jury. Is there any scope to give the jury more power in a trial? Are there any elements of the prosecution process outside the courtroom which could be more democratic?
Juries in criminal trials consider the evidence placed before them by the parties. Indeed, they can also write down any question, during trial, which they consider important and the parties will do their best to deal with it.
There can be no more important power than deciding upon the guilt or innocence of a fellow citizen, but upon coming to their verdict, the role of the jury ends. The sentencing phase is entirely for the judge. Today, victims of crime can make an impact statement to the judge, describing the effect that the crime has had upon their lives and the judge can, and often does, take that into account when sentencing the defendant. The convicted defendant can also present mitigation upon conviction, in effect, the other side of the sentencing argument.
In my view, there is scope for a greater role to be played by the jury in the sentencing process. Of course, there are legal criteria, and much of it, that the judge must consider in sentencing a defendant, but the jury have, afterall listened and carefully weighed the facts of the trial and there could be some structured way in which they can make their own recommendations upon the appropriate interpretation of evidence, so far as it might impact upon sentence.
At a time when both defendant and victim are given the ear of the court during the sentencing exercise, it is appropriate that the jury should not be prematurely excised from the process.
As to the democratic nature of the prosecution, the role of the CPS is to neutrally consider the evidence gathered by the police and to decide if it is in the public interest to prosecute and/or if there is a reasonable prospect of success. If the citizen feels that this process has not been carried out properly, then they can challenge the decision upon judicial review. This seems to work .
The Human Rights Act has undoubdetly changed the way that society thinks about traditional freedoms. How has the Human Rights Act changed society's notion of a 'fair trial'? Does it take power away from the public to decide how we want justice to be administered?
The European Convention on Human Rights, Article 6, provides that every citizen is entitled to a fair trial. In fact, back in 1984, The Police and Criminal Evidence Act caused a fundamental shift in the rights of a person to a fair trial, effectively controlling the conduct of police during the investigation stage of a case and providing that a defendant would not stand trial if there had been any unfairness in the investigation or the presentation of evidence at trial which may have a disproportionally prejudicial affect on the defence case.
This legislation, in my view was more influential in providing fair trial rights for a defendant than Article 6. That is not to say that the impact of the ECHR upon fair trial rights has not been influential, but I would suggest that they have been more effective in States which had not been overhauled by the 1984 Act equivalent, than the UK.
The provisions of the 1984 Act and the ECHR are vital to the provision of a fair criminal justice system. Respect of the system, by the public is essential, but it is not for the public to ' decide how we want justice to be administered', as you phrase it. If that were the case, we would be working in a justice system which had hanging as a penalty.