Professor Dawkins’s Jury Delusion

Having seen off God, Professor Dawkins turns his attention to another object of veneration, the jury, in the The New Statesman. He thinks that the requirement, as he sees it, of proof ‘beyond reasonable doubt’ for guilty verdicts, is at odds with what juries actually do when deliberating. The high standard of proof should leave no room for discussion, or for the forceful intervention of unusually persuasive jury members. Cases should speak for themselves. He says

“beyond reasonable doubt” is a hollow and empty phrase. If you defend the single-jury system as delivering a verdict “beyond reasonable doubt”, you are committed to the strong view, whether you like it or not, that two juries would always produce the same verdict. And when you put it like that, will anybody stand up and bet on 100 per cent concordance?

If you place such a bet, you are as good as saying that you wouldn’t bother to stay in court to hear the verdict, because the verdict should be obvious to anybody who had sat through the trial, including the judge and the lawyers on both sides. No suspense. No tenterhooks. There may be no practical alternative, but let’s not pretend. Our courtroom procedures make a mockery of “beyond reasonable doubt”.

He says he has been on three juries. Unless his experiences was from decades ago, he would have heard the Judge tell him that he could find the defendant guilty only if he was ‘sure’ of guilt. Judges have not used ‘beyond reasonable doubt’ to describe the standard of proof for a very long time – exactly because it invites pointless speculation about the percentage required. The requirement of being ‘sure’ is much easier to use as the standard of proof. We know when we are sure about something, without having to put a percentage on it; or more importantly, we definitely know when we are not sure. (In the bad old days there was a rural judge who gave the ‘fridge direction’: he would tell the jury that their decision was as important as other big events in their lives – such as whether to buy a fridge. Perhaps Professor Dawkins was in his court.)  That was manipulative was patronising  and unnecessary. Judges now do not qualify what is meant by sure. The official Crown Court  ‘Bench Book’ (2010), which gives guidance for virtually every legal direction that a Judge has to give the jury, states that

The prosecution proves its case if the jury, having considered all the evidence relevant to the charge they are considering, are sure that the defendant is guilty. Further explanation is unwise.

If the jury are not sure they must find the defendant not guilty.

The point is that even people less smart than the Professor can be trusted to know whether they are sure of a defendant’s guilt, without a disquisition on what ‘sure’ means.

A jury trial is not a mathematical or scientific process. When deciding if some one has told the truth (the invariable key issue) we weigh up everything they have said for consistency and for reasonableness and for its fit with known facts about the case. All humans and their stories tend to be unreliable, even when they don’t deliberately set out to mislead. The criterion of judgment that makes the jury so valuable is human experience. A jury is not a computer which mechanically process information. A courageous jury will on (rare) occasions refuse to convict a technically guilty person if they think there is a gross unfairness about the prosecution: remember Clive Ponting’s alleged breach of the Official Secrets Act, and take heart from the jury that refused to convict William Penn, even when the Judge imprisoned them for failing to obey his directions to convict him. We should not eliminate the human dimension and the conscience verdict, for no appreciable gain. We have a Court of Appeal to deal with cases that have gone seriously wrong.

When entrusted with so great a decision, it is right that the jury should take all the time they need and scrutinise the evidence and arguments they have heard. 12 is a good number to even out differences between slower and faster individuals, men and women  young and older, ethnically and socially diverse.  In a long trial with masses of evidence you see them changing from 12 baffled-looking individuals at the start, into a powerful coalition of minds working together to answer the questions the trial gives them.

The process disgusts those who prize efficiency above all other virtues because it is slow, cumbersome and gives unpredictable results. But it has legitimacy. A group of citizens, not state appointees, decide whether other citizens have committed crimes. For all its imperfections  and occasional failures (human, all too human), the jury system works well and has earned its place at the heart of our criminal justice system. It has always had powerful enemies and it is a shame to see the Great Debunker joining them.




Bad Science and the Destruction of the Forensic Science Service

In the aftermath of the verdict in the Stephen Lawrence murder trial I wrote for The Justice Gap about the forces undermining the quality of forensic – scientific and expert – evidence. On one side, the government has scandalously closed the Forensic Science Service (FSS); on the other, the Court of Appeal in a sequence of judgments has laid down what may be a dangerously low standard for expert evidence to be admitted in Court. When the funds available to the defence (through shrinking Legal Aid provision for experts) and to the police are being cut, there is a real risk that dangerous and unreliable evidence will distort trials and lead to wrongful acquittals and convictions.

Here’s what they did to the FSS.

Previously a government agency, in 1999  the FSS turned into a lab rat, subjected to live free-market experimentation, when the government granted it trading status. It was supposed to compete for work with private sector laboratories and make money. In 2005 it became a ‘GovCo’ – a company wholly owned by the government – as a step towards becoming a public-private partnership. It started its new incarnation in true 2005 fashion, with a huge loan of £50 million of taxpayers’ money. But its commercial development never happened. There was no commitment by the government to push it forward. There wasn’t enough information about the ways that private operators the local police forces’ in-house forensics people worked.  The FSS was expensive to run. It was expensive because in general it worked to a very high standard, and very high standards cost money. It took on more staff but did not control its costs. Its cheaper commercial rivals took business away from it. It did not make a profit and could not pay back its loan. It needed bailing out with a grant of £50 million in 2009.

In the 2010 spending review, the Coalition government looked at it and decided that they could not continue to prop it up. There was no question of reform or restructuring. In December 2010 the Home Office killed it off.  It will close forever in March 2012. This was the rationale:

‘We want to see the UK forensic science industry operating as a genuine market, with private sector providers competing to provide innovative services at the lowest cost. This will preserve police resources and maximise the positive impact forensic sciences can have on tackling crime. A competitive market can help to drive down prices and improve turnaround times, meaning serious crimes can be cleared up more quickly and efficiently. Ultimately, that is what everyone in the criminal justice system wants to see.’

This means: we want justice on the cheap. You will notice the glaring absence of ‘quality’, or ‘excellence’, or even that favourite old piece of cant, ‘world-class’. The destruction of the FSS was simple cost-cutting wrapped up as free-market reform. No one asked for a market in forensic science but we’ve got one anyway.

The House of Commons Science & Technology Committee in their highly critical June 2011 Report complained that the government failed to gather intelligence about the likely market conditions that would operate before and after abolition and failed to predict the extent to which it was possible for private providers to fill the gap. They made the decision to close it on insufficient evidence about the impact. The only concern was the bottom line.

The MPs also said:

Proper consideration should now be given to what resources might be irretrievably lost to the UK with the closure of the FSS, including the FSS’s archives and the intellectual wealth residing within its scientists. We have seen no detailed plan outlining the transition and the future of the FSS’s staff, archives, work and assets.

At its height the FSS worked on over 120,000 cases per year and employed 1300 scientists. It has worked with more than 60 countries worldwide in consultancy, training, systems, and technology and casework databases. It has worked with foreign governments to set up and monitor their own forensic science services, and has won a reputation as a pioneer in the forensic use of DNA technology. The skills and personnel have taken years to assemble.

The MPs’ report shows a hurried decision, taken without enough thought or evidence, with no real evaluation of the true costs and benefits.

And what sort scientific testing do the Courts require to admit evidence as properly expert evidence?

No less an authority than Lord Justice Leveson has expressed serious concerns about the Court’s readiness to allow evidence to be treated as expert evidence without in-depth scientific authentication. In a speech to the Forensic Science Society in November 2010 he said

There have been increasing concerns that in certain circumstances expert evidence has been incorrectly used, or too much significance has been ascribed to it. This problem was highlighted recently by the Court of Appeal (Criminal Division) in R v Atkins [2009] EWCA Crim 1879. The Court noted three factors about expert evidence which should be borne in mind throughout. First, expert opinion is just that: an opinion. Second, experts need to know the limits of their expertise and have the integrity to inform the Court of those limits. Third, expert evidence should – indeed must – be submitted to robust testing, either by another witness in the same field or in relation to accepted scientific methodology for the science and statistical analysis for probability.

However, the Criminal Courts have adopted a test for the admissibility of ‘expert’ evidence that is not based on an appraisal by scientific peers; such evidence does not always require a firm base of statistical research to give support to opinions in particular cases. The weight and reliability of such evidence are left to the jury to decide. Our Courts have taken a very different approach from the USA, where the admissibility of expert evidence in a new or developing areas depends upon a scientific consensus about its reliability. Here, that approach is thought to oust the Judge from determining the issue. Instead, we have the nebulous concept that opinions on a given subject are admissible under two conditions: (1) whether study and experience give the witness’s opinion an authority that the unqualified will lack; and (2) whether the expert has undertaken the necessary study or gained the necessary experience. This was the formulation by Bingham LJ in the case of Robb (1991) 93 Cr App R 161. Our Courts have rejected a “reliable body of knowledge or experience” condition. A good example of their approach is Otway [2011] EWCA Crim 3 (in which the writer represented the appellant): a podiatrist said he recognized the appellant as the unidentified man said to be the offender, on security camera footage, by his gait and posture. There was no database and no peer review of the technique he used, but the Court of Appeal held that these were not required – in effect, the self-certification of the witness as an expert was enough.

This laissez faire approach has caused or contributed to at least three scandals: the use of Professor Roy Meadow as an expert on child mortality, until he was finally discredited in the appeal of Cannings [2004] 2 Cr App R 7; the use of ear-print evidence Dallagher [2002] EWCA Crim 1903; and the use of a forensic lip-reader who passed muster with the Court of Appeal (Luttrell [2004] EWCA Crim 1344) but was later found to have given misleading evidence about her qualifications. All these cases concerned experts used by the prosecution. They suggest a degree of willed credulity on the part of the judges, together with a proprietorial reluctance to let other experts have a say on whether evidence is fit to be admitted. The reported cases offer reassurance on the impossibility of obvious quackery like soothsaying or astrology being admitted, but that is an aunt sally. It’s the better disguised fakers and incompetents who need to be kept out. The three cases above show that the present rules are not good enough to ensure that unreliable and dangerous evidence, wrongly labeled expert, is kept out.

The Court of Appeal has not been consistent. When it considered an expert relied on by the defence in the appeal against conviction in Gilfoyle [2001] 2 Cr App R 5, came close to insisting on the ‘reliable body of knowledge or experience’ condition for admitting the evidence – which they found wanting. Mr Gilfoyle’s wife was found hanged at the family home. G was convicted of her murder. He sought to adduce evidence of a psychologist about her likely mental state, to support the defence case that she killed herself. As readers of JG will know, Mr Gilfoyle is now trying to reopen his case, on the basis that the prosecution failed to disclose vital information about his wife’s precarious mental state and previous suicide attempts. So it looks as though the Court may have drawn the line too tightly and excluded reliable evidence which would have helped the jury to decide where the truth lay. Why should a jury have not had the same opportunity to assess it in Mr Gilfoyle’s case, as they were given in the cases decided the other way? Or why should the Judge have not used applied the “reliable body of knowledge or experience” criteria in the other cases, and used them accurately, to ensure that justice was done?

The  Stephen Lawrence murder trial broke no new scientific ground. Bloodstains that should have been detected in 1993 were missed until the police re-investigated the case in 2007.  Even reliable experts can miss evidence that yields to routine analysis and can prove the case one way or the other. But now,  the demise of the FSS removes a body of experts of world renown; the prevailing laissez faire attitude of the higher Courts to new and under-researched types of expert evidence leaves the field open to plausible quacks and incompetents.

Maybe it will all work out; the market will soon throw out the also-rans; the judges can safely rely on self-certification where no body of knowledge exists. Or maybe more people will be tried and wrongly judged on evidence that is not good enough, and they won’t be in causes celebres like the Lawrence case, and no one will ever know.

Abu Qatada

Let’s agree that Abu Qatada is a bad man who espouses an ideology of death and tyranny. Whether he deserves all the fear and loathing he attracts is not under discussion here. We’ll assume the worst. It makes the argument clearer. Here it is: human rights are for all humans, even the worst specimens that humanity can produce. Why? Because humanity is capable of rising out of violence and ignorance. We know we can do better than the monsters, and we can demonstrate that by applying the same high standards to every one. That is the way to give a chance to the victims of abuse where no such standards apply. Otherwise rights aren’t rights, but privileges for the fortunate.

Credible evidence shows that the Jordanian state torturers have extracted evidence from the witnesses against Qatada. The UN, Amnesty International, Human Rights Watch and other reputable sources all find that torture is widely used there in the rackety and corrupt organisations that are laughably called the legal system.

The ‘Memorandum of Understanding’ obtained from the Jordanian government may protect Qatada from torture, but will not prevent his trial being conducted on foundations of torture.

In its scrupulously careful judgment on Abu Qatada, the European Court of Human Rights said this

264.  International law, like the common law before it, has declared its unequivocal opposition to the admission of torture evidence. There are powerful legal and moral reasons why it has done so.

It is true, as Lord Phillips observed in the House of Lords’ judgment in the present case, that one of the reasons for the prohibition is that States must stand firm against torture by excluding the evidence it produces. Indeed, as the Court found in Jalloh, cited above, § 105, admitting evidence obtained by torture would only serve to legitimate indirectly the sort of morally reprehensible conduct which the authors of Article 3 of the Convention sought to proscribe.

There are, however, further and equally compelling reasons for the exclusion of torture evidence. As Lord Bingham observed in A and others no. 2, § 52, torture evidence is excluded because it is “unreliable, unfair, offensive to ordinary standards of humanity and decency and incompatible with the principles which should animate a tribunal seeking to administer justice.” The Court agrees with these reasons: it has already found that statements obtained in violation of Article 3 are intrinsically unreliable (Söylemez v. Turkey, no. 46661/99, § 122, 21 September 2006). Indeed, experience has all too often shown that the victim of torture will say anything – true or not – as the shortest method of freeing himself from the torment of torture. 

265. More fundamentally, no legal system based upon the rule of law can countenance the admission of evidence – however reliable – which has been obtained by such a barbaric practice as torture. The trial process is a cornerstone of the rule of law. Torture evidence damages irreparably that process; it substitutes force for the rule of law and taints the reputation of any court that admits it. Torture evidence is excluded to protect the integrity of the trial process and, ultimately, the rule of law itself.

276.  Third, and most importantly, due regard must be had to the special difficulties in proving allegations of torture. Torture is uniquely evil both for its barbarity and its corrupting effect on the criminal process. It is practiced in secret, often by experienced interrogators who are skilled at ensuring that it leaves no visible signs on the victim. All too frequently, those who are charged with ensuring that torture does not occur – courts, prosecutors and medical personnel – are complicit in its concealment. In a criminal justice system where the courts are independent of the executive, where cases are prosecuted impartially, and where allegations of torture are conscientiously investigated, one might conceivably require a defendant to prove to a high standard that the evidence against him had been obtained by torture. However, in a criminal justice system which is complicit in the very practices which it exists to prevent, such a standard of proof is wholly inappropriate.

If anyone disagrees with this, please say why you do.

Abu Qatada’s own fate may be a matter of indifference at best. But returning him does huge damage to the reputation of this country as an upholder of the rule of law.  They say we cannot put him on trial here: fine. Let’s not outsource the dirty work to a far away country – of which we know a great deal. If we do, we are the losers.