Newsflash: Man on Clahm Omnibus Still a Cynical Sod

Dear Diary,

The House of Lords has decided that trial before a jury containing serving police officers or CPS lawyers cannot be be said to be fair. The judgement is fascinating. Their Lordships record that after the Auld review it was decided that almost all jurors present a risk of prejudice and that whether a particular risk is presented should be determined by the trial Judge. Dear Diary, more thankless work for the poor, bloody Judge, with a guaranteed appeal at the end.

In the three conjoined appeals, two serving police officers and one CPS lawyer were on separate juries. The lawyer and one police officer disclosed their occupation to the Judge. The other officer did not. Interestingly, and possibly frighteningly, the CPS lawyer and the officer who disclosed his occupation both became foremen of their respective juries.

In the case which involved no conflict between police and accused their Lordships decided, with a sense of unease that the verdict should stand. In the case where there was a conflict between the accused and the police the appeal was allowed. The decision as to the CPS lawyer, who disclosed his occupation to the Judge, was that the trial was not seen to be fair, even though the accused might well be guilty.

Their Lordships split 3:2. With all due respect, however, it would be a popularly held view, legally speaking, that Bingham, Hale and Mance, trump Rodgers and Carswell.

As usual the case turned on principle. The majority held that whilst any bias would doubtless be unconscious, an objective observer could not conclude that the trial was sure to have been fair because one of the jurors had a bond with one side. This bond is not simply one of employment, which is why one of the appeals was refused. It is a bond of loyalty and allegiance: referred to by Bingham of Cornhill as one of the police’s greatest strengths.

The minority view was that a sophisticated observer, as the man on the Clahm omnibus has now become, would understand that people of good faith attempt to deal with their prejudices, that everyone has some prejudices and that the need for unanimity, or something close to it, ensures that results do not reflect prejudices.

Lord Mance is not known for being an easy tribunal. Dear Diary, I recall a noteable and hugely enjoyable row between his Lordship and Peter Carter QC. More enjoyable because I was not involved. Of course, Jonty was still in the Court of Appeal then and may simply have been feeling stressed and overlooked. Who knows? On this occasion his Lordship decided that if he could not rule out a cynical observer then he must rule him in.

Dear Diary, one day the Man on the Clahm Omnibus will be sweet-minded, reasonable and trusting. Until then juries had better be obviously independent. The position is far from perfect. But it is better than it would be if their Lordships had gone the other way. It seems to me that the cynicism lies in nominally expecting people to overcome prejudice, whilst knowing that the task is almost impossible. For once, British bloody-mindedness, justice and honesty in the law have coincided. Rejoice, rejoice as someone whose name escapes me once said. It does not happen often.