Empirical vision: Professor Cheryl Thomas QC

Professor Cheryl Thomas QC (Hon) has recently been appointed as the first Dean of Inner Temple, with the task of advising and assisting ‘in developing new courses and activities for established members of the profession’. It is part of the Inn’s 2022 Vision of lifelong education for all its practitioner members, self-employed and employed; in London and on Circuit.

Hearing her describe the project which is still in early days, I was reminded of the forgotten words of Tim Dutton QC when Chairman of the Bar in 2008, that the Inns should be the centre of lifelong learning, ‘a vibrant, university-like organisation, with the involvement of judges, practitioners, and senior academics’.

That pretty much sums up what Cheryl is setting out to do now. Inner Temple has at least explicitly taken on board the similar and similarly unfulfilled vision of Sir Alan Moses, expressed in 2012: ‘Participation by every advocate, barrister or solicitor, together in regular and sustained courses, in which all the Inns should take the lead and in which those of different experience and the judges participate.’

Meeting with her in October, it quickly becomes clear why Cheryl is so well suited for the task.

She arrives at it via a somewhat unpredictable career path. Born in Massachusetts, she gained a degree in political science. She worked in Washington DC as a researcher and policy advisor for the National [State] Governors’ Association. She left to do an MPhil at Oxford. ‘I was interested in a wider political perspective,’ she says. Although her dissertation related to the work she had done about federalism, states’ rights and interest groups in the American political process, she switched to studying Supreme Court decision-making concerning these issues for her DPhil (PhD) at Oxford.

In the American system, both political scientists and academic lawyers study judges, courts and judicial decisions. That, however, ‘was just not an Oxford thing’. English universities teach jurisprudence, which is different. That is about what judges ought to do, not what they in fact do. She moved on to a DPhil but there were no jobs ‘in respect of the kind of work I was interested in’. For several years, she had parallel careers, taking on consultancies and research but also being a documentary film maker.

“One of the important changes is to engage with established barristers, most of whom have drifted away from participation in the Inn”

She joined the Laws Faculty at University College London in 2007, becoming in due course its first Professor of Judicial Studies and director of its Jury Project and Judicial Institute. A significant moment came when the Lord Chancellor asked her to do a large study which became Diversity and Fairness in the Jury System (2007). Previous reports touching on juries relied on anecdotes (with the exception of Michael Zander’s Crown Court Study for the Runciman Commission). Cheryl changed all that. She was allowed to include in every jury summons sent out in England and Wales a personal profile demographic questionnaire which people were asked to return with their acknowledgement to the summons. Almost all did so. Because each summons had a bar code, she was able, anonymously, to trace what happened throughout the process – whether the person returned the summons, whether they turned up at court, whether they actually sat on a panel. All this was analysed in the context of the national census. Since both the census and jury summonses were based on post codes, ‘I could do a population profile of each Crown Court juror summoning area.’ Looking at gender, ethnicity, age, income and religion, she established that jurors were ‘remarkably representative’ of the local population, which is the relevant criterion. ‘It means that we have this random selection system and it represents representative pools of people.’ She also established that people did not routinely try to avoid service; the non-repliers tended to come from areas of highest residential mobility, so the summons probably never got to them. The report was officially launched with the Lord Chancellor and Trevor Phillips, Chairman of the then Commission for Racial Equality.

For this Cheryl filmed a trial simulation of an actual case, using a real judge and advocates. Versions differed but only in terms of the ethnicity of the defendant and the complainant. A film was shown at court to people who had just finished their jury service. They were asked to return a verdict. The result? Ethnicity did not affect the decision making. Jurors do not convict BAME defendants more than they do white defendants.

The next big research project, Are Juries Fair? (February 2010) took matters further. Cheryl focused on decision-making by all-white juries in relation to BAME defendants, and examined wider issues about jury fairness: do jury conviction rates differ significantly by offence, is there a postcode lottery in jury trials, how aware are jurors of media coverage of their cases?

‘This was the start of my analysis of all jury verdicts in England and Wales.’ The Ministry of Justice maintains a system (CREST) in which every outcome, starting with charge, is entered. Using case numbers only, Cheryl is able to ascertain offence, plea, when a plea was changed, the outcome of the hearing, age and ethnicity of defendant, and the offence. ‘I am able authoritatively to say this is every single case that has been in the crown court for the last 10 years.’ Unfortunately, there is no comparable Ministry of Justice system for the magistrates’ court. When David Lammy MP began his work on the review of BAME representation in the criminal justice system, he started with an online questionnaire which said, in part, ‘We know that juries are more likely to convict a non-white defendant.’ Cheryl contacted his team to explain that we do not in fact know that and that the opposite is true. She was asked to assist and produced the statistics which proved that while BAME defendants are in fact over-represented in crown court trials there is no significant difference in jury conviction rates based on the race of the defendant.

“During a barrister’s career, new problems arise. So the Inn decided to revise and radically change the [ethics] course. One of the guiding principles is, of course, empirical evidence”

Cheryl acknowledges that myth busting is ‘challenging’. She cites other examples of beliefs that are contrary to empirical evidence. A major problem is making sure people know the truth. The launch of Diversity and Fairness in the Jury System ‘was a managed release of information, but nowadays [information] is coming out all the time’.

Her involvement in judicial studies led her to embark on the first ever survey of judges’ working lives. No one had ever asked the judiciary these questions before. Her inaugural lecture at UCL, ‘Purple Haze: The Danger of being in the Dark about Judges’ led to Inner Temple asking her to become an Honorary Bencher. ‘I find that with non-barristers, their awareness of what an Inn of Court and what a Bencher is, is “cloudy”. So there is good public education to do there.’

As a Bencher she served on the education and training committee. Although she admires the amount of time which barristers donate to advocacy training she is also aware that there is inconsistency in delivery but that consistency in training would not be a popular option. Indeed, anyone who is familiar with Inns’ advocacy knows that each Inn does its own thing with its own case studies, believing that their courses are the best.

Cheryl has dealt with the issues through her involvement in a new approach in Inner Temple in how to teach ethics to new practitioners. ‘Ethics is not a textbook thing,’ she said. During a barrister’s career, new problems arise. So the Inn decided to revise and radically change the course. One of the guiding principles is, of course, empirical evidence. ‘You can’t know if your ethics course is working unless you know what your new practitioners know before the course begins.’

There are three stages. The first is preparation: advance reading and thinking. Stage two is a face-to-face ethical dilemma (including a plenary session for all new practitioners and then smaller specialist group sessions). This creates the base line of what the young barrister is thinking. ‘There is a right answer, though we choose a scenario with a conflict between rules and core principles. The use of anonymous voting prompts good discussions and the new practitioners said they were more willing to speak up because “I could see others thought the same way”.’ In stage two, the delegates are divided into groups based on specialism for discussion. The materials are designed so that an Inn trainer could step into the course and deliver it as consistently as any other.

Subsequently, stage 3 is an online assessment, where barristers are presented with other scenarios. One is then able to compare what the new practitioner thought in stage one and what they think now; in other words, how well the training has improved their thinking. That’s as far as it can go since the Inn cannot impose a requirement in the course that new practitioners attain a certain level of ethical skills in order to satisfy the regulatory rules for ethical training at this stage.

All this is preparation for the role of Dean. The idea for such an office arose from the major, strategic review of the Inn’s role in 2017 which produced the 2022 Vision. One of the important changes is to engage with established barristers, most of whom have drifted away from participation in the Inn. ‘My job is to identify how Inner Temple is to find out what the needs are and then to decide how the Inn can help.’ The Inner Temple Established Barrister Survey will be run and analysed next year, when they plan to better understand the demands on the working lives of established barristers and how the Inn can best assist. In other words, proceeding, as Cheryl always does, on an evidence basis.

This led us finally to a discussion of whether training in the Inn really fulfils its function. No one is formally assessed. I used as an example the changes in how vulnerable witnesses and defendants are treated at court. Barristers are taught the mechanics but it is clear from appeals brought to the Court of Appeal that some don’t believe it; they insist that to restrict their cross-examination results in an unfair trial. ‘Who are the gatekeepers?’ Cheryl asked. ‘The judiciary has to be a gatekeeper of advocacy’ but there isn’t only one gatekeeper. She identifies as well the Court of Appeal, chambers, specialist Bar associations, Inns of Court and Bar Council.

This seemed an optimistic view but Cheryl has seen dramatic change. In 2010 she recommended that written directions to the jury would be helpful. She was told then that it would never happen – counsel won’t agree, and judges don’t have the time. Now the Court of Appeal says that they cannot think of a case, however simple, where the jury would not be so helped. Attitudes do change, and she hopes that those who resist change are more the exception.

In addition, Cheryl has turned her mind to a review of the academic fellows’ programme, a public education programme about the Inns and Inner Temple, and perhaps most important in our times, the Inn’s role in promoting the rule of law.

‘Let there be Academies of Excellence,’ Sir Alan declared in 2012. If Cheryl Thomas has anything to do about it, there will be.

Biography

Professor Cheryl Thomas QC (Hon) is Professor of Judicial Studies in the UCL Faculty of Laws, Director of the UCL Jury Project and Co-Director of the UCL Judicial Institute.

Professor Thomas has served as a specialist consultant on judicial affairs to a wide range of official bodies including the Lord Chief Justice of England and Wales, Lord Chancellor, UK Ministry of Justice, Judicial College, Law Commission, Crown Prosecution Service, the Judiciaries of Scotland and Northern Ireland, European Commission and other international organisations and governments. In 2012 she was elected Academic Master of the Bench of Inner Temple. In 2017 she was appointed Queen’s Counsel Honoris Causa.

She is also a documentary maker and has produced programmes for the BBC, Channel 4, ITV, Discovery and PSB. Professor Thomas holds a DPhil and MPhil from Oxford University and BA from Syracuse University. Professor Thomas’ research includes Diversity & Fairness in the Jury System 2007; Are Juries Fair? 2010; UK Judicial Attitude Survey 2014 and 2016; the UK Supreme Court and Judicial Committee of the Privy Council Database Project and a foundational empirical study of tribunal decision-making.

Her current jury research examines the impact of the digital courtroom, the impact of special measures for vulnerable witnesses, whether jurors believe myths and stereotypes in some cases, how to prevent juror misconduct, how to improve jury deliberations and how best to provide support for jurors during and after trial.