*/
Working in television for much of my life, and occasionally being required to teach aspiring programme-makers, the very first piece of advice on scripting a documentary so that it can be understood by a lay audience is this: first say what you are going to say, then say it, then say what you have said. This principle was nowhere to be seen during the trial I sat through. The overarching experience was that of slowly being handed, one by one, individual pieces of a jigsaw without ever being shown the full picture. I should say that I have no particular desire to criticise the prosecuting counsel’s opening. Over two days he set out a number of arguments which he regarded as key to a jury’s understanding of his case against the defendant. It was as though he was crafting and illustrating a number of jigsaw pieces before handing them to us. Let’s say they were corner pieces which might come in handy when trying to build the overall picture. But with three months of the case still to come, by the time he sat down we still had no idea what the overall picture was. Perhaps we could discern that it was going to be a seascape, or a battle scene, but where on earth was the cavalry officer, that red ensign, going to fit? Not a clue; no lid available depicting the whole scene. Surely the full picture must also include the other side of the story; the defendant’s version of events? As it turned out, we would have to wait many weeks for that. For now, we had to make do with what seemed to us to be only half the story.
The indictment referred, crucially you might think, to the provisions of the Fraud Act 2006, and an alleged contravention thereof. Nobody took the trouble to tell us what these provisions were – what, indeed, constitutes fraud. It seemed a strange omission, one that no doubt would be remedied by the judge’s summing-up (another thing to which no reference had yet been made). But then we’d have to wait until the very end of the trial to know what we were measuring the evidence we had heard against; at which time we would be trying to recall, and evaluate, evidence we had heard two or even three months ago. And why were there two more or less identical indictments, with different dates? Clearly, we’d have to decide if (any) fraudulent activity took place within the relevant time frames – but why were those time frames chosen, when the activities concerned were (apparently) happening outside those times?
We came to the first witnesses. Nobody, neither prosecution nor defence, told us their goal – ‘this is what we’re going to be trying to prove, and we’re going to be calling this and that witness to establish each of those points’. We had a list of names, but it was alphabetical, and gave no idea of the order in which they were to be called. Did it include witnesses for the defence? We simply had to guess. First, there were a couple of technical witnesses explaining, for example, the operation of a key database. Then came a witness who had nothing to do with the database. In fact, the defence made no challenge to the accuracy of the assessments carried out by those technical experts, so it seemed that a whole day and a half of evidence was simply unnecessary. The analysis of the figures generated by the database (the crucial bit) was dealt with by a completely different witness later on.
Before being sworn in, we had been shown a short video explaining the structure of a sample case, and how the jury would be expected to reach its verdict. Once in court we were given a diagram of the layout of the court – who sat where, and even the names of the barristers, and whether they were KCs or not. But no-one explained the ground-rules for examination and cross-examination. When the judge might intervene, or why. What a KC was. Nobody described the pecking order, how barristers and solicitors related to one another, and why different barristers examined different witnesses. And yes, we had that diagram telling us the names of which barrister was sitting where, but we weren’t given any time to peruse it, and for a good while many of the jury referred, for example, to the leading silk for the prosecution as ‘that man on the left’. Again no-one, you see, had taken the trouble to explain that the prosecution called witnesses who were then cross-examined by the defence. The prosecution had had two days to set out their case, but where was the defence case? Why hadn’t the defendant’s barrister been given the chance to put his side of the story?
We had an electronic ‘bundle’ of evidence; the ‘jury bundle’. It was to ‘help’ us, and the barristers would regularly refer us to an individual item. There were something in the order of 1,500 documentary exhibits, many of which were 20 or 30 pages long. But in court, as the trial unfolded, no time was allowed for the jury to examine these exhibits for themselves. Nobody explained what the function of the jury bundle was, nor its extent. Were we supposed to become cognisant of ALL of it? Eventually we had to ask to be allowed to take the jury bundle into the retiring room to try to dip into the exhibits while eating our lunch. Unless and until we were allowed (or even encouraged) to do that, we constantly found ourselves unable to be sure that we had remembered a date or a name correctly. And then we started to be shown a completely different set of exhibits from the ‘sent bundle’. No explanation, of course, as to why these exhibits were ‘sent’, nor why they were not in the jury bundle. What’s more, because they were not in our bundle, we had no hope whatsoever of checking the accuracy of anything we remembered against the source documents. Occasionally we would be asked to look at an email chain, which the barrister would rattle through pointing out the key phrases supporting their case and moving from one to another without the jury being able to go back and look at (for instance) the time and date of each email to better establish for ourselves the sequence of events and how it might fit in with other developments forming part of the case. Furthermore, many of the email chains were heavily redacted, with no explanation as to why. The effect was often to confuse as much as enlighten.
And then a third bundle appeared, during defence cross-examination of a witness. This was clearly a set of exhibits put together by the defence, but again we were only shown them (or the sections the defence barrister wished us to see) on the large screens in front of us (separate from our laptops on which we could at least call up items from the jury bundle ourselves). Perhaps all three bundles would finally be made available to us when we retired to consider our verdict [the defence bundle was, the sent bundle wasn’t], but how would we then be able to navigate around them?
Then there was the issue of how the witnesses gave their evidence. Interviews were recorded and statements taken sometimes seven or eight years ago. Their role in the actual events was often more than a decade ago. If they said they couldn’t remember, you could hardly blame them – and so they were allowed to ‘refresh’ their memory by looking at those statements. But they weren’t given those statements until on the witness stand, and then at regular intervals they would be directed to a specific page and asked/allowed to ‘refresh’ their memory. One day we had a witness whose evidence was almost unintelligible. He clearly could remember next to nothing about the events but had not been allowed to refresh his memory by reading his own statement before entering the witness box. And so about 90% of his evidence consisted of the prosecution barrister summarising bits of the witness’s statement (‘Did you then…’) to which the witness answered ‘Yes’. At no point was the witness asked to give a narrative account of events in his own words, which would have been far more helpful to the jury. Alternatively, it would have much clearer if his statement had just been read to the court, followed by any cross-examination deemed necessary.
Now the conventional answer to this, of course, is that jurors must have the opportunity to assess how a witness delivers their evidence (in person). In fact, this witness was not particularly impressive, but that didn’t matter because his evidence was technical – essentially a factual account of the work he had carried out on the matter. Neither side challenged his truthfulness in any way. Clearly, in a ‘regular’ criminal trial where (for instance) there is evidence from an alibi witness, the jury needs to see and hear that witness to judge for themselves whether they believe this to be a witness of truth. But in a case such as ours it would be unfortunate if an unimpeachable expert witness of fact were to undermine their evidence simply by not being a good ‘performer’ in the witness box.
Then came some ‘agreed facts’. Suddenly No. 3 barrister for the Prosecution was on his feet reading out a detailed list of facts relevant to a particular aspect of the case which the two sides had agreed upon – OK, they’re ‘agreed’, and the barristers can skip over them quickly – but what’s the relevance of them to the jury? It was as though we’d finally been given a number of jigsaw pieces which did connect to form a little patch of the jigsaw. But we’d have to wait till later to be told what part of the picture they fitted into. If indeed we were ever to be told.
Three months in; at last, the moment we have all been waiting for. The defendant’s opportunity in the witness box to explain himself. Except he doesn’t. In just a few hours the defence case is over. They seem to be relying on the jury deciding the prosecution have not done enough. The imbalance is startling.
Finally, we’ve heard the closing speeches of both sides and the judge’s summing up. There is no more evidence to be heard – nothing else which will assist us to come to that ‘true verdict’ we have promised. So we turn to look at the progress of our jigsaw. It’s changed; we now have some substantially joined-together patches, but it’s still full of holes, and we still don’t have sight of the lid! Yet on this basis we are to decide the fate of the defendant, to deliver a verdict of which we were ‘sure’. And that we did.
* These notes by a recent anonymous first-time juror offer a rare insight from the unique perspective of 12 random men and women selected to sit on a major fraud trial brought by the Serious Fraud Office. As is required by law, they have nothing to say about either the particulars of the case or the deliberations of the jury which are the wellspring of these observations. In Part One, they share their perspective of the trial as it unfolded. In Part Two, published in the December issue, the juror offers some thoughts on how the system might be improved. The author is a recent first-time juror who works in television.
Working in television for much of my life, and occasionally being required to teach aspiring programme-makers, the very first piece of advice on scripting a documentary so that it can be understood by a lay audience is this: first say what you are going to say, then say it, then say what you have said. This principle was nowhere to be seen during the trial I sat through. The overarching experience was that of slowly being handed, one by one, individual pieces of a jigsaw without ever being shown the full picture. I should say that I have no particular desire to criticise the prosecuting counsel’s opening. Over two days he set out a number of arguments which he regarded as key to a jury’s understanding of his case against the defendant. It was as though he was crafting and illustrating a number of jigsaw pieces before handing them to us. Let’s say they were corner pieces which might come in handy when trying to build the overall picture. But with three months of the case still to come, by the time he sat down we still had no idea what the overall picture was. Perhaps we could discern that it was going to be a seascape, or a battle scene, but where on earth was the cavalry officer, that red ensign, going to fit? Not a clue; no lid available depicting the whole scene. Surely the full picture must also include the other side of the story; the defendant’s version of events? As it turned out, we would have to wait many weeks for that. For now, we had to make do with what seemed to us to be only half the story.
The indictment referred, crucially you might think, to the provisions of the Fraud Act 2006, and an alleged contravention thereof. Nobody took the trouble to tell us what these provisions were – what, indeed, constitutes fraud. It seemed a strange omission, one that no doubt would be remedied by the judge’s summing-up (another thing to which no reference had yet been made). But then we’d have to wait until the very end of the trial to know what we were measuring the evidence we had heard against; at which time we would be trying to recall, and evaluate, evidence we had heard two or even three months ago. And why were there two more or less identical indictments, with different dates? Clearly, we’d have to decide if (any) fraudulent activity took place within the relevant time frames – but why were those time frames chosen, when the activities concerned were (apparently) happening outside those times?
We came to the first witnesses. Nobody, neither prosecution nor defence, told us their goal – ‘this is what we’re going to be trying to prove, and we’re going to be calling this and that witness to establish each of those points’. We had a list of names, but it was alphabetical, and gave no idea of the order in which they were to be called. Did it include witnesses for the defence? We simply had to guess. First, there were a couple of technical witnesses explaining, for example, the operation of a key database. Then came a witness who had nothing to do with the database. In fact, the defence made no challenge to the accuracy of the assessments carried out by those technical experts, so it seemed that a whole day and a half of evidence was simply unnecessary. The analysis of the figures generated by the database (the crucial bit) was dealt with by a completely different witness later on.
Before being sworn in, we had been shown a short video explaining the structure of a sample case, and how the jury would be expected to reach its verdict. Once in court we were given a diagram of the layout of the court – who sat where, and even the names of the barristers, and whether they were KCs or not. But no-one explained the ground-rules for examination and cross-examination. When the judge might intervene, or why. What a KC was. Nobody described the pecking order, how barristers and solicitors related to one another, and why different barristers examined different witnesses. And yes, we had that diagram telling us the names of which barrister was sitting where, but we weren’t given any time to peruse it, and for a good while many of the jury referred, for example, to the leading silk for the prosecution as ‘that man on the left’. Again no-one, you see, had taken the trouble to explain that the prosecution called witnesses who were then cross-examined by the defence. The prosecution had had two days to set out their case, but where was the defence case? Why hadn’t the defendant’s barrister been given the chance to put his side of the story?
We had an electronic ‘bundle’ of evidence; the ‘jury bundle’. It was to ‘help’ us, and the barristers would regularly refer us to an individual item. There were something in the order of 1,500 documentary exhibits, many of which were 20 or 30 pages long. But in court, as the trial unfolded, no time was allowed for the jury to examine these exhibits for themselves. Nobody explained what the function of the jury bundle was, nor its extent. Were we supposed to become cognisant of ALL of it? Eventually we had to ask to be allowed to take the jury bundle into the retiring room to try to dip into the exhibits while eating our lunch. Unless and until we were allowed (or even encouraged) to do that, we constantly found ourselves unable to be sure that we had remembered a date or a name correctly. And then we started to be shown a completely different set of exhibits from the ‘sent bundle’. No explanation, of course, as to why these exhibits were ‘sent’, nor why they were not in the jury bundle. What’s more, because they were not in our bundle, we had no hope whatsoever of checking the accuracy of anything we remembered against the source documents. Occasionally we would be asked to look at an email chain, which the barrister would rattle through pointing out the key phrases supporting their case and moving from one to another without the jury being able to go back and look at (for instance) the time and date of each email to better establish for ourselves the sequence of events and how it might fit in with other developments forming part of the case. Furthermore, many of the email chains were heavily redacted, with no explanation as to why. The effect was often to confuse as much as enlighten.
And then a third bundle appeared, during defence cross-examination of a witness. This was clearly a set of exhibits put together by the defence, but again we were only shown them (or the sections the defence barrister wished us to see) on the large screens in front of us (separate from our laptops on which we could at least call up items from the jury bundle ourselves). Perhaps all three bundles would finally be made available to us when we retired to consider our verdict [the defence bundle was, the sent bundle wasn’t], but how would we then be able to navigate around them?
Then there was the issue of how the witnesses gave their evidence. Interviews were recorded and statements taken sometimes seven or eight years ago. Their role in the actual events was often more than a decade ago. If they said they couldn’t remember, you could hardly blame them – and so they were allowed to ‘refresh’ their memory by looking at those statements. But they weren’t given those statements until on the witness stand, and then at regular intervals they would be directed to a specific page and asked/allowed to ‘refresh’ their memory. One day we had a witness whose evidence was almost unintelligible. He clearly could remember next to nothing about the events but had not been allowed to refresh his memory by reading his own statement before entering the witness box. And so about 90% of his evidence consisted of the prosecution barrister summarising bits of the witness’s statement (‘Did you then…’) to which the witness answered ‘Yes’. At no point was the witness asked to give a narrative account of events in his own words, which would have been far more helpful to the jury. Alternatively, it would have much clearer if his statement had just been read to the court, followed by any cross-examination deemed necessary.
Now the conventional answer to this, of course, is that jurors must have the opportunity to assess how a witness delivers their evidence (in person). In fact, this witness was not particularly impressive, but that didn’t matter because his evidence was technical – essentially a factual account of the work he had carried out on the matter. Neither side challenged his truthfulness in any way. Clearly, in a ‘regular’ criminal trial where (for instance) there is evidence from an alibi witness, the jury needs to see and hear that witness to judge for themselves whether they believe this to be a witness of truth. But in a case such as ours it would be unfortunate if an unimpeachable expert witness of fact were to undermine their evidence simply by not being a good ‘performer’ in the witness box.
Then came some ‘agreed facts’. Suddenly No. 3 barrister for the Prosecution was on his feet reading out a detailed list of facts relevant to a particular aspect of the case which the two sides had agreed upon – OK, they’re ‘agreed’, and the barristers can skip over them quickly – but what’s the relevance of them to the jury? It was as though we’d finally been given a number of jigsaw pieces which did connect to form a little patch of the jigsaw. But we’d have to wait till later to be told what part of the picture they fitted into. If indeed we were ever to be told.
Three months in; at last, the moment we have all been waiting for. The defendant’s opportunity in the witness box to explain himself. Except he doesn’t. In just a few hours the defence case is over. They seem to be relying on the jury deciding the prosecution have not done enough. The imbalance is startling.
Finally, we’ve heard the closing speeches of both sides and the judge’s summing up. There is no more evidence to be heard – nothing else which will assist us to come to that ‘true verdict’ we have promised. So we turn to look at the progress of our jigsaw. It’s changed; we now have some substantially joined-together patches, but it’s still full of holes, and we still don’t have sight of the lid! Yet on this basis we are to decide the fate of the defendant, to deliver a verdict of which we were ‘sure’. And that we did.
* These notes by a recent anonymous first-time juror offer a rare insight from the unique perspective of 12 random men and women selected to sit on a major fraud trial brought by the Serious Fraud Office. As is required by law, they have nothing to say about either the particulars of the case or the deliberations of the jury which are the wellspring of these observations. In Part One, they share their perspective of the trial as it unfolded. In Part Two, published in the December issue, the juror offers some thoughts on how the system might be improved. The author is a recent first-time juror who works in television.
Our call for sufficient resources for the justice system and for the Bar to scrutinise the BSB’s latest consultation
Marie Law, Head of Toxicology at AlphaBiolabs, discusses alcohol testing for the Family Court
Louise Crush of Westgate Wealth explains how to make sure you are investing suitably, and in your long-term interests
In conversation with Matthew Bland, Lincoln’s Inn Library
Millicent Wild of 5 Essex Chambers describes her pupillage experience
Louise Crush of Westgate Wealth explores some key steps to take when starting out as a barrister in order to secure your financial future
From a traumatic formative education to exceptional criminal silk – Laurie-Anne Power KC talks about her path to the Bar, pursuit of equality and speaking out against discrimination (not just during Black History Month)
James Onalaja concludes his two-part opinion series
Expectations, experiences and survival tips – some of the things I wished I had known (or applied) when I was starting pupillage. By Chelsea Brooke-Ward
If you are in/about to start pupillage, you will soon be facing the pupillage stage assessment in professional ethics. Jane Hutton and Patrick Ryan outline exam format and tactics
In a two-part opinion series, James Onalaja considers the International Criminal Court Prosecutor’s requests for arrest warrants in the controversial Israel-Palestine situation