A rainbow’s light on our jury system

What if Pistorius had been tried in London? - asks Ian Glen QC.

Bail would have been out of the question. Without bail there would be no photo opportunities before the Court sat and no family embraces. The case would come on for trial at the Old Bailey within about nine months of the offence and the trial would take about three weeks. The trial could not be televised. Sentencing would normally take twenty minutes immediately after the verdict with the jury remaining to watch. Murder by shooting is punished by a mandatory life sentence with 30 years to serve before consideration of parole. Simple.

The English law of murder is not complicated in a case such as this. If A kills B intending to cause him really serious bodily harm, it is murder. If by mistake A kills C, it is still murder. The malice is transferred from B to C.

What scope would the defence have? Pistorius killed Reeva. He took aim and fired four times. He was a trained and experienced handler of the gun that he used. He had special ammunition designed to maximise injury. According to his case, he believed that an intruder was behind the door. The only issue was intention. The jury would need to be satisfied that Pistorius intended to cause really serious harm to “the intruder” (not to Reeva).

In my experience, no English jury would consider that a man who took up his gun and fired 4 shots was involved in some kind of accident even if the killing of Reeva was a mistake. Each shot was fired to disable the dangerous intruder who was about to come out of hiding and attack him.

It would take a very bold and myopic jury advocate to suggest (as Barry Roux did) that Pistorius was like an abused woman who finally snapped because of his disability. He killed a defenceless woman, trapped and cowering in a lavatory. That forensic flourish would be a moment when everyone furtively looked sideways to see the jurors wince.

Of course English Law does recognise the right of self-defence and prevention of crime, but action taken in self-defence or the prevention of crime has to be necessary and reasonable. Pistorius’ conduct was not merely pre-emptive,  it was proactive. The law expects a man to wait and see whether a burglar does emerge from the bathroom before opening fire.

An English jury would be given a document posing the questions of fact necessary for a verdict. It is an advantage of jury trial that the relevant law is publicly stated in simple terms. There is no room for vagueness or confusion. The victim’s family can hear and understand the template of law being applied by the jury to their findings of fact.  Everyone can make an informed judgment. Roux’s submission that the shooting was purely reflexive, and lacking “criminal capacity”, would be judged against the simple question of fact whether Pistorius intended to do serious harm to the intruder behind the door. If so, was it necessary and reasonable to shoot four times through the bathroom door in self-defence?

There is one very important difference between our jurisdiction and that of South Africa. The powerful 9 mm calibre is designed to kill a man at a distance of 50 metres. A Browning version was made for the West German police and used as a sidearm by British armed forces. In 1996, two Browning 9 mm pistols were used in the massacre of 15 children at Dunblane Primary School. In the following year they were banned in the United Kingdom. Handguns are now prohibited weapons. Possession of such a weapon carries a minimum sentence of 5 years imprisonment. There is no defence. It would also make a plea of reasonable self defence even harder.

The Judge in Pretoria bore herself with great dignity. She conscientiously reached her verdict but she should never have been put into that position or exposed to television broadcast. No English Judge that I know would want to be responsible for fact-finding in a murder case. Nor would they want to be on television. Criminal verdicts are like sausages. It is best not to see them being made. The secrecy of the jury’s deliberations saves us from watching the decision-making process. We do however know what the jury’s findings were. The identity of the person behind the door would be irrelevant.

I love the Rainbow Nation and believe that a jury system should be introduced. It is too easy to dismiss those with a limited education from service. There are cases of fraud that may require a well-educated jury, but an exhibited door, a reconstructed lavatory cubicle and a powerful gun do not. Life experience is the only true qualification.

Cultures may differ but I venture to suggest that most people faced with a possible intruder would wake their girlfriend before doing anything else. Wake up Darling, did you hear that? … Darling, I’m going to investigate, … darling?

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Ian Glen QC

Ian is a Silk at 5 Kings Bench Walk.