Yesterday was a bad day for criminal justice procedures, and not just in South Africa. Here in this country a prominent trial of the ex-wife of an ex-cabinet minister who has already been convicted of perverting the course of justice by getting his then wife to accept responsibility for a speeding fine he had in fact incurred himself has had to be abandonned and a retrial ordered.
After many hours of fruitless deliberation the jury sent the judge a list of ten questions which the learned judge found extraordinary and unprecedented, and revealing "absolutely fundamental deficits in understanding" of their role in the legal process.
The jury has been dismissed under a cloud, seemingly labelled as both irresponsible and stupid.
Not everyone thinks all of the questions were stupid, although perhaps those that were not should have been asked earlier, but there seems little sympathy with the request that the judge define 'beyond reasonable doubt', which, as we all know, is the corner-stone of our criminal justice system. No-one should be convicted unless it has been proved that they are guilty 'beyond reasonable doubt'.
It is reported that the judge responded that the words were in normal usage, which is perhaps all he could say, but he, unwisely in my opinion, although I belive he was merely complying with the current standard of legal procedure, went on to say it simply meant they had to be 'sure' of their conclusion. What is 'sure' in the mind of the average person?
To me the concept of 'beyond reasonable doubt' seems something of a fraud, or at least a fudge. It is patently clear that many people are convicted, and their convictions upheld by learned judges (not jurors at that stage) at appeal, when many 'reasonable' people doubt their guilt. I think it is even right to say that judges themselves may disagree.
Indeed, to have a system, as we do, and as was intended to operate in this case, when a jury verdict of guilty can be accepted with a minority of dissenting jury members, seems to me to be fundamentally incompatible with the idea that conviction depends on proving guilt 'beyond reasonable doubt' - or else alarmingly incompatible with the conventional value ascribed to jurors.
Yet our legal process is a philosophical and historical patchwork rather than something bound to clear and over-riding principle. In part juries might seem to have a residual god-like role: they are not required to have legal knowledge and until recently profesional lawyers were formally excluded; they are not required to give reasons for, or to justify, their decisions, although of course their decisions are open to later legal challenge, now on both sides, and it is even possible now for someone, in certain circumstances, to be tried twice for the same offence; their deliberations must still remain secret. In earlier centuries juries were in fact painfully aware that they were usurping God's role of judgement. Vengence is mine, saith the Lord, I will repay. They feared they might themselves attract God's vengence for judging their fellows, especially if they convicted their fellow men. Many still believed literally in an impending, and far more serious, day of judgement. Trial by jury replaced earlier, more 'primitive', forms of trial - trial by ordeal for example - which were at the time seen as mechanisms by which the judgement of God, rather than that of man, was revealed. The reluctance of juries to exercise judgement and to convict their fellows, their peers, was the reason for the later introduction of the injunction that they should convict if persuaded of the defendant's guilt 'beyond reasonable doubt'. It was intended to make conviction easier, not to constrain it and was a further step away from the religious notion of justice. The popular value now placed in the nostrum is in conflict both with historical development and with current jurisprudal thinking, but that is not to say that it has any logical or linguistic clarity.
