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Judge or Jury? Lessons for the UK

Posted by: Laurence Simons 17/09/14

As UK trials are not televised, it can be a fascinating experience for Britons - whether qualified lawyers or not - to witness the goings on in other countries in which the cameras are allowed.

Of course, most trials are not particularly high-profile, but some are, with the US providing a couple of cases in the 1990s. Being in different states, the cases were conducted differently, but they also highlighted notable differences with the UK, not least the fact that the publicity such compelling TV could offer would create great interest and stir opinion.

In the US, the assumption is that juries should rise above any outside comment, unlike in the UK where reporting restrictions can be so tight. Over the last few months in South Africa, the extremely high-profile trial of Oscar Pistorious has been decided by a judge, so the attitude of any possible jury does not enter into the equation.

Lawyers observing the ways Barry Roux has sought to defend the paralympian and state prosecutor Gerrie Nel has looked to secure a murder conviction may have taken more lessons from this than any other. In particular, the verdict delivered may have differed had a jury been present. While hypothetical, there could be no doubt that the lawyers would have been seeking to sway people who might naturally have been more likely to allow emotion and feeling to determine their verdict than any educated appreciation of just what constitutes "beyond reasonable doubt".

It seemed evident from the conclusions of experts analysing the verdict of judge Thokozile Masipa that hers was a judgement based on a very precise reading of the law. On that basis, she concluded that Mr Nel had relied too much on "circumstantial" evidence, in particular the contradictory testimonies of neighbours who all appeared to have heard different things on the night.

For UK lawyers, the difference between a trial where the judge must be convinced and one with a jury may have been epitomised by all these things. In South Africa, the abolition of juries dates back to the Apartheid days, when it was ruled black defendants would not get a fair trial with white juries.
This could act as a reminder to those seeking lawyer jobs that they cannot take too much guidance from the way cases are conducted under different systems to Britain's.