Tried and convicted by jury members - before the trial even began

Dr Sean Moran, Philosopher

Dr Sean Moran, Philosopher

If you ever have to appear in court for a crime you didn’t commit, I hope that you are lucky enough to have a fair-minded jury. From what I’ve seen, this is not guaranteed. In fact, the odds might be stacked against you right from the start.

It shouldn’t be like that, of course. In Irish law, a person is presumed innocent until proven guilty. Viscount Sankey called this presumption of innocence a ‘golden thread’ that runs through the criminal law: but the thread seems to have snapped in some Irsh courts. I know this because I was summonsed to be a juror. And what I saw and heard appalled me.

“Look at that scumbag”, said the man next to me. So I glanced down onto the street, from the upstairs window of the courthouse. A handcuffed defendant was being escorted by a prison officer into the courtroom below us. This was troubling on two counts.

Firstly, an unconvicted person was making an involuntary appearance, chained to a man in uniform, in full public view on the streets of an Irish town. It was redolent of the notorious ‘perp walk’ of the American justice system. Even a saint would look guilty, shackled and dragged across the street like that.

Secondly, the person calling the defendant a “scumbag” was a potential member of the jury, who had based his verdict on a mere glimpse of a man on the street below. We had heard no charges and not a word of evidence against him. None of us even knew what he was alleged to have done.

Another would-be juror joined in the condemnation: “Wouldn’t it be grand if that van hit the two of them? B’dum, b’dum. Save us all a job.” A moment ago we had heard the verdict, and now m’learned friend was announcing the sentence: capital punishment. And not just for the ‘guilty’ person, but for his captor too.

I protested that the man in question might well be a fine fellow, and that we should regard him as innocent until proven otherwise. Another prospective juror gave us his opinion: “No. I know him and he is a scumbag.” So that settled it, then. The man was guilty and deserving of severe punishment.

If this was just banter in a pub, it might be harmless enough. But we were in a courthouse to perform a civic duty enshrined in the Irish constitution: to give a verdict on the guilt or innocence of a fellow human being. We were about to form a jury.

Next, the slips were put into a box for the ballot. As the names were called, it became clear that fewer than half of the jurors summonsed had bothered to turn up. One wag said, “If you’re not in, you can’t win”. I wasn’t picked in the raffle for jury places. But the man who had called the defendant a scumbag and the one who had suggested the death penalty were chosen. With no objection from either the defence or the prosecution, my two new acquaintances were sworn in and empanelled in the jury.

Now, I suppose that by the law of averages, a random selection from the general public will contain one or two characters you would not like to be in control of your fate. Shakespeare recognised this long ago: ‘The jury, passing on the prisoner’s life, may in the sworn twelve have a thief or two, guiltier than him they try.’

That is bad enough, but to prejudice such a jury before the trial has even started – by showing the prisoner in a bad light, through public humiliation – is intolerable. We might as well hang a sign around his neck saying ‘Criminal’. After his public captivity, followed by a trial with dodgy jurors, the prisoner in Shakespeare’s play was found guilty.

I don’t know what happened to the accused in the real-life case, but I hope that all the jurors based their verdict on the evidence presented, and not on any snap decisions taken beforehand. By sheer misfortune, any of us could mistakenly end up as the accused in court. We are all entitled to a fair trial before a jury of unprejudiced citizens. But I wouldn’t bet on it.