September 26 2023

The trials and tribulations of jury service

The trials and tribulations of jury service

Sketch by Isobel Williams (R v Jogee)

One of the jurors serving this summer on the trial of the horrific murder of four-year-old Logan Mwangi, took the unusual step of speaking out publicly afterwards. The juror, a psychologist called Dr Joselyn Sellen described the trauma and emotional impact she and other jurors experienced in hearing and seeing the distressing evidence presented in the trial. Much greater care should be taken she suggested in providing skilled trauma support for jurors who might suffer in this way. Not being able to discuss the trial at the time only exacerbated the stress, she recognized.

Before we minimize this as something unlikely to be repeated in most trials, we should first review the grounds for such confidence. The reality is we simply do not have the data to give us faith in such a stance. Any crime against the person, not the just the murder of a child, horrendous as that is, has the potential to evoke strong responses and amongst some people symptoms of vicarious trauma, as detailed by this juror who bravely went public. Rape, murder, manslaughter and child sexual abuse are regular matters for attention by a newly empanelled jury. The thousands of jurors summoned each year will have no idea as to the type of evidence they will be hearing until the indictments are read out.

There are a number of important issues raised by this particular case but by no means unique to it. Where is the research to enlighten and guide our jury preparation, support and evaluation? Is there not a duty of care on the part of courts to ensure that vulnerable jurors (we accept the reality of vulnerable witnesses after-all) should not be put in a position of having their mental health and well-being jeopardised or damaged? When the only tools available to the court for aftercare of the deeply affected or traumatized juror are suggestions to phone the Samaritans, or ask a busy GP for a referral for scarce counselling, does this really balance the criminal justice requirement that if called, you must attend? Such questions form my research with the Law School at Southampton University, the focus of which appears below.

What we actually know about the juror experience
Surprisingly little, is the answer. While American and Canadian researchers have been writing on jurors’ experience since the 1990s and the apparent prevalence of vicarious trauma, including at times PTSD symptoms, there have been just two British academic papers (1, 2) over the past 20 years which have sought to find out what can be the actual impact of a trial on the unsuspecting juror. Occasional reviews by the MoJ and a recent article by Professor Cheryl Thomas of the UCL Jury Project point to reassuringly high levels of satisfaction among surveyed jurors.

There are some deeper questions to be asked too such as what may be possible with regards to a range of preparation and support materials during and after such a trial. Might a dedicated psychologist be on hand at the start and end of such a trial for the jury? The HMCTS Central Jury Summoning Bureau undoubtedly do their best, but like every other part of the criminal justice system must experience the same resource constraints.

Why is there so little attention given to juries?
The absence of any recent substantial British information on the operation and impact of the jury process can be directly traced back to concerns following a breach of jury etiquette during Jeremy Thorpe’s trial of 1979. A former Leader of the Liberal Party, the MP was tried at The Old Bailey for incitement and conspiracy to murder. Some jurors caused much consternation by speaking to a journalist about their concerns with the trial’s conduct. Thorpe’s trial was hastily followed by legislation in Section 8 of The Contempt of Court Act 1981 which seems to be generally interpreted to prevent journalists and researchers looking into any aspect of the jury process. Its proper purpose however is in protecting the privacy of jury deliberation. However, Section 8 may be seen to have provided a ‘cordon sanitaire’ in relation to external jury studies, although there was precious little academic jury scrutiny before it appeared forty-one years ago.

The emotional toll for the juror; vicarious trauma and its prevalence
Some of the first USA studies into the emotional and mental health impact on jurors was initiated by judges there, who realised that they too were struggling with the effects of the evidence presented. While the risk of trauma is undoubtedly increased for American jurors where a death sentence may result from their verdict on certain crimes, researchers have increasingly made the link between the growing understanding of vicarious trauma and a number of professional ‘listening’ roles. From therapists, through first responders, mental health workers and indeed the legal profession itself, evidence is accruing as to the immediate, if not longer-term, deleterious effects of hearing the harrowing stories of another’s suffering.

Both of the British jury studies referenced above give persuasive evidence as to the vicarious trauma experienced by some of the jurors they researched. One indeed points to symptoms indicating Post Traumatic Stress Disorder for one juror as a consequence of their time on a trial. While both studies underline that such ill effects are by no means common to all trials or jurors, they do suggest that the chances of such traumatization may be enhanced when something in an individual’s own past finds an unhappy resonance with an aspect of distressing evidence.

The duty of care and the summoned juror
With the introduction of The Witness Charter in 2008 the government implicitly, if not explicitly, recognised a duty of care owed by the state to witnesses called to give evidence. No comparable duty of care appears to guide the process for summoning, or managing the juror, certainly not in written form. The concept is now common parlance and generally accepted since its early formation which arose from a notorious incident of a slug found in a lemonade bottle, in Paisley, Scotland a century ago. The more tort-uously minded can trace and argue the legal niceties around the terminologies of negligence. There must surely be though a moral if not a legal responsibility to ensure all jurors are provided with adequate guidance and support in order that their public service does not leave them traumatized in the short-term or long-term, and their mental health jeopardised.

Improving jury service
Imaginative states in the USA, Australia and some Canadian jurisdictions, are already providing out-sourced counselling services for any juror significantly affected by their trial experience. Even the sacrosanct process of deliberation is being re-evaluated to enable full therapeutic engagement. ‘National Juror Appreciation’ weeks in some places have served to raise the profile and collectively thank all who serve. Given the pressures on court resources there may be hopes in some quarters that juror support does not find itself too often on the media radar. But this is an issue likely to return repeatedly, especially in our increasingly trauma-informed world, and certainly until the nature of the duty of care owed by the state to the juror is more fully addressed.

Readers can contact Stephen with their own thoughts and experiences at S.R.Hanvey@soton.ac.uk