Last night, Channel 4 aired the first of its five-part series, The Trial, a hybrid drama-documentary that aims to reveal the inner workings of the British legal system. The Trial depicts a fictional murder case tried in a real court by real-life legal professionals and a jury of 12 members of the public. It will follow the workings of a criminal trial, with speeches, the calling of evidence and the cross examination of witnesses. However, what is undoubtedly the most fascinating part of The Trial is that we will observe the jury’s deliberations and will therefore gain an insight into a part of our justice system that we are forbidden to observe or ask questions about.
Over the next five days we will follow The Trial and consider the comments and deliberations of the jury as the trial progresses.
The Trial centres on the murder of 38-year-old Carla Davis, a mother of two children who was strangled to death in her own home. The accused is her estranged husband, Simon Davis, a university lecturer of previous good character. The prosecution allege that Mr Davis strangled his estranged wife in their marital home after he snapped due to their recent reconciliation failing. The prosecution (led by Max Hill QC) rely on a number of pieces of evidence in support of their case and in particular focus on the behaviour of Mr Davis during the period after he says he found his wife unconscious on the floor. Last night’s episode presented evidence of Mr Davis’ calls to the emergency services – the first lasting only 1 second, followed by a call to a friend 2 minutes later and then another call to the emergency services 6 minutes later. A total of 8 minutes elapsed following his initial call until the time he alerted 999 of his wife’s death. This, so say the Prosecution, is a key piece of evidence that supports their case.
The Trial showed us the random selection of 12 members of the public that form the final jury panel. Aside from raising objections as to matters of potential conflict, a defendant subject to jury trial has no input into who does or does not form the final panel of jury members that will hear his case. Unlike the viewers to the Trial, no-one is entitled to learn anything about the background or life experiences of jurors. The first episode of The Trial gave us a short but interesting insight into the personality of some of the jurors which undoubtedly will have some influence over the way in which they approach their review of the evidence. For example, one woman spoke of a general distrust of people and this seemed to already impact her views on the defendant even at this early stage (see below).
What can we learn from what the Jury have said so far?
Overall the jury have so far appeared engaged and focused on taking their role very seriously. However, a number of interesting, and at times worrying, comments have emerged.
One of the most concerning comments that was made last night came from a juror that felt that Mr Davis’ repeated “no comment” answers in his interview with the police were indicative of his guilt. This comment was met with replies from other jurors that Mr Davis was advised by his solicitor to do so and that “all solicitors advise you to go no comment.” Furthermore, we also saw that Mr Davis’ had his own concerns that he would “look guilty” by not answering the questions put to him and he raised these with his solicitor at the time of his interview. This was perhaps exacerbated by the police telling him that “this is your chance to give your side of the story” and “it seems to me you want to talk to us”, both common phrases used by interviewing police officers to try and get the suspect to resile from answering no comment to their questions.
The decision to answer “no comment” during an interview under caution is one of a number of options available to a suspect. The suspect’s legal advisor will consider the strength of the known evidence and the instructions provided from the suspect before advising as to whether the suspect should answer questions or not. There are many circumstances in which a suspect may be advised to answer ‘no comment’ to all questions put such as a lack of disclosure from the investigating authority, a lack of evidence to justify the questioning of the suspect or because the suspect is not in a position to put forward a coherent account due to the stress of the situation they find themselves in. The advice provided at the investigative stage of a case is one of the most important pieces of advice a suspect will receive. To answer questions, to not answer questions or to read a prepared statement and then not answer questions. In the case of Simon Davis, it appears he chose to read a prepared statement (although we were only shown part of this being read out in last night’s episode). We were not privy to the discussion he had with his solicitor which led to his decision to read a prepared statement and thereafter answer no comment. We do not know yet (and may never do) why Mr Davis decided not to answer questions, but we do know that for at least one juror this is problematic and, in her view, consistent with being guilty.
Inevitably, Mr Davis’ defence counsel will need to address his interview approach during their closing speech. The jury will be told in general terms why Mr Davis took the approach he did – often this is because he was advised to do so. Whilst the Judge can direct the jury that they can draw an adverse inference against Mr Davis for failing to answer questions, the ultimate question will be whether such an inference can fairly be drawn in all the circumstances. The judge is required to emphasise the defendant’s right to silence and to ensure that the jury understand that they can only draw an adverse inference if satisfied that the defendant’s silence could only be sensibly attributed to him having no answer or none that would stand up to cross examination. The jury will also be directed that they cannot convict solely on the basis of any adverse inference that they may draw from the defendant’s silence. There must be a prima facie case against him that the Prosecution have proven beyond all reasonable doubt. However, the comments from the juror on last night’s episode are a stark reminder to defence lawyers of the power of a no comment interview in the minds of some jurors and the importance of ensuring that the suspect understands this risk and that the reason for not answering questions is a sound one. At this stage of the programme, the viewer is unaware of what facts were put forward in the prepared statement that was read out in interview.
Despite these moments of pre-judging the defendant, at other times we observed the jury diligently testing aspects of the Prosecution’s case. A reluctance to simply accept the evidence from the female police officer that claimed Mr Davis showed no emotion when told of his wife’s death and a skeptical view of the neighbour that claimed that Mr Davis may have been out of breath when stood outside the house showed the jury at their best; questioning the Prosecution’s evidence and not simply accepting it. Undoubtedly, the jury have shown concerns about certain aspects of the evidence with the most prominent concern being the length of time Mr Davis took to call the emergency services. This is clearly a difficult piece of evidence for Mr Davis. But even faced with that kind of evidence we saw some jurors refusing to just accept that this implied he was guilty – choosing instead to think about other possibilities such as the shock he must have been under at having just discovered his wife dead.
“You have to start from the position that you are already a goal or two down.”
Defence counsel, John Ryder QC, told us last night that when defending in criminal trials “you have to start from the position that you are already a goal or two down.” This is of course the opposite position to the one in which the defendant should start in – with the presumption of innocence being at the heart of our justice system. However, unquestionably John Ryder QC is absolutely right about this and in the first part of any criminal trial there is an inevitable feeling that the defence start on the back foot. One way to try to redress the balance at this early stage is for the defence to follow the Prosecution’s Opening Speech with one of their own. This is aimed at countering the obvious prejudice that the jury have in their minds after hearing the Prosecution’s opening but without yet hearing the evidence. From 4 April 2016 the Criminal Procedure Rules were amended to provide for short defence opening speeches to be made. An opening speech by the defence must be confined to concisely identifying what is in issue in the case and thus they do not provide for an in-depth review of the defendant’s case at the outset of a trial, however it provides a means to re-focus on what the defendant will ask the jury to consider. In lengthy criminal trials, this can be a way to seek to engage the jury at an early stage by bringing the key issue in the defendant’s case to the forefront of their minds and encourage them to start thinking about the case from the defence point of view. We did not see a defence opening in The Trial last night but the early negative views we observed from some jurors may have been re-balanced if we had.
The jury has so far shown themselves to be willing to challenge each other’s views and the early negative perceptions that we observed from some about the defendant may change as the trial progresses and the jury become more engaged in discussion over the next four nights having heard more evidence. Let’s hope so. The stakes for Mr Davis could not be higher. As Mr Ryder QC opined “a guilty verdict would be utterly catastrophic”.