The jury that sat in trial on Chris Huhne’s ex-wife, Vicky Pryce, has been widely derided in the press (and on Twitter, naturally) for putting this question to the trial judge:

QUESTION 5

Can a juror come to a verdict based on a reason that was not presented in court and has no facts or evidence to support it, either from the prosecution or defence?

What few, if any, of those laughing it up at the jury’s expense appear to have noticed is the rather obvious connection between that question and a second question, which appeared further down the list of questions that were put to the judge.

QUESTION 10

Would religious conviction be a good enough reason for a wife feeling that she had no choice i.e. she promised to obey her husband in her wedding vows and he had ordered her to do something and she felt she had to obey?

It seems perfectly evident to me that these two questions are linked and that they are, in fact, two halves of the same question. Together, what they point to is the presence,  on the jury, of at least one person with very strong religious convictions, someone whose personal beliefs about the nature and character of marriage may have significantly influenced their view of the case and, in particular, Pryce’s defence of ‘marital coercion’.

That being the case, are these necessarily stupid questions as many, including the trial judge, seem to think? I’m not so sure they are.

The default assumption many have made is that the jury was seeking permission to take matters not adduced in evidence in account in order to arrive at a verdict, but what if that’s the wrong interpretation of these questions?

What if, instead, these questions point to one or more jurors having come to a decision on their verdict after having made it clear to other jurors that their reasoning is based firmly on their personal, religious beliefs, about the nature of marriage and the role within marriage of the vow of obedience, irrespective of any of the evidence produced at trial? The questions would seem to be sufficiently ambiguous to permit such an interpretation?

If someone sincerely believes that that a wife is obligated to obey her husband, having taken a vow of obedience during the wedding ceremony, how might they view the entire concept of marital coercion?

Can a husband even be thought to have coerced his wife into doing anything, if you believe that a wife has a positive duty to do anything that their husband asks, or does it automatically lend support to such a defence?

And where, as a consequence of such a line of thinking, in whichever direction, would that leave Pryce’s defence?

If we imagine a scenario in which such a juror (or jurors) is in the minority that is preventing the jury as whole from reaching at least majority verdict then is it not, in fact, entirely sensible for the majority to put these questions to the judge, perhaps knowing in advance what the judge’s answer will be, as a last ditch attempt to persuade one or more jurors to set aside their personal beliefs about marriage and consider, instead, only the evidence that was presented in the case.

This strikes me as a perfectly plausible explanation for those questions, although not the only possible explanation; far more so, in fact, than the Daily Mail’s nakedly racist and insulting attempt to turn the jury’s failure to return a verdict into a dog-whistle attack on immigration:

EIGHT WOMEN, FOUR MEN… AND NO CLUE

Of the eight women and four men on the Vicky Price jury, only two were white – the rest appeared to be of Afro-Caribbean or Asian origin.

At least twice, the court finished 30 minutes early because a jury member had a ‘religious observance’ to keep.

Despite their visibly different backgrounds, none of the 12 appeared to struggle with the English language while reading the oath at the beginning of the trial at Southwark Crown Court.

However, inability to understand written English is not a bar to serving on a jury.

The 200,000 people a year called for jury service receive letters printed in eight languages to ‘encourage’ non-English speakers.

It was noted during the Pryce case that many of the jurors were casually dressed and none of the men wore a shirt and tie.

The woman selected by the jury to be their foreman was well dressed but she was in the minority. It was she who eventually passed a note to the judge saying that the jury were ‘highly unlikely’ to reach a verdict.

The words ‘highly unlikely’ were underlined twice.

Perhaps the only thing lacking from the Mail’s commentary is the suggestion of a smell of curry wafting across the courtroom from the direction of the jury, just to complete it’s collection of racist tropes.

I should point out that, having been called up for jury service last year, one thing I certainly didn’t receive was eight letters in different languages. There might very well have been a single information sheet containing instructions in a range of languages on how to request the HM Courts and Tribunal Service’ printed guide to  jury service in a language other than English and, for that matter, in large print and Braille formats, but everything else I received, from the notification that I’d been called up to the form I had to complete to demonstrate that I was eligible to serve on a jury, was most certain printed in English.

However, I digress.

To get back to the point I was intending to make, if – as seems to be the suggestion in some quarters – its deemed reasonable to subject potential jurors to an intelligence test or, perhaps, a literacy test before permitting them to serve as a juror then why stop there?

The practice of randomly selecting jurors from amongst the general public will inevitably, on occasion, lead to people sitting on juries in cases where their personal beliefs, prejudices and biases, and their propensity to act on them irrespective of any instructions issued by the trial judge, could be thought to be inimical to the interests of justice.

Just such a situation may very well have arisen in the case of Vicky Pryce, as per the alternative scenario I outlined earlier, and its not the least bit difficult to think of other situations in which similar issues might arise.

Should there be a blanket rule, for example, which bars members of BNP from sitting in trials where a defendant is black?

Perhaps there are some Christians, and other religious believers, who we might consider to be unsuitable to sit in trials where either a defendant, victim or even a key witness is gay, by virtue of their views on homosexuality?

And who might we reasonably rule out of sitting in trials where the charges include rape or other sexual offences because their personal beliefs might present a risk of bias? Misogynists? Feminists, perhaps? And in cases where the charges include offences committed against children, why not bar anyone who regularly reads the Sun newspaper on the assumption that they are highly likely to be biased against the defendant?

Before dismissing any of this as a bizarre notion it’s as well to remember that in the American legal system, both the prosecution and defence attorneys are permitted to put questions to jurors at the jury selection stage of the trial and issue a limited number of peremptory challenges, rejecting undesirable jurors without giving reasons for their rejection. The practice of scientific jury selection, as its called, has given rise to its own industry of jury consultants and profilers, most of whom tend to be either sociologists or psychologists, who are called in assist attorneys in their efforts to select the optimum possible jury for the case they’re seeking to present based on the consultant’s knowledge of how a juror’s personal background and attitudes might predict the way they’ll vote when asked to render a verdict.

Personally I think this is a highly questionable practice both ethically and scientifically although the research literature in this area is often fascinating and sometimes counter-intuitive for all that it is typically riddled with obvious methodological flaws.

For a prosecution attorney seeking a rape conviction in the US, for example, jury profiling research suggests that, contrary to what many people might expect, the optimum juror is a middle-aged, married, Italian-American male, preferably one with teenage or adult daughters. Old-fashioned paternalism and the ability to identify with the victim as someone who is similar to their own offspring, it seems, trumps any notions of sisterhood one might hope to find in female jurors of a similar age to the victim – if, of course, this research has any real validity, which is very much an open question as far as I’m concerned.

Personally, I would not wish to see US-style profiling introduced into the UK any more than I would wish to see the use of jury trials curtailed in favour trials in which the verdict is rendered by a judge. An important but too often overlooked feature of the jury system – and deliberately so by the judiciary – is the ability a jury has to disregard any directions given by a trial judge where it believes, as a matter of conscience, that the law under which a conviction is being sought is fundamentally unjust or has been misapplied in the case in which they have been sitting.

The practice of jury nullification is, for obvious reasons, not popular amongst judges, politicians and prosecutors but it nevertheless stands as a rarely used but none the less vitally important bulwark against bad law-making and the misapplication of laws for purposes for which they were neither designed nor intended. This importance of this principle is nowhere better exemplified in English law by the last high profile case in the UK in which it was applied by a jury, that of Clive Ponting, who was acquitted on charges of breaching section 2 of the Official Secrets Act 1911 by leaking two government documents relating to the sinking of the General Belgrano to a Member of Parliament, Tam Dalyell.

In the Ponting case, the jury were directed to disregard his defence, that the information that he leaked to Dalyell was a matter of legitimate public interest, on the grounds that “the public interest is what the government of the day says it is”. The jury, quite rightly disagreed, and acquitted Ponting, accepting Ponting’s argument that as a civil servant his duty to the interests of the state overrode, and was not synonymous with, his duty to the government of the day, this being the position that trial judge had taken.

Although rarely used, not least because it would be a very unusual judge who made a jury aware of the fact that it has this ability, cases do arise from time to time where, were I to be sitting as a juror in such a case, I would most certainly have exercised this particular right, the most obvious recent example being the infamous Twitter Joke Trial – although this was, of course, originally heard in a magistrates court without a jury. I can also easily envisage a number of relatively recent and even ongoing libel actions where I would readily – and happily – prove to a be liability to the plaintiff were I to be selected as juror, even if directed towards a finding in the plaintiff’s favour by the trial judge. I think it fair so say, for example, that Lord McAlpine would be pleased to know that because I don’t live in London and because I did jury service only a few months ago, there is no prospect that I will called upon to sit in his ongoing action against Sally Bercow, if that does indeed lead to a jury trial.

For the record, I wouldn’t automatically bar anyone from serving on a jury, least of all Christians – to answer the question posed by the title of this article (which is intended to be deliberately ironic, BTW, in case that wasn’t already obvious)  – simply because their apparent personal beliefs or private attitudes might predispose them to a particular bias. Unless it becomes evident, during the trial itself, that their behaviour is clearly going to inhibit their ability to render a verdict based on the evidence put before them in court, then such questions should not arise nor be entertained in advance of the trial. In my own experience of serving on a jury, and I had the dubious privilege of serving as the foreman by virtue of not raising any strenuous objections to doing the job, my fellow jurors took their responsibilities extremely seriously, as befits a case in which the defendants, who were found guilty, received very stiff custodial sentences at the conclusion of the trial.

We were nevertheless unable to return a unanimous verdict in that case because one juror latched onto a minor detail in the prosecution case, the absence of a particular piece of evidence that the rest of us considered to be of no real significance given the weight of evidence that was presented in support of the prosecution case, and felt that in all conscience they could not let that go and enter a guilty verdict. It happens, and it is not something that anyone can legislate for in advance, but in our case it didn’t prevent the jury reaching a clear majority verdict, even if it did cause the detective who’d investigated the case a bit of temporary discomfort when we informed that judge that we would not reach a unanimous verdict and requested further directions.

There is legal maxim which holds that hard cases make bad law. What we have seen in the last couple of days is that hard cases can also make for an unnecessarily prejudicial and overheated public debate about jurors and jury trials, for all that there are notable exceptions to be found amongst serious legal bloggers such as the ever reliable David Allen Green and Mark George QC.