Why Did the Jury Acquit Neil Lennon’s Attacker? Paul McBride QC Thinks He Knows

 

 

Following on from the furore regarding the acquittal of John Wilson on the charge of assaulting Neil Lennon last season at Tynecastle, Paul McBride QC turned up on Newsnight to discuss the verdict.

Mr McBride is one of the finest lawyers in Scotland, and his courage in dealing with having an alleged letter bomb allegedly sent to him is much to be admired.

However I think that he was slightly less than fair in all that he said, and I wonder if his comments are a preview of a position which will become more widely adopted.

Mr McBride expressed astonishment at the verdict passed by the jury. He commented that he had spoken to no one, whether in the legal profession or outside, who could remotely understand the verdict of not guilty on the assault charge. As he was speaking, various people, some with legal backgrounds, were seeking to explain the verdict if not seeking to justify it.

Chris Fyffe, a Dundee solicitor-advocate, in a detailed and thoughtful analysis commented at length regarding the matters which had been publicised to point out how the jury might have arrived at its decision.

The process by which a jury reaches its verdict is shrouded in mystery, and under Section 8 of the Contempt of Court Act 1981  it is an offence to “obtain, disclose or solicit” details of the jurors’ deliberations. The Scottish Courts have regularly confirmed that it is impossible to go past the jury room door once the judge has sent the jury off to consider its verdict, for example in the case of Scottish Criminal Cases Review Commission, Petitioners in which the decision was handed down on 25th July 2001 and which is reported here.

So all that anyone can do is to guess at quite how or why the jury reached its verdict as regards Mr Wilson.

Mr McBride however did appear to be well aware of what was, in his view, relevant to the decision. He commented that the Crown had presented an excellent case. Bearing in mind that Mr McBride was not present in court throughout the case, as I have had confirmed to me, one wonders how he is in position to comment on how the case was presented. It is not uncommon for an apparently watertight case to leak like a colander once the lawyers start talking, and witnesses enter the witness box. That is why, after all, we actually hold a trial!

Whilst I have read and heard opinions expressed that the Crown must, in some way have botched the presentation of the case, I am in an equally poor position as Mr McBride to comment on how the case was laid out in court as I was not there either. Any criticism I have of Crown Office relates to the background of the apparent removal of discretion from the individual prosecutor, rather than anything done in Edinburgh Sheriff Court by them.

But Mr McBride concluded with a statement which is, to me, of great concern. Whilst he did not specifically relate it to this jury (and neither he nor anyone else is capable of speaking with authority about this particular jury) his comment by implication did seem directed towards the jury box at Edinburgh Sheriff Court.

He complained that in Scotland, unlike many other systems, we had jurors who could not read, who could not write and who were laden with prejudices. Something had to be done, said Mr McBride, to resolve this problem.

Mr McBride, as well as his prominent position in the legal firmament, is closely linked with the Conservative Party, having left the Labour Party behind.

In light of that, might his musings about the defects in the jury system be given greater credence, than those of other lawyers?

Many lawyers over the years have blamed the jury and its quirks for a case ending in a way they did not like. This applies equally to prosecution and defence. It’s like blaming the referee for losing a football game, or the doctor stating that the operation was a success, but the patient died.

Is the Scottish court system imperilled by illiterate, innumerate and prejudiced jurors? Have we now reached a stage where the jurors’ oath and the directions of the judge are no longer sufficient to ensure that justice is done? Does Mr McBride want a return to the days of “peremptory challenges” of jurors, where generally the defence would object to any teacher sitting on the jury and if a person turned up for jury duty with a suit, bowler hat, rolled umbrella and copy of the Daily Telegraph, they would be objected to before they had had a chance to move towards the jury box?

Does Mr McBride want to have jury vetting, as in the United States? In a recent high profile case there, where the baseball star Roger Clemens was tried for perjury, jury selection went on for over a week, before the trial, having started, collapsed on Day 2! Whilst the legal profession might delight in the extra work such a process would bring, it would do nothing for the hard pressed courts and the amounts of work that has to be processed.

Should there be pre-jury service questionnaires to establish competence on the part of prospective jurors? I suspect some would try to “fail” such tests so as to avoid service! Should we revert to some form of property or other qualification for jurors? For example, must they be a home owner and in employment, and how does that deal with the questions of competence and prejudice?

I may be making far too much of a throw away remark by Mr McBride QC, but he is not a man known for that. Generally his comments are well thought out and delivered clearly. If he feels that the jury system needs revised in some way, then I am sure he could persuade others to that view. Where might that lead?

In conclusion, the maxim that “Hard Cases make bad law” is figuratively engraved on anyone who has studied law. Taking unique or especially troubling, distressing or baffling cases or incidents and trying to establish some across the board change as a result is usually a recipe for disaster, for example with the Dangerous Dogs Act. Let’s hope that the decision of the jury in Mr Wilson’s case, who were of course the best placed people to determine the issue of Wilson’s guilt or innocence, is not used to make radical changes of any sort.

 

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8 Comments

Filed under Courts, Criminal Law, Jury System, Law Reform

8 responses to “Why Did the Jury Acquit Neil Lennon’s Attacker? Paul McBride QC Thinks He Knows

  1. Leonard

    Can you tell me when Paul McBride was on Newsnight, please?

  2. Leonard

    Paul, many thanks for that. Believe it or not the significance of this is, well very significant! Thanks again

  3. Pingback: Some More Thoughts Re the Neil Lennon’s Case – by Me @ Scotzine.Com | Random Thoughts Re Scots (and Other) Law

  4. Paul, I’ve read both of your Neil Lennon articles and also the one by Chris Fyffe. I don’t question for a moment that both of you are acting in good faith and are trying your best to learn from this case as well as avoid knee-jerk reactions.
    I fear, however, that you’re asking too many of the wrong questions in the hope that the answers you find will be other than the fundamental one which is staring everybody in the face.

    How many mature democracies have such a problem with sectarianism that they still need to discuss introducing specific legislation to address that issue in 2011? Scotland and where else?
    In how many democracies in the Western world is the abolition of Catholic schools relentlessly debated at every level of society?
    Notwithstanding imperfections in the current legislation, why is that the overwhelming majority of hate crime victims come from a minority group, namely, Catholics?
    Mr McBride referred at the end of his Newsnight interview to jurors who can full of prejudices. If anything, he is understating the likelihood. In a sectarian society, it would be astonishing if it proved to be otherwise.

    Lawyers and legal professionals can have all the intellectual discussions they want. At ground level, where I dwell, if I were giving evidence in court against a sectarian thug who had assaulted me I might have confidence in the prosecutor’s determination to secure a conviction. I might be prepared to believe that the judge would ensure that the law was scrupulously followed. I could even accept that the law itself had been framed by public-spirited legislators to protect ordinary people from harm. However, I would be wondering how many of the jurors would, in normal everyday life, curl a lip at someone entering a chapel or narrow their eyes at the sight of an acquaintance wearing a green tee-shirt. It might not matter when the verdict came in but it would nonetheless be a consideration.

    The fact is that a great many people in this sad, nasty, wee country were pleased that Neil Lennon’s assailant got off with the assault charge. A great many more were not nearly as surprised by the verdict as has been made out. Some spoke of their ‘surprise’ but what they really meant was that they were disgusted, angry, sickened, deflated or in despair. It’s shocking and shameful but not much more ‘surprising’ than the routine scandal of a law-abiding black person being stopped and searched by the institutionally racist Met.

    Not everyone who lives in Scotland is anti-Catholic, anti-Irish, anti-Celtic and anti-Neil Lennon but I would have no problem rounding up eight of them who would have delivered the same verdict that the jurors in Edinburgh returned. I could do that every day of the week for the rest of my life. McBride is quite right to bring up the issue of prejudice. It is the glaringly obvious reality from which every other debate is a digression.

  5. Pingback: What Does the Neil Lennon Case Tell Us about the Issues of Sectarianism and Anti-Catholicism in Scotland? | Random Thoughts Re Scots (and Other) Law

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