The Times - UK (2022-01-13)

56 Thursday January 13 2022 | the times

Law

5

Colston Four

trial shines

light on jury

The decision to acquit has been backed by many

experts, but some disagree. By Catherine Baksi

Juries on both sides of the Atlantic
have put the spotlight on the system
that for centuries has been regarded as
the hallmark of criminal justice in the
common law.
British juries return hundreds of
verdicts every month without exciting
much comment. But the acquittal last
week at Bristol crown court of four
defendants charged with criminal
damage for toppling a statue of Edward
Colston, the 17th-century slave trader,
during a Black Lives Matter protest in
2020, has caused anger among some
MPs and others.
After the verdict, the former minister
Robert Jenrick suggested that the re-
sult undermined the rule of law. Tom
Hunt, vice-chairman of the Conserva-
tive Common Sense Group, was “deep-
ly concerned by the precedent set”,
even though jury verdicts legally do
nothing of the kind.
The attorney-general, Suella Braver-
man QC, said that, though “trial by jury
is an important guardian of liberty and
must not be undermined”, she was
“considering” referring the case to the
Court of Appeal to “clarify the law”.
Meanwhile, in New York, despite the
lengthy jury vetting process that often
lasts longer than the actual trials, the
conviction of Ghislaine Maxwell for
sex trafficking may be quashed because
of allegations of misconduct by up to
four jurors.
The overwhelming verdict of law-
yers is that the decision of the Colston
jury does not give rise to the need for
any reform of the system and shows
that the centuries-old process works as
it should.

Lord Edward Garnier QC, a former

Conservative solicitor-general, argues

that the “Colston Four” verdict “says

nothing of any general importance

with regard to the jury system”.

Garnier, who has been a barrister

for 45 years and was a Crown Court

recorder for 15 years, suggests that “the

occasions when a jury returns what

overexcited politicians, disappointed

judges, prosecution-minded lawyers or

saloon bar experts call a ‘perverse’ ver-

dict can be counted on the fingers of

one hand”.

Lord Macdonald of River Glaven

QC, a former director of public prose-

cutions, dismisses the fuss over the

verdict from those who were not in

court and did not hear the evidence as

“politically motivated” and a “waging of

culture war”.

For 350 years juries have been able

to return verdicts according to their

conscience, even in the face of estab-

lishment hostility. “Sometimes they do

this by using their verdict to assert

changing values, sometimes to push

back against abuses of power,” Macdo-

nald says.

That right was established by Bush-

el’s Case, when in 1670 a judge denied a

jury food, drink, heat and a chamber

pot, then fined and imprisoned them

when they refused to convict two

Quakers, William Penn and William

Mead, for unlawful assembly. Sir John

Vaughan, chief justice of the Court of

Common Pleas, overturned the fine

and ruled that juries could not be pun-

ished for their verdicts.

Cheryl Thomas QC, a law professor

at University College London who has

another,” he insists. Moses also says

that the expert evidence given by the

historian David Olusoga on the history

of slavery was irrelevant.

Other critics have called for a change

in the law to demand that juries give

reasons for their decisions — a change

also recommended by Lord Justice

Auld some 20 years ago.

However, Jo Sidhu QC, chairman of

the Criminal Bar Association, argues

that forcing jurors to give their reasons

for decisions would influence their

ability to engage in honest and vigorous

debate in the jury room, and inhibit the

delivery of justice.

Mark Trafford QC, a criminal law

barrister, adds that it would also cause

delay and lead to a huge increase in the

number of appeals.

Last year, at the height of the corona-

virus pandemic, the justice secretary at

the time, Robert Buckland QC, mooted

the idea of hearing cases by a judge and

two magistrates instead of juries.

The Magistrates’ Association has

long argued in favour of greater senten-

cing powers, which would enable them

to hear more cases. A glance at the

Crown Prosecution Service’s annual

report shows that the conviction rate in

the magistrates’ court (68 per cent) is

significantly higher than the rate in the

Crown Court (59 per cent).

Just before Christmas, publishing

plans to reform the Human Rights Act,

the present justice secretary Dominic

Raab indicated that the jury system

would be included in the proposed writ-

ten Bill of Rights.

“Our plans... will strengthen typical-

ly British rights like freedom of speech

and trial by jury,” Raab said.

Although it is not possible to inquire

into the deliberations of the jury in the

UK, examples of misconduct come to

light. Most notoriously when the jury

used a ouija board to convict Steven

Young of murder in 1994. The convic-

tion was overturned on appeal.

In England and Wales, Thomas

explains, the system of jury selection is

based on the principle that a randomly

selected jury that is representative of

the local population is best able to fairly

try a case.

researched juries, says that the Colston

jury “is one in a long and lawful history

of juries since Bushel’s Case that have

refused to convict defendants in cases

involving political protest”.

One of the most prominent examples

was the acquittal of Clive Ponting, a

civil servant at the Ministry of Defence,

who leaked documents concerning the

sinking of the Argentine cruiser Gener-

al Belgrano by a British submarine

during the Falklands conflict.

There are some senior dissenting

voices around the Colston Four debate.

Sir Alan Moses, a former Court of

Appeal judge, tells The Times that the

“intellectually honest thing” for the

judge in the case would have been to tell

the jury that the defendants had no

defence in law. “You can’t defend your-

self against one crime by committing

For 350 years juries

have been able to decide

based on their conscience

BEN BIRCHALL/PA

Sage Willoughby, Jake Skuse, Milo Ponsford and Rhian Graham, the “Colston Four”, celebrate outside Bristol crown court

Times Law

Editor Jonathan Ames

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For print and online: Jeanine Kiala

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The pay bonanza in the City has shown
no signs of stopping after CMS became
the latest firm to boost salaries of its
newly qualified solicitors by throwing
them a 15 per cent rise.
That took the firm’s newbie lawyers
up to £95,000, nowhere near the top of
the Square Mile table, which remains
dominated by US firms with Vinson &
Elkins still top offering starting salaries
of £153,300.
However, 2022 dawns with nerves
twitching that a crash is coming. Two
reports this month from the UK and the
US warn law firms against “throwing
money” at the “growing talent war”.
In Britain, Edwards Gibson, a legal
recruitment consultancy, published
figures showing that the market for
partners at City law firms was booming.

Salary boom for young lawyers sets alarm bells ringing

Last year there were 473 announced

partner moves in what are classed as

City law firms — a 26 per cent increase

over 2020.

But the rise was not just a reflection

of a bounce after the dog days of the

coronavirus lockdowns. The partner

moves figure for last year was 7 per cent

and 9 per cent above the five and ten-

year averages respectively.

Indeed, the researchers said that

apart from 2016 and 2017 — when there

were disproportionate numbers of

partners moving after the collapse of

King & Wood Mallesons — 2021 was

a record year for partner moves.

Ironically, the pandemic played a

part in fuelling the partnership market

boom. The researchers point out that

emergency legislative changes, as well

as commercial and contractual uncer-

tainties caused by the health crisis,

“triggered urgent requests for legal ad-

vice and dispute resolution assistance”.

That combined with a boom in mergers

and acquisitions — which was rooted in

unprecedented central bank stimulus

— provided “a deluge of cheap money

which investors used to go on an M&A

spending spree”.

At the same time, law firm costs

plummeted as global travel restrictions

meant business class jaunts to overseas

offices dried up — as did the unwritten

requirement to entertain clients.

“All of which meant that law firms

had the treasure and confidence to in-

vest in growth by hiring expensive new

partners,” says Scott Gibson, the con-

sultancy’s director.

All booms, however, go pop event-

ually and Gibson is already flashing

a red light. He points to the report,

which says that “partners in almost

every practice area, in every class of

commercial law firm, need additional

associate/fee earner support to service

their practice”. As a result, firms “have

responded, as they have since the dot-

com bubble, with double-digit pay rises

and generous bonus payments trigger-

ing an associate salary war”.

Gibson points out that two similar

City legal profession salary wars have

blazed in the past 25 years: the first dur-

ing the dotcom boom from 1999 to

2001, the second before the global fi-

nancial crash about seven years later.

“Both ended badly for associates

when the market cooled,” says Gibson,

pointing out that in London associate

pay fell sharply in 2002 and 2010 for

those that remained in jobs, while

hundreds of lawyers — including part-

ners — were sacked.

Large commercial law firms in

America are experiencing problems

keeping their lawyers despite throwing

large packets of cash at them, according

to a report published this week by

Georgetown University in Washington

and Thomson Reuters.

“Retention has plummeted,” the re-

port says. It also states that “attorney

turnover has risen to record levels” with

firms “close to losing almost one quar-

ter of their associates in 2021”. The re-

searchers warn that relying on higher

pay to retain lawyers “may not be sus-

tainable nor particularly effective”.

Jonathan Ames