Hard cases, seductive solutions

After the trial, the things the jury weren’t allowed to know. In the case of Vincent Tabak, convicted of murdering Joanne Yeates, the revelation that

Computer analysts found the Dutch engineer appeared to have a fascination with pornography depicting violence towards women. In some of the films he viewed, men held women by the neck while they had sex.
Vincent Tabak and the porn searches the jury did not hear about

The immediate demand is to know how criminal procedure could mean that “[t]he jury was left ignorant of what the police believed was important evidence.” (Some people go off in…other directions)

Others have already sketched the principles behind this aspect of the law of evidence. Briefly, the fact that Tabak had viewed pornography of a particular type is not, in and of itself, probative.

It’s especially important to remember that in this case, where the defendant admitted manslaughter, but denied murder. The difference between the two offences is one of intent: killing is only murder if there is an intention to kill, or cause “really serious harm”.

Had the jury been told that Vincent Tabak used pornography which involved “…images of men holding their hands around women’s necks during sex and photos of women tied up in car boots“, then asked to decide if he intended to kill, it is difficult to see how that fact could fail to colour their thinking.

As it was, the verdict was not unanimous; two of the jurors apparently accepted Tabak’s version of events. It would be interesting to know from them whether they would have reached a different conclusion given the further information now released.

And that possibility is why I can’t agree with Cath Elliot’s reaction, much less to any suggestion that the jury should have been told.

My personal view is that juries are dire, a relic that should long since have been removed (Richard Dawkins’ essay on the subject, “Trial by Jury”, collected in “The Devils Chaplain”, is an excellent and concise discussion of why guilty men should choose trial by jury, and innocent men a judge sitting alone).

In truth, the criminal justice system, whose professional are some of the most vociferous defenders of the jury, know this. That’s why they create a bubble of artificiality around the jury, create rules of evidence to determine what a jury may be told, and try to insulate a jury from the information that any other member of the public might have. They do this because they know that juries will otherwise reach poor decisions, or simply irrational ones.

And rationality is at the core of this issue. Had the evidence about Tabak’s taste in pornography been admitted, it would inevitably have led to a debate about whether that was probative. Evidence would have been needed as to the connection (if any) between the use of pornography of that type and mimicking the behaviour it depicts. Without that context, using Tabak’s taste in pornography as a basis for judging whether he intended to kill would be essentially irrational – or “common sense”, as it is otherwise known…

Moreover, any move to admit this kind of evidence against defendants would have potentially serious consequences for defendants in other types of trial. The most obvious analogue is rape cases – as with the murder/manslaughter distinction, the jury are asked to form a view as to the mind of the defendant. In a rape trial, the key question is whether the defendant had a “reasonable belief” as to the defendant’s consent.

In 2010, a rape trial collapsed after evidence of the victim’s sexual fantasies was admitted. While there may be legitimate questions about the way that case was conducted – especially regarding the stage at which it was discontinued – it illustrated the extent to which a “reasonable belief” defence could stand or fall on evidence that was not directly connected to the allegation.

At the time, the reverse point was raised – here’s Laurie Penny’s take, with comments beneath from me, and from Carl Gardner – that the evidence should have been inadmissible. In that case, the judge admitted the evidence because it related to the victim’s prior relationship with one of the defendants.

If the rules of evidence were altered to allow the evidence of Vincent Tabak’s use of pornography to be admitted, where would that leave rape cases of this type? Having taken steps to prevent the victim’s previous sexual history being admitted, we’d have to reverse course.

The law of unintended consequences applies here. Let the media have their post hoc reasoning about the case; if we must have juries, then leave the boundaries their bubble of artificiality as they’re currently drawn.