One of the most interesting aspects in all of this, beyond the obvious question whether the conviction was sound or not, has been how new media like twitter etc. have totally caught the justice system on the wrong foot. The jury system and its near total lack of transparency have worked for years mainly because no-one outside the court room really knows what goes on. People on juries have always told stories about their unpredictability and how some jurors, being a reflection of society at large, are quite simply plonkers who'd struggle to tell their knee from their elbow. Yet in the past, those were anecdotes, and generally you felt that being judged by 12 people off the street offered a fair chance of justice.
With twitter feeding us snippets on an hourly basis, suddenly we are able (or at least think we are able) to double guess and assess cases by ourselves. To an extent, I feel that the system will have to adapt to that.
Also, Ched's appeal now greatly suffers from this lack of transparency as it is difficult to kind of "open up" that black box which is the jury's decision.
Over the past few months I have discussed the case at length with Freiburg Blade who is a German Blade over to see United between five and fifteen times a season. He has been even more surprised at the English justice system and how it compares to what they would do in Germany. Having talked to him, I think a lot of what they do does make sense.
In essence (I may get the details wrong), in Germany Ched's case would be heard by a professional judge and two laymen. The decision would be made by all three of them, not just the laymen. The key difference is that there would be a detailed written judgment. In it, the judge would sum up all the facts how they saw them and spell out the reasons for the conviction in great detail. In other words, a lot of ambiguity is removed as you got the reasoning and what the court considered to be the proven factual sequence of events in black and white. Also, the appeal, although limited to faults in law, is easier to establish as you got the exact story the court held to be true.
No guessing like in Ched's case whether the jury justified their one-off, one-down decision because (a) the girl was considered incapable of consent throughout but Clayton could believe she wasn't whereas Ched had no grounds for such a view or (b) the girl was still able to consent to Clayton but lost it by the time Ched arrived. The written reasons in Germany would contain exactly which of these versions the court held to be correct. And the judge being part of the three-man panel can direct the two laymen at all stages if they look to make irrational conclusions.
I am not suggesting we abolish juries. But there may come a time where the judge - after the jury said guilty or not - might sit down with them and ask them to give him their reasons for the decision in great detail before putting them down in writing for consideration on appeal.
My personal view? I think both could have gone down. I feel slightly confused that the guy who had ages to ascertain that the girl was well out of it, got off and the guy who had a shorter time sample did not. If the jury conclude incapacity on the basis of shortish cctv footage beyond any doubt, how can they then feel that Clayton who was with her for over an hour could possibly misread a state of near-total drunkenness that they felt was apparent as consent to sex?
One can only assume that the jury felt that the human connection between Clayton and the girl swung it irrespective of being drunk.
With half-information from twitter but no real detailed written judgment as such that spells out the jury's exact reasoning, the whole things feels intransparent and like quicksand. I think that is why it won't ever rest easy.
As well as, of course, the underlying premise that if you truly do not know anything the next day, you still proceed with a case of rape, rather than take responsibility for your actions and saying "damn, I bloody overdid it and drank way too much. All sorts might have happened, but I do not and will never know if I did or did not consent - so really it will forever be dodgy if I push this case."
Letting the Crown take that case out of my hands, becoming the unknowing object of case to which I cannot add anything from first-hand memory, sorry, but I could not do that. Because if truth be told, even in the victim's mind there should forever remain some reasonable grain of doubt as to whether what happened was indeed rape or drunken sordid sex due to low standards and lowered inhibitions. But maybe people who engage in that level of drinking and partying on a regular basis do not have this level of self-reflection...
To me, this is what sets the case apart and makes me feel sympathy for Ched even though he acted morally reprehensible and maybe even criminal. All three of them were skating on the thinnest of moral ice, and it has an element of randomness which one of the three fell into the freezing waters.
Sorry for the rather aimless long-winded post and apologies to Freiburg if I misrepresented anything we talked about, not being a lawyer myself. But this has been bothering me for a while.
barf barf
