It is fair to say that most important decisions made by people are driven by emotional responses, of course, with different individuals this is represented to different degrees. Naturally, we all like to think that we bring a rational and pragmatic approach to decision making based on previous learned experiences, and yet, we must remember that our most potent and vivid memories were best retained when strong emotions were attached to the event and learning experience. Crucially, they are all embedded in the stories we tell and hear.

In twenty-first century Britain, we find ourselves living through a period of the deepest mistrust felt by the public towards, not only politicians but also myriad previously well-regarded institutions including our universities and even the BBC. Such institutions are now often lumped together into ‘the state’ and even joined with groups such as the World Economic Forum to form a sprawling mass within fearful minds regarded as ‘them’ and what ‘they’ are trying to impose upon ‘us’. This means much of the UK now lives in a state of fear, not the ideal emotion upon which to base important decisions.

As David Klemperer argues, this has impacted on public understanding and interpretation of the UK’s Constitution with many commentators indulging in ‘constitutional conspiracism’ and leaning heavily on documents such as Magna Carta in order to prove our institutions are acting against the people by thwarting or disregarding the Constitution.[1] Why do such commentators have such a healthy trust for lawmakers of the past? Can this trust in, what essentially is tradition, be harnessed to offer comfort to the fearful and rebuild trust in our institutions?

It is wholly possible that storytelling can still do this, and recent events reveal a way to rebuild trust. On an emotional level, it appears that the public do retain trust in one another, we need look no further than the public response to the dramatization of the Post Office scandal for evidence of this. Arguably, the same response was shared by all who watched this drama, of sympathy, distress and righteous anger against the CEO Paula Vennells and the company Fujitsu. Opinion was galvanised into a petition demanding Paula Vennells be stripped of her CBE, which resulted in her voluntarily relinquishing the honour. You could say, the public united here as both judge and jury and were highly persuasive and successful. It appeared that the whole country was able to act as jury to the sub postmasters too, who were believed and properly heard through the power of storytelling. Despite the current state of mistrust, the public trusted they could do something about the injustice they saw and even retained enough regard for UK institutions to want them to demonstrate that they would no longer honour the unworthy.

Therefore, it is possible that a key area of public life – the relationship between the judiciary and the public – has the potential to rebuild trust and even regard. Those the judiciary seeks to protect must feel that safety is there for them and part of that feeling will arise from understanding that whatever people may feel about living within a multi-cultural society, the UK has not seen a degradation of shared values. These are vital in matters of the Constitution. Whether or not one agrees with the idea of pursuing a codified version, there is no possibility it could exist at all without some basis in widespread agreement on some sort of moral coding. If the public trusts in being judged by a jury of peers, it can trust a modern constitution and these values as agreed.

To some degree we all have mixed feelings around ‘being judged by our peers’ from the profane – feeling resentful at having a camera pointed at us by a local speed watch group, to the sacred – considered, moral debates around religion that question who (or what) really has the right to judge us. However, very few people would wish to live in an unordered, wild place and so understand we must preserve the Rule of Law.

The jury system offers the perfect linchpin and bridge of trust between the ‘us’ and ‘them’: between ordinary people and ‘the state’. While we all understand the need for a strictly evidence-based procedure, whereby cases are judged on relevant evidence and not morals and anything else results in contempt of court, humans have a deep emotional need to see justice and to understand that the wicked have been punished. This is a procedure that originally helped to quash the ‘vengeance culture’ of pre-Christian society in Western Europe. The sensible, pragmatic nature of juries responding to evidence satisfies both needs, fairness in hearing all sides carefully and punishment.

A wide corpus of early medieval European sources explores this through storytelling, such as the Scandinavian sagas and, in particular, the Anglo-Saxon Beowulf. The sources show Christianity attempting to provide a tempering of the desire for ‘bloody’ revenge into a more considered and calm approach to justice. This was achieved through both storytelling and the introduction of lawcodes.

In December 2013 Dominic Grieve KC gave a speech, defending the jury trial, at the Politeia forum. His opening lines included his belief that the jury is essential to the justice system of England and Wales and he stated, “It is deeply ingrained in our national DNA.”[2] Grieve’s speech offers a fascinating travel through time providing interesting examples from, of course article 39 of Magna Carta to a seventeenth-century case, to defend the use of juries in trials at their best, protecting those they serve with a chance at justice and fairness. He also stated, “The operation of jury trial was still a far cry from what we now understand – for example lawyers only became a regular feature at the turn of the 19th century and juries might hear half a dozen cases in a day before retiring to consider their verdicts. Until 1858, the jury would be kept without ‘fire, food or drink’ until a verdict was reached…”. Once again, history was invoked to tap into a sense of trust in the system and the point at which it links to peer judgement.

This is an interesting point at which to draw in ideas from our past constitution makers, to inspire trust and we can trace these ideas to a time long before, that most commonly revered ‘Great Charter’. In the late ninth century, a treaty was drawn up between King Alfred and the Danish leader Guthrum, as part of the handover of East Anglia from Anglo-Saxon hands and into what became the Danelaw. The Scandinavian invaders had yet to relinquish their ideas of vengeance and their resultant blood-feuds around adequate punishments for murder and manslaughter and as part of this deal Alfred insisted on Guthrum’s conversion to Christianity and stood as his Godfather. The treaty records some key laws Guthrum must apply to the kingdom he was coming to rule, one of which stated,

“…if anyone accuses a king’s thegn of manslaughter, if he dares to clear himself by oath, he is to do it with 12 king’s thegns; if anyone accuses a man who is less powerful than a king’s thegn, he is to clear himself with 12 of his equals and with one king’s thegn…”.[3]

This is quite clearly as status driven as Magna Carta and is it certainly not a fully formed jury service as we understand it today, but it does tend to agree with Dominic Grieve’s assertion that jury service is embedded in the country’s DNA.[4]

Like many originally oral societies, these early medieval groups, relied heavily on storytelling, both the fantastic and the everyday, to bear witness to the triumph of good over evil, to teach history, to embed acceptable moral codes, to provide a sense of shared identity and to promote ideas of continuity and change. As they relaxed after feasting together in their halls, they opened their minds to the worlds created by their storytelling entertainers and were very receptive.

Nothing has really changed. We need more good quality, engaging literature and drama that speaks truthfully about our systems and institutions, reveals we are of like mind, and we can trust one another. With regard to the ITV drama, Mr Bates versus the Post Office, we can see the public still want to see the issue resolved by our institutions or, ‘the system’. The public agree the convictions of the sub postmasters should be quashed and adequate levels of compensation awarded. It is perhaps sad that jury service cannot be extended to all cases and courts!

In August 2023, Richard Windsor wrote an article outlining the pros and cons of the jury system. One of the ‘cons’ listed by Windsor in The Week, is that jurors can be biased.[5] They absolutely will be, they will bring all their own life experience and personal world views and there is no escape from the fact that the formation of these ideas and lessons are driven by the forces of emotion. But this is how it should be, this is how shared values develop within the individual. It leads on very nicely then, to Windsor’s next ‘pro’ which is that the jury system boosts public confidence, with its selection of a cross section of the public.

Lawyers and defendants alike are telling stories too and need their opportunity to do this. Very recently, actor Laurence Fox, now leader of The Reclaim Party lost a High Court libel battle over a social media row. He believes he has been widely and repeatedly defamed, being called ‘racist’ and that this has cost him the career he loved. On leaving court he made a somewhat emotional plea to have this listened to by a jury.[6]

Whether we agree or disagree with him more broadly, Fox’s opinion is emblematic of the above, he is sure that his own peers share his understanding of the word racist and such language has been wildly abused and placed upon him unfairly, and yet, he still believes the common view should still be listened to by ‘the system’ and it is possibly the only way he can be exonerated.

Perhaps Laurence Fox should commission his own drama and show us all his story.

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[1] David Klemperer, ‘The rise of constitutional conspiracism’, The Constitution Society Blog, 7 December 2023, available at: The rise of constitutional conspiracism – The Constitution Society (consoc.org.uk) last accessed 1 February 2024.

[2] Dominic Grieve KC, ‘In defence of the jury trial – speech at the Politeia forum’, Attorney General’s Office, 12 December 2013, available at:  In defence of the jury trial – speech at the Politeia forum – GOV.UK (www.gov.uk) last accessed 1 February 2024.

[3] ‘The treaty between Alfred and Guthrum’, Dorothy Whitelock, trans & ed., in English Historical Documents, Volume I, c.500-1042, (London, 1955), pp.380-1

[4] For an interesting and full, albeit very old, discussion of the emergence of a jury from the early medieval period please see: J. E. R. Stephens, ‘The Growth of Trial by Jury in England’, Harvard Law Review, 1896, Vol.10, pp.150-160.

[5] Richard Windsor, ‘Pros and cons of trial by jury’, The Week, 17 August 2023, available at: Pros and cons of trial by jury | The Week UK, last accessed 1 February 2024.

[6] Holly Evans, ‘Laurence Fox loses High Court battle after calling two people paedophiles on social media’, Independent, 30 January 2024, available at: Laurence Fox loses High Court battle after calling two people paedophiles on social media | The Independent, last accessed 1 February 2024.