Let us examine the facts

Have you been watching BBC television's Judge John Deed? Martin Shaw plays the High Court judge, red gown, wig and all. I watch. Makes me squirm in parts. Good stuff, though. The judge and I were both been roped in as candidates for jury service recently. Judges and barristers had been banned from juries just the same as criminals and lunatics.

Not now. Deed found himself on the jury instead of the bench. The amusing part of the show was to traipse with his Lordship and 11 others into the secret chamber of the jury room. Deed met his comeuppance.

You see, when he sits as the judge in a trial he can't resist becoming Sherlock Holmes. He doesn't referee due process, he gets his hands dirty. He visits witnesses, goes behind experts' backs and does a jolly fine bit of advocacy from the bench. But in the jury room, doing jury service, it's a different matter.

He got a tad fed up because the other 11 wanted to find the accused smack bang guilty. "You only have to look at her", they said, "she's guilty as sin". Deed could not decide. He was chastised by the others, "Can't you, a judge, see she is guilty?" No, not without considering the evidence. "No need," said the chorus around the table. Deed stood his ground.

It was the same story as 12 Angry Men starring Henry Fonda, made in 1957. That dealt with an open-and-shut murder case. An uneducated Puerto Rican teenager faced the electric chair. If Deed had been in that jury room he would have said, "Let's look at the evidence". Deed was keeping to the rules for a change.

Fonda's character reminds me of the jury in construction arbitrations and adjudications. He played an architect. The jury in building disputes is always a single person. The arbitrator or adjudicator decides fact, decides law. They are supposed to apply decided fact to decided law to work out whether to award you your claim. And do you know what sometimes happens? The arbitrator does what Deed and Fonda were trying to stop: he decides the case on gut feeling instead of the evidence.

Deed's fellow jurymen weren't bothered about "the evidence". One just wanted to get back to her high-street shop, too busy for all this evidence malarkey. Another loud-mouthed lout just detested anyone "foreign". And, yes, the accused was a 19-year old nanny from somewhere east of Dover. So she must be guilty.

Has someone been able to say that those bricks were delivered? Is this evidence tested? Even in adjudication, evidence should be tested. Folk lie

The construction disputes game is frequently about disputed facts. True, it's about disputed meanings, and contract bumf as well. There is a massive responsibility on the shoulders of construction dispute deciders. And my plea is to stop using that gut feeling. At least stop using it all by itself; weigh the evidence put to you.

Mind you, it is very useful to first compile a list of the facts at issue. In adjudication especially, all sorts of allegations are made in a rag-bag of exchanges. Once the list is fathomed, attach the evidence to each. Life becomes so much easier once the evidence is identified. Has someone actually been able to say from their own personal, first-hand knowledge that those bricks were delivered on that Tuesday? Is there any documentary evidence to corroborate that witness? And can anyone give circumstantial evidence? Is this evidence tested in some way? Even in high-speed adjudications, evidence ought to be tested. Folk lie. Folk suffer deceive themselves. Things that look good or bad are often changed once the author is challenged.

Deed's problem wasn't the quality of the evidence - he couldn't even get the jurors to consider it. Then, at last, they began to look at a snippet here and a snippet there. Slowly the hesitant wimp, the intolerant bigot, the vengeful, the busy, the idle and those who prejudged saw the light. The young girl in the dock, said Deed, was probably guilty; probably did shake the crying baby, probably did immediately cause its death. The evidence was there for that.

Then Deed pulled the rug from under them. He said, "but the test for crime is evidence beyond reasonable doubt" … and they all had a smidgen of doubt. Come on, arbitrators and adjudicators, let the evidence do the talking. Put aside your likes and dislikes. Deed was on the ball - in that episode, at least.

Credit: Simone Lia