Question: How far do you agree with the proposal that trial by jury should be radically reformed? (note this is an English law essay)
In the last year a number of legal reforms have been proposed by the current government. Firstly there are the Mode of Trial Bills, currently No. 2 is going through its readings. No.1 failed to make it through the hose of Lords. Then there is the Auld report that recommends a radical restructuring of the court system and cutting down on the number of cases that are tried by the Crown Court.
One area that all of these projects seek to reform is trial by jury as it is claimed to expensive, open to abuse and time consuming for all parties involved.
There is no historical right to trial by jury. The Magna Carter makes no reference to it, popular misconception not withstanding. Its first occurrence in a recognisable form can be seen the twelfth century, during the reign of Henry II. Here the jury consisted of the accused friends and neighbours rather than todays dozen randomly selected adults. Previous to this the jury was a Norman convention made up of 12 men prepared to swear on oath as to the persons innocence. Failure to get the dozen men confirmed guilt since oaths then had a religious zeal and no one would run risk of eternal damnation by lying under oath. Trial by ordeal ceased in 1215 after it was condemned by pope innocent III. Trial by battle, to the death between accuser and defendant, existed by statute at the same time and was not repealed until 1819.
A important and unique part of the English legal system is that of summary trail by magistrates. In this a panel of, usually, three lay people hear the case and decide on fact, guilt and any punishment. Magistrates account for upwards of 97% of all judicial hearings today.
In 1855 such was the workload of indictable cases coming before the common law courts that an act was passed allowing such cases to be settled without a jury if the parties agreed to it. This attempt to speed up the wheels of justice created the either way cases that are now being blamed for slowing the same wheels down. Over the next 150 years more offences were added to the either way list and more cases lost their entitlement to trial by jury most of them being civil cases.1
Jury reform is both a popular academic question and one that has seen much attention from government and royal commissions. The last half of the twentieth century has seen a number of reforms of the jury system In brief these are:
The first was the allowing of majority verdicts (1967). If a unanimous verdict is not forthcoming the judge may accept a majority verdict with either one or two dissenting votes depending on the size of the jury at the trials decision phase.
1974 saw the removal of the property qualification now jurors could be selected from the adult voting population between the ages of 18 and 70 subject to a number of exempt professions.
Courts consisting of a single judge were introduced into Northern Ireland in the 1970s to counter the problem of jury intimidation in terrorist cases. These Diplock courts exist today.
Research into how juries reach their decisions was prevented by the Contempt of court act 1981
The Supreme Court Act 1981specified for what civil cases could a jury could be empanelled and added that in civil cases where there is likely to be complex prolonged examination of accounts, scientific evidence trial by jury could be deemed against the best interest of justice.
There are a number of individual areas of jury reform being investigated. These are the jury composition and selection, the right to trial by jury and that of perverse verdicts. Each of these will be discussed in turn below.
The juries act 1974 lists contains three parts outlining groups of people whom are either excused of right or ineligible for jury service. Those not on these lists can try to be excused on grounds of professional or business loss that would be incurred or family commitments such as child care. An argument against juries s that they can not follow complex arguments. If members of the legal profession were eligible for jury service and others of the professional trades not excused on grounds of financial loss then the level of the juries understanding would rise. In New York state, America, everyone can be called to serve as a juror and judges & lawyers who have done so have found the experience enlightening.
Long complex fraud, defamation or political trials could see a number of jurors drop out due to illness or stress and leave the jury below the minimum of ten for a crown court trial. The swearing in of reserve jurors if judge thinks case is going to go on for a long time to could prevent the jury becoming to small. All jurors sit in and the panel of 12 is selected at end of trial. This would involve some alteration to the jury box but as court buildings are already receiving refits to upgrade their facilities in the jury waiting room the additional disruption would be minimal. Much of the blame for the juries failure to understand fraud cases is laid on the Serious Fraud Office and its inability to present the evidence in an understandable format not on an lack of intelligence of the jury.
In England the defence has no right to object to jurors this being lost in 1988 despite there being no evidence that it was being abused to load a jury. Although the prosecution has retained theirs. Occasionally the jury will be vetted if there is danger of media induced bias adversely affecting the fairness of a trail.
The issue of race always arises when discussing juries. The jury is predominately white and those of other skin tones consider that they will not get a fair trail. Ethnic minorities are partly underrepresented by their failure to register as voters with 13% of those from the Indian sub-continent and a quarter of all other minorities not registering. Both the Runciman and Auld reports suggest that the jury could be loaded to include three members of ethnic minorities with one of these from the defendants race if it is likely that race is going to be a major issue in the trial.
Although not a race issue the Welsh language also causes complications. In the principality legal proceedings can be conducted in Welsh rather than English. However few in Wales actually speak the language. Canada still has a similar problem with proceedings for French speakers and also the native Inuit language. Where a prospective juror is clearly unable to understand sufficient English the prosecution should use their right to stand by the juror. The defences peremptory challenge was abolished in 1988 because statically more cases were acquitted where the defence used this right than when they did not.
The right of election in either way cases was established in 1855. It was however a right granting of summary trail by magistrate and not the gaining of a right to trail by jury as modern opponents of trail by jury are saying or as the MP for Montgomery put it the Soviet-style rewriting of history.2 The proposed Mode of trial (No.2) bill is designed to reduce the number of either way cases that go to the crown court. It argues that the majority of defendants plead guilty when they reach the crown court. This figure ignores those who are acquitted and neglects to mention that often the CPS will down grade the original charges to something less severe, hopefully, giving a better chance of conviction. The reasoning behind the bill says that defendants choose the crown court because they think that a jury is more likely to acquit them,3 it delays the prison sentence or at least allows some of it to be served in more comfort while awaiting trail.
Currently 80% of either ways elect to be summarily tried by the magistrates. Of those who go to the crown court on 2 in 7 are the defendant elections the remaining five are directed there by the magistrates. The main compliant against loosing the right to elect which court the defendant is tried is that magistrates once they have decided on guilt can refer the case to the crown court for sentencing where they consider their sentencing powers insufficient. This is at odds with the governments projected benefit that a person not having a trial by jury will not get the stronger crown court imposed sentence and makes a mockery of 66 million saving caused by the shorter custodial magistrate imposed sentencing.
No matter what court the defendant should, with the consent of the court, elect to be tried by judge alone without a jury. On account of highly technical evidence or requiring an explanation of the judgement which would reveal any mistakes and open the way for appeal. But is not this creating the same choice that started the whole either way issue in the first place? Will in another 150 years the facts be presented to imply that there was never any right to trail by jury
Occasionally the jury will return a verdict that the judge and prosecution is not happy about; these are known as perverse verdicts by others as pious perjury.
Paragraphs 99-108 of the Auld report recommends that statutes should be put in place declaring that juries have no right to acquit in defiance of the law. It should also further recommend that the brass plaque venerating the jury of the 1670 Bushell case, where it was established the jury as the sole finder of fact and could give a verdict according to their conscience, be removed and hidden away somewhere.
Auld (paragraphs 66-67)goes on to say that the prosecution should have a right of appeal if the jury return a perverse verdict which is possibly a breach of the double jeopardy rule.
However the judges of today must remember that it was their predecessors who helped created the trend for perverse verdicts in the early 1800s. A notable example being Lord Mansfield who directed a jury to under value a trinket to bring its value below 40 shillings and thus avoid the death penalty. When the defendant protested that the trinkets fashion value alone was more Mansfield replied God forbid, gentleman, we should hang a man for fashion alone. 4
If the purpose of the jury if it is to solely to find fact and decide on point of law then the best policy would be to scrap the adversarial system and move to an inquisitorial one that determines all the facts and all the points of law as opposed to just those elements that the lawyers choose to reveal. Or to ask, as American courts can very occasionally do, for a special verdict where the jury decide the facts and present these to the judge who decides on law, guilt and sentence.
Lord Devlin stated that trail by jury is not so much an instrument at getting at the truth as a process to ensure that no innocent person is convicted. 5
The legal profession serves the law. The law however serves the public. Law is derived from and is an expression of societys morality In the absence of moral commitment to support it, law ceases being part of society.6 Society is supposed to influence the law by the nature of the government they elect in. However as both major parties are attempting to out position each other by getting tougher on crime the only place where the public can truly influence the law is from the jury box. If the law does not reflect the norms of society the jury will construe facts, in their own mind, such that the law suggested by the judge is not applicable to the case before them
Though it is improbable the jury may have read the following passage by a rather famous writer on jurisprudence
a persons may be punished if, and only if, he has voluntarily done something morally wrong; secondly, that his punishment must in some way match, or be equivalent of, the wickedness of his offence leading to what sort of conduct may be punished?, How severely?, and What is the justification for the punishment
Hart, HLA. Punishment & Responsibility p230
Could it be that the jury is applying the spirit of the law and not the letter. The legal profession is interpreting according to the literal rule but the jury knows only, instinctively, of the golden rule?
The jury has total freedom to decide. More in fact than the Law Lords for, despite the 1966 practice statement, they are still bound by principle of stare decisis. Lord Halsham summed this situation up in 1967 to do justice according to the law as it is, and not according to the state of affairs as they wish it to be.7 Who then proceeded to cast his vote against his stated moral position.
It is somewhat strange that as trail by jury is beginning to appear in former Eastern bloc countries and is being reintroduced into Spain and possibly Japan for a limited number of cases that its use in England where it originated is declining.
The Government claims that lawyers see the loss of trail by jury as a threat to their incomes however the appeal process against a magistrates decision to commit the case to summary trail offers many opportunities for appeals and challenges in a whole new field
Justice is being seen, by the government, as a product; the administration of which is being redesigned to be as efficient as possible. The design of the legal system has always been to keep the greatest majority of cases heard in the magistrates where they can be processed quickly and cheaply. With the complexity of cases increasing it is time to drop such a mathematical approach to justice. If the courts can not cope with the volume of cases in a timely fashion then the apparatus of justice should be expanded not its mechanics changed.
Trail by jury should not be sold for a better bottom line in the legal systems accounts
The civil cases that are still entitled to trail by jury are fraud, deformation of character, and two others
Hansard 27 Feb 1997 Column 436
In 2001 juries acquitted 25% of cases compared with 17% in 1997. HTTP://WWW.LAWTUTORSONLINE.CO.UK/NEWS.HTM 2/12/01
Is our jury system so perverse, The Observer October 14, 2001 HTTP://WWW.OBSERVER.CO.UK?COMMENTS?STORY?0,6903,573601,00.HTML
Kalven and Zeisel, 1966, p190 cited in Justice Democracy and the Jury James p13
Emile Durkin cited in SWOT Jurisprudence pp130-138
Cited in The New British Politics
Berlins, B and Dyer, C (2000) The Law Machine. 10th Edition. Penguin
Budge, I. (2000) The new British Politics. 2nd Edition. Longman
Cracknel, D G. (1994) Cracknells Statutes English Legal System. Old Bailey Press
Gobert, J. (1998) Justice, democracy and the Jury. Dartmouth Publishing
Hart, HLA. (1968) Punishment & Responsibility. Oxford University Press
Lawtutors (2001) News update <http://WWW.LAWTUTORSONLINE.CO.UK/NEWS.HTM>
Randel, M (2001) Is our jury system so perverse. The Observer October 14th
Wacks, R. (1990), SWOT Jurisprudence. 2nd Edition, Blackstone Press.
Wilson, S R. (1996) SWOT English Legal System. 3rd Edition, Blackstone Press.