Most defenders of jury trials are seduced by rhetoric and ignorant of its history. In reality there are no rational arguments for its retention. - Justin Santiago
They jury consisting of 12 people randomly chosen from the electoral lists called upon to decide on matters of fact and determine whether a person is guilty on the basis of their understanding of the law as explained to them by the judge. The rationale for jury duty is that it enables one to exercise a duty of citizenship and to give the impression that since the public is taking part in the process there is trust and confidence in the law and that one is being tried by ones peers.
To say that a trial by jury is the lamp that shows that freedom lives ignores its roots and supporters of the jury are ignorant of its beginnings. A quote from Robert Frost would appear to be more contemporaneous “A jury consists of twelve persons chosen to decide who has the better lawyer.”
If one goes back to the origins of the jury system we would find that the jury system would have difficulty living up to this ideal. Anyone claiming that a jury trial is to enable one to be tried by one’s peers would find that the origins of jury trials had anything to do with being tried by one’s peers unless one were a land owner. Jury members had to be landowners who paid a certain quantum of tax and hence were rich and were all men.
The situation today is no better. In a quest to achieve egalitarianism in the jury, the jurors of today consists mostly of blue collar workers with who are not well versed in the law and are unable to grasp the the increasing complexity of cases.
The Roskill Committee concluded that trial by random jury was not a satisfactory way of achieving justice with many jurors out of depth. The committee also concluded that jurors who found difficulty in comprehending the complex issues invoved in fraud prosecution were more likely to acquit.
It has been shown that jurors find it difficult to assess the credibility of witnesses and struggle with elements of intent and the standard of proof. A study by Middlesex University criminologists found that fewer than half of jurors understood everything that was going on in court. In R v Young there had to be a retrial because it was found that some members of the jury were attempting to contact the victim through an Ouija board. In R v McKenna the jury were pressured into making a decision after deliberations were going on for some time and the guilty verdict that was delivered was quashed on appeal.
The jury sometimes comes to a decision not according to the law but based on their idea of fairness and justice. The jury may be sympathetic to the causes pursued by the defendants and jury equity sometimes prevails in the absence of judicial power to instruct juries to convict and the secrecy of the jury room under Section 8 of the Contempt of Court Act 1982 prohibiting asking jurors about the basis on which they reached their decision can lead to perverse decisions. In criminal law, it is an absolute rule that there can be no appeal against a jury’s decision to acquit a person of the charges laid against him although Section 36 of the CJA 1972 allows for the AG to refer the case to the Court of Appeal to seek its advice on points of law to highlight mistake in the law. In civil law cases, the possibility of the jury’s verdict being overturned on appeal does exist, but only in circumstances where the original verdict was perverse, that is, no reasonable jury properly directed could have made such a decision.
The jury in R v Kronlid found three anti war protestors charged with committing criminal damage and another one charged with conspiracy to cause criminal damage to fighter jets that were to be delivered to the Indonesian government innocent although they had not denied their responsibility in the act but justified it on the basis that it would be used in its genocidal campaign against East Timor.
In the case of R v Clive Pontine, the defendant was charged under the Official Secrets Act 1911 for leaking information on the sinking of a ship during the Falklands War to parliamentary members. The jury acquitted him although the judge ruled that there was no defence as he had committed the act.
In the Stephen Owen Case the jury refused to find Stephen Owen guilty of killed a lorry driver because it was felt that the driver deserved to die for killing Stephen Owen’s son.
The Auld Review has recommended that legislation should declare that juries have no right to acquit defendants in defiance of law or in disregard of the evidence. The Auld Review also suggested that for jury’s verdicts that appear to be perverse, the prosecution should be entitled to appeal on the grounds that the perversity is indicative that the verdict is likely to be unfair or untrue. There should also be amendments made to Section 8 of the Contempt of Court Act1982 to enable jurors to provide a basis on which they arrived at a decision and more openness should be encouraged in the jury room. This would instill a greater confidence in the system. The Auld review has also recommended that in order to assist a jury in their work, the prosecution and defence advocates should prepare a written summary of the case and the issues that need to be decided.
Whether a jury trial is truly representative is questionable and there has also been accusations leveled at whether a jury allows one to be tried by his or her peers. There is an under representation of people below 20 on the electoral register so someone below 20 is unlikely to be tried by his peers. Additionally there are a large number of people who are not registered to vote especially women and ethnic minorities and this will create under representation from these groups. The Runciman Commission has endorsed the proposal that 3 of the jurors come from the same ethnic minority as the defendant. However this proposal has never been implemented. The rationale for this was there is no principle that a jury should be racially balanced was given in the case of R v Ford which refused to allow a racially mixed jury.
Suggestions have been made for jurors to be selected from other lists such as those with driving licenses to encourage a wider participation of voters but even this may be deficient because it could possibly exclude those who don’t own a car.
However even with all these checks in place, complex and lengthy trials do not encourage jury participation due to sacrifice of time to participate in the trial. In the Jubilee Line case too lengthy a trial had resulted in one juror saying that having to attend the trial had wrecked their lives, one asked to be dismissed for stress and another said he had difficult surviving on the expenses rate. And research also shows that people have less time for jury duty and may want to come up with a verdict quickly or to acquit in order to fulfill their jury duty, pack their bags and go home. Today, most people would would rather avoid jury duty. It could be a change in the value system that does not place as much importance on being tried by one’s peers or it could be the exigencies of daily living and minding one’s business has obviated the need to decide whether ones peer is guilty or not. Section 43 allows a High Court judge to try a case without jury for complex fraud trials.
To reduce the accusation that the jury has been chosen from men and women of average intelligence and thus unable to understand the complexities of a modern day trial, Paragraph 2 of Schedule 33 of the Criminal Justice Act 2003 has substantially increased the number of people eligible for jury duty by removing the various former grounds of ineligibility and secondly by reducing the scope for people to avoid service when called up by abolishing the excusal as of right. Among those ineligible who are now eligible for jury duty include judges, lawyers, court staff and police officers and prison officers. This would increase the likelihood of a proper understanding of the facts of a case and a less likelihood of a perverse decision.
The very notion of twelve minds being better than one should be questioned especially if they are picked from an electoral register. The average man on the street can be easily swayed by eloquent lawyers as easily as a strong minded single judge and there is a strong likelihood that the herd mentality may persist.
Judicial bias based on the restricted social background of judges especially in cases involving women and minority defendants can be cured by opening of the judiciary to people of more varied backgrounds.
The decline in importance of jury trials is reflected in the small percentage of cases currently that go to jury trial. In criminal trials, only trials by indictment are conducted by jury. In civil trials, only cases involving libel, slander, malicious prosecution, false imprisonment and allegations or fraud are conducted by a jury. Section 69(1) of the Supreme Court Act 1981 adds a proviso that the courts can refuse a jury if it is of the opinion that the trial would be inconvenienced by a jury.
The Criminal Justice Act 2003 has further reduced the number of jury trials reflecting the trend of decreasing the dependence on juries. Section 154 of the CJA 2003 has increased the sentencing power of a magistrate from 6 to 12 months making more offences triable summarily and thus limiting the power of an accused to elect for jury trial. Sections 44 and 46 of the CJA 2003 provide for a trial on indictment in the Crown Court to be conducted without a jury where there is a danger of jury tampering. In the case of Ward v James jury trials were only allowed in personal injury cases only in exceptional situations. Such is the feeling towards the limitations of a jury that several countries including Singapore and Malaysia have abolished trial by jury.
It might be considered that using a bench with three or five judges who have themselves been selected from a varied background may be a solution to the inherent problems associated with a jury.
- Justin Santiago
- Justin Santiago, BAppSc (Hons), MBA, LLB (Hons) comes from a journalism, market research, intellectual property and strategic communications consulting background. Now based in Melbourne he spends his time advising businesses on how to communicate to their customers as well as writing on various subjects of interest in this blog.
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