SOME CRITICISMS OF THE JURY SYSTEM

If the sole test for evaluating the mode of serious criminal trial is the outcome of the legal process - that is, the correctness of the deci­sion-maker, be the court of trial a professional judge(s) or a number of unqualified jurors - the exercise causes little social difficulty.

When, in the early 1950s, I came to the English Bar I had resolved to become a civil practitioner, with no aspiration of conducting criminal cases. Although I had an academic interest in criminology and penology, I abstained from joining my professional colleagues in appearing in the criminal courts. During my two decades as a junior counsel I had formed an opinion against the jury system (which was abolished almost entirely in the civil courts by 1934). My reasoning was prompted by an intellectual study of the litera­ture about modes of trial. In the 1960s I had begun to teach crimi­nology, part-time, in the University of London, and by 1966 I had, unusually, joined the ranks of the London magistracy that tried 98 per cent of the lesser criminal offences.

Given the hypothesis that the proper criterion for evaluating the system is the quality of criminal justice that dictates the process of a fair trial, I must state my reasons for thinking that it is defective, such that we should contemplate change, if only to introduce either the mixed tribunal (judge and jury together at all stages) or at least the accused’s right to choose a waiver of the system of jury trial to be tried by a court of professionals alone.

No modern system of a fair trial can deny both prosecution and defence knowing the reasons for a verdict of guilty or not guilty; that is quite irrespective of the limited recommendation (which was rejected by the Government) of Sir Robin Auld in his Review of the Criminal Courts in 2001 to abolish any perverse adjudication by a jury.

The jury is inarticulate, monosyllabic and secret, without any answerability or accountability to another institution. It cannot be asked to disclose the process of deliberation in the jury room (although misbehaviour by a jury may be investigated thereafter). No reasons, however, is the watchword for juries. No civil court could today avoid complying with that edict. The giving of reasons is axiomatic in the modern age, even though historically, when society was a good deal less literate, it complied with the require­ments of a fair trial. The constitutional reason for opposing the jury system is that the inviolacy of the jury’s denial of its reasons for the verdict renders this country defective in establishing a fully appel­late system.

Literary allusions are repeatedly mentioned to justify or negative the jury system, proclaimed as a great British innovation. The quo­tations are boundless - both for and against. Judging them in their historical context, they still deserve to be quoted. Here they are.

Sir William Blackstone, the eighteenth-century expositor of the English common law, whose writings found instant acceptance and subsequent acclaim in the United States of America, called the jury, variously, ‘the glory of the English law; the benchmark of liberty; the palladium of justice’. Thomas Jefferson, who detested Blackstone as an arch Tory, agreed with him at least on that one subject. Encomia of the jury today still abound on both sides of the Atlantic and, as in the past, they resonate across the political spectrum. Baroness Kennedy of the Shaws QC, an articulate New Labour poli­tician and skilled criminal law practitioner, stated eloquently the overriding populist aspect of trial by jury in a Lords’ debate on 28 September 2000 on the Criminal Justice (Mode of Trial) No 2 Bill:

jury tradition is not only about the right of the citizen to elect trial but also about the juror’s duty of citizenship. It gives people an important role as jurors - as stakeholders - in the criminal justice system. Seeing the courts in action and participating in that process maintains public trust and confidence in the law.

This assumes that public participation in the administration of criminal justice is enshrined in a collective right. The reverse is true. For centuries the criminal justice system has functioned as a mechanism of social control which enabled those with wealth and power to maintain their propertied, social superiority. The property qualification for jury service only disappeared under the Criminal Justice Act 1972. Until then, indisputably undeniable.

Baroness Kennedy repeated her rhetoric in the Lords’ debate on the Criminal Justice Bill on 15 July 2003, saying that the excep­tional cost of our criminal justice system ‘is a legitimate price to pay for the wonder that is the jury’ (italics supplied; her word).

Lord Hunt of Wirral, a former Conservative Minister, who on 15 July 2003 successfully moved the amendments to remove all traces of restricting jury trials from the Criminal Justice Bill, by implica­tion endorsed the claims of fundamentalism in the jury system.⁴

⁴ Hansard, HL Deb vol. 651, cols 768-74. Lord Thomas of Gresford QC, a Liberal Democrat spokesman on legal affairs, described the jury as a ‘mini-parliament - a democracy in itself - and which has always acted as a buffer against repressive regimes and against repressive laws’.⁵ Lord Hooson QC, a fellow Liberal Democrat peer, described the jury ‘as one of the great bul­warks of freedom in this country’.⁶ Lord Brennan QC, a Labour peer and a former Chairman of the Bar Council was even more specific in this display of adulation for the jury. He said: ‘A jury trial exqui­sitely and democratically combines those two aspects of citizenship - one's right to be tried by one's fellow men and one’s duty to par­ticipate in that process when called upon to do so.’⁷ This duality of function was encapsulated by another former chairman of the Bar Council, Lord Alexander of Weedon QC, who proclaimed that ‘such an important right [was] vested in the defendant’.⁸

None of these ‘counsel learned in the law’ appears to acknowl­edge the true legal position of the jury as stated by Lord Justice Auld in his Review of the Criminal Courts in England, as follows:

In England and Wales there is no constitutional, nor indeed any form of general right to judge and jury, only a general obligation to submit to it in indictable cases. ⁹

As Lord Cooke of Thorndon, a former President of the Court of Appeal in New Zealand and occasional member of the House of Lords in its judicial capacity, reminded the House, international law required only an independent and impartial tribunal; it is silent as to any mode of trial.

Public pronouncements on the criminal justice system tend to echo the same sentiment of devotion to the jury system which, in the eyes of the ordinary citizen, accommodates far more than the tiny percentage of cases tried in the Crown Court. In so doing, the crude mixture of myth and emotion, infused by exaggerated lan­guage, is perpetuated.

That august journal, the Economist, wrote in its issue for 11-17 March 2000, that ‘trial by jury has long been a cornerstone of British justice’. The Economist’s mural imagery (a fair reflection of intelli­gent public opinion) is only slightly less laudatory of the jury as an

⁵ ibid, col. 774.

⁶ ibid, col. 789.

⁷ ibid, col. 799 (italics supplied).

⁸ ibid, col. 801.

⁹ Para 5.7, p 137 of the report in October 2002. indispensable mode of criminal trial, than those views uttered by even distinguished jurists. The most frequently quoted praise for the jury is Lord Devlin’s ‘lamp that shows that freedom lives’ - a forerunner of Lord Thomas of Gresford’s ‘mini-Parliament’. Yet it is worth citing the passage from which that illuminating expression comes, in order to demonstrate how the jury in contemporary soci­ety is impermissibly perceived to be, not just an adjudicator or umpire between prosecutor and prosecuted providing a fair trial, but as the linchpin of a modern parliamentary system of govern­ment (and not just an example of Athenian democracy). Lord Devlin wrote:

Each jury is a little Parliament. The jury sense is the parliamentary sense. I cannot see the one dying and the other surviving. The first object of any tyrant in Whitehall would be to make Parliament utterly subservient to his will; and the next to overthrow or diminish trial by jury, for no tyrant could afford to have a subject’s freedom in the hands of twelve of his countrymen. ^[132]

He concluded:

So that trial by jury is more than an instrument of justice and more than the wheel of the constitution: it is the lamp that shows that freedom lives. [Which Lord Lane, a great Chief Justice, once described to me pri­vately as ‘hyperbolic crap’, while maintaining a stout advocacy of the system.]

Here Lord Devlin is clearly not confining his remarks to the require­ment of a fair trial; he, above all, would not have made the mistake of linking his remarks to the strictly legal position, both nationally and internationally. He was attributing to trial by jury in England an import of constitutional significance that reaches beyond the frame­work of adjudication of undiluted criminal liability, based upon the evidence elicited admissibly in the courtroom.

Lord Devlin’s view of the jury, when stripped of its dramatic lan­guage, cannot lightly be dismissed. The essence of his statement is that the strength of the jury lies in the fact that it is not circum­scribed by legal rules; and that it has the power, in practice, to do what it thinks is the justice of the case, and not do just what is tech­nically required by the legal process, to try the case according to the admissible evidence, which is what the jurors’ oath requires. The jury thus evaluates the evidence with both a non-legal eye and a non-professional approach. Mr Justice Holmes, speaking in 1920 for

the majority of the US Supreme Court in Horning v District of Columbia,¹¹ said: ‘The jury has the power to bring in a verdict in the teeth of both law and facts.’ While it must be conceded that the power in its proper exercise represents the jury in a favourable (in the sense of popular) light, its occasional perversity (which its advocates concede happens) is an abuse of power, bearable only because of its instant ephemerality. Lord Justice Auld’s recommen­dation to outlaw perverse acquittals has not been universally accepted.

Thus the oddity of an institution, politically unaccountable in an age insistent upon audit and answerability, remains. But what in fact is this curious institution, which decides the guilt of an accused by way of an unarticulated verdict proclaimed in never more than three syllables? It is, in essence, an oracular utterance devoid of any overt ratiocination. Lord Devlin’s view of the jury as a mini-parliament is of immense historical interest, but must now be consigned to the archives of constitutional history, if only because the extra dimen­sion of a constitutional element cannot be part of a ‘fair trial’.

The nearest example of the dual roles of judge and jury in assess­ing the quality of admissible evidence is to be found in the former’s ability to halt the trial prematurely. The decision whether a prop­erly directed jury, acting reasonably, could convict on any count or counts in an indictment with which the defendant is charged, is made following submissions from defence counsel and in the absence of the jury, usually but not necessarily at the close of the prosecution’s case. The test for deciding whether to remove the case from the jury was authoritatively stated by Lord Lane CJ in R v Galbraith:^{[133] [134]}

(1) If there is no evidence that the crime alleged has been committed by the defendant there is no difficulty - the judge will stop the case.

(2) The difficulty arises where there is some evidence but it is of tenu­ous character, for example, because of inherent weakness or vague­ness or because it is inconsistent with other evidence.

(a) Where the judge concludes that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict on it, it is his duty, on submission being made, to stop the case.

(b) Where, however, the prosecution evidence is such that its strength or weakness depends on the view to be taken of a wit­ness’s reliability, or other matters which are generally speaking within the province of the jury, and where on one possible view of the facts there is evidence on which the jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury.

If the judge’s function is, as one robust member of the judiciary described it, ‘making sure the jury brought in the right verdict’, a judicial view of the accused’s innocence could be effected by exer­cising the power to stop the trial. But that, in contemporary condi­tions, might be said to fall foul of Article 6. A fair trial must be fair to both sides, defence and prosecution. If the judicial view is of the accused’s guilt, the judge will hope to steer the jury in the right direction. But leading the jury by the nose is a hazardous practice which, the advocates of the jury system would say, is one of the reasons for having the jury!

As such, the system, the functioning of which we are only dimly aware (due to the secrecy of the process) is fondly thought to be supported by the public and the majority of the legal profession. But the jury has always had its detractors, both ancient and modern, as well as its loud proponents. In 1844, Gilbert a Becket, soi-disant descendant of the ill-fated, legally qualified, Archbishop of Canterbury, and author of the Comic History of England (a Becket was both a lawyer and regular contributor to Punch magazine), said of the jury that it was ‘difficult to see the British bosom with a sufficiently tranquil state to discuss this great subject, for every Englishman’s heart will begin bounding like a tremendous bonce at its bare mention’. Fifty years earlier, the views of Jeremy Bentham, a notable iconoclast of English legal institutions, finds an echo in the provisions for jury waiver. He wrote:

I give it to those who choose to have it, in cases in which they choose to have it and not unless they insist upon having it: looking upon it as an institution admissible in barbarous times, not fit for enlightened times, necessary as matters stand in England.^[135]

Bentham today is the accepted libertarian, and my comment is: A monument to unassertive sanity!

If the jury is perceived as the protector of civil liberties, rather than just as an appropriate mode of trial of an individual accused, the English view would be that, at best, it has provided protection for small minorities, such as the fascists of the 1930s, the protesters at the deployment of British troops in Northern Ireland in the 1970s, the opponents of genetically modified crops in the 1990s, and leak­ers of official secrets in the twenty-first century. Professor Glanville Williams, probably the most outstanding academic criminal lawyer in post-war Britain, did not support the general view of the jury as the great protector of our liberties. He argued that most of the great pronouncements on constitutional liberty from the eighteenth cen­tury onwards have been the work of judges, either sitting in appel­late courts or giving directions to juries, and the assumption that political liberty at the present day (he was speaking in 1955) depends upon the jury is ‘merely folk lore’. (One might cite Lord Mansfield in Sommersetfs Case (1772),^[136] that if a slave were brought to England he must be treated in all respects as a free man.) Professor Plucknett, Professor of Legal History at the University of London, wrote in 1929:

Ever since the seventeenth century when juries began to express senti­ments against the government, there has been a tendency for the jury to become, at least in popular thought, a safeguard of political liberty. It is only natural, therefore, that its history should have been idealised and traced back for patriotic reasons to the supposed golden age of Anglo- Saxon institutions.^[137]

Given the significance of his continental European origins, educa­tion and training, Professor Sir Leon Radzinowicz, the eminent criminologist, unequivocally rejected the basis of the non-jury sys­tems of Western Europe:

The longer I live and cast my eyes on what is going on in the world at large, I firmly endorse the saying of W.L. Birbeck that the jury and the law of evidence are an Englishman’s two great safeguards against the worst of all oppressions - that oppression which hides itself under the mask of justice!^[138]

And one could go on, ad infinitum, quoting both the pros and cons of this very English institution.

But will it last in an age of austerity? A citizen charged today with an indictable offence is obliged to undergo trial by judge and jury. Pronouncements against the jury system from authoritative voices cannot, therefore, hope to unlock the iron-fast equation between serious criminal offences and trial by jury. For some of its loudest proponents, the jury is simply an article of faith: not much room for debate there. But sober and rational debate must accompany the Government’s legislative attempts to unlock the equation.

Even those in Government, driven by considerations of cost, are also quick to declare their faith in the jury system. But, as Lord Justice Auld in his Review of the Criminal Courts in England and Wales reminded us, it is doubtful whether the various metaphors are apt as a principle or a practical justification for the institution in contemporary society. The jury can hardly be said to be representa­tive of the community as a whole, notwithstanding the enlargement of jury qualification, matching the right of the adult citizen to vote, and randomly chosen without reference to their individual capacity for effective participation in the trial process - decisions, inciden­tally, for which they are publicly unaccountable and unanswerable. The jury cannot even properly claim to be a democratic institution. It cannot claim to confer a right on the citizen, since for the most serious crimes it is inflicted on the accused, willy-nilly, or on the merciful approach of the prosecutor, who can downgrade the crime on which the charge is framed. As Lord Justice Auld states, it is ‘not some ancient, constitutional, fundamental or even broad right of the citizen’. As an absolute obligation, moreover, it can hardly be dubbed a ‘right’.