THE FUTURE OF TRIAL BY JURY

Jury trial in England and Wales, as I have already noted, is in fact trial by judge and jury. The former has the duty to direct the jury on the law and to sum up the relevant facts.

issues. But we have no idea about the chemistry of that relation­ship. Juries are presumed to do what they are told is the law. But there is evidence, almost entirely anecdotal, that juries will occa­sionally, even perversely, defy the judge who indicates a convic­tion, and will acquit. Conversely, a judge who leans toward an acquittal will sometimes be rebuffed by a convicting jury. Given the opacity of the problem, what will the courts say about jury trial and the right to a fair trial which involves essentially a reasoned verdict of the decision-maker?

A possible approach will be to say that the complementary role of the judge and jury adequately satisfies the requirement of the rea­soned decision. Assuming that the jury loyally follows the judge’s directions on the law, and is fully apprised of all the relevant facts, the standard of a fair trial would be adequately met. But it will mean that trial judges will have to tailor their recitation of the facts in a way that supplies, by a process of forensic interaction, the requirement of reasons. It will mean that the Court of Appeal (Criminal Division) will have to be more insistent on a high-quality summing-up. No lati­tude, along the lines that the jury will have listened carefully to all the evidence without careful exposition of the relevant evidence, will be permitted, although there are few judicial advocates in favour of abolishing the summing-up of the facts to the jury.

The future survival of the jury system is nevertheless clearly under threat from the new legal order of the Human Rights Act 1998 and the necessity to provide reasons as an ingredient of a fair trial. The alert has been given by the European Court in Taxquet v Belgium in 2011,²⁰ without taking sides on the precise meaning of ‘mode of trial’. For now, trial by jury survives, so long as it provides a ‘fair trial’.

The jury is the highpoint, the apotheosis, of amateurism. As such, it is potentially a recipe for incompetence and unbridled bias. Civilised systems of criminal justice increasingly demand profes­sionalism from those operating the trial process. I do not mean to be contemptuous of the amateur’s ability to judge human conduct. It is only that the task of evaluating evidence in the courtroom is a job

for professionals, not for occasional amateurs. It is the insistence on judiciality (behaving as a judge).

Any change to trial by judge without jury, if it comes at all, will inevitably be slow in its advent. Already it can be substituted if there is evidence of ‘jury tampering’. The British are likely for years ahead to remain wedded to the institution, but the cornerstone of jury trial is being gradually chipped away. The masonry is gradu­ally losing its angularity, to the point where the new surface will uncover optional modes of criminal trial. We need to start educat­ing the British public that the gradual dismantling, or even ultimate disappearance, of its cherished institution will not be disastrous. It will in fact bring clarity and purpose to a civilised process of ensur­ing justice to both prosecutor and prosecuted.

Since Government has no specific interest in the prosecution of crime, other than to bring offenders to justice on behalf of victims and society generally, the judge cannot properly be seen as favour­ing the Crown rather than the accused in the dock. There is no basis for imputing perceived bias, one way or another. Individual preju­dice and preconception is readily avoidable by the precepts of judi- ciality. It may be that where the offence charged is one of the crimes against the State (e.g. the Official Secrets Act), civil liberties might at least dictate a choice of trial by judge alone or a jury of 12 lay persons. That apart, we should begin to modify the system of jury trial, at least by developing the waiver, giving a choice to the accused of the mode of his or her trial. Another modification should be the change to trial by special tribunal for serious fraud cases for reasons of economy of resources and time, as well as to remove the strain on jurors; they will at least serve to demonstrate the validity of professionalism in criminal justice. And if the police evidence of intimidation and harassment of jurors and witness is valid, is not the example of the Diplock courts sufficient to justify trial by judge alone?

Trial by judge alone, in restricted classes of case, may establish whether the lay element in the judge/jury system does provide added value to criminal justice. If so, there may be room, particularly in complex fraud cases, for a tribunal composed of judge and specialist assessors as the joint decision-makers. Other modes of trial, compli­ant with Article 6, ECHR, might also merit consideration.

These modifications of trial by judge and jury for indictable offences are modest inroads to the system. Far from the introduc­tion of a ‘two-tier’, discriminatory procedure, the comparison might be highly informative and evocative, even in the absence of any social research into the inner (secretive) workings of juries; at least judge-alone trials cannot be excluded from research.

The jury is an essential part of the trial. As such, it is subject to the rules of contempt of court that govern us all, in particular those whose job it is to observe and comment. If, argumentatively, the jury represents the public in the democratic process that notionally gives the public a stake in the serious (95 per cent) criminal trial, how does it work? Recent research has uncovered evidence that some jurors need a good deal more guidance and assistance in the forensic role. There is a growing experience about how the jury should govern its role and the method used by jurors to deliberate their decision-making with their colleagues (strangers, but at least temporarily thrown together in concentrated association). Commentators have loosely described their conduct as a ‘perfect storm’ for committing contempt of court. The advent of the internet and associated devices for taking account of information from sources other than those strictly advised within the confines of the unusual ethos of the institutional courtroom must also be taken into account. It all adds up to a potential distortion of the trial, anath­ema to the student of the trial process.

If, but only if, there was some method whereby the jury’s verdict could be assessed by the articulated process of stating the reasons for its decision, the aspect of amateurism would be largely addressed, or at least sufficiently rectified as an instrument of a ‘fair trial’. But without the means of assessing the validity or reliability of the jury, the principles of accountability and responsibility remain uncertain, even unpredictable. Their absence is crucial towards only value judgment. That is why the existence for over 30 years of the practice of terrorist-style trial in Northern Ireland (the Diplock Courts, a system of trial by judge alone) is so valuable as a research tool to the purposes of the jury.

Until society engages seriously in comparative studies - not just with Northern Ireland, but with other countries of Europe, subject to the universal rule in Article 6 of the European Convention of Human Rights - we are depriving ourselves of much valuable mate­rial to adjudicate reasonably on the future of the mode of trial in criminal justice. We must not remain a country that functions with­out any official accountability or responsibility that all other public institutions correctly submit to.

One might add that a jury in the European system is a denial^[141] - true, this is very theoretical - of the independence of the trial judges. By abdicating the ultimate verdict of an otherwise fair trial, the judge negates the essence of his function - to pass judgment on the individual facing the criminal charge.

At heart there is a problem for the modern democrat. What mode of criminal trial is constructed by a civilised country to constitute a fair trial? It has quintessentially to be conducted by an independ­ent and impartial member of an established judiciary. He or she (with or without assessors) must decide the case ‘according to the evidence admissible in the courtroom’ and not otherwise. The over­whelming difference is the contrasting attitude to the formal set­ting. The professional lawyer is imbued with the sense of judiciality by legal training and education. The juror lacks such a skill and encounters the forensic function only exceptionally: he or she can­not be expected to imbibe the ethos of testing the credibility and reliability of witnesses to the same judicial standard. The profes­sional opposes the populist; the latter is the amateur par excellence.