THE HISTORY OF THE JURY

Let us look for a moment - even if superficially - at the history. The Greeks had a jury system, but ours did not derive from it. Although not all historians today are in accord on this topic, some say that the germ of the modern English jury is to be found in ninth-century France, a by-product of feudalism which took root in a different complexion in the Anglo-Saxon world.

At any rate, in England, it spread as a mode of trial, competing with the ordeals which were ecclesiastically outlawed in the thirteenth century. According to Maitland, the jury was not imme­diately popular. He states that, at first, trial by ordeal was generally considered more desirable, more safe. (Parenthetically, we might add ‘satisfactory’, the phrase used in the Criminal Appeal Act 1968, but unwisely jettisoned in the Criminal Appeal Act 1995.) But the jury later superseded trial by ordeal. By the end of the fifteenth cen­tury in England the jury began to develop into what it is today - no longer a body of witnesses, but a body of persons randomly selected who hear the witnesses and who are not privy to the events under scrutiny. In the seventeenth century, the jury came to be highly regarded, popularly, as a check on Royal judges doing the bidding of the Crown.

To return briefly to the historical development of the jury system. In the American colonies (as elsewhere in the British Empire) juries often stood up to judges controlled by a hostile British Government. Little wonder, then, the adoption by the US and state constitutions, after the American revolution began, of provisions entrenching jury trial. Later, in the period when the Jeffersonians were pitted against Federal judges, juries were often anti-judge. So, in the US, the jury was considered a champion of the popular cause, cherished as a bulwark against oppressive government, acclaimed as essential to individual liberty and democracy. While it is appropriate to regard the modern jury as essentially an Anglo-American institution - the more so, since the US is truly trial by jury, whereas in England it is trial by judge and jury - other systems combine the legal and non- legal as the decision-maker after the facts are found by the juge d’instruction in the form of a dossier for the court of trial. The inter­action of the English judge’s summing-up of the evidence and direc­tion on the law is in sharp contrast to America, where the judge is debarred from relaying the factual evidence with the jury, and com­menting on it - neutrally, of course - to the jury.

Trial by judge and jury for the most serious crimes - less than 1 per cent of all prosecuted crimes - supposedly retains public confidence. But I suspect that that confidence is waning, and is not universal. Yet it is likely to be the mode of trial, perhaps even at the election of the accused, for some time to come. It is incumbent on a civilised system, however, to pose the crucial question, as the Morris Committee on Jury Service in 1965 did. Stripped of all the rhetorical response that comes trippingly off the protagonist’s tongue, does the jury, as a mode of criminal trial, provide as good, if not a better quality of justice than other modes, primarily trial by professionals)? That is the question: not whether trial by judge and jury is a fundamental freedom or God-given right to the English. Lord Brennan QC, in the Lords’ debate, at least conceded that, if the value attached to trial by judge and jury is to be altered, it must be justified by serious, intelligent and convincing evidence and argu­ment.

A circuit judge, Judge Andrew Geddes, wrote in the Guardian^[140] severely questioning whether juries were delivering justice. I sus­pect that his critique on the efficiency and effectiveness, not to say fairness of jury trial would be echoed by many of his colleagues on the Circuit Bench and many High Court judges today - but perhaps only in private!

No contemporary study has been possible in England, because since 1981 there has been a statutory ban on jury research. Even before 1981 it was thought improper - even a contempt of court - for jurors to reveal what happened in the secrecy of the jury room, although on occasions articles appeared in journals and elsewhere. Research has hence been meagre, effectively confined to countries outside the UK.

Since the legislative ban of 1981 there has been a deafening silence about the workings of the jury system. The Royal Commission on Criminal Justice (the Runciman Commission) in 1993, in a study conducted in the Crown Courts, revealed that judges and prosecut­ing counsel thought that jury convictions ran contrary to the evi­dence or the law in 2 per cent of cases. Professor Zander, a member of the Commission who organised the study, predicted uncritically in his recent Hamlyn lectures that jury trial will remain with us for the foreseeable future - a self-fulfilling prophecy, no doubt! Other thoughtful commentators on the legal scene and practitioners in the Crown Courts of England and Wales will echo the sentiment of GK Chesterton that our civilisation has decided, and very justly decided, that determining the guilt or innocence of men is a task too important to be trusted to trained men.

We should not forget who is ultimately responsible for wrong verdicts. The Runciman Commission in 1993 reminded us that the convictions of the ‘innocent’ and acquittals of the ‘guilty’ - the ‘miscarriages of justice’ - are exclusively decisions of the jury. No one can anticipate the jury’s verdict, the only body that can declare anyone innocent or guilty of the crime charged. The police may have fudged or even concocted the evidence; the prosecutor may have incompetently prosecuted the case; the defence counsel may have done a botched job for his client; the judge may have mis­directed or over-persuaded the jury in a way that does not fall foul of the Court of Appeal, or inappropriately excluded relevant evi­dence; the appeal court may feel that it cannot interfere because the jury is exclusively the fact-finder, a matter which in principle must be respected. But the jury is the exclusive decision-maker, adjudi­cating on the evidence elicited before it. Has the jury the equipment and ability to see through all the potential defects of the criminal process? Its failure to discriminate between the correct and incor­rect result must constitute an ever-present worry to the administra­tors of criminal justice.

The courts have often said that juries cannot be expected to give coherent reasons for their decisions, and regularly do not do so. There could be no better illustration of the enormity of the task they might face in doing so. The trial judge in Boreman¹⁹ in 2000 found it necessary to instruct the jury in the law relating to murder, causa­tion, self-defence, provocation, the effect of intoxication on the specific intent in murder, and the ‘all important matter of joint enterprise’, to say nothing of standard directions on the burden and standard of proof - at least half a term’s course for an undergraduate studying criminal law! In addition, the judge ought to have directed them as to the need for unanimity on the basis of each defendant’s guilt. The judge would deal only with those aspects of the law which were relevant to the present case; but this was a formidable task for him, and much more so for the jury. And what about the assessment and evaluation of the facts, on which the judge was bound in his summing-up to assist the jury? The jury could never reasonably have been expected to give coherent reasons for its deci­sion on each of these matters. Indeed, they would probably not be able to produce composite reasons this side of Doomsday!

But if the giving of reasons is an essential feature of due process and of justice, and if it is impracticable to require juries to give rea­sons, where does that leave the jury system in an English trial, now dressed up in European garb?