THOSE WHO MOST vocally proclaim the supreme virtue of the system of trial by jury
(strictly speaking, in the English system, it is trial by judge and jury, the two in harness functioning in an unspoken alliance to pronounce the verdict) rely heavily on the famous aphorism of Lord Devlin in the Hamlyn Lectures of 1956.
He wrote: ‘Each jury is a little Parliament... it is more than an instrument of justice and more than one wheel of the constitution: it is the lamp that shows that freedom lives’. It is the last nine words that most frequently come trippingly off the advocate’s tongue. Putting on one side its allusion to parliamentary practice, if Lord Devlin’s classical view of trial by jury is the starting point for any valuable assessment of the system, what did the words encompass? Was it meaningful rhetoric, or a monumental myth? Do his words encapsulate a constitutional element, even if they are unwritten? Clearly, the illuminating phrase purported to claim for the jury the unauthorised power to do three things: first, to reject the relevant law (common law or statutory provision) that criminalises the wrong for which the defendant is being tried. Second, to reject, not the criminalisation of the act, but the level of sanction attached to it, displaying a distaste for penal sanction. And third, while jurors may accept the relevant law and the concomitant sanction, nevertheless they simply have no desire to see them applied to the particular defendant on trial. All three situations are said in their differing ways to justify what is called ‘jury nullification’ - in other words, the power of the jury (with or without help from the judge) to negate their oath to try the case according to the evidence heard in the courtroom and not including any extraneous material. Constitutionally, jurors are entitled (so it is proclaimed) to exercise their vote in defiance of their oath of office. At best, these matters are conventionally asserted.Jury nullification has been the subject of academic study for some time, seeking to justify an expression of popular opinion. The advocacy of juristic independence finds its statutory basis in the oath administered to each juror. It overlooks or ignores that the juror’s expressed duty is to deliver a unanimous verdict (only after 1967 could there be a majority vote of 10-2) on the evidence admissible in the proceedings. Jurors were encouraged to ensure that they did not look to any extraneous material for the purpose of its statutory duty. Therein lies the growing problem of information technology.
The proponents of jury trial unthinkingly assert that it is a right - even a fundamental freedom - that belongs to every person charged with an indictable offence. But this is not so. There is no option. If charged, the defendant is under an obligation to undergo a trial before the established criminal tribunal. A constitutional right must be the subject of choice. Yet there remains stout opposition from supporters of jury trial for any waiver, in favour of a professional tribunal. Some Anglo-Saxon systems have a limited right to ‘bench trial’, and occasionally extreme considerations have led Parliament to approve the removal of trial by jury (such as manifest nobbling of witnesses or jurors). In the cause of anti-terrorism in Northern Ireland, for 30 years the ‘Diplock courts’ (trial by a single judge) operated a system that was acceptable to all in terms of criminal responsibility for terrorism in the Province.
The mode of a fair trial is the test under the common law of England, as complying with Article 6 of the European Convention on Human Rights, which is not more specific. In the case of Taxquet v Belgium,[129] in November 2011 the Grand Chamber declined to favour any established mode of trial. So long as the system produced a ‘reasoned verdict’, it would comply. Jury trial in any case remains intact.
Devlin attributes to the jury an element over and above the ‘instrument of justice’, but it is difficult to discern what that element is, if it means more than that the juror’s verdict is unaccountable and unanswerable (subject to the limitations of the appellate process).
A verdict of acquittal is inviolable; no public system can declare it other than an end of the trial. Even the recommendation from Sir Robin Auld in 2001 in his survey of Criminal Justice, that a perverse verdict of the jury should become reviewable, has so far been rejected. The legal profession maintained the purity of jury decision, if otherwise directed correctly on the law and the admissibility of the evidence. Proportionality in the decision in relation to the criminal offence plays no part in the process.The jury’s duty is two-fold: first to apply the relevant law as directed by the trial judge, and secondly to evaluate the available evidence after a proper direction from the judge. Strictly speaking, the jury must apply the law as it is told to them; factual judgment is entirely for the jury collectively. Their verdict is unarticulated and unreasoned. Whether the absence of a reasoned verdict invalidates the process of a ‘fair trial’ has been held by Strasbourg to constitute a violation, but the essence of jury trial (if it procedurally exhibits a fair trial) has not been declared a breach of a modern mode of criminal trial. Each conviction must nevertheless contain a procedure whereby some reasoned issue can be discerned. It may be that the courts will begin to develop a method whereby the trial judge administers to the jury a questionnaire, to which answers supply sufficient reasons for the verdict. We have yet to witness the ambit of a jury’s verdict as a mode of trial compatible with the Convention. Better than mouth Lord Devlin’s hyperbolic label as a constitutional constituent of right for serious crime, the proponents should examine how the system can be modified, and whether trial by jury should not be a matter of choice rather than imposed by the prosecuting authority. If the value of the verdict is the criterion, that is one thing. The quality of the criminal process is the crucial element.