TRIAL BY JURY in the United Kingdom, embedded in the culture of criminal justice, is unlikely to implode in the near future.
The populace is devoted to the process, despite some unceasing questioning of its validity. But the problem of a civilised system of sustaining the society’s criminality frequently misses an essential element of the jury process which is essentially English.
The verdict of the trial is demonstrably that of the jurors, but unlike the American system, the jurors’ decision is arrived at unanimously (but with a potential verdict of 10 votes to two, if unanimity is impossible to reach), and is a composition exercise. The factfinding process is subject to two conditions. First, the jurors are bound to take their instructions on the relevant law from the judge. Since we do not know whether juries faithfully accept this legal direction, we cannot say that they perform their duty.There has long been a suspicion that the jury can, and occasionally does, reject the law; it acts perversely. Never mind the jury acting independently of their legal duty, many proponents of the jury system regard this wayward function as a positive aspect. It is claimed as a distinct impression of the public’s will that its lay representatives should defy the rule of authority. So much is claimed for the return of a perverse verdict that there has grown up a respectable doctrine of ‘jury nullification’. Somehow there is a constitutional principle that endorses the verdict of the jury, even if it appears that it totally rejects the law, or indeed defies the effect of inevitable reasoning of the evidence. A proposal by Sir Robin Auld in his Review of the Criminal Courts in 2001 recommended that there should be a right of appeal against a perverse ruling by a jury. It failed to persuade the Government of the day, and there was a sigh of relief from the devotees of the system.
Even if the jury loyally applies the relevant law, it is still not alone in evaluating the facts.
The second condition of the fact-finding process is that the jury is required to listen and inwardly assess the views expressed by the judge in the summing-up of the evidence. While the summing-up should be neutral, there is nothing to deter the judge from expressing a view that might strike a chord with all or some of the jurors. The decision-making process is therefore a mixture of views from the Bench and the jury room, but achieved by an unknown process. The alchemy of judicial evaluation and juror assessment is achieved in separate roles. Over the years, the judges in the appeal court have focused further on the direction given to jurors. This has led to the development of supplying the jury with a questionnaire that is designed to assist the route towards sound reasoning. Simple answers to questions are given in aid of the monosyllabic verdict. The problem is, how can the court otherwise discern the combined effect of eliciting the evidential material? Access to the internet, seeking information beyond the evidence adduced in the courtroom to the trial process, has brought in complications. Courts are exercising contempt powers if jurors are known to have acted unlawfully. The ambit of information permissible to the confines of the evidence at trial is a continuing concern. It exercises the judges in administering a fair trial for both the accused and the prosecutor.It is the duty of Government, subject to the Human Rights Act 1998, enacting Article 6 of the European Convention on Human Rights, that it does no more than generally require a mode of trial that is fair. So far, Strasbourg has interpreted that the trial is fair without deciding on the particular mode of trial. If all it requires is that every aspect of the process must accommodate the principle of a reasoned verdict, the fact that the English jury is not required to deliver expressly a reasoned verdict does not invalidate its one- word verdict. Each case has to be tested according to its own facts.
Hence implicit reasoning can supply the absence of an explicit verdict that is unreasoned.The European Court of Human Rights has left the door open on the prescribed mode of trial. It says that there is no stated requirement in the Convention that jurors should give their reasons for the verdict, and that trials by non-professionals who decide cases unreasonably are valid. Reasoned decisions form part of the guarantee of a fair trial. Nevertheless, the requirements of a fair trial must be maintained; the public must be able to understand that the decision has been safeguarded from any condition that betokens unfairness. The result is thus essentially episodic. Fairness must be assessed, on a case-by-case basis, on the peculiarities of the system that allows verdicts to be unaccompanied and unarticulated from the totality of the proceedings. The reasoned verdict can thus be inferred. The absence of a definitive ruling on the mode of trial thus prompts the question, what next? The jury system is left unquestioned, but it cannot be inviolate. Reform instinctively and increasingly beckons the case for some mixture, reciprocated by a separate process of reform, of the binary systems of criminal justice within the European Union. If nothing else, the practice of extradition within the European Union, backed by the European Warrant of Arrest, has signalled a desire for reciprocity.
The desire to produce a fair trial for every accused continues to encounter problems in the world of modern technology. In March 2014 at the annual meeting of JUSTICE, the incoming Lord Chief Justice, Lord Thomas, in his Reshaping Justice,[142] alluded to the need for revising the use of juries in serious fraud cases. If the judicial alert to such change does not resonate with traditional voices, the move towards modification has led to official studies on the issue of mixed tribunals.