You can certainly trace juries back to the 12th century initially dealing with land disputes and subsequently entering into the world of criminal cases. Their function was very different in that their members gave evidence for or against an accused in what was then an inquisitorial as distinct from adversarial system. If the unfortunate defendant was convicted, he would all too often be submitted to trial by ordeal presided over by a cleric until Pope Innocent iii put an end to that that at the beginning of the 13th century. It is perhaps worth musing on the fact that this is the same Pope who annulled the Magna Carta! My personal favourite trial by ordeal was the ducking pond in which the unfortunate accused was tied to a plank and lowered down into the water. If he or she (many were alleged to be witches) drowned, they were deemed innocent (albeit now deceased). If they survived, they were guilty and could cheerfully be burned at the stake, hung drawn and quartered or sent to their maker in some equally unattractive and gruesome fashion! There were plenty available alternatives usually involving chopping off body parts in one way or another. Let us pause a moment lest we forget the ever-popular, eye gauging!
As we supposedly became a more civilized society, public whippings and banishment to far off lands came to the fore. The jury’s role, however, remained for the most part inquisitorial. If they found a case to answer, then a jury of 12 would hear the evidence. The grand jury disappeared in the UK in the 1930s but the jury of 12 (the Petit jury) remains to this day.
A defendant is tried by his peers in the more serious cases and in some other cases he will have the choice to be tried by the jury or not, the alternative being the magistrates court. This area of choice seems to be the first point of attack for those who seek to put an end to Juries. I suggest almost all lawyers who have the privilege of advocating in the Magistrates court would choose to go before a jury virtually every time.
The judge deals with the law with the benefit or otherwise of counsel before him. I mean no disrespect to the alternative in the Magistrates court namely the clerk to the magistrates or the magistrates themselves but when they are asked to give their reasons for their decision one sometimes wonders whether they were actually in the court next door!
The cynics say that the choice of a jury is primarily because defendants think they will have a better chance of “getting away with it.” The reality is that defendants and their counsel have little faith in lay magistrates to deliver justice or accept that police officers they recognise from other cases are not as straightforward as they always believed them to be. Furthermore, lawyers like to have time to carry out their enquiries and review what the police have and have not done. These lawyers will of course end up paupers if they do all this on the current legal aid rates but that is for another blog!
The jury system is now under attack. Those in favour of ending juries, present an array of arguments. They argue that we can no longer afford such a system (advocating a further dumbing down of our society.) Juries, they say, fail to see through defendants but a judge would not be hoodwinked and this in turn would result in pleas of guilty and the release of valuable court time. Personally, I have found that juries are very astute and very good at producing justice. It is quite wrong to insult them in this way just because they bring in a ‘not guilty’ verdict sometimes. The sceptics who seem primarily to advocate change for reasons other than justice (mostly money and now catching up on a horrendous and increasing backlog of cases) argue that cases are often too complex for jurors who may lack the education and intelligence to follow e.g. a complicated fraud case. In reality, if the jury does not understand the case it is usually because the prosecuting barrister has been inept in explaining it!
Those who oppose juries argue that it is an unfair imposition upon the jurors themselves to take them away from their businesses, employment or family and the current measures to address that are inadequate. I disagree.
They believe that one dominant Juror can impose their will upon the other jury members who will often agree with a decision in order to get home to their families (such little faith in our citizens). They expressed concern that jurors might be intimidated or come under threat for carrying out a public duty for which they did not volunteer. I think most people involved in the criminal system will agree that ‘jury nobbling’ is something more akin to novels than reality. I do not suggest that it has never happened, but it is very very rare for a juror to be successfully ‘nobbled’.
Those opposing juries will say that the jurors may have little in common with the defendant and no experience of similar people whereas the judge hears it every day. Funnily enough advocates in favour of preserving juries take exactly the opposite view explaining that Jurors bring experience from very different fields to the courtroom and are objective and treat each defendant individually because they do not have the cynical approach of someone who has “heard it all before”. I think there is some validity in the additional argument that whereas a few Judges may have come from different backgrounds, too many of them have spent their time studying at public and grammar schools and subsequently at universities and have not been out and about in the wide world although they think that drinking in the students union bar means they have experienced life.
At this point, one may wish to just sit back and look at the judges sitting in our courts, and remark on the lack of balance in representation of ethnic groups. The jury will be far more inclusive as will the dock. There is also a sneaking suspicion that the bench is occupied too often by people who have been promoted for reasons other than their ability which will include going to and dining in the right bar mess, or playing with the right golf partners. If we are to be truly objective, we must accept that promotions just to create diversity rather than recognise ability are also unacceptable.
Those advocating the abolition of juries argue that before a jury a defendant’s future is more likely to be decided upon the personality and skills of his advocate than it ever would before an experienced judge who would not be so easily charmed. Juries are not idiots, they listen to the evidence. Certainly it helps when the advocate engages with them in a direct and human way but they are not twelve fools sat in a courtroom.
I have seen many juries over many years and usually they get it right based upon the evidence they hear, and the charges brought (which are not always the ones likely to result in a conviction). As for the record of judges, many convictions have been overturned subsequently.
We also hear arguments which point to the real reasons for trying to destroy our legal system and the role of juries in particular. The high cost of jury trials allegedly uses up public money which could far better spent compensating victims! (as if it would be ringfenced and used for that purpose) We do away with all manner of things to save money e.g. foreign aid, but would you really want to start stepping backwards in time and diminishing our values and traditions. Ordinary people play their role in voting in our politicians in our democracy. Why should the public not continue its role in preserving justice and give up power to a privileged few? The jury is the people. They do not elect the judges.
A new addition in the arguments of those who would change the system is COVID-19 which has resulted in a huge backlog of criminal cases. The cases need to be cleared quickly so swift justice, with no jury to examine the case, should become the order of the day. The reality is that the criminal justice system was in meltdown before there was a virus because it was wholly underfunded and bogged down by successive layers of red tape, over-regulation and compliance. The backlog before COVID-19 was about 40,000 cases and increasing as courts were closed down, and cases were adjourned because an understaffed overburdened Crown Prosecution Service could not prepare cases in time. An obsession with format has taken precedence over substance. One size fits all. Box ticking might suit computers but it does not make for fair and compassionate justice. The Jury system may be expensive, but it is the absolute foundation upon which our society is built. I suspect any changes brought in as short-term now, will tend to become permanent.
Barristers in some areas have been offered the opportunity to work weekends and evenings in court to clear the backlog. They already work long and unsociable hours. After court, they prepare cases and see clients and have to attend to their chambers business. Most criminal barristers do legal aid work, but it is not clear how long they can survive on those pay scales so you might think they would need the extra pay. No mention of how much extra (if anything) they would get. Do you remember the concept of work-life balance so lauded by this and previous governments?!
If it boils down to saving money or preserving the very foundation of our criminal justice system, I choose to keep our juries. Other countries have different systems, some better than others from the point of view of their ordinary citizens, but our juries work. Our system does not need fixing but it does need funding!
This blog was written by Stephen Fox
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