In order to decide whether or not trial by jury should or should not be abolished, we need to know what it is that we are dealing with and what viable alternative or alternatives there are to it.
I will take a brief look at the history of the jury trial. I will examine the function of the jury; look at what is good and bad about the jury system.
Finally I will examine the proposed alternatives to trial by jury that are currently in fashion.
The jury system first arrived in Britain after the Norman Conquest. The earliest jury was a body of neighbours summoned by a public officer to give oath as answer to some question. The sworn inquest was used to enable the recognition on oath of a number of upstanding members of the community to testify to facts which they had personal knowledge. Those called were not judges of fact, but witnesses.
By the end of the twelfth century, a person accused of a crime could, on payment obtain the right to obtain a trial by jury. (I will return to this point later when I look at the government’s proposals to remove the right to elect jury trial in either way offences)
When Pope Innocent III abolished trial by ordeal in 1215 and compurgation (the accused sought to clear himself by his own oath backed up by the oaths of friends and neighbours, who testified to his character rather than to the facts) fell from favour a need arose to find a new method of establishing guilt. Judges who went out on the circuit in England gradually developed the practice of selecting a trial jury of 12. Jury trial on indictment remained the normal mode of trial until the middle of the nineteenth century. The act of 1855 ‘for diminishing Expense and Delay in the Administration of Criminal Justice in certain cases’ permitted certain cases of larceny to be tried by Magistrates, so long as he agreed. The Summary Jurisdiction Act 1879 listed for the first time those offences triable in the Magistrates courts. The act also set out for the first time a general right to claim trial by jury when the maximum sentence for an offence exceeded three months imprisonment. (From the above we can see that it is not just modern governments that have been interested in reform of the jury system)
Over the course of time the list of summary offences has grown and a new tier of offence, offences triable either way was created. (It is this area that the current government is grappling with at the moment) As these lists have grown the number of cases that are tried by a jury has fallen.
The crime figures published for 1998-99 show that there were 5,254,000 offences recorded by the Police. Of these 1,993,600 were tried, 1,879,000 at Magistrates courts and 114,600 at Crown Court. Just over 6% of cases were tried in Crown Court. (So you might say that if so few cases end up at Crown court what is all the fuss about abolishing it.)
Moving on to the second topic, the function of a jury.
Here I propose to briefly outline its function, composition and some of the advantages and disadvantages of the jury system.
The function of a jury is to weigh up the evidence in a trial and to decide what actually happened. They will then deliver a verdict. If that verdict is one of guilty the judge will then decide the appropriate sentence. In civil cases the jury will also decide the amount of damages to be awarded.
One of the arguments put forward in favour of the jury trial is that it allows ordinary members of the public to participate in the administration of justice. There are however a few holes in this argument in that in practice a jury is not always made up of a representative sample of the public. There are several reasons for this, one of which is that potential jurors are chosen from those people that are currently on the electoral roll. This automatically excludes a significant proportion of the population that would otherwise be eligible. Auld said on eligibility. The only qualification required for jury service in England and Wales, apart from age and ordinary residence in this country, is entry on the electoral roll. The nature of this record results in under-representation of those in their early 20s, ethnic minorities and the more mobile sections of the community, such as those living in rented accommodation.
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The second reason for under representation of certain sections of the population is the number of people that seek to be excused or simply don’t turn up for jury service.
About a quarter of a million people are summoned for jury service every year. A recent Home Office research project suggests that only about a third of them are available to do it. It shows that, in a sample of 50,000 people summoned for jury service in June and July 1999, only one-third was available for service, about half of whom were allowed to defer their service until a later date. Of the remaining two-thirds, 13% were ineligible, disqualified or excused as of right, 15% either failed to attend on the day or their summonses were returned as 'undelivered' and 38% were excused. This said juries still form a more representative sample of the community than do Magistrates or the Judiciary, which are largely white and come from Middle class backgrounds. This is not to say that I am accusing either of the above of bias, but it could be said that a jury trial might seem to be the fairer from the point of view of the defendant. In order to improve the composition of our juries it will be necessary to change several things to improve the size of the pool that jurors are drawn from and to make those called less likely to ask to be excused. According to the Auld report. ‘A Central Juror Summoning Bureau has now been established to administer the juror summoning process for the whole of the country. It is designed to overcome the deficiencies of the former system, principally in securing a better match in numbers of jurors summoned to the workload of each court, in providing better communication with potential jurors and accommodation of their needs, and in bringing greater consistency to the treatment of their applications for excusal or deferral. It has developed a computer system to select potential jurors at random from the electoral roll and to generate summonses and letters confirming dates for service.’ The report goes on to say that this body would be well positioned to implement proposed changes to the system for choosing jurors
Auld proposes the following. No change in the present statutory criteria for qualification for jury service, save as to registration, as distinct from entitlement to registration, on an electoral roll; and amendment of the law to substitute for the condition of registration on an electoral roll, inclusion in such a roll and/or on any one or more of a number of other specified publicly maintained lists or directories, but excluding anyone listed who, on investigation at the summons stage, is found not to be entitled to registration as an elector.
If these changes were to be implemented then the pool of prospective jurors could be significantly increased thereby helping to make juries more representative.
Another reason for under representation in juries is the apparent ease that people summonsed can excuse themselves from jury service. It is possible to be excused siting reasons such as Childcare problems, work commitments and even holiday commitments. In order to reduce this problem a policy of both encouragement and enforcement is needed. Some of the recommendations from the Auld report could help in this area. A review of the amounts of allowances payable to jurors for their attendance at court; and consideration of an additional allowance to cover the cost to potential jurors who, but for it, could justifiably claim excusal because of caring responsibilities. I recommend that there should be rigorous and well-publicised enforcement of the obligation to undertake jury service when required and that consideration should be given to doing so by way of a system of fixed penalties subject to a right of appeal to the magistrates.
Juries have the right to judge according to their conscience, that is to say a jury has the right to pronounce any verdict that it sees fit without fear of punishment. The perverse verdict has been used by juries when issues of moral and political controversy have come before them in cases such as R v Kronlid and Others and R v Ponting. This type of decision is not limited to Political cases as the case of R v Owen Illustrates. To my mind the perverse decision is a strong argument on its own for the retention of the jury trial for two reasons. This kind of decision would not be tolerated if made by Magistrates or judges. Secondly it forms some protection against oppressive or politically motivated prosecution. However the perverse verdict is not just about the jury’s ability to protect a small number of defendants from oppression. They can come about because the jury has failed to understand the evidence properly. This may be better termed an unreasoned verdict. A study by Mc Cabe and Purves looked at 173 acquittals and concluded that fifteen (9%) defied the evidence.
At this point it may be pertinent to remind ourselves that the purpose of a trial is to determine the guilt or innocence of the accused based on the facts presented and to deliver a verdict according to the law. This is the same for all modes of trial not just in jury trials.
In order to tackle this problem it would help to know how juries reach a verdict. At the present this is not possible because of the Contempt of Court Act 1981, which prohibits asking jurors how they came to their decision. If this act were changed to allow research into how juries come to a decision the problems associated with this type of verdict may be addressed. Another approach might be to remove the right altogether thereby bringing jury trial in line with other modes of trial.
A criticism of trial by jury is that it a defendant’s fight to trail by jury in either way offences can be
Manipulated, to the advantage of the defendant. Those in favour of limiting or abolishing this right
Claim that this is a major problem. In the government consultation paper on determining the mode
Of trail it states.
For defendants who admit their guilt, there are on the face of it few advantages in Crown Court trial: cases are likely to take longer to come to court and the upper limit on Crown Court sentences exceeds that in the magistrates’ court. It has been argued that the additional delay at the Crown Court represents an attraction for some defendants anxious, for example, to enhance mitigating factors (such as stable personal relationships or employment record) or to maximize time spent remanded in custody to offset a prospective custodial sentence. The present survey provides some support for this view, but according to their solicitors, most defendants who elected intending to plead guilty were motivated by factors other than delay. The reasons most frequently cited to explain this choice of venue were the defendants’ previous experience with the courts, and greater confidence in a hearing at the Crown Court than before magistrates. This is consistent with the finding that some three-fifths of those who elected and eventually pleaded guilty were, at the time mode of trial was decided, actively considering contesting their cases. The decision to plead guilty often appeared to have been taken at a later stage.
The 1998 1999 statistics on crown court prosecutions are as follows.
(100%) committed for trial at the Crown Court: 87,400
Pleaded guilty: 21%
Proceedings terminated before trial (charges withdrawn): 14%
Trial stopped and acquitted by the judge after hearing the prosecution evidence: 2%
Acquitted by a jury: 7.7%
So we can deduce that of those committed for trial at Crown Court the remaining 55.3% were found guilty by a jury and that the total judged by a jury was 63% and that juries found around 87.8% of those defendants they judged guilty.
On the face of things it seems that a significant number of defendants do elect to be tried at crown court only to plead guilty at the door of the trial. However a study by Professor Lee Bridges, of the Legal Research Institute at the University of Warwick, Suggests that half of those who change their pleas to guilty at Crown Court are likely to have had the charges against them reduced. If this were the case then if the charges had been correct in the first place many of these cases would never have come to the crown court in the first place.
There have been attempts recently to remove the rights of defendants to a jury trial in either way offences and allow Magistrates to decide on which cases can be referred to Crown Court. This would undoubtedly remove the defendant’s ability to manipulate the system. Or would it?
The Governments ill-fated Mode of trial Bill had in it proposals to remove the right for a defendant to choose his mode of trial. Instead Magistrates were to make the decision based on, their powers of punishment, the effect of conviction and sentence on the defendant's livelihood and reputation and on any other relevant circumstances. (Back to the twelfth century?)
There have been problems with jury nobbling. That is pressurising one or more members of a jury by the use of threats into attempting to influence the outcome of the trial.
This problem has been so serious, that in some cases special measures had to be taken to protect the jury from outside interference.
Measures have been put into place in order to combat this problem and amongst them are the creation of a new criminal offence under the criminal justice and public order act 1994. Under s51 it is an offence to intimidate or threaten to harm, either physically or financially certain people involved in a trial, including jurors.
Also section 54 of the criminal procedure and investigation act provides that where a person has been acquitted of an offence and someone is subsequently convicted of interfering with or intimidating jurors or witnesses in the case then the high court can quash the acquittal and the person can be retried.
I suggest that if the contempt of court act were also modified, to allow the workings of the jury to be known. Then it would become more difficult to nobble a jury.
Up to this point I have concentrated on the jury system and some of the problems that have been associated with it and some of the changes that have been made to it and some proposals for future change. It can be seen even from my very brief look into the workings of the system that it is far from perfect and is still in need of radical but careful reform in order to address some of the criticism levelled at it. The question asked was should we abolish it?
In order to be able to make a judgement as grave as that it is only fair that we look to the possible alternatives to try to evaluate whether they would represent an improvement on our present system.
One option to consider would be the use of a single judge. This is already the system employed in the vast majority of civil cases. The advantages of using a single judge could be that trials would be quicker, the problem of perverse verdicts would be greatly reduced and jury nobbling would become a thing of the past.
However the key benefit of the jury system is public participation and all that that brings with it e.g. a degree of naivety to the criminal justice system which because jurors will do at best two or three terms of service remains throughout every judgement made by a jury. That is to say jurors are not likely to become disenchanted by seeing the same type of case over and over.
Until our judiciary is made up of a more representative sample of society, I would say that the risk of bias amongst the judiciary is far greater than that of a jury.
I said that jury nobbling would become a thing of the past, but is every member of our judiciary immune to threats, bribery or corruption? I would hope so but I wouldn’t bet on it.
A second option would be to have a panel of judges sitting comprising of an odd number greater than three. This system would offer greater protection from individual bias, but there would still be no lay input and at over £100000 pa would work out rather expensive not just in salaries but in the extra training that would be needed to provide a 200% increase in the number of judges required to operate such a system.
A third option would be the creation of a mixed panel comprising of a judge and two lay magistrates, as proposed by Sir Robin Auld in his recent report.
Replacing juries with a system such as this it is said, would have all the benefits of the single judge system i.e. speed, cost saving, and the reduction of nobbling and perverse verdicts, Coupled with the advantage that the judge can be outvoted by the laypeople he sits with.
On the face of things this option seems to strike a good compromise between the expensive and slow jury system and the faster single judge system.
However I have reservations with regard to this system. Firstly the question of the lay contingent.
If they are to be like Magistrates or even to be Magistrates I cannot see that it can be argued that community participation is maintained as the type of person that is drawn to the Magistracy could hardly be termed representative of the community (especially those which it judges).
Secondly at present Magistrates are volunteers who give up small amounts of their time to sit. If they were to be asked to sit for longer as would be necessary in serious or complex trials, this could cause problems for them with respect to work or other commitments. In order to combat this it might be thought necessary to compensate them for this and this could be the start of a slippery slope towards Magistrates becoming paid. Thereby removing the last vestiges of public participation in our criminal justice system via the back door.
Thirdly I feel that it would be difficult to prevent judges from dominating this system, after all the judge would only need to ‘persuade’ one member of the panel to his point of view in order to get his way.
One cannot get away from the fact that jury trial is expensive, when compared to Magistrates trials
In 1997-98 a trial day cost £8700 at crown court and £500 at Magistrates court. None of our public services have bottomless budgets and the savings that could potentially be made by abolishing the jury system are substantial. However I feel that the alternatives to the jury system proposed all have major flaws, some of which could adversely affect the perception of our criminal justice system as being overall a fair and just system.
I feel that we should keep trial by jury and implement reforms that ensure that it becomes an even fairer and more representative system.
David M. Walker The Oxford Companion To Law (1980) p 686.
British Criminal Statistics Source www.criminal-justice-system.gov.uk
Chapter 5 Juries
Jury Excusal and Deferral, Research Findings No. 102, Home Office Research Development and Statistics Directorate
Chapter 5 Juries Para 16
Chapter 5 Juries Para 26
Chapter 5 Juries Para 27
The Jury at Work (1972)
British Criminal Statistics By Tom Walkins Source www.criminal-justice-system.gov.uk
Criminal Justice (Mode of Trial) Bill Briefing Note http://www.homeoffice.gov.uk/motbrief.htm
Here's what a teacher thought of this essay
A well put together essay, particularly those aspects focused on reforms. However, the prose style is, at times, too informal. The issue of complexity of financial trials, and the difficulties this presents for the average juror, could be explored in more detail. 4 Stars.