Is Retaining the Jury System a Defeat of Common Sense to Rhetoric?
What is the jury?
The jury refers to a panel of 12 lay people who are selected randomly from the public. They usually sit in the Crown Court hearing criminal cases. Their function is to arrive at a verdict of whether guilty or not guilty.
Their selection is based on Section 1(a) and (b) of the Juries Act 1974. Some of the specifications include :
- Aged 18 - 70
- Ordinarily resident in UK for at least 5 years since 13 years old.
- Person who in the last 10 years served any part of the imprisonment is disqualified from the jury duty.
Attacks on the jury system
Previously in the Criminal Justice Act 2003, there have been sections curtailing the right to trial by jury. Specifically, section 43 allows for a trial to go on without jury for complex fraud cases on the basis or excuse that it is burdensome for the jurors. Sections 44 and 46 allows for the jury to be removed when there is a risk of jury tampering.
* 'Jury' refers to the panel of lay people. 'Juror' refer to the individual.
* Jury tampering is when the jury are no longer impartial.
In the recent years, four Bills have been proposed by three Home Secretaries that trials by jury should be scrapped on the grounds of increasing efficiency and reducing costs. However, all these Bills were rejected. The message from the Parliament is strong and clear - the jury system must be retained at all costs.
Whilst Parliament has decided to retain the jury, the logical question is why should the jury stay? Are the justifications for retention solely on rhetoric or based on common sense?
Values of the jury
The jury serves as a bastion of liberty for the people against the State. For criminal cases, the liberties of the defendants are at stake. And for the liberty of a countryman to be confiscated, it is better done when even other countrymen of his neighborhood said so - trial by one's peers. The use of jury, from this optic, makes the legal system more open and better able in retaining public confidence. As per Bruce Holder QC, "... a juror stands between the oppressor and those who have little power. A jury gives justice to the wronged and deliverance to the falsely accused." Without the jury, the liberty of the accused - and the liberty of us, the people - lies solely on the judge alone and the judge is under the State. To this, Lord Denning in Ward v James declare the jury to be the very "bulwark of our liberties".
Having 12 random strangers from different walks of life at a time to decide the fate of an accused may seem absurd but this effectively prevents corruption. The power that a jury has is absolute. It allows for the conviction or the freedom of a man even when all evidences are contrary. Such power cannot be given to any one individual or institution for absolute power corrupts absolutely. However, the jury is just some random 12 people who possibly only sit for the hearing once in their lifetime. And then they disperse and may never be seen again. This is the perfect place for lodging such a power. What corruption can there be? It is for this very reason that the jury is still here since 1215 (Magna Carta).
In Bushell's case dating back to 1670, it has been established that the jury is the sole arbiter of facts and they can decide the verdict using their conscience. And this is further encouraged by S8 of the Contempt of Courts Act 1981. There can be no inquiry as to how the jury came up with their verdict and jurors need not provide any reasons either. In the case of R v Kronlid, the jury clearly ignores the law and followed their conscience. Four women caused 1.5 million worth of damage to a Hawk fighter jet. This amounts to a criminal damage on property and the defendants admitted that they indeed had caused the damage. The case is very clear. However, the jury refused to convict. Their conscience said otherwise. The women only so act because the jet was to be sold to Indonesia for the commission of a greater crime - genocide. This case serves as a strong reminder that the jury injects a humanising element into the legal system which the black letters of law may sometimes overlook. If a judge was to preside over this case, his hands are tied by the law for he is a mere servant to the Parliament. These women - they would most probably be found guilty.
Relating to the above, there are practical considerations as well. The law is for the people and it should represent the very approximate will of the people. And this is the very nature of common law - initially built from a compilation of customs. However, the law that our citizens are tried with are sometimes decades or even centuries old. They may not represent the contemporary interests or values of the people. Allowing 12 people at a time to incorporate their views is an imperfect manner of doing so. But it is better to have some judges who are always deemed to be so out of touched with the society - old white men living in ivory towers - to represent views of the people. In R v Ponting, the persistence of the jury in refusing to convict the accused has led the government into considering the law at hand and to amend it.
Drawbacks on jury
Conceding to all those advantages detailed above, the thing about the jury system is that they are too expensive! A survey from the Home Office showed that an average cost of a contested case in the Magistrate Court (without the jury) is £1500. On the other hand, a case in the Crown Court (with jury) averagely costs £13 500! Therefore, the main argument and the strong urge to bring down the jury from all the three Home Secretaries has always been this : no doubt that the jury plays an essential role, but it is not affordable! The jury cannot be sustained.
Coming at such a high cost, the crucial question is that whether the jury offers value that outweighs the cost. Having seen the advantages above, there is another side to the coin as well. At times, the jury might come up with perverse decisions. Contributing to this is the secrecy that the jury enjoys when deliberating and he very fact that they need not provide any reasons for their decisions. Among other main concerns that are raised is this : were the jurors trying to avoid unjust laws or were they in total ignorance of good laws? In many clear-cut cases, such as R v Randle and Pottle, the jury has chosen otherwise. In the case, jurors refuse to convict the defendants who had helped the spy George Blake in escaping prison. Alternatively, there has also been views that the case of R v Kronlid is an absurd decision as well. The defendants themselves admitted that they intended and did damaged the jet. Even so, they are found to be not guilty.
Coming with such a decision is worrying, both to the State and to the people. The jurors may not have understood the case before them. This fear is true as highlighted in a survey by the Runciman Commission in 1992. According to the survey, some jurors could not understand English sufficiently well to follow a case. Some could not understand the details of a case while some others could not understand anything at all. There was also an incident in the Snaresbrook Crown Court, where after all evidence had been submitted and the jury has retired to consider the verdict, they sent a note to the judge asking what they had to do!
The Runciman Commission also pointed out that s8 of the Contempt of Courts Act 1981 is a double-edged sword. Whilst it allows for jurors to decide cases with their conscience, no one actually knows how much the jurors actually understand a case. As to how they have came up with the verdict is always a mystery and the truth may be shocking. It can be due to a racial bias as seen in Sander v United Kingdom or it can be a result of some conversation with the dead victim through an ouija spirit board witnessed previously in R v Young (Stephen).
The whole picture is even uglier if we take in consideration the risk of jury tampering and chances for the participation of disqualified jurors (estimated about one in every 24 by a survey of Inner London juries). Moreover, the selection method does not guarantee a fair representative of the society. Ethnic minorities are always under represented. There has been situation - R v Fraser - whereby the defendant was of an ethnic minority background but the jurors were all white.
Each of these factors militate against trial by jury. For these, Professor Penny Darbyshire criticised the jury to be "random, not representative but anti-democratic, irrational and haphazard".
So is the retaining of the jury a defeat of common sense to rhetoric?
The issue of cost is certainly a valid consideration. The question raised was whether the jury is worth the money. But the thing is this : justice should not be put on a price tag. And this cannot be compromised. If we choose to take a step down and have the price reduced, we will eventually keep on being pushed downwards because until which point is justice then affordable? To deprive people their rights on the basis of cost, therefore, leaves the door open to future miscarriages of justice.
The criticisms leveled to the jury system may be true. From the steady attack against the jury, it suggests that the people might be too stupid or unfit to perform such an important public duty and should be left for those who are better qualified. However, there can be no questions on the democratic essence that they jury protects for no tyrant will leave a subject's freedom to twelve of his countrymen. It may also be true that the jury is ignorant of the law. But it must not be forgotten that the root of the criminal justice system is derived from its democratic nature. And whether a person is to be convicted or acquitted, it should not be a matter of technicality determined by professionals. It should be determined by ordinary persons - people like you and me, those alike to the accused - as a matter of common sense. So in the end, is retaining the jury a defeat of common sense to rhetoric? I would say that common sense would dictate that the jury should stay.