Juries: a personal view
- 10 hours ago
- 5 min read
The government has now published its Bill to restrict jury trial. In the first of several publications from the Society’s working party on the criminal courts Oliver Sells KC, who leads the group, reflects on why jury trial is so important in Britain.
It is not necessary to trawl through the history books or the academic treatises to see why the jury plays such a central role in the legal system of the British Isles. It has been so for over 800 years, it has changed from time to time, it has been modernised on occasions, but essentially the principle remains unaltered from the 12th century.
It’s roots lie in the visceral and deep understanding that when a criminal charge of a serious nature was to be brought against the citizen with the risk of severe penalty, then those who bring the charge must prove it to a high standard of proof to the satisfaction of that defendant’s peers: ie their neighbours, people who knew them and could speak about them: today it means peers in the sense of equals as citizens, not members of the House of Lords!
The basic concept of a jury is that a range of people are brought together to determine the issue of guilt or innocence, they bring their collective experience of life to bear upon each case: this by itself has profound consequences for our criminal justice system because it places public involvement at its heart.
It is saying “we trust the people to determine this serious issue”. In the old days these were issues of life and death, today loss of liberty. We do not place that trust in the hands of lawyers or judges or state officials, we place it in the hands of the people.
When a verdict is returned by a jury of 12 people (depending on which country you’re in) it comes with finality, legitimacy and clarity: all of which makes it withstand the fiercest scrutiny, debate, and criticism.
The jury sit and listen to the evidence, they do not hear arguments of law: they are directed as to the law and the parameters in which they may return their verdict, and the verdict is theirs and theirs alone. A verdict is reached in the privacy of the jury room, the discussions remain confidential, they do not give reasons, and they deliver their verdict in one or two words.
These factors themselves lend great weight to each and every verdict. When the verdict comes in the issues are resolved one way or the other.
There will be those who do not like the verdict that is the nature of serious allegations of crime, but in the vast majority of cases the verdict is accepted because it is the verdict of 12 ordinary people. It is not the verdict of one case-hardened, potentially prejudiced, possibly cynical, judge, lawyer, or official of any kind.
We have been extraordinarily lucky as a nation over many centuries to have the jury as an innate part of our criminal justice system.
Authoritarian or tyrannical government would never allow mere citizens to determine the guilt of those charged with politically or socially sensitive criminal offences. The risk would be too great; and accordingly, it is often rightly asserted that the existence of a jury system indicates that liberty still exists in the land.
There is no need for fancy phrases invoking such things as lanterns, lights and threads: the truth is that the jury system has been and remains an outstanding indicator of a free society.
Juries may on occasions return perverse verdicts. It is sometimes said by those who oppose them that this is a bad thing. I think they are mistaken. It can act as a safety valve, and all systems need a safety valve.
The converse cannot be said: the system where a judge is sitting alone in some new structure called the crime bench division is a creature unknown in our jurisdiction. It is not possible to say how it would work but I do know this: the judge will have to hear the evidence, rule on the law, direct themselves on both, and then give their verdict with full reasons. Such a process will not be short or simple and is likely to lead to more appeals and further delay.
There can be no doubt however that the whole justice system is in real danger of collapse in this country. Wherever you look, from magistrates to police or from prisons to the judges all is sclerosis, delay and low productivity. The average Crown Court sits for just 3.2 hours per day. There are, of course, many causes but the jury system alone is not to blame. It is only part of a much larger malaise and it is far from clear that the changes now proposed will seriously impact the backlog.
There is, however, one alteration to the present system which should be made and made now.
I can see no justification for the parties being allowed to choose the mode of trial. In the civil jurisdiction the court allocates the level at which the matter is to be heard, hearing submissions but determining the matter upon the interest of justice.
I can see no reason why such a system cannot be easily adopted in the criminal courts. A low-level theft allegation could be placed either in the Magistrates Court if the defendant was a habitual offender, or be tried by a jury if the defendant was of good character. This change would take out a substantial number of cases from the Crown Court. The change would mean that the maximum sentence available in a non-jury trial would be the longest which a Magistrates Court can impose – currently, 12 months. That is far removed from the government’s proposal for non-jury trials where a sentence of up to 3 years is in prospect.
This first paper from the Society’s working party on the criminal courts is a plea for the retention of the jury as an integral part of our criminal justice system: it is not an analysis of the causes of the backlog and even less is it a paper proposing reforms to reduce the backlog.
That will follow shortly, but it seems to me that the jury trial is being used in these proposals as a scapegoat for the delays that have become endemic in our system.
It is my hope that all Conservatives recognise the urgent need to take all reasonable steps to tackle the backlog but not to use this is an excuse to damage the jury system. We will set out our proposals shortly.
Oliver Sells KC has practised at the criminal Bar in London since 1972. He is a Recorder who has sat at the Old Bailey for 30 years. He is a bencher of Inner Temple. He is a member of the Common Council of the City of London. He has canvassed for the Conservative Party in every election since 1970.
Society of Conservative Lawyers, an association of lawyers who support or are sympathetic to the aims of the Conservative Party. Members hold a range of different views within those parameters and the views expressed in its publications are only those of their authors, and not necessarily held by all members of the Society or by the Conservative Party. The views expressed in this post are those of the authors alone, who take sole responsibility for all errors and omissions.
