There appears to be an emerging consensus on Halsbury’s Law Exchange that jury trials are a good thing – see previous blogs here and here. This may be so, but the four mainstream arguments commonly advanced to support jury trials, and repeated in previous articles, do not stand serious scrutiny.
The first argument is that because jury trials have been part of our history since (at least) Magna Carta, they are at the core of our system of justice.
The fact that justice involved people like jurors since before the Norman conquest, and both Saxon law and other Gothic laws, as reflected in the various 6th and 7th century codes, knew of people fulfilling a similar function, is clearly indisputable. Of course, the right is mentioned in Magna Carta, and obviously, we still have juries in criminal trials today. Regrettably, for this argument, the similarities end there.
The function of a jury in medieval England and earlier was very different to a jury today. The purpose of a post-Norman jury, in the relatively undeveloped, uncodified, legal landscape, was twofold. First, it was, in part, to define what the law was, by reference to the norms of the local society and standards of behaviour. Secondly, it was to establish, by personal knowledge of a defendant, whether the defendant had committed the conduct complained of. So the function of an early jury was mixed. It was partly to determine the law, and partly to establish guilt, based on personal, prior knowledge. That was well suited a sparsely-populated, atomised network of small agrarian communities, where there were no professional judges and, until the high medieval period, very few accessible lawyers. Justice in manorial courts, or other local assemblies, was suited to that individual community, and the role of the jury in deciding where moral standards lay (both in criminal and civil law) was appropriate, efficient and necessary, and it functioned well. However, that system is utterly dissimilar to the role of the modern jury.
In the modern jury system, a group of strangers are asked whether a person did or did not commit certain acts. They do not bring a personal knowledge of the defendant and his character into the court. They are not required to comment on the law – it is expressly not part of their function. Their function is not, and should not be, to decide what the law is – it is simply to answer the question, “did the acts in the indictment take place as alleged?”
Accordingly, those who rely on the argument that the jury system has always been part of English justice, and praise it accordingly, deliberately downplay the huge void that separates a modern jury from its predecessors, and keeps silent that the jury as we know it is a comparatively young creature; as an independent body tolerably immune from judicial suggestion and other influence perhaps about 300 years old. Therefore, what we would recognise as a jury has not been present throughout our legal history. Further, juries were quietly dropped from most common-law courts. Can it be said that litigants no longer find justice there as a consequence? The civil courts seem to function with perfect ease and justice without them.
The second argument is that juries’ real world experience makes them much more reliable judges than, well, professional judges. It is often repeated that juries bring a bit of “The Real World” into the courtroom. What does this actually mean?
The job of a jury is, as should be well known, to decide, on the evidence, whether specific events took place. No more than that. They are not aggrandised by being given a despotic function, higher even than Parliament, and far more arbitrary than the span of any Chancellor’s foot, to decide whether a particular deed, established on the evidence before them, should attract criminal liability in the case.
It is often said, in mysterious tones, that juries bring “something extra”. Is that an ability to appreciate the facts? That’s rarely how it’s put. It’s more usual to praise jurors for “understanding” the “difficulties” of, for instance, “inner city life”. In other words, they are reluctant to convict, when they know incriminating facts are established, because they empathise with a defendant. If so, it is entirely out of place in the courtroom. If juries do decide that they have the ability to allow guilty people to go free, then the something extra that they bring is dangerous, undemocratic, and should be thoroughly unwelcome.
The third suggestion is that judges are not really independent, as they are employed by the state, but juries bring a little required independence.
This too is untrue. The independence of the judiciary was principally established and enshrined in the Bill of Rights. True, they are appointed by the Queen, and are paid by the government, but they are functionally independent, with fixed salaries and immune from dismissal. Private or more independent judges would, if our historical experience is anything to go by, be worse. The fact that they are effectively salaried employees, no longer able to exploit the inherent expense of the legal system to their own advantage as, perhaps a Richard Rich or an Eldon might have done, are long gone, and we should be thankful. The same is now, of course, true in the Magistrates’ court, reformed from the forebodingly named Police Court. However, this should not be confused with the lie that because judges (who are not born as middle aged conservative hanging-judges, but will have spent long careers at the bar defending criminals, and so will have more than enough experience of “the real world”, and probably more, in reality, though vicariously, than any juror) are not capable of deciding impartially whether given facts have taken place.
Consequently, it is suggested that three main reasons cited in support of jury trials: (i) their historical links to the past; (ii) that jurors bring something valuable with them into court; and (iii) that judges don’t have the independence to make honest decisions, are not, really, good reasons to support jury trials.
We in the blogosphere should not make the mistake of converting a defence counsel’s perfectly correct conclusion, so fulfilling a proper duty to do the best to his client in an adversarial system, that a jury will be more lenient than a judge, into the lie that a judge will reach a less honest result than a jury. It is true that juries reach more lenient results than judges. But the only way that can reasonably be rationalised is that juries let defendants escape criminal liability where the facts sufficient for conviction are established. If so, then it is not the judges that are at fault, and it is the law-abiding majority that suffer.
The fourth primary argument in favour of juries is that it is not possible to convert a jury’s function into a mathematical formula. That is a desperate, defensive line: it appears common sense that a group of people are not as likely to err as a single person. Sadly, that isn’t supported by statistics. That rather embarrassing statistical fact has long been recognised. In fact the very phrase that the role of the jury shouldn’t be analysed mathematically appears in (one of?) the first histories of jury trials: Forsyth, History of Trial by Jury (1874) has this to say, having set out several different formulations, and discovered that mathematical probabilities cannot defend jury decisions by improving their reliability – in fact adding nothing in terms of reliability over the opinion of a single person.
“… this, I think, shows the fallacy of attempting to draw any practical inferences from such calculations. No one can seriously believe that if there are twelve persons who are each as likely to be right as wrong, and eleven of them agree in the same opinion against one dissentient, the probability remains still as great that they are wrong as that they are right; and yet that is the consequence which flows from the above mathematical formulæ.”
In other words, “to hell with the evidence, we know what result we want, and we won’t be told otherwise!” Alternatively, because your instinctive opinion has been shown to be wrong by hard mathematics, you must be right because you knew what was right all along. That sort of argument is much more like faith than reason, which is the role of a court. Some have argued that statistical science is not relevant to the issue, or to the law. This is quite misguided. Statistics has a huge role to play in the law, as the Roy Meadows cases demonstrated. The fact that the statistics in jury cases are less-headline grabbing doesn’t mean that we shouldn’t analyse them critically. The mathematical fact is this: juries do not result in safer convictions by the laws of probability.
In addition to the above arguments, which address some of the positive arguments advanced in support of jury trials, there are some good reasons why jury trials should be restricted.
First, not all cases are suitable for trial by jury. In particular trials involving carousel fraud, and financial frauds, are beyond most jurors, both in terms of their complexity, and in terms of the time necessary to hear them. It would not be fair to remove a juror from their normal occupation for an extended period of time. A panel of experts, such as the experienced mariners at Trinity House used to try wet shipping cases, would be far more suited to the needs of financial and tax fraud trials. (It had, in fact, been recognised as early as Mansfield’s day that fraud was best tried in equity than at law, which demonstrates that this generation is merely reinventing the wheel in discovering the limitations of jurors).
Secondly, if juries were dispensed with in criminal trials, the rules of criminal evidence could be greatly streamlined. As judges are well used to discounting evidence they know to be of no probative value, the great amount of time devoted in criminal courts to rules of evidence would be vastly reduced, to more resemble civil evidence. The ability of the courts to deal with cases more quickly and efficiently, would be much appreciated given the great burden of cases. Additionally, legal fees would be more affordable, as less work would need to be devoted by counsel to rules of evidence. Perhaps more people, on the margins of being able to afford a private defence, could do so.
Thirdly, if the court system itself were not burdened with the provision of facilities for jurors, it would make a huge saving, which might be reinvested into something arguably more productive, like the reintroduction of universal legal aid.
There are doubtless many other reasons for ridding the criminal courts of jurors, and many in support of them. The aim of this post has been merely to question whether some of the most frequently articulated reasons for supporting the role of jurors are in fact good reasons for doing so. Regrettably, it has concluded that they do not.