In one form or another, trial by jury has been with us for the best part of 800 years, although its metamorphosis into the present system is more a phenomenon of the past fifty years.
Today’s jury is drawn from both sexes, or all three if you include the ‘undeclared,’ the property qualification fell by the wayside some years ago, literacy is irrelevant, as it has been since the introduction of comprehensive education, the age qualification has been lowered to eighteen, and now, perish the thought, those traditionally excluded from jury service, such as judges and lawyers, have been brought on board. Can you imagine anything worse than a gaggle of lawyers pretending to be laymen?!?
The recent transatlantic airline bomb plot trial has led to a number of critical comments about the jury system. You will remember that after months of evidence trotted out to prove, beyond a reasonable doubt, that the ‘British’ Muslims accused of the plot were as guilty as sin, the jury failed to agree on the main allegation, and there is now talk of a retrial.
There are three possible explanations for the jury’s failure to convict. Either they were bored rigid, or catatonically stupid, or, perish the thought, the prosecution failed to discharge the required burden and standard of proof, or all three. Take your pick!
I have always thought it the height of arrogance for the prosecution to blame the jury for failing to convict, and as we are not privy to their deliberations, it is pure speculation of the worst kind. But when considering trial by jury, consider for a moment how it works, or doesn’t work, depending on your perspective.
The twelve are chosen at random, and there is now no right of peremptory challenge. You get what you’re given, warts and all, which, on any view, is absurd. To quote just one example, how can it be right, at the beginning of a complicated fraud trial, to have illiterate jurors on the panel? The American system of jury vetting is far better and fairer. As far as humanly possible, under their system, you get the twelve best suited to return the right verdict. As both the prosecution and the defence have equal input in the vetting process, it works fairly for both parties as well as the interests of justice.
Speaking of being bored rigid, especially in a long trial, I also question the need for the judge to sum up the facts as well as directing the jury on the law. They will have heard final speeches from the prosecution and the defence, and all the relevant issues will be placed before them, ad nauseam, so why go through it all over again? The judges should keep out of the evidential arena.
In the bad old days, when prosecution minded judges expected juries, who were there simply as window dressing, to do as they were told, there were a number of high profile miscarriages, the most notable of which remains the conviction and execution of Derek Bentley back in 1953. Lord Goddard, the trial judge, entered the evidential arena with all guns blazing, and was roundly criticised in the Court of Appeal some 45 years later, and rightly so, but too little too late.
Trials are getting longer and longer, although fewer and fewer able barristers are willing to conduct them at today’s knock down prices. A belt and braces approach routinely adopted by the prosecution leads to prolixity, which is counter productive, bearing in mind that the attention span of the average juror is in the region of ten minutes.
So is there a strong case for keeping trial by jury as we have it? Are these twelve honest men and true the bedrock of a civilised society and the bulwark against executive interference? I have my doubts. Judges, sitting with lay assessors where needed, are far better qualified to get at the truth, so long as they give detailed and reasoned judgments for their findings, as happens in the Court of Appeal. Conversely, juries are never required to give their reasons in support of their verdict.
With the abolition of trial by jury, potentially long trials will shorten dramatically, thereby saving the hard pressed taxpayer a fortune. So the choice is clear. Either embrace the American system of trial by jury, or abolish it as unworkable and unreliable.