In one form or another, trial by jury has been with us for the best part of eight hundred years. The principle that a man charged with high crimes and misdemeanours should be tried by a jury of his peers is the bulwark of a civilised society, or so they say.

The statistics are interesting, if statistics can ever be interesting. With the obvious exception of libel, trial by jury is now confined to crime. However, only 12% of all crimes are now tried by jury in the crown court, as most criminal cases are tried by District Judges or a panel of magistrates. Of those cases finding their way to the crown court, the vast majority settle, or the police lose the file, or the Crown Prosecution Service make a horlicks of it and jack it in at the first opportunity.

The composition of the jury has changed markedly since twelve honest men and true. First we had women, then the age qualification was dropped from twenty one down to eighteen, and now any Tom, Dick or Harry is eligible for jury service, including lawyers and judges! We have also witnessed the dumbing down of the legal system, with happy morons sitting side by side with the more intellectually gifted, and all having an equal say. Time was when the happy morons would defer to their elders and betters, but no more. As Dirty Harry once memorably quipped: “Opinions are like assholes, everybody’s got one.”

I used to be a vocal proponent of trial by jury, but recent startling acquittals have led me to question its merits as a fair way of reaching the truth. The acquittal of the monosyllabic Steven Gerrard is a case in point. You may remember the case. Gerrard was charged with affray, and tried and acquitted by a jury of his peers at Liverpool Crown Court, and this in the teeth of CCTV evidence. Bearing in mind that Gerrard is an iconic footballer playing for Liverpool Football Club, whatever possessed the CPS to allow the trial to take place within a stone’s throw of Anfield? Far better to have moved the venue to Manchester, where, after a fair trial, he would have been convicted, and would now be playing football in the prison exercise yard.

The criminal system allows the judge to direct the jury to acquit at any stage of the trial, but not to convict, so even where the accused has no defence whatsoever to the charge, the judge is powerless to intervene. It should also be remembered that the concept of fairness, much vaunted in trial by jury, implies fairness to both the prosecution and the defence. So I wonder out loud what the victim of Gerrard’s aggressive behaviour thought of his acquittal? These perverse verdicts cause considerable problems for the police in gathering evidence, interviewing witnesses, getting them to court, and putting them through the ordeal of giving evidence. It’s little wonder that witnesses to crime are so reluctant to come forward.

Times have changed since Lord Goddard, the Lord Chief Justice and the trial judge, single handedly engineered the conviction and execution of Derek Bentley back in the early fifties. Judges are now more user friendly, and in my opinion, the chances of an acquittal before a judge are just as high as they are with a jury. But more important, judges understand the complexities of the law in a way that is totally alien to the average juror, and are better placed to apply the law to the facts. This results in a fair hearing and a proper verdict.


But it goes further. Juries are never called upon to give their reasons for their verdicts, perhaps just as well, and the way they deliberate remains a closely guarded secret. Contrast this with trial by judge. He will invariably give his reasons, as he is required to do in civil cases, and often in the form of a written judgment, so it’s there for all to read. It’s called transparent justice.


The other problem I have with trial by jury is their capacity to understand directions of law. Take the offence of theft. The judge must direct the jury that before they can convict, the prosecution must make them sure that the accused dishonestly appropriated property belonging to Bloggins with the intention of permanently depriving Bloggins of it. Doh! And this is supposed to be one of the simpler directions of law.

Sadly, I must revisit my support for trial by jury, which is now an anachronism. It served a purpose, but no longer, and by persevering with it, we risk making a laughing stock out of the criminal law.

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David is an English barrister, writer, public performer and keynote speaker. His full profile can be found on his website.

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