SAME OLD STORY

 

LAY JUSTICES: APPEALING OR APPEALED AGAINST?

I would imagine that most readers are familiar with the system of magistrates courts and have strong opinions on whether the three lay magistrates sitting in judgement provide as good a system of justice as those who preach to us from on high keep telling us. Impending procedural changes are now in sight after a gestation period of twenty years. The anomaly of defendants` right to choose jury trial in “either way” matters  is likely to be removed in what will be the most contentious of these changes to be replaced by a bench chaired by a District Judge [MC] sitting with two lay magistrates. Whether justice will be better served will be a moot point for at least a decade until there is a sufficiency of statistics for those in Petty France to produce conclusions. Until then all we have is a study of appeals on verdict and/or sentence from the lower court to the crown court. 

A Commons committee in 2021 reported magistrates have a very low appeal rate of ~0.7% with half of those appeals dismissed or abandoned.  Historically there are about 14,000 appeals per year with approximately 2,000 successful convict appeals and 3,000 sentence variations meaning a success rate of ~39% overall.  There’s no comprehensive public data directly comparing overturn rates per bench of  magistrates vs. DJ since appeals challenge the final decision not who made it.

DJs are full-time, legally trained professionals. They sit alone, move swiftly and apply the law with consistency. Their courtroom manner can vary  but few would doubt their command of legal process.  The lay magistracy brings something different: lived experience, community connection and the expected collective wisdom of three heads thinking better than one. But JPs are not lawyers. They rely on legal advisers to steer them through tricky case law and/or procedure.

It’s widely accepted if not openly said that lay benches are slightly more prone to decisions that don’t survive appeal. It’s not dramatic. It doesn’t suggest incompetence. But the variation that comes with a bench of three non-legally trained volunteers is inevitably greater than with a single judge who’s spent decades in courtrooms.

 As written above the total appeal rate from magistrates’ courts is tiny and of those only around 39% result in an overturned conviction or a sentence adjustment. That means the vast majority of decisions stand.  The question is will those figures reflecting as they seem to do a standard of justice well done and seen to be well done be repeated with more serious matters likely to be coming in front of a lay bench?   Confidence in justice depends on the public believing they’ll be treated fairly no matter who’s on the bench.  The legal profession has never been over confident in the lay magistracy.  Whether that`s a result of their pecuniary interest insofar as appearing at the crown court commands higher pay rates or that many lawyers think rightly or wrongly that their clients are more likely to be acquitted at crown court is a moot point amongst many such points when discussing our legal system. 

During my tenure there was an "appeals folder" in the retiring room where every appeal  and its conclusion was listed with the original JPs or DJ named.  During the latter half of my time on the bench that folder disappeared never to return.   As has become so very apparent in this century the more government conceals or tries to conceal controversial information the more likely there is to be a vulcanic type eruption  when more openness might have allowed interested parties to let off steam with reduced pressure.  

With so many sections of our country`s infra structure frayed at the edges the forthcoming changes in  the justice system in general and the magistrates courts in particular will come under increased scrutiny. It is to be hoped that relevant statistical information will be published so that certainty supersedes suspicion when the trend to minimise the lay magistracy`s jurisdiction to non imprisonable offences, notwithstanding the current recent increase to 12 months custody, is once again reversed as has happened in the recent past.

NOT A SOOTHSAYER

 

Can`t say I disagree with today`s statement above.  Some of my projections  now are likely to have substance.  But one cannot be an accurate forecaster all the time when musing on such matters five years in the future.  A soothsayer I am most certainly not.

CAN ENGLAND STILL BE ENGLISH WITHOUT TRIAL BY JURY?

The effective classifying of Palestine Action as a terrorist organisation has caused stirring amongst many in the legal profession and been amplified by some unexpected sources. The Times earlier this week had a leader opposing the legislation now applied to PA.  Simultaneously the mooted addition to the courts system whereby an intermediate court over which a District Judge [MC] would preside assisted by two magistrates has those same legal eagles in a spin.  Trial by jury is considered one of the inalienable rights of being an English person.  It ranks with Our NHS as a virtual totem created with wisdom and to be venerated by all. Millions, probably billions, of words on the topic are available for anyone with a functioning keyboard. Is it immutable?

Jury trial is a mainstay of predominantly societies deriving from the British era of colonisation; USA, Canada, Australia etc although some such nations notably India have dispensed with the format.  The proscribing of PA has raised an interesting question touched upon here last week when a spokesperson of said group was quoted as saying,  "The public is on our side. Remember that being acquitted can happen and we’re seeing it happen now."  Last Friday, Huda Ammori, the co-founder of Palestine Action, told a public meeting of more than 1,000 supporters that campaigns of civil disobedience, "will make the ban unenforceable."  

 In England and Wales peremptory challenges which allow defendants to dismiss a certain number of potential jurors without giving a reason were abolished by the Criminal Justice Act 1988, specifically under section 118.

Now both the prosecution and defence may only challenge a juror "for cause". This means they must provide a specific, valid reason for objecting to a juror’s inclusion, such as:

• The juror is personally known to a party or a witness.

• The juror has a conflict of interest or bias.

• The juror is disqualified, e.g., due to a criminal conviction.

Challenges for cause are rare and are scrutinized by the trial judge who decides whether the juror should be excluded. Although peremptory challenges no longer exist, the judge can still stand jurors by for consideration (effectively sidelining them) in certain cases, particularly if concerns about fairness or impartiality arise. Additionally, the jury vetting process allows for some background checks in limited circumstances (usually national security or high-profile cases), but this is strictly regulated.

At the time of my appointment I had to state on the application which party I had voted for in the previous general election.  That requirement was abolished some years later.  I suppose in the minds of the "great and the good" who drafted such questions a politically balanced magistracy was an enhancement to the concept of all people being  equal under the law. In today`s England the great and the good are more interested in whether you consider yourself  white Welsh or brown Indian or perhaps black African.  Three incubating disturbing trends  which are likely in my opinion to be major factors in our society by 2030 are the disillusionment with the two main political parties, the rise of a minority although vociferous Muslim minority seeking protection for Islam as a religion under the law and a corresponding rise in ouvert antisemitism camouflaged as anti Zionism precipitated by the reaction to the Hamas massacre of October 7th 2023 in Israel such racism having been shown historically to be a prelude to underlying societal breakdown or worse. 

How likely or unlikely would it be for the verdicts of controversial trials to be determined on the political bias of jurors as quoted above by PA?  It is my opinion that that alone is an argument for dispensing with jury trials at least in such cases as happened in Northern Ireland during the Troubles when Diplock Courts were  established.  The alternative would be adopting the American system where jurors can be excluded .

As with so much of everything that is British, changes will be made only when the powers that be have been hurtled into a situation either unforeseen or facing problems that have been swept under the carpet for them and the rest of us to forget. 

PERVERSE ACQUITTALS AND THE WEAPONISATION OF JURIES

 
One of the great fictions clung to by our legal establishment is the untouchable wisdom of the English jury. Twelve men and women, good and true, convened to determine guilt beyond reasonable doubt. Except of course when they don't. And occasionally, spectacularly so.

From time to time there are assault cases reported where despite video, multiple corroborating witnesses and visible injury or similar evidence, unmoved by the forensic and testimonial parade a jury has returned a majority not guilty verdict. Court reports would mention "sympathy for his circumstances"; he’d lost his job, the victim had a prior caution etc. The facts apparently irrelevant in such cases being secondary to other factors .

We’ve seen it before. Climate activists gluing themselves to roads  acquitted despite clear breaches of the law because juries “understand their cause.” For many decades there have been instances where protesters trespassing at military bases have walked free. It’s not the legality being judged but the politics and in some cases perhaps the charisma of the defendant.
 

These aren’t just quirks; they’re known quantities. Litigants in person can ask juries to ignore the law; barristers can`t. Barristers sometimes count on jury “common sense” to ignore the law when it doesn’t suit. It’s supposedly the unwritten safety valve of our system. The formal word is “jury equity”; the informal reality is selective application of justice.
 
 
To be clear, most jurors do their best. But unlike magistrates who are trained, appraised, and generally held to some level of consistency, juries operate as legal mayflies: brief,  unaccountable and gone before the consequences have landed.

Perhaps it is time we considered more transparency: not full public disclosures of deliberations; no one wants mob-judged justice but at least a recognition that jury trials are not infallible. A verdict isn't necessarily right simply because it came from twelve people in a room with a foreman and a checklist, an appeal being rejected by the Court of Appeal  and has been dismissed by the The Criminal Cases Review Commission.

 

The problem of course is that criticising juries is something of a taboo. It's a bit like that totem, OUR NHS, our national treasure. If we are to have an honest conversation about justice in 21st century Britain we must be prepared to acknowledge that not all verdicts are wise, just or even comprehensible. To pretend otherwise is to indulge in comforting fiction and fiction has never been much of a foundation for justice.
 
 

It takes a certain type of chutzpah to boast about acquittals before a trial has even begun. Yet that is precisely what a member of Palestine Action recently did remarking, "The public is on our side. Remember that being acquitted can happen and we’re seeing it happen now." One might imagine such a statement would raise eyebrows among those concerned with the rule of law. After all, if verdicts are anticipated not on the basis of evidence or law but on the perceived sympathy of a jury what does that say about the state of our justice system? The message is clear enough: The law might say one thing but juries will say another because they like us. In other words conviction or acquittal is not necessarily tethered to legal merit but to public sentiment. That’s not justice; that’s a popularity contest. The courts are not supposed to be arenas for ideology. Yet in recent years certain activist groups, Palestine Action among them, have learned that the courtroom can double as a stage. They’re not just seeking to defend their actions but to put the system on trial. And juries in their secretive deliberations sometimes oblige. Today activist groups are increasingly calculating jury psychology as part of their tactical toolkit. Legal guilt is almost secondary.

There’s a disturbing logic to this: break the law, make the right noise and rely on a jury’s reluctance to punish those who claim moral high ground. The more emotive the issue; war, climate, colonialism the better the odds. It’s not just courtroom drama; it’s calculated legal theatre. Since some suggest that being a barrister is akin to treading the boards we should not be surprised that even some members of the legal profession agree that there are colleagues who are willing participants in this charade. And the consequences are far-reaching. When certain causes are seen to receive jury indulgence public faith in even-handed justice begins to erode: one rule for activists another for everyone else. Ask the man convicted of criminal damage for scratching a neighbour’s car if he had the luxury of moral justification that the hooded trespassing paint sprayer of military jets claims.

Juries are a cornerstone of our criminal justice system. But they are not infallible nor immune to influence. When defendants begin campaigning to jurors, not before the judge, the balance has already shifted.
 

One might have hoped that those charged with criminal offences would meet their day in court with humility, not hubris. But humility is in short supply when you’ve discovered how to turn the jury system into a political loophole. Consider that open boast above from a Palestine Action member, made with the confidence of someone not fearing justice but anticipating a sympathetic audience.  Will we have to follow the Americans in extending the right to exclude would be jurors?

Translation? Break the law, wrap yourself in a fashionable cause, and let the jury do the rest. Legal guilt is negotiable when ideology is your shield.
 

This isn’t brave resistance; it’s cynical manipulation. It’s trial by politics not trial by evidence. What these defendants are really banking on is not the strength of their case but the predictable failure of jurors to apply the law when feelings get in the way. And they’re not wrong. Recent acquittals of activist vandals some caught red-handed have shown that for certain juries a cause deemed righteous excuses criminal damage. Smash up a weapons factory or spray paint government buildings and if you cry “human rights” loud enough, you might just walk free. The more performative the better. Hence the accusation at the investigative stage against police and CPS of two tier justice.

 
  
For those of us who sat for decades on the bench striving for consistency, fairness and fidelity to the law this is not just frustrating. It is corrosive. It mocks the entire foundation of the criminal justice system: that the law applies equally, regardless of politics, passions, or protest signs. Worse still, this selective indulgence sends a message to the public: some offenders are more forgivable than others not because of what they did but because of why they say they did it. That’s not rule of law; it’s rule by narrative.

 

Let’s be clear: jury trial is a cornerstone of English justice. But when it’s treated as a get-out-of-jail-free card for the ideologically aligned it risks becoming a constitutional liability. If the law bends only for those who shout the loudest we don’t have justice: we have judicial theatre with a pre-approved script.
 

Perhaps a modernised version of the system witch finders employed for centuries in determining a woman`s guilt or innocence to a charge of practising witchcraft is a sub conscious underlying feature of facts being abandoned: the woman was tied to a stool which was immersed by a wooden beam in a lake or river.  After one or several immersions if she survived she was considered guilty and punished and if she drowned her innocence had been established. 

It`s increasingly obvious that it`s only after they retire that the most senior judges voice their often critical comments on the legal system.  Of course their conversations with government whilst they are active are top secret.  I suppose that process succeeds depending on which side of the judicial fence one is standing to view it.  

And those of us who actually believe in equal justice? We're expected to sit quietly and clap from the gallery.
 

No thanks.