IS JUSTICE STILL JUSTICE WITHOUT JURIES?

The jury system is often hailed as the crown jewel of English justice. Twelve people plucked from the electoral roll entrusted with liberty and guilt. It sounds noble. But step back and ask: are juries the only way to reach fair decisions?  Sections 44 to 50 of Part 7 of the Criminal Justice Act (CJA 2003) provide for non-jury trial in cases where there is danger of jury tampering or where jury tampering has taken place. This allows the prosecution to apply for the trial to be conducted without a jury and for a jury to be discharged during the course of the trial. The vast majority of civil cases in England and Wales are heard by a judge alone without a jury. Juries are only used in a few specific civil cases most notably libel and slander trials. The current proposals for a new intermediate criminal court where a District Judge[MC] will preside flanked by two magistrates have drawn fiery antagonistic outbursts from many lawyers. Their underlying reasoning such as it is asserts that only jury trials can deliver fair unbiased verdicts based on the evidence presented during the trial.  Recent jury decisions have raised questions as to whether such unaccountable jury decisions have been based on matters not presented in court as evidence.  

There is a very strong case for immediate intimate research into how jury decision making is conducted.  Judges sitting alone make decisions every day that withstand appeal far better than jury verdicts. Why? Because judges are trained in the law, experienced in sifting evidence and guided by legal principle rather than emotion. Appeal courts overturn far fewer judge only decisions than jury ones. That should give us pause.

Think of a complex fraud trial or a negligence case laden with technical jargon. A lay jury, however conscientious, is swimming against the tide. A judge trained in handling complexity is not.  Jurors, despite instructions, may be swayed by media coverage, personal prejudices or sympathy for one party. And if and when it comes to reviewing those decisions later the appeal court can see exactly the reasoning applied by judges in their public pronouncements.  Juries are under strict instructions of silence post trial. Perverse verdicts are somehow seen as the epitome of English justice but are only lawful when argued by a litigate in person: it is against Bar Standards Board rules for such a position to be argued by a barrister.

Bias is another uncomfortable truth. Jurors bring with them the baggage of everyday life: prejudices, sympathies, the latest newspaper headline. Judges aren’t saints but they are bound by professional standards and their decisions are accountable. And there is the question of efficiency. Jury trials take longer, cost more and clog the courts. Bench trials do not. In an era of ballooning backlogs efficiency matters.

So while juries carry symbolism and democratic value let’s not fool ourselves. Justice can be and often is delivered without them; sometimes better, sometimes faster and often more fairly.