The Trial by Jury in Modern English and Welsh Criminal Justice
An analysis of the future of trial by jury in our jurisdiction.
Trial by Jury – 12 good men and true – goes back to the middle ages and Magna Carta. It has been regarded as a vital element in our criminal process for centuries. Whenever reform is mentioned e.g. trial by Judge and assessors for serious fraud the chorus for retaining Jury trial exclusively in our jurisdiction is vociferous – both inside and outside parliament. In every Crown Court contested case on indictment in our jurisdiction a Jury must be empanelled. This right to a contested Crown Court trial by Jury is jealously guarded by the legislature, the legal profession and its representative bodies. Any attempt to limit or curtail this right is vehemently opposed by these rested interests and our representatives in the Commons.
2. How Jury trial works in practice?
A large number of cases result in pleas of guilty due to the credit being given for a guilty plea – i.e. reduced sentence. Where a case does not go to Jury trial there may be pleas of guilty to some counts but others will not be proceeded with and lie on the file. The Crown counsel and Crown Prosecution Service will decide what pleas are acceptable. Defamation may sometimes result in a Jury trial at the Royal Courts of Justice. At the Central Criminal Court (Old Bailey) the Jury will have the final say after the evidence both for the Crown and defence has been heard. Of course Crown counsel and defence counsel will address the Jury followed by the Judge’s summing up – the Jury retire to consider their unanimous verdict.
3. Weakness in Jury trial
Essentially this lies in the Jurors lack of experience and therefore their instinctive distrust in themselves to bring in a serious verdict with grave effect for the accused. There is no escaping this weakness in the system. With Juries you will get trial by 12 good men and true but that does not mean you will have the right and proper verdict. Many fear without Juries to “protect” the individual the floodgates will open to oppression. I disagree. Juries have no training, do not take notes and do not question the witnesses. Juries can be arbitrary nowadays the advent of the internet, twitter and facebook have virtually made Jury trial unworkable. Juries do not have the aptitude, inclination or education to perform their role satisfactorily. It has all become an unsaid embarrassment to perpetuate this mode of trial. The Jurors give no reasons for their verdicts. Jury trial is outdated, outmoded and simply does not deliver the goods as our modern society demands. You cannot enter the secrets of the Jury room – the workings of the Jury may not be revealed or discussed with the Jurors. A Jury may be unable to fairly consider a case yet the trial proceeds e.g. Stephen Lawrence trial 2011/12: Central Criminal Court, where the antagonism to the accused generally demanded their trial by Judge alone without a Jury to see and do Justice. Jury trial was suspended in Northern Ireland due to the Jurors being potentially suborned by opposing factions (during the Troubles 1970’s – 1990’s)
4. What are the alternatives?
In Northern Ireland it was the Diplock Courts namely by Judge alone for serious counts in the Troubles. One possibility would be a Crown Court Judge and two lay magistrates which works well for appeals against conviction and sentence from the lower court to Crown court. We must have trust and faith in our Judges to try and decide these cases themselves on indictment if the whole process of criminal justice is to be modernised and rationalised. The single Judge will give a reasoned Judgement in his verdict which may be the subject of appeal. This artificial process of attacking the Judge’s summing up in complete ignorance of the Jury’s reasoning must cease as a charade. The single Judge will not be swayed by the black arts, sentiment and character assassination, all of which may be put to an impressionable Jury one way or another. The Judges can sort the wheat from the chaff – it is too much to expect the Jury to do that even after the summing up by the Judge. The unaccountable Jury will never be bought to book – they do not even know their verdicts are being appealed. The Judge will always deliver – the Jury not infrequently disagree (hung Jury) and the resultant waste of money, Court time and resources and the ordeal to Defendant and complainant are insupportable. I am driven to the conclusion it must be Judge alone accountable to the Court of Appeal Criminal Division for the proper stamp of Criminal Justice upon our English and Welsh jurisdiction to be affixed and not a moment too soon. The days of Counsel “getting his client off” when justice demands a conviction are over. Juries encourage low standard advocacy – poor advocacy is no longer sufficient. Advocates must be forthright, sincere and to the point – the single Judge will accept no less. The acquittal rate may go down – I concede – I say no bad thing. The whole Judicial process and Advocacy will be raised up by my proposals being implemented.
I argue for capital punishment to be restored to the trial Judges at the Central Criminal Court. We cannot have the death penalty without a reliable criminal trial process. Trial by Jury in the 21st Century simply does not attain the required standard. Let us have confidence in the Recorder. the Common Sergeant and our High Court QBD trial Judges and empower them to try the Capital cases alone with the death penalty as the punishment for the accused if they are convicted subject to reprieve by the Home Secretary if Parliament decides to allow the Minister that right. We cannot have every sentence of death being reprieved. Parliament and the Home Secretary must back my proposals wholeheartedly or they will not be enacted or work in practice. The Judges who try those capital cases will not be found wanting nor will counsel. The winds of change will blow through No 1 Court at the Old Bailey and the Recorder’s and Common Sergeant’s Courts. It cannot be done with trial by Jury – the matter is too grave. It will take a tour de force in parliament but the ultimate Jury is the public at large who, without doubt, support my polemic for the return of capital punishment.
6. Final Analysis
Trial by Judge alone is not only the opening for the death penalty – the sentence of death is the raison d’etre for trial by Judge alone. That polemic is the spearhead for trial by single Judge and drives the argument to its conclusion. By subsidiary point the death penalty would not be acceptable to parliament and the legal profession under trial by Jury. The force of my peroration drives me to argue the case to such an extent it will be difficult to resist this case of mine in years to come if there are those to carry this polemic of mine forward. I am really saying the days of trial by Jury are numbered on account of the strength of my case in support of the death penalty.