A short defence of juries
The jury system is not without faults but there is a good reason why they exist.
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To adapt a famous saying, juries are the worst way of determining criminal liability, except for all the others.
There are a couple of reasons why, at least in England and Wales, it is hard to make a positive case for juries.
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The first reason is that almost every major miscarriage of justice one has heard about flows from a jury trial. This is because famous miscarriages of justice tend to be about serious (and often notorious) crimes, and such crimes tend to be tried by juries.
There are judge-only criminal trials, and these too can lead to miscarriages of justice, as can judge-only appeal court decisions.
But generally many miscarriages of justice are the result of jury decisions.
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The second reason is that we know very little about how juries actually work in practice. There are tight legal restrictions about what can be disclosed about what happens in jury rooms, and this in turn means there is very little research.
Of course, there are personal anecdotes galore (“when I served on a jury…”) and, from time to time, something goes so badly astray in the jury room there are court proceedings that give some insight.
But there is no real systemic understanding of juries in practice.
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Yet, and yet.
There is a defence that can be made of juries, notwithstanding the two points above.
And that defence is (in a rare bold-italics statement on this blog):
Juries are important not so much for the powers they have, but for the powers they prevent others from having.
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A jury trial interrupts the flow of a serious criminal case as it passes from legal professional to another: usually police > Crown Prosecution Service > Crown Court judge.
That a jury has to decide means that prosecution (or defence) evidence cannot simply be nodded through by a court. The evidence instead has to be assessed by an independent and impartial panel of citizens. Only when a sufficient number of jurors are convinced of the soundness (or otherwise) of the relevant evidence can there be a criminal conviction.
One value of juries is thereby that the key decision is taken out of the hands of career legal professionals, who through familiarity, habit or inclination may have biased approaches to certain types of evidence or to kinds of witness or victim or accused.
The current government is proposing to restrict the right to jury trials, and I may write about that here and elsewhere, but I thought it would be worthwhile to set out in one place this short defence of juries.
As so often in our constitutional arrangements, elements can be importtant for the checks and balances they serve to other elements.
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While in this case it looks like the government wants to justify a move away from jury trials on grounds of cost, another frequent reason they give for some trials - particularly fraud cases - is that these are two complicated for juries and should be left to judges.
It was therefore particularly delicious that in the LIBOR case back in July the Supreme Court quashed the convictions because the judge had mis-directed the jury.
If fraud cases are too complicated for judges to accurately direct the jury maybe we should be giving judges fewer criminal cases, rather than more, to decide.
There have been comprehensive studies of the way juries reach their decisions, undertaken by Professor Cheryl Thomas of UCL. From their outset, in which I was privileged to play a modest part, Professor Thomas proved conclusively that the ethnicity of a complainant, a defendant and a witness made no difference to the jury verdict. She did so by adopting the scenario of a modest ABH trial which was heard at the London Court at which I was the judge. The 'jurors' were discharged jurors, who were persuaded to remain (with a modest M & S voucher)for a few hours; and the roles of the witness, complainant and defendant were played by volunteer barristers. I was the judge, addressing a bank of cameras in the real jury box.
This research was extended to Crown Courts throughout England & Wales with similar outcomes. Juries are not biased. They tend to leave their prejudices behind when they are selected as jurors; and strive conscientiously to follow judicial directions before reaching an objectively consensus verdict.