Advantages And Disadvantages Of The System Of Trial By Jury - Essay Example

? Number: Topic: Trial by jury has been described in terms ranging from the cornerstone of British justice to amateur justice. Discuss the advantages and disadvantages of the system of trial by jury. Date: Trial by jury has been described in terms ranging from the cornerstone of British justice to amateur justice.  Discuss the advantages and disadvantages of the system of trial by jury. The jury system in UK is a unique feature: as it combines the common sense of a non-legal person with the procedure of the law to ensure that justice is served. The trial by jury is a feature of the English legal system that has existed for hundreds of years but has gradually evolved over time to become an integral part of the legal procedure. Evidence of its existence is even found in Magna Carta 1215 where the right to be judged by one’s peers was recognized and arbitrary justice was condemned, this right was further reasserted in the Bill of Rights 1689. The jury consists of 12 non legal people from various walks of life who have no prior experience in law, and are given evidence to adjudge upon the case. Their verdict is expected to be based on evidence presented in the court, the deliberations and arguments of the counsels and the guidance by the judge, who ensures that the jury members understand the workings of law as far as possible. After vetting the evidence and observing the court proceedings the jury members retire to a jury room where they decide a verdict that must be handed down to the accused. Ideally, juries are supposed to decide upon the matters of fact and matters of law are to be adjudicated upon by the judge himself, however, in reality the verdict given is an amalgam between fact and law. The jury is mostly used in cases falling under Criminal law but is often used in civil courts in cases of defamation, fraud or malicious prosecution, or when the civil action is based on a disputed allegation of criminal conduct. The rationale behind inclusion of juries in the legal system is to encourage lay participation. Lay participation strengthens legitimacy and makes the system more democratic and in line with the current social sensibilities. Lay participation is also manifested through recruitment of magistrates in courts of first instance and by the use of trial by jury. Another reason behind having trials by jury is to protect the liberty of the accused – because crime is not only a legal subject, it is also social hence, it is important to ensure that the society also renders a certain act as a crime. The advantages of jury trial are numerous. First, it injects in insensitive system an element of humanity: the abstract impersonal trials become closer to reality with the inclusion of law people who judge only on the basis of social conscience, rather than stricto-senso law. This helps in decreasing the undue influence exerted by legal professionals in the adversarial system as Britain who tend to conduct business on strictly legal terms without paying heed to the opinion of the lay majority. Secondly, trial by jury is a manifestation of the right of an accused to be judged his own peers and hence this is also an expression of his liberty. According to Devlin (1956)1 ‘trial by jury is more than an instrument of justice and more than the wheel of constitution; it is a lamp that shows freedom lives’. Therefore, trial by jury is an inherent right of an individual that opens one path for him to ensure that he gets a fair trial. Thirdly, trial by jury is reflective of contemporary social conditions and that helps the defendant in his fair trial. Also, the secret deliberations of the jury members in the jury room after which they arrive at certain verdicts are helpful because they are free from any outside influence; any investigation or interrogation is not allowed into how jury members reached a certain verdict. This helps the jurors to decide on a suitable verdict independently free from any pressure, or remorse from any party. This also ensures that no media intervention is allowed in the jurors’ room and hence, all the jurors can decide in an impartial and fair way. Lastly, jury system protects the defendant and the claimant from any possible abuse of power by those in authority and in this regard Michael Mansfield QC is reported to have said ‘jury is the most democratic element of our judicial system and that poses a bigger threat to the authorities’. Recently writing in the Guardian2, Mansfield argued once again against the Home Secretary’s insistence that trial by jury must be banned in hybrid cases. Mansfield terms this “democratic bankruptcy” of the system. Even though trial by jury has been an integral part of the British legal system and is unique at that too, it is not free from vice. There are considerable reasons why academics and some lawyers genuinely believe that trial by jury must be abolished or restricted. For example, Mark Twain had held that the jury system was “the most ingenious and infallible agency for defeating justice that human wisdom could contrive”3. Moreover, Jerome Frank (1950) had said about the jury system that it served “as a great procedural opiate, draws the curtains upon human errors, and soothes upon the assurance that unattainable will be reached”. The first major criticism upon the trial by jury is that the racial mix of the jury, and how its affects the verdicts. Devlin (1956) has held that all jurors are usually “middle class, middle aged men”. The jurors are randomly selected from electoral registers, and these randomly selected jurors are then called over for the performance of this civic duty. The Law Magazine (1987) however, posed certain question marks on the use of electoral registers by holding that electoral rolls are usually unrepresentative of the population and tend to be inaccurate. Moreover, electoral rolls often do not include entries by ethnic minorities. This leads us to the second problem, that of unfairness. A jury that consists of all-white jurors is generally thought to be biased towards a defendant who belongs to the black community and the latter might naturally feel discriminated against. However, in R v Ford (1989) and R v Tarrant (1977) the judge ordered empanelling of a new jury to be constituted because of possible discrimination against the defendant, but on appeal the higher courts held that this was not possible as judges did not possess the power to interfere in jury’s random selection. In R v Tarrant, the defendant’s conviction was quashed on the grounds that the judge had interfered in this matter. In R v Mushtaq (2002) it was held that combined functions of jury and judge ensure impartiality and that jury itself was not a separate and distinct public authority. Similarly, prevailing social conditions also contain common contemporary prejudices and they can be used against the defendant in a trial by jury for example, according to Richard Wiseman (1997)4, it has been found that jurors usually have a prior conception of what a criminal, or a rapist looks like and they, being human, judge accordingly. Moreover, the issue with trial by jury is that of perverse verdicts. Often juries give verdicts that are considered perverse because of the reason they are based on. The prime example of this is the Clive Ponting Case (1985) where regardless of the judge’s clear instructions that the offence committed by the civil servant, Clive Ponting, amounted to a grave violation of the Official Secrets Act, he jury gave a not guilty verdict and the latter was acquitted. Similarly, in R v Melchett (2000) where Greenpeace supporters were given a not guilty verdict on the basis of the “reasonability” and usefulness of a certain protest that they carried out and subjected property to criminal damage. Another example of jury’s perverse verdicts is in the case of R v Kronlid (1996) where the jury acquitted four protestors who indulged in criminal damage “to prevent the crime of genocide”. Apart from perverse verdicts, another major problem with the jury is their secret deliberations. Section 8(1) of the Contempt of Court Act 1981 makes it an offence for anyone (juror or not) to disclose details of what was said in the jury room, or for anyone other than a juror to try to obtain such details. This makes properly conducted research into the jury impossible: what is known is based on single anecdotal cases, on raw statistical data, on the opinions of other participants in the trial, and/or on observation of "shadow" juries set up by researchers or television companies. And whatever research has been done on how jurors reach their verdict reveal that sometimes the reasons that a verdict is based on is quite absurd. In Vaise v Delavel (1785) there has been evidence that verdict was reached on “tossing a coin”, secondly, in R v Young (1995) it was found that the jurors had used the Oiuja board to reach a verdict. Lastly, with the secrecy of the jury room there is absolutely no way of ensuring that jury verdict is based on correct conception of law and fact; in comples fraud cases for example, it is impossible to understand whether the jury has understood the law and complicated issued therein. Therefore, Criminal Justice Act 2003 banned the use of juries in complex fraud trials. Perhaps it was because of these downsides that Penny Darbyshire (1991) wrote in her research that jury was an “anti democracy, irrational, haphazard legislator, whose erratic and secret decisions ran counter to the rule of law”5. However, it must not be forgotten that the presence helps the defendant, because it is easier to sway their opinion according to the deliberations in the court room rather than just the evidence presented before them. The use of jury is nevertheless time-consuming and expensive but it’s a kind of a guarantee that the defendant will get a fair trial. Although Spencer (1989)6 said about jurors that they were a bunch of untrained amateurs, but it must be remembered that that is exactly why the jury is there: to not only bring in a humanizing element but to include “amateur” common sense that reflects the sensibilities of the society. And this instills openness and democracy in the otherwise dark dungeons of law where liberty of an individual is decided upon. Bibliography: R v Ford (1989) [1989] 3 All ER 445 R v Tarrant (1977) The Times, December 29 R v Mushtaq (2002) EWCA Crim 967 R v Ponting (1986) Crim LR 318, Crown Ct R V Melchett (2000) Norwich Crown Court. R v Kronlid and others (1996) The Times, 10 September R v Young (1996) 2 WLR 430 Slapper, Kelly (2009) ‘The English Legal System’, 10th Edition Martin, J. (2006) ‘The English Legal System’ Michael Mansfield, ‘Bashing trial by jury is pathetically predictable’, The Guardian, January 17th 2012 http://www.guardian.co.uk/commentisfree/2012/jan/17/trial-by-jury-bashing-predictable Owen Bowcott, ‘Government 'considers cutting defendant rights to jury trial'’, The Guardian, January 16th 2012 http://www.guardian.co.uk/law/2012/jan/16/cuts-rights-to-jury-trial?newsfeed=true Jago, R. ‘Trial by Jury, Misplaced Virtue?’, QMW Law Journal (May 2001)s Read More