Judges as Tribunals of Fact - Essay Example

Judges as Tribunals of Fact Introduction In England and Wales which have same legal system minor criminal cases are heard without a jury in the Magistrates’ Courts while in middle ranking offences may be tried by magistrates or the defendant may elect trial by jury in the Crown Court. In serious offences however, used to be a must for a jury to be present until in recent times. All juries consist of 12 people between 18–70 years of age, selected at random from the register of voters. In the past a unanimous verdict was required. This has been changed so that, if the jury fails to agree after a given period, at the discretion of the judge they may reach a verdict by a 10-2 majority. Criminal Justice Act of 2003 sought to remove the right to trial by jury for cases involving jury tampering or complex fraud. The provision for trial without jury is to circumvent jury tampering and came into force in 2007. However, some people have argued that this is in contravention of Article 6 of the European Convention on Human Rights is a provision of the European Convention which protects the right to a fair trial. It is argued that trial by the jury protects public interest immunity hence it is in conformity with Article 6. Jury tampering is the crime of attempting to influence the composition decisions of a jury during the course of a trial. This crime can be committed by attempting to discredit potential jurors to ensure they will not be selected for duty. Once selected, jurors could be bribed or intimidated to act in a certain manner on duty. It could also involve meeting them against the law for the purpose of introducing prohibited outside information and then arguing for a mistrial. There had been several reported jury tampering cases in the past which necessitated this change in trend. The role of the jury The jury plays the role of fact finding and leaves the interpretation of the law to the judge and instructing the jury accordingly. The jury will render a verdict on the defendant's guilt, or civil liability. Work of the juries is often justified as they are considered to leavening the law with community norms. Usually if the jurors find the law to be invalid or unfair, they may acquit the defendant, regardless of the evidence that the defendant violated the law. It is argued that trial by jury protects the accused as provided by the European Convention on human rights which provides that in determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. In the United States, juries are also entitled to make factual findings on particular aggravating circumstances which will be used to elevate the defendant's sentence, if the defendant is convicted. This practice was required in all death penalty cases for example in Blackely v. Washington where the Supreme Court ruled that allowing judges to make such findings unilaterally violates the Sixth Amendment right to a jury trial. In Canada, the juries are given permission to make suggestions for jail terms and at the time of sentencing; the suggestions of the jury are presented before the judge by the Crown prosecutor before the sentence is handed down. However, this is not the practice in most other legal systems based on the English tradition, in which judges retain sole responsibility for deciding sentences according to law. The exception is the award of damages in English law libel cases, although a judge is now obliged to make a recommendation to the jury as to the appropriate amount. In England, trial by jury has been described by Lord Atkin as the right as ‘ingrained … in the British constitution and in the British idea of justice”1. He further held in Ford v Blurton that he considered that trial by jury as an essential principle of law. He said that it had been the bulwark of liberty, the shield of the poor from the oppression of the rich and powerful. Sir William Blackstone in his commentaries was concerned with the growing trend to summary offences . He said: “however convenient these may appear at first, yet let it be again remembered, that delays, and little inconveniences in the forms of justice, are the price that all free nations must pay for their liberty in more substantial matters; that these inroads upon this sacred bulwark of the nation are fundamentally opposite to the spirit of our constitution; and that, though begun in trifles, the precedent may gradually increase and spread, to the utter disuse of juries in questions of the most momentous concern”2 (Lord’s Debate) Introduction of Judge only Trials in Jury Tampering Cases S.43 and s.44, Criminal Justice Act 2003 Section 43 is titled “Applications by prosecution for certain fraud cases to be conducted without a jury”. This section applies where one or more defendants are to be tried on indictment for one or more offences, and notice has been given under section 51B of the Crime and Disorder Act 1998 (c. 37) (notices in serious or complex fraud cases) in respect of that offence or those offences. The prosecution may apply to a judge of the Crown Court for the trial to be conducted without a jury. If an application is made and the judge is satisfied that the condition3 is fulfilled, he may make an order that the trial is to be conducted without a jury but if he is not so satisfied he must refuse the application. Section 44 titled “Application by prosecution for trial to be conducted without a jury where danger of jury tampering”. Where one or more defendants are to be tried on indictment for one or more offences, the prosecution may apply to a judge of the Crown Court for the trial to be conducted without a jury. The section provides further that if an application under subsection is made and the judge is satisfied that both of the following two conditions are fulfilled, he must make an order that the trial is to be conducted without a jury but if he is not so satisfied he must refuse the application. The first condition is that there is evidence of a real and present danger that jury tampering would take place. The second condition entails everything entailed in the all the steps inclusive of the police protection provision which might reasonably be taken to prevent jury tampering, the likelihood that it would take place would be so substantial as to make it necessary in the interests of justice for the trial to be conducted without a jury. The Act provides in section 44(6) examples of cases where there may be evidence of a real and present danger that jury tampering would take place. These includes; a case where the trial is a retrial and the jury in the previous trial was discharged because jury tampering had taken place, a case where jury tampering has taken place in previous criminal proceedings involving the defendant or any of the defendants and a case where there has been intimidation, or attempted intimidation, of any person who is likely to be a witness in the trial. This Act therefore altered the jury system in England and Wales by granting the Crown Court discretion to deny a trial by jury for certain fraud offenses and in circumstances when a danger of jury tampering exists. It allows the prosecutor to make application to the Crown Court for the trial to be conducted without jury when 'a real and present danger' exists of jury tampering. The specific evidence of danger of jury tampering occurs in a retrial when the previous trial jury was discharged for tampering, a case where a defendant had engaged in jury tampering in a previous trial, and a case where there has been intimidation or attempted intimidation of a member of the jury. This section therefore changed the jury system in England and Wales by creating specific circumstances in which the Crown Court can determine that the case should not be tried by a jury regardless of the nature of the offense charged against an individual if there is the appearance of jury tampering. In effect, the previous acts of the accused in tampering with a jury in an earlier trial can influence the offender's ability to obtain a trial by jury in a subsequent trial. In addition, the provisions allow the judge to convert a trial by jury to a trial by the Crown Court judge, which indicates that the actions of the accused during the course of the trial can affect the ability of the accused to obtain a trial by jury. The definition of 'jury tampering' in the statute appears to be quite broad, which grants the judge considerable discretion to interpret circumstances involving only that appearance of jury tampering as sufficient to warrant a trial without a jury (Slapper, Slapper, & Kelly, 2006). This section was introduced because of the many instances of jury tampering and further to cut on costs. In his ruling in R v Twomey4 Lord Judge said that preventing jury-hobbling was expensive. He even quoted the costs involved in that case to support his arguments. Therefore, it seems that courts do consider the costs in such circumstances. Circumstances of First Judge only Trial R v T; R v B; R v C; R v H5 (also known as “R v Twomey”) In a fourth trial of this case which involved the defendants, who were facing 18 charges relating to a £1.75m ($3m) heist at a warehouse at Heathrow airport.. The first was halted when one of the accused, John Twomey, suffered a heart attack. The second attempt came to naught when the jury was unable to reach a decision. The third decision was left after the judge got information that indicated “a serious attempt at jury tampering”. The prosecution then applied for a trial without a jury, which became possible in 2006 under the Criminal Justice Act 2003. The application was rejected. On appeal, however, the head of the judiciary, Lord Judge, determined that the trial could proceed because the “danger of jury tampering and the subversion of the process of trial by jury” were “very significant”. All four defendants have pleaded not guilty to all the charges. The court in this case acknowledged the fact that remained the only case in this jurisdiction where trial on indictment by judge alone has taken place to nullify the risk of jury tampering. In his judgment Lord Judge held that the proper operation of the criminal justice system requires that the verdicts returned by a jury, as with any other court, must be true verdicts in accordance with the evidence. It was further held that verdicts returned by a jury which has been nobbled cannot represent true verdicts. From this case it is evident that if criminals choose to subvert or attempt to subvert the process of trial by jury they have no justified complaint if they are deprived of it. That is the consequence they face and the court held that the only certain way of avoiding trials by judge alone where trial by jury would otherwise be available is for jury tampering to stop. The court in this case recognized the importance of Article 6 by holding that the requirement that trial by judge alone should be fair is undiminished though trial by jury has been forfeited. The only thing that changes from trial by judge alone is the constitution of the tribunal. The Court in that case held that there was nothing in the common law, or in any of the provisions of the European Convention of Human Rights which suggests that trial by judge alone must, of itself, be deemed to be unfair, or that where an order for trial by judge alone is made, the subsequent trial offends the principle that every defendant facing any criminal charge is entitled to a fair trial.The order of non-jury trial can thus only be made in exceptional cases, where interference with a jury is apprehended Compatibility of Judge only Trials with Article 6 From the above, it is evident judge only trials are compatible with Article 6. In R. v. S6, concerned an appeal against an order that a trial should continue before the trial Judge alone, when a Judge should discharge a jury and decline to conduct the trial himself. In such circumstances it seems that violation of article 6 might be at stake R. v. Twomey laid down the principles to be applied in such circumstances. In R. v. Twomey as I have already mentioned concerned a professionally organized armed robbery involving firearms. An initial trial against some defendants proved abortive, in the case of Twomey because of illness. A second trial on Twomey among other defendants was withdrawn in peculiar circumstances. The number of jurors dropped to 10 in the course of a very long trial. The jury, after retiring for two days, sent a message to the Judge stating that they had reached a very strong majority decision but, as the weekend was approaching and the Judge had not given a majority direction, he announced that he would do so on the Monday. On the Monday, however, a juror, complaining that he was under stress, failed to appear. A majority verdict no longer being possible, the trial was rendered abortive. At a third trial, involving Twomey, two other defendants from the third trial and a fourth defendant, the prosecution informed the Judge that approaches were being made to two jurors. The court held that the first and second conditions in s.44 (4)(5) require evaluation by the court. The first, which relates to the entire trial process, requires that the court find evidence of real and present danger that jury tampering would take place. Evidence of jury tampering at a previous trial is relevant to the issue (s.44 (6)) but it is not necessarily decisive, nor is it necessarily required in order to establish a real and present danger of tampering. However, the evidence before the court may need to be governed by Public Interest Immunity (PII) principles from which it follows that in some cases it may not be possible to disclose it to the defense. Sensitive matters of police operation and management methods can be involved. It would seem that while the appointment of special counsel might in some cases be desirable where PII considerations arise, the issue here related not to evidence pertinent to the defense case but to the mode of trial. No special counsel was, therefore, appointed and it would seem that any such appointment will be rare indeed The second condition requires evaluation of the steps which might be taken to ensure jury protection. It need not be shown that a jury trial could not be held – the rule is not one of impossibility. The legislation requires that the issue of jury tampering, and whether it is in the interests of justice for the trial to be conducted without a jury, be evaluated in the light of what steps might reasonably be taken to protect the jury. The court cites the Northern Irish judgment in R. v. Mackle 7with approval. There, the court drew attention to the relevance of the feasibility of measures, the cost of providing them, the logistical difficulties that they may give rise to, and the anticipated duration of any necessary precautions. From the above considerations it is clear that judge only trial would not be unfair or rather it is compatible with Article 6. From the above case it was noted that the accused were hardened criminals who could easily manipulate the jury hence need for judge alone trial Conclusion Trial without a jury or judge alone trial has been introduced in the English legal system and has raised debates as to whether it would be an interference with article 6 of the European Convention of human rights. Further the role of the jury has been highlighted as crucial by various academics notably by Sir William Blackstone. It is a right to trial by jury which can only be derogated from in clear circumstances as provided by the CJA3003. It is thus now clear that the court proposes, save where the statutory conditions are clearly satisfied, and maintain the historic integrity of the system of jury trial. Section 44 where there is evidence of jury tampering then judge alone trial would be allowed. It can further be concluded that judge only trials if they follow the laid down considerations are not in violation of the article 6 or are not in violation of the Public Interest Immunity. Works Cited H. L. Leigh, “Non-Jury Trials” (2010) 174 JPN 565 Retrieved from http://www.criminallawandjustice.co.uk/index.php?/Analysis/non-jury-trials.html Seth Levine, “Practice points – Dangerous Precedent?: Practical consequences of Twomey case for non-jury trials” (2010) Law Society Gazette 19, 15th April 2010 Retrieved from from http://www.lawgazette.co.uk/in-practice/practice-points/practical-consequences-twomey-case-for-non-jury-trials Michael Bisgrove, “Judges as tribunals of fact: to what extent do the provisions for a defendant to be tried on indictment by a judge sitting without a jury conflict with the defendant's right to a fair trial where issues of PII are present?” [2010] Crim LR 702 Nick Taylor, Case commentary: R v T; R v B; R v C; R v H [2010] Crim LR 82 Wolchover and Heaton-Armstrong, “Star Chamber of a Secret Gang of 12?”(2009) 172 JPN 420 Rosemary Craig, “Non jury courts in Northern Ireland” (2009) 173 JPN 363 David Kirk, “Fraud Trials: A Brave New World” (2005) 69 JCL 508 Gray, Anthony, Mockery and the right to trial by jury. Law and Justice Journal, (2006). 6 (1). pp. 66-88. Kate Quinn, jury bias and the European convention on human rights? Criminal law review (2004) 998-1014 Jason Sunshine & Tom R. Tyler, The Role of Procedural Justice and Legitimacy in Shaping Public Support for Policing, 37 LAW & SOC’Y REV. 513, 519 (2003) Linda J. Skitka & David A. Houston, When Due Process Is of No Consequence: Moral Mandates and Presumed Defendant Guilt or Innocence, 14 SOC. JUST. RES. 305, 307 (2001) Brian Stelter, ‘To Catch a Predator’ Is Falling Prey to Advertisers’ Sensibilities, N.Y. TIMES, Aug. 27, 2007, at C1, available at http://www.nytimes.com/2007/08/27/business/ media/27predator.html. Read More