The Concept of Trial by Jury - Term Paper Example

Introduction The concept of trial by jury is deeply entrenched in the democratic system. Lysander Spooner noted as early as 1852 that the term trial by jury is synonymous with the term “trial per pias”.1 This ancient term means more than a mere trial by the country, it implies a separation of powers and guarantees a citizen’s right to a trial by the people rather than the government. This process embodies fundamental ideals of any democratic government in that it gives the citizen the liberty: “To secure this right of the people to judge of their own liberties against the government, the jurors are taken, (or must be, to make them lawful jurors,) from the body of the people, by lot, or by some process that precludes any previous knowledge, choice, or selection of them, on the part of the government.” 2 It is this democratic concept of fairness that gives rise to the modern day jury trial. It is a fundamental part of the British criminal justice system and has been a guaranteed right since 1215 forming a part of the Magna Carta. Clause 39 of the Magna Carta makes the following provision: “No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land.”3 Embedded in this clause are age old concepts of justice in that any man acquitted or convicted would have been tried by a system of unbiased judgers of the facts. Jury trials lend a measure to the notion that ”justice must not only be done, it must be seen to be done.” 4 In other words the mere appearance of bias can compromise any decision in a court of law and as such challenge the concept of just desserts.5 Just desserts recognize that citizens who infringe upon the legal order of society should be punished. It therefore follows that the determination of guilt or innocent should be determined by a body separate and apart from the institution that proscribes punishment. These observations form the basis for objection to the Fraud (Trials Without Juries) Bill 2006-2007. The discussion that follows examines the merits of both sides of the argument and concludes that a system that has been in place for more than 800 years speaks for itself. The Fraud (Trials Without Juries) Bill 2006-2007 The Fraud (Trials Without Juries) Bill 2006-2007 endeavors to implement Section 43 of the Criminal Justice Act 2003 which makes provision for the Crown to apply for a non-jury trial in respect of certain serious fraud cases. The judge will uphold the application if: “…the complexity of the trial or the length of the trial (or both) is likely to make the trial so burdensome to the members of a jury hearing the trial that the interests of justice require that serious consideration should be given to the question whether the trial should be conducted without a jury.”6 The interests of justice require an onerous balancing of the fundamental fairness enshrined in the concept of jury trials and the undue burden placed on a jury. This balancing act goes against hundreds of years of criminal jurisprudence in the United Kingdom. On December 14th, 1999 Lord Auld was commissioned by the Lord Chancellor, the Home Secretary and the Attorney General to review the function and process of the Criminal Court and to report his findings within a year.7 Lord Auld commenced his research in January of 2000 and released a report in September of 2001 with the following proposal: “My first proposal is that juries should be dispensed with in any trial (perhaps with the exception of murder trials) that is estimated to last more than, say, 2 months. My reasons for so proposing are not because of the costs of running such trials, although there would be substantial saving of monies, but because of the pressure, disadvantage and inconvenience that individual jurors suffer and in some circumstances the financial loss suffered by their employers.”8 In light of the Roskill Report, Lord Auld’s recommendations appear to be an extreme resolution to the perceived burden placed on jurors when one considers the confidence that jury trials vests in the public’s attitude toward criminal justice and the theory of just desserts. Lord Roskill’s report which was released in 1986 recommended that serious fraud offences be tried by virtue of jurors comprised of business persons and/or experts in the field of commercial transactions.9 These recommendations never came to fruition. Michael Levi notes however, that at the time of publication of the Roskill Report, fraud cases represented “a small proportion of cases” in the courts and had “marginal interest” to many.10Ironically, this is exactly why Levi is of the opinion that abrogation of jury trials in respect of complicated and long fraud cases would not impact the symbolic nature of jury trials. Most people, Levi maintains do not view fraud as an ordinary crime and the abolition of jury trials in this respect would not rebound on the criminal justice system. Levi’s position runs counter to the arguments put forward by those in staunch opposition to the 2006-2007 Bill. Director of Liberty, a civil rights group, Shami Chakrabarti responded to the Bill by saying that if the Bill is passed into law there was a real danger that the complex trial excuse would prevail in other kinds of trial.11 The most obvious fear expressed by those against the Bill is its dramatic departure from the Magna Carta. Those arguing in favor of the Bill cite the 60 Million pound Jubilee Line fraud case that ended without resolution following 21 months of trial.12 The case caused undue personal and financial hardship on some of the jurors.13 These hardships could be avoided by reform of the law relating to Fraud. The Fraud Act 2006 which came into effect on January 1st of 2007 came as a result of recommendations put forward by the Law Commission’s Report on Fraud Law Reform in 2002.14 The report stated that the aim of the recommendations were to simplify the law relating to fraud with a view to making it more “comprehensible to juries.”15It would appear premature at this stage to advocate for the abolition of jury trials in respect of serious fraud cases when the Fraud Act 2006 which seeks to simplify fraud law is only in its infancy. The act dispenses with the primary reason for arguments in favor of abolition of jury trials; complexity of the legal elements. Simplification would shorten the time and effort involved in presenting the case before the jury. Case management and law reform is the obvious difficulty surrounding fraud trials and a review of the Jubilee Case revealed that the jury did not contribute to the collapse of the case. The Chief Inspector reported that: “No responsibility for the inconclusive outcome of the case can properly be attributed to the capabilities or conduct of the jury. Overall, they discharged their duties in a thorough and conscientious manner, and the fact that the trial became unmanageable was not their responsibility.”16 During the House of Lords Debates in June of 2006, Lord Goldsmith commented that having reviewed the report on the Jubilee case and the Chief Inspector’s comments about the jurors’ relatively fault-free role in the trial he remained of the opinion that the case was demonstrative of the difficulties serious fraud cases presented for juries.17 In is interesting that having agreed that the difficulty with major fraud cases as envisaged in the Jubilee case is primarily attributable to case management and shortfalls in the law, yet the 2006-2007 Bill aims at rooting out the jury rather than modifying the flaws in the system that directly account for long and complicated trials. Arguments in favor of abolition of jury trials In its 1975 report the James Committee revealed that up to the middle of the nineteenth century trial by a judge and jury on indictment had become the norm in the British criminal justice system.18 There were very few offences for which summary trial by a magistrate was possible.19 By the latter part of the nineteenth century a number of statutory provisions were enacting making a number of offences triable either way. The Summary Jurisdiction Act 1879 introduced a list of cases that could be tried either summarily or on indictment and by and large left the decision for the defendant. Section 17 of the 1879 Act also made provision for a right to jury trial provided the offence was punishable by a custodial sentence in excess of three months.20 The current list of cases triable either way are contained in the Criminal Law Act 1977 and came as a result of the James Report.21 Penny Darbyshire draws on these measures that partly dispense with jury trials as a means of supporting the contention that the jury system is not all that it is claimed to be. It does not in her view represent some inalienable right and neither does it guarantee fairness in the pursuit of justice. Darbyshire notes as follows: “If the jury is such a guardian of our liberties and of justice, are we implying that magistrates dispense some lesser form of justice? Are we implying that, since we invest so much cash and rhetoric in the jury system, that it is more likely to do justice and get the verdict right, whatever that means, than the magistrates? If so, why do we, in this, the fairest of legal systems, allow most of our defendants to be processed by magistrates’ courts? And, this being the case, why have academics invested so much argument and research into the jury?”22 Darbyshire also takes further issue with the random process of jury selection in support of her contention that jury trials do not ensure fairness and certainly does nothing to bolster the typical claim that a fair trial is synonymous with a trial by a jury of “one’s peers.”23 Darbyshire also rebuffs the argument that jury trials represent a means of eliminating state autonomy. In citing the case of the Guilford Four as well as the Birmingham Six, Darbyshire maintains that the instances of unsafe and unsatisfactory jury verdicts that are ultimately reversed by an appellate court rules out the argument that jury trials are a safeguard against state autonomy.24 The French already subscribe to a system whereby judges and juries perform essentially the same function. When an accused person goes to trial for serious offences, three magistrates sitting together with juries will determine the issue of guilt or innocence together.25 For all intents and purposes French jury trials by their structure are non-existent because it is difficult to imagine jurors going against judge’s decisions. This measure does not offend the European Convention on Human Rights to which France subscribes and therefore defeats the argument that a jury trial is an essential part of civil liberties. Moreover, Germany another member of the European Community has abolished jury trials altogether since January 4th, 1924.26 Arguments in favor of jury trials Bruce Houlder QC makes a convincing argument in favor of the continued jury trial process. He argues that cases in which there have been miscarriages of justice are not attributable to jurors but to prosecutorial and investigative error.27 Noting that the jury trial represented “participatory democracy” Houlder argues that it makes no sense to abolish jury trials simply because magistrates are already hearing cases in the absence of jurors. He adds that “We cannot all be magistrates but all of us can be jurors”28 and this all the more reason to maintain the jury system for the preservation of participatory democracy.29 In favor of the continued right to jury trial Houlder list the following reasons in support of his argument: 1. Permitting the individual to participate in the democratic system via jury trial and otherwise is a pivotal part of the democratic process. 2. Jury trials have the capacity to educate its participants. 3. Convicted persons are more comfortable with jurors passing judgment on the facts and that alone is an element of justice and fairness. Having a judge pass judgment on the defendant has the capacity to isolate him from society and hinders rehabilitation. 4. There is an element of serious injustice in a system that permits the state to investigate, charge, convict and sentence citizens accused of criminal conduct. 5. The presumption of innocence is undermined by a system that permits one body to investigate, accuse, convict and sentence the defendant.30 Conclusion The primary aim of any criminal justice system is to foster confidence in the democratic process. The appearance of justice is very important to the integrity of criminal justice and it goes to the heart of confidence and trust. The system of jury trials has vested some measure of responsibility for accountability in the average citizen. Any measure that threatens to abrogate jury trials threatens the very foundation of democracy which entails citizen participation and free choice. Having regard to the preceding discussion it would seem the abolition of jury trials in any serious criminal matter would not solve the difficulties encountered by complex and lengthy trials. The problem is the defining law, investigations and prosecution of the offences. As noted previously, the aborted trials and miscarriages of justice occurred independent of jury incompetence. It therefore makes more practical sense to revise the laws defining complex fraud cases and for prosecutors to improve their case management and trial preparations. This is certainly more preferable and effective than taking measures that shake the criminal justice system and threaten the foundations of democracy. Bibliography Auld, Robin (Sir, Right Honourable Justice) (September 2001) The Auld Report. Criminal Courts Review. Criminal Justice Act 2003 Criminal Law Act 1977 Darbyshire, Penny . “The Lamp That Shows That Freedom Lives – Is it Worth the Candle?” [1991] Crim LR 740-752 Fraud Act 2006 Fraud Law Com No. 276 Cm 5560 2002 Fraud (Trials Without Juries) Bill 2006-2007 Freeman, Simon. (June 21, 2005) “Jury trials ‘intolerable’ in major fraud crimes.” Times Online. http://www.timesonline.co.uk/tol/news/uk/article535745.ece Viewed September 27, 2007 HL Debates 27 June 2006 Houlder, Bruce Q.C. “The Importance of Preserving the Jury System and the Right of Election for Trial” [1997] Crim LR 875-881 James Committee (November 1975) The Distribution of Criminal Business between the Crown Court and the Magistrates’ Court. Report of theInterdepartmental Committee Cmnd 6323 Levi, Michael. Spring 1986) “Reforming the Criminal Trial: An Overview of the Roskill Proposals.” Journal of Law and Society Vol. 13. No 1 pp. 117- 130 Magna Carta 1215 McKillop, Bron. “Review of Convictions after Jury Trials: The New French Jury Court of Appeal.” [2006] Sydney Law Review. Vol.38 pp 334-357 Miller, William. (2006) An Eye for An Eye. Cambridge: University of Cambridge Press. Review of the Investigation and Criminal Proceedings Relating to the Jubilee Line Case June 2006 Rex v. Sussex Justices, Ex parte McCarthy ([1924] 1 KB 256 Spooner, Lysander.(2002) An Essay on the Trial by Jury. William S. Hein & Company Summary Jurisdiction Act 1879 The Roskill Report. (1986) Fraud Trials Committee Report. London, HMSO Read More