Why the Jury Is an Outmoded Institution and Ought to Be Discarded - Coursework Example

The jury is an outmoded and ought to be discarded. The fact that many countries that once had the jury have abandoned it only reinforces this point. Discuss The jury trial paradigm is an entrenched part of the criminal justice system, posited as a fundamental tool against oppression1. Indeed, Lord Devlin famously asserted that “trial by jury is more than an instrument of justice and more than one wheel of the constitution: it is the lamp that shows that freedom lives2”. Moreover, Lord Denning’s remarks in the case of Ward v James3 highlighted the overall judicial reluctance to the removal of trial by jury “let it not be supposed that this court is in any way opposed to trail by jury. It has been the bulwark of our liberties for too long for any of us to seek to alter it”. To this end, the central argument for the jury system in the English criminal justice system as been the preservation of justice and the prevention of a prejudiced trial and F. G. Hails suggests that any “restriction on the right to trial by jury even for a single class of criminal is the first step on the ladder to the police state4.” However, whilst the jury trial remains theoretically symbolic of the preservation of justice within the criminal trial system, the role of the jury has been plagued by controversy, with some critics attacking the competence of the jurors and expense of the system in reality5. The increasing concerns regarding the practical limitations of the jury trial paradigm have fuelled contentious debate further in the English legal system since the Royal Commission on Criminal Justice made its report in 19936. The focus of this analysis is to critically evaluate the polarised debate pertaining to the efficacy of the jury system and consider how far the opposing views can be reconciled into an effective and operational compromise within the criminal justice system. The most recent official attempt at eroding trial by jury were the proposals extrapolated in the Auld Report 20017, which proposed that offences that could be tried either way, the defendant should lose the right to choose to elect a Crown Court hearing with jury trial, particularly if the likelihood of the possible sentence would not exceed 2 years8. The report culminated in a White Paper inviting consultation and eventually the recommendations were rejected. However, it is important to consider the considerations that motivated the Auld reform proposals in considering the role of trial by jury. On the one hand, it had been submitted that the Auld Report proposals would result in a potential conflict with the Human Rights Act 1998, which implements the European Convention of Human Rights (ECHR) into UK law. The ECHR enshrines the right to a fair trial as a fundamental right, which would sit uneasily with the abolition of the right to a trial by jury9. Conversely, it has been argued that jury trial system breaches human rights as jurors fail to reflect the whole community due to the random selection process10. Whilst the selection may be random, this does not necessarily create a representative selection and the effect of the exempted, excused and disqualified classes of people makes the selection of juries even less random11. Indeed the Runciman Commission acknowledged the lack of adequate representation for ethnic minorities12. For example, in the Zander and Hendersons’ Crown Court Study (1993) it was found that whilst women made up 47% of all jurors and non-white jurors made up 5% as compared with the total of 5.9% of the population, the central problem was the even distribution of these jurors in individual cases. This is further compounded by the judiciary’s inconsistency adn failure to acknowledge racial bias as an issue in jury trials as in the case of R v Ford13, it was asserted that there was no right to a multiracial jury per se. Alternatively, in the case of R v Bansal14, the judge in a case involving anti-national front demonstration requested the panel jury to be drawn from an area which had a large Asian demographic. However, in R v Ford15 this has been applied on an ad hoc basis, as in the case of R v Ford, the Court of Appeal asserted that race should not be taken into account by selecting juries. However, it is submitted that this is slightly naïve approach of the judiciary. If the central argument in support of trial by jury is the protection from oppression and preservation of liberty and “justice”, surely the success of this ideal as a reality is inherently dependent on a balanced and representative jury. Indeed, this was precisely the point of the Auld 2001 recommendations and can be further evidenced by the Jury Diversity Report 2007 (The Report)16, which undertook a large scale research project over a four year period to determine the extent of ethnic minority representation, racial bias and socio-economic characteristics in the decision making process of juries. The results of the report highlighted the obvious point that the outcome of criminal trials will be influenced by the correlation of multifarious factors, of which the role of the jury is an important part. Moreover, by undertaking a comparative analysis of the results with the United States, the Report found many similarities in the issue of race an ethnic representation in jury determinations. The Report therefore concluded that like the United States, it was evident from a large scale study of race and jury decision making in a number of different court regions in the United States that juror race appeared to be related to juror’s first votes and was dependent on the region17. This further links to with the concerns about the UK jury system with regard to the even distribution of ethnic representation in juries. Whilst the Report acknowledged that it was not wholly conclusive certain factors nevertheless played a part in demonstrating bias against ethnic defendants18. Indeed, Sunffrank and Fontes argue that there is an indication that white jurors are more likely to demonstrate racial bias when black defendants commits crime19. Moreover, if race not an issue in the case, then the Report concluded that a white juror is more likely to convict the black defendant20. Another central problem has been the lack of juror understanding of their obligations. Indeed, the Auld Report highlighted these problems by referring to Justice Swallow’s directions to the jury in one case that “Gentleman of the jury, the facts of this distressing and important case have already been put before you some four or five times, twice by prosecuting counsel, twice by counsel for the defence, and at least once by each of the various witnesses who have been heard, but so low is my opinion of your understanding that I think it is necessary, in the simplest language to tell you again”21. Moreover, Sanders & Young highlight the point that many jurors deliver verdicts they feel that the judge wants them to reach22. Moreover, whilst the role of jury is to determine the strongest case, the judge ultimately determines what evidence is relevant and admissible.23 As such, due to the complex rules of evidence, the jury can often be prevented from hearing the defendant’s prior criminal record or evidence gathered improperly and they are directed to consider what the judge deems to be relevant24. To this end, McConville and Wilson argue that this creates the risk of undue influence in the jury decision making process25. Whilst the removal of unanimous verdicts under the Criminal Justice Act 1967 was welcomed as a move towards preventing “jury nobbling” practices, it is evident that in practice, the juror’s perception of any given case will overwhelmingly be shaped by the judge and counsel, which in turn can undermine the validity of the juror’s opinion26. This is further compounded by the fact that under the Contempt of Court Act 1981, a jury does not give a formal statement of reasons for reaching their decision. As such, jury verdicts are treated as pure fact and in order for the juries to be more accountable and open to public scrutiny, it is submitted that disclosure is the only real check on the jury system27. The dangers of lack of understanding are clearly evidenced in complex fraud cases, which are often extremely expensive. There is clearly the risk that juries may not reach the correct conclusion due to inherent lack of understanding, however the rationale behind their decision cannot be challenged as appeals are based on judicial error and not the jury decision making process28. Additionally, expensive cases and complicated evidence and jury understanding clearly create delays, which question whether actually they are actually serving the purpose as a tool against oppression. Indeed, as early as 1986, the Roskill Committee on Fraud Trials29 recommended the abolishment of the use of juries in fraud cases due to the inappropriateness of lay people making determinations over inherently complex matters such as bonds and options. Additionally, another criticism of the practical operation of trial by jury paradigm is the acquittal rate30. For example, as early as 1978, the Royal Commission on Criminal Procedure Report 1978-8131 found that 47% of defendants pleaded “not guilty” in the Crown Court and were subsequently acquitted, as opposed to 14% in the Magistrates court. McConville further argue that one third of the English jury acquittals were questionable and between 5 to 10% of convictions were unsafe32. McConville and Wilson further refer to research of judicial opinion in the criminal procedure review report indicating that 20% of acquittals were contrary to the judge’s direction and that the Crown Prosecution Service was surprised by the outcomes in jury trials in up to 47% of cases. The Royal Commission’s proposals argued to prevent time wasting and expedite proceedings due to the complaint of cost and length of procedures33. Additionally, Croall et al argued that “juries are more likely to acquit than magistrates and there is some justification for this view as the acquittal rates in the Crown Court have been found to be higher than in the Magistrates courts34”. Indeed, Sanders & Young note that prior to the Criminal Procedure and Investigations Act 1996, the determination of the mode of trial of either way demonstrated a sharp rise in 1980s of Crown Court, which created cost burdens on the court system, overcrowding and rise in legal aid applications, where savings could have been made35. Sanders and Young further argue that “some respondents questioned the logic of allowing defendants the automatic right to take the Crown Court matters which were so trivial that Judges and Prosecutors felt they could not sensibly be pursued there36”. The above analysis indicates that perhaps the pendulum has swung too far in favour of the preservation of liberty and that the theoretical ideal fails to account for the inherent flaws in the operation of the jury trial system in practice. Nevertheless, notwithstanding the central issues such as even socio-ethnic representation and adequate understanding of legal issues, it is submitted that complete abolition may be a step too far and not necessarily provide the panacea to the current problems. Lord Devlin asserted that “to my mind it is the so-called perversity of juries that justifies their existence, what makes them worthwhile is that they see things differently from other judges, that they can water the law, and that the function which they filled two centuries ago as a corrective to the corruption and partiality of the judges requires essentially the same qualities as the function they perform today as an organ of the disestablishment”37. Additionally, Devlin argued that trial by jury “gives protection against laws which the ordinary man may regard as harsh and oppressive” and is “an insurance that the criminal law will conform to the ordinary man’s idea of what is fair and just. If it does not, the jury will not be party to its enforcement”38. On this basis, it is submitted the recommendations of the Auld Report went the furthest towards reaching a compromise of sorts between the two entrenched positions regarding the arguments for and against trial by jury. The Auld report concluded that whilst trial by jury should continue as the main form of trial of the most serious offences, the simpler approach would be to impose restrictions on trial by jury to leave juries to determine cases involving what are essentially jury questions. Additionally, the Auld report looked to the jurisdictions of France and Germany to propose the idea of an expert jury sitting and legal advisors in complex cases requiring special knowledge. Whilst further consideration undoubtedly needs to be given to jury representation, it is submitted that the halfway house model of the Auld report is a substantial move towards representing the valid arguments for and against jury trial. As such, the failure to implement these recommendations is arguably a missed opportunity. BIBLIOGRAPHY Michael Allen (2007) Textbook on Criminal Law, 9th Edition Oxford University Press. Lord Devlin (1956). Trial by jury. F.G. Hails (1966). Complete Freedom. 116 New Law Journal 1245. S. Garvey et al, (2004) “Juror First Votes in Criminal Trials”. Cornell School Legal Studies Research Paper Series. A. Greenwald & M. Banajii (1995). Implicit Social Cognition: Attitudes, Self-Esteem and Stereotypes. 102 Psychology Review 4. Jerome Hall (2005) Principles of Criminal Law, The Lawbook Exchange Limited. William Wilson (2003), Criminal Law: Doctrine and Theory, 2nd Edition, Longman Andrew Sanders & Richard Young (2006). 3rd Edition, Oxford University Press. M. Sunnfrank and N. Fontes (1983). General and Crime Related Racial Stereotypes and Influence on Juridic Decision. 17 Cornell Journal of Social Relations 1. M. Davies, H Croall & J. Tyrer (1998). Criminal Justice: An Introduction to the Criminal Justice System in England and Wales. Longman M. McConville, & G. Wilson, (2002). Criminal Justice. 2nd Edition. Butterworths. Auld Report (2001). A Review of the Criminal Courts of England and Wales by the Right Honourable Lord Justice Auld. September 2001. “Diversity and Fairness in the Jury System” Available at www.justice.gov.uk Report of the Royal Commission on Criminal Procedure (Cmnd 8092). Read More