‘Twelve angry men’ are better than one judge
The start of England’s first judge-only trial for 400 years is yet another blow to everyone’s democratic rights.
This week, for the first time in 400 years, a trial for a serious criminal offence has begun in England without a jury. The proceedings mark another blow for long-standing legal principles that have been under steady attack both by the current Labour government and by the previous Conservative administration. But this is not just an attack on the rights of defendants: this is an assault on the standing of every citizen.
The case concerns an armed robbery at Heathrow Airport in 2004. Four defendants stand accused of stealing £1.75million from a warehouse. For one of the defendants, John Twomey, this is his fourth trial in relation to the accusation. On the first occasion, he suffered a heart attack and the trial of six other accused was continued without him (they were all acquitted). At the second trial, the jury was unable to come to a verdict. In the third trial, the judge halted the case halfway through after the prosecution provided evidence of a ‘serious attempt at jury tampering’ – though the evidence for this has never been shared with the defence.
The ability to stage a trial without jury is provided for under the Criminal Justice Act 2003 where there is ‘evidence of a real and present danger that jury tampering would take place’ and there is a serious risk of the trial being prejudiced ‘notwithstanding any steps (including the provision of police protection) which might reasonably be taken to prevent jury tampering’. However, when the prosecution initially applied for a judge-only trial, the application was rejected by the High Court. But on appeal, the lord chief justice, Lord Judge, ruled that while jury trial was a ‘hallowed principle’, the provisions made for jury protection in this case ‘did not sufficiently address the potential problem of interference with jurors through their families’, and that it would be ‘totally unfair’ to impose such ‘additional burdens’ on individual jurors.
Placing additional inconvenience on jurors and going to considerable expense to protect them should be a small price to pay to defend such an important legal safeguard as jury trial. Instead, we now have a mockery of justice where the judge – a case-hardened, paid-up representative of the Crown – will determine the outcome rather than a panel drawn at random from society.
This is by no means the first example of juryless trial in the UK. The judge-only ‘Diplock’ courts, named after the peer whose report in 1972 recommended their creation, were used to create conveyor-belt justice in Northern Ireland during the height of the ‘Troubles’, along with the use of ‘supergrass’ evidence to convict republicans on the basis of one person’s (often dubiously obtained) word. These Diplock courts, while seriously objectionable, were created during a period of conflict (though the power to use them remains); the latest attacks on the jury system do not have even this flimsy justification.
Alongside the instance where juries have been intimidated or influenced, the other situation where jury trial has been questioned is in relation to cases of serious fraud. These cases can drag on for months and often involve complex financial arrangements. But in both cases, it is feasible to design the arrangements of the trial and the presentation of evidence in such a way as to overcome many of the difficulties involved. Using these examples as the basis for ditching jury trial – famously described in the 1950s by another senior judge, Lord Devlin, as ‘the lamp that shows that freedom lives’ – reveals both an authoritarian streak and a lack of imagination. The jury system is a vital defence for defendants against the tyranny of the state.
But there is another side to the question of jury trial that is every bit as important today. We should not just have a right to be tried by jury; we also need the right to be jurors. The jury is an important democratic component of our society. It’s one of the few areas of life where ordinary people get to make a choice of real significance. Indeed, there is arguably more of a choice available to the jury than there is to the electorate. If a jury had the range of choices open to us as voters these days, it would only be able to find the defendant ‘guilty’ or ‘really guilty’.
There are some practical considerations, too. Our laws can only represent very approximately the will of the people. The laws that people are tried under are often decades, even centuries, old. And parliament cannot possibly consider every set of circumstances that will need to be covered by the same law. There needs to be an element within the decision-making process that allows the current will of the people to be applied on a case-by-case basis. Allowing a small cross-section of society the opportunity to judge those accused of a crime is an imperfect way of doing this, but it is far better than having some po-faced, middle-aged judge do it instead. There is also the benefit that by bringing in outsiders, we force judges, barristers and the whole gamut of the criminal justice system to explain themselves to everyday people.
The attacks on the jury system suggest that we are too stupid or too lazy to perform an important public service, which should be handed over to those better qualified to do it. That is a dangerous and anti-democratic impulse and one that should be resisted.
That said, threats to the jury system are not new. On the contrary, only a small proportion of criminal cases are determined by juries today, as a number of innovations have meant that only fairly serious offences go to the Crown Court. So of the 1.74million defendants whose cases begin in magistrates’ courts, only about 1.7 per cent actually go to trial at the Crown Court. Most of the others are either not serious enough to make it to that court, get thrown out at some earlier stage, or the defendant pleads guilty. But then, for a variety of reasons, juries only determine the outcome of about 60 per cent of trials at Crown Court, usually because the judge decides the case must end with an acquittal for some legal reason.
Put all that together, and juries only ever decide about one per cent of criminal cases and are completely barred from dealing with about 78 per cent of cases not deemed serious enough to get to the Crown Court. So while the principle of jury trial is important, it is at best only one element of the many rights that help to protect defendants.
Indeed, there is a danger that the continued existence of the jury system can lull us into a false sense of security about the real state of the justice system. While many liberal lawyers and civil liberties campaigners will defend the jury system to the hilt, other important changes can slip by without much fuss. In the past 15 years we’ve seen the watering down of the right to silence and the extension of detention without trial in terrorism cases. We’ve also seen the expansion of fixed penalties, which switch the onus on the authorities from having to justify at a hearing why they are punishing someone to forcing those feeling hard done by to commence an appeal. This is the bureaucratisation of punishment.
We live in a society where we are routinely threatened with punishment for stepping out of line on everything from parking in the wrong place to not recycling. There are anti-social behaviour orders, too, which effectively lower the standard of guilt from that of reasonable doubt to the civil standard of the balance of probabilities. There is the proliferation of databases and registers to make sure that people can be punished without even proof of any crime being committed or long after a sentence has been served.
The moves to limit jury trial fit into the mindset that punishment and regulation by the state should be allowed to proceed with as little interference as possible. Allowing members of the public to take part in that process is increasingly regarded as a time-wasting nuisance by the authorities. If we want to defend important legal principles like jury trial, we need to be more active in sitting in judgement on those who run society.
Rob Lyons is deputy editor of spiked.
Previously on spiked
Brendan O’Neill set out spiked‘s 10-point action plan for rescuing democratic rights. Tim Black criticised the use of anonymous witnesses and looked at New Labour’s assault on liberty. John Fitzpatrick argued against the double jeopardy rule. Helen Reece thought neither rape defendants nor rape complainants should have the right to anonymity. Claire Fox said TV cameras should be allowed into courtrooms. Or read more at spiked issue Liberties.
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