Trial by jury: the case for the defence

This week, the UK Ministry of Justice revealed plans to save £30million by restricting the right to trial by jury in ‘minor cases’. The reforms would target offences currently referred to as ‘either way’, because the defendant has the right to choose between being tried by a jury in the Crown Court or by a magistrate in the Magistrates’ Court.

The reforms have been championed by the Magistrates’ Association and the ‘victims’ champion’ Louise Casey, a one-woman quango who in March 2010 was appointed by the New Labour government to represent the interests of victims in the criminal justice system. In November 2010, Casey called for identical restrictions to trial by jury in her report, Ending the Justice Waiting Game: A Plea For Common Sense, in which she derided ‘the administration of law that concerns itself with due process and the rights of offenders’. Speaking to The Times (London) this week, she said: ‘We should not view the right to a jury trial as being so sacrosanct that its exercise should be at the cost of victims of serious crime.’

Many have pointed out that Casey is just the latest in a long line of members of the English establishment who have sought to limit trial by jury. Lord Roskill’s 1986 report on trial by jury in cases involving serious fraud advocated abolishing juries in fraud trials to make the process more ‘expeditious’, despite finding no evidence that jurors were less capable of understanding fraud than judges were. The Runciman report in 1994 recommended abolishing the right to elect trial by jury for certain offences, saying that for many crimes the view of the jury was ‘unnecessary’. Jack Straw called the right to trial by jury ‘frankly eccentric’ in his failed bid to push his doomed Criminal Justice (Mode of Trial) Bill on to the statute book in 2003.

Judges, politicians and quango-staffers may see the system of trial by jury as an ‘eccentric’ waste of time and money. But at a time when successive governments have engaged in a prolonged assault on the rights of defendants in criminal trials, standing up for the jury system – famously described by Lord Devlin in the 1950s as the ‘lamp that shows that freedom lives’ – has never been more important. Its value in rebalancing the hugely unequal relationship between the accused citizen and the powers of the state cannot be underestimated.

Juries ensure that the law is applied in a way which is consistent with the social values of the day. This is why juries have the power to acquit a defendant in the face of overwhelming evidence of their guilt. In the nineteenth century, juries in the United States used this power to acquit law-enforcement officers charged with offences under the Fugitive Slave Act of 1850 for harbouring escaped slaves, even when they had been directed to convict by the judge. These acquittals led the Wisconsin High Court to become the first state court to rule the Fugitive Slave Act to be unconstitutional in 1854. Later, in the 1930s, many juries acquitted those charged with producing alcohol during the days of Prohibition. These acquittals eventually forced prosecutors to stop taking Prohibition cases up in the first place.

More recently, juries have acquitted defendants accused of murder even on overwhelming evidence of their guilt, if they have taken the view that they are not deserving of punishment. For example, Kay Gilderdale was cleared of attempting to murder her 31-year-old daughter, who was suffering from chronic ME, despite clear evidence that her daughter was unconscious when she injected her with morphine. The unfettered discretion afforded to juries enables them to hold the black letter of the law up to contemporary social norms and to make a democratic decision as to whether the defendant is guilty or not.

The jury also represents one of the last areas of public life where we, as members of the public, are absolutely trusted to make important decisions for ourselves. The judge is highly restricted in what he can ask a jury about their deliberations; if he is seen to be putting undue pressure on them to convict, the verdict will be overturned. This esteem has ancient roots. The Athenian speech writer Lysias described the jury’s verdict as ‘sovereign over all the city’s affairs’ and said juries had the power to decide whether the law was ‘powerful or powerless’. In the Roman republics, the decision of the single magistrate was only appealable to the citizen courts made up of up to 1,000 citizens, the verdict of which was absolutely final.

Today, however, the idea that a defendant’s guilt should be determined democratically is being eroded. More and more criminal offences are punishable by way of a fixed-penalty notice, dished out without any need to go before the courts. Bureaucratic organisations like the Independent Safeguarding Authority can effectively punish individuals by restricting their right to work without the need for any criminal conviction. Reams of new legislation encourage defendants, through discounts on their sentence or with prohibitive restrictions on legal aid, to plead guilty as quickly as possible.

All of these measures, along with the attacks on the jury system, are part of the same anti-democratic trend that places efficiency and cost saving before the rights of defendants to a fair trial. We should resist this trend by standing up for the principle of the jury trial, as one of the last remaining guarantors of our stake in criminal justice.

Luke Gittos is a paralegal working in criminal law and convenor of the London Legal Salon.