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The Times
February 29 2000
Society has moved on from the days of King John. Louis Blom-Cooper says the Auld review should be looking ahead
Trial by jury: why are we relying on the Magna Carta?
Jack Straw last week published fresh plans to curb the right of trial by jury for some 18,500 defendants a year charged with middle-ranking offences.
Much of the heated debate over his plans, in the Criminal Justice (Mode of Trial) Bill, have focused on the belief in the overriding importance of jury trial in a democracy as opposed to trial before magistrates.
The Bill aims to deprive an accused person of the absolute right to trial by judge and jury in a range of offences (theft, some assaults, shoplifting) which can be tried either by magistrates or by judge and jury at the crown court.
Lord Justice Auld's single-handed, Woolf-like review of the criminal courts, now underway, would seem to provide the opportunity to assess the jury system in the 21st century. Lord Justice Auld is enjoined by the Lord Chancellor's terms of reference to review "the practices and procedures of every level of criminal court and the rules of evidence they apply, with a view to ensuring that they deliver justice fairly".
The official announcement inviting public response states that the review includes, "but is not limited to", the composition of the courts "including the use of juries and of lay and stipendiary magistrates" and "the management and funding" of the criminal justice system.
The review, intended to be completed by the end of this year, is strictly not about the criminal justice system - which is not in fact one system but a collection of disparate agencies all competing for finite resources. Anything about the substantive criminal law is outside the remit. So, too, probably, is the issue of sentencing. But it does cover the practice and procedure of the courts exercising a criminal jurisdiction. This must include the mode of trial.
Unless there is some consideration of the effectiveness and efficiency of various methods of trial, Lord Justice Auld will not be able fully to gauge whether justice is being delivered fairly in the two basic methods of trying accused persons. And that in turn must depend on some assessment of the trial systems.
Is it correct that jury trial delivers a better-quality justice than before the magistrates' courts? Is it to be preferred to a professional tribunal of judge and two assessors?
What, then, should Lord Justice Auld be looking for? The major handicap is the inability to know how juries function. The ban on research into juries in section 8 of the Contempt of Court Act 1981 remains, although a body of informed opinion favours controlled research.
The Royal Commission under Lord Runciman (1993), the most recent review of criminal justice, said that it should be possible for authorised research to be carried out into how juries reach their verdicts. It recommended amending section 8. The Government has declined to implement the proposal. Even if now it were to permit some controlled jury research, it would be too late for Lord Justice Auld's restricted timetable.
Would the research help, either to demonstrate the inherent worth of juries or to disclose unacceptable features of amateur duodecimal decision-making? The latter may be the more likely. At the time of the 1965 governmental committee on jury service, which did not wish to prejudice any future inquiry into the merits of the jury system as to which there is room for divergent views, Professor Ely Devons, the Professor of Economics at the London School of Economics, after two weeks' service on a jury in Manchester wrote "that if the jury is to remain part of the English system it is just as well that its proceedings should remain secret".
But Lord Justice Auld need not be bereft of research material. Professor John Jackson and Sean Doran of Queen's University, Belfast, in their 1995 work Judge without Jury, studied the working of the Diplock courts in Northern Ireland, which since 1973 have conducted trials by judge alone in all terrorist cases. The authors demonstrated some of the distinct advantages of a criminal trial without jury, such as a reasoned verdict, subject to an unqualified right of appeal. They were far from being dismissive of the virtues of the Diplock courts.
The protagonists of trial by jury are fond of proclaiming the citizen's inalienable right to be tried by his or her fellow citizens, granted by the 39th article of Magna Carta. That declared that "nobody should suffer loss of liberty except by the legal judgment of his peers or by the law of the land". Society has moved on seven centuries from the days of King John.
Lord Justice Auld should recommend steps to be taken in 2001 for evaluating the various modes of criminal trial compatible with the requirement of Article 6 of the European Convention on Human Rights for a fair trial before an independent and impartial tribunal.
- The author, a QC, is a former deputy High Court judge.
