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Putting the jury’s contribution into perspective

Sunday, September 7, 2014

Douglas Mendes

Blackstone, a 19th century legal historian, referred to it as the “bulwark of liberty.” Lord Devlin, a mid-20th-century jurist, branded it “the lamp that shows that freedom lives.” I am grateful to Mark Wilson and the Economist magazine for shining a light on the Chief Justice’s recent, more sobering reflections on the jury system.

Its supporters are usually passionate in their insistence that trial by jury is essential to a fair criminal justice system. Juries no doubt contribute to our democratic, anti-authoritarian traditions. Along with an independent judiciary, they narrow the areas where the State may exercise tyrannical powers over the individual.

Often times, juries act as a brake on what is seen as unpopular and oppressive state action or unjust laws. Supporters, for example, point to a British jury’s refusal to convict a group of women protesters who damaged a fighter jet they believed was to be sold to Indonesia to be used to commit genocide.

Had the jury applied the letter of the law, they were bound to convict. The offence of malicious damage had clearly been committed. But the jury apparently thought the protesters were acting for the greater good and did not deserve punishment. There is also much to be said for the opportunity the average citizen gets to participate in the judicial process. The partnership forged between the judge, prosecution, defence attorneys and the jury gives ownership of the process to the citizenry.

Justice is wrenched from its ivory tower, its mysteries and idiosyncrasies are laid bare for all to see, and the end product branded with the seal of the home-grown wisdom of the average man and woman in Woodford Square. It is easier to build public confidence in an institution in which the public has had real input and in which a defendant is judged by his peers, not some distant judge who has no understanding of the daily pressures of ordinary life. 

The downside is that jurors bring to the jury room all their stubborn prejudices. Particularly irksome are the misogynistic attitudes which permeate trials for sexual offences and probably contribute to low conviction rates. It is common to hear people say a woman invited or provoked her attacker because of the way she was dressed. Or that, if she did not complain immediately, it must have been consensual.

In the June 2014 issue of Standpoint, Matthew Scott looked at jury prejudice from a different angle.

He said: “Humans are often irrational, often prejudiced and often stupid. Judges too, being human, display all these traits. But bring 12 randomly selected people into a jury and they tend to become deeply conscious of the solemnity of their task, and to become more sensible, level-headed and fair-minded. Their prejudices are not removed but they are at least the prejudices of society as a whole and the worst ones then cancel each other out.” 

That is probably an overly optimistic simplification: it is more likely that the views of the dominant personality will hold sway. 

Whatever the benefits, it must be remembered that people are actually tried by jury in the minority of criminal trials in this country, and the vast majority before single magistrates. In 2012-2013 alone, approximately 110,000 cases were filed in magistrates courts, with approximately 71,000 being disposed of. In the High Court, where jury trials take place, 91 criminal cases were disposed of and 339 new cases filed over the same period.

When Lord Devlin trumpeted the jury system as our guarantee against tyranny, did he mean to suggest a lesser form of justice was dispensed by the magistracy? It is no answer to say the comparison is flawed because trial by jury is reserved for more serious offences, where state oppression could have the greatest impact. Magistrates are empowered to impose fairly long jail terms, and the liberty of a significantly larger number of people is daily in jeopardy before them.

Furthermore, as much as the jury system is touted as the guarantor of freedom, you cannot help but remark at its inherent arbitrariness. Juries are not required to give reasons for their verdicts and enquiry into what has gone on in the jury room is prohibited. Horror stories abound. There is one about the jury which consulted a Ouija board to decide on a defendant’s guilt.  

Such occurrences must not be exaggerated and are probably in the vast minority. But the fact that we do not and cannot know why the jury has come to a particular verdict does not instil confidence. Judges sometimes ban jurors from future trials, so disturbed are they by the verdicts they return. And the vision of the heroic jury saving the oppressed defendant from an underserving punishment, looked at from another angle, is a contradiction of the rule of law. 

If an offence has been committed, a conviction should follow. Leave it to the good sense of the judge to take the defendant’s altruistic motivation into account in fashioning the appropriate penalty. Leave it to elected representatives to change the unjust law.
The alternatives are not perfect, but when a Chief Justice calls attention to the costs to the administration of justice which the jury system represents, we need to pay attention and put the jury’s contribution to the maintenance of freedom in perspective.


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