12 HEADS ARE BETTER THAN ONE - THE CASE FOR PRESERVING THE RIGHT TO TRIAL BY JURY IN ENGLAND & WALES

The Origins of Trial by Jury

The right to trial by jury in this country is often referred to as the cornerstone of our just and democratic system, introduced by the Magna Carta on 15 June 1215. This document, created following the rebellion of King John’s barons having been imprisoned and their properties seized following their protest at the imposition of heavy taxes, forms the constitutional origin of our justice system as we know it today.

The United Kingdom has always prided itself on the fact that it is home to the greatest legal system of the modern world. One of the main reasons we can make such a bold statement, at least in relation to the criminal justice system, is thanks to the jury trial process. Defendants are entitled to put their case before a jury made up of people just like them, just as complainants are entitled to tell those same people about what happened to them. Having heard both sides of what are often fractious circumstances, 12 people gather in confidence to examine the evidence and attempt to come to a unanimous decision as to innocence or guilt, guided in doing so by some of the world’s foremost legal advocates.

During those deliberations, all 12 members will draw on their own personal lived experience as well as the evidence placed before them. Those who have been wrongly arrested, stopped and searched or prosecuted by police because of their skin colour for example, will be able to bring this experience into the discussion when assessing the witness’ credibility and the veracity of their evidence. Something which, someone who has never experienced something like this, (for example, a middle-aged white woman) may not initially have considered, and thus her resolve to convict may waver.

A young university student who frequents London’s nightclubs may be able to inform the older cohort of jurors of the predatory behaviour of certain men when surrounded by drunken women. Therefore, the elderly retired businessman on the same panel, who might be influenced by his own prejudices, may instead come to understand how drunkenness and short skirts do not mean the complainant was ‘clearly up for it’, and may decide to convict the defendant based on the evidence presented.

It is this broad spectrum of people, from different walks of life, different economic, social, faith and ethnic backgrounds, that make our system so fair. This representative sample of society operates as the only countermeasure to bias, when everything is at stake for the defendant and complainant. This is made especially important given the makeup of the judiciary in large swathes of the country is that of older white men who come from more affluent backgrounds. How can they relate to the lived experience of the majority of the population? How could they relate to a defendant who insists that he has been picked out as the culprit because of his skin colour, his clothing choices?

Why are jury trials under threat?

So why is it that this system is under threat? We are told by David Lammy MP, Minister for Justice (the irony of that title is not lost), that juries are to blame for trials dragging on. We are told that the selection of jury members delays the trial being effective. We are told that ‘criminals’ are ‘gaming the system’ by seeking trial by jury, adding to the gargantuan court backlog in the hope of long delays that encourage cases being dropped or sentences given a lighter touch. Not only is this incorrect, but it is also reckless to make such assertions given the track record of cuts, setbacks and outright neglect abided by this Government, and its predecessors. 

A ‘pro’ of having juries deal with either way and indictable only matters, given the main demographic of the judiciary remains that of older, white, middle-class men, is that a jury comes from a wider sample of society, with diverse lived experience. You may have an ex-asylum seeker sitting on a jury panel, someone who has worked in social services, another who understands the challenges of living in a rougher part of town. Say, for example, the prosecution seeks to insinuate that a defendant is guilty of taking part in a crime which took place around the corner from his eventual stop and search. Let us imagine that the defendant in question was stopped because he ‘looked suspicious’. In reality, he is just a young black man wearing a tracksuit and puffer jacket, walking home from his grandmother’s house where he had been caring for her. He fit the bill because of the colour of his skin, and that he looked like a wily youth.

A Judge risks taking one look at that defendant, now sitting on remand in the dock with his hair askew and wearing his prison greys, and thinking he fits the bill for someone engaged in gang violence. And yes, a jury member may think the same, too. The difference here is that there will be another 11 members of the jury who need to agree with that person to add weight to this evidence in determining his guilt. Some of those jury members may be able to point out that young people often wear tracksuits and puffer jackets. Some may point out that the defendant in the dock looks that way because he has been at the mercy of the prison service for the last 12 months or more, how else could he be expected to look? The jury member who first judged the defendant for his looks, putting heavy reliance on the police and their personal belief in their innate honesty, would likely fail to convince the rest of the panel that this evidence should be given the weight the Crown intends it to be given. And so, a failsafe or balancing measure takes place to avoid prejudicial decision making.

With a Judge, there is no such discussion. There is no consideration of other points of view and there is no balancing exercise based on the opinions of other members tasked with coming to the same decision. That young man, who may previously have been acquitted, risks now being convicted because of an unconscious bias free of scrutiny from a jury.

A lack of different viewpoints will be somewhat compounded by the fact that these Judges have worked in the criminal justice system for a prolonged period. They have seen all there is to see. Some might even say the age-old phrase ‘they are all guilty of something!’ to colleagues. It is this case-hardening that poses a significant problem for the justice system in introducing judge-only trials.

Take the Magistrates’ Court as an example of a tried and tested judge-only mechanism for the speedy deliverance of justice. Many defence lawyers, perhaps even some prosecution lawyers, will hesitate when asked whether this court consistently reaches fair decisions. Many will also point the person who asked the question to the statistics of appeals made to the Crown Court from the Magistrates’ Court following conviction or sentence compared to that of the Crown Court to Court of Appeal. Judge-only trials often lead to dissatisfaction from the defendant in failing to accept that they have ‘had their day in court’, and it is often the case that appeals are pursued as a result, adding to the Crown Court backlog.

The danger of one individual, who may have become case-hardened over the years of working in the criminal justice system, determining the outcome of the trial is that the prospects of them convicting are higher, as is so often seen in the lower court. The demand will therefore increase for defence lawyers, who often feel as though the client starts out on the backfoot as it is (especially when represented on a publicly funded basis), to further examine the evidence and ensure that all potential avenues are exhausted as regards their defence case. In an ideal world, prosecutors, police officers and defence lawyers would be properly funded to warrant the additional bandwidth which will be required. That is not, however, the reality.

Trial in the Magistrates' Court: A Case Study

A case study from one of my previous clients’ matters some years ago may assist in demonstrating the inadequacy of Magistrates’ Court trials without juries. I represented a young man charged with assault. The assault was on a supermarket worker following a disagreement which took place in the same store a week earlier. The allegation was that my client had sought the supermarket worker out to taunt him in the hope of a fight taking place. The CCTV footage, and my client’s account, showed in fact that:

• The client was buying some lunch and standing in one of the aisles, where the complainant saw him and approached him

• The complainant got my client’s attention and was in a confrontational position, shoulders squared, and leaning towards my client with an angry expression on his face

• The complainant poked my client, who had his hands full of shopping, and who was turned to the side, three times to the shoulder

• My client began to walk off, and was followed by the complainant who continued to visibly berate him with hand gestures and a fast-paced walk

• The client stopped by the exit, put his shopping down as he had not been able to pay before being pursued and made gestures to say, ‘back away from me’. He looked for other staff-members to assist, but they stood and watched the spectacle unfold

• The complainant then lunged towards him, and the client hit him once to the side of the head before leaving the store, with the complainant having to be restrained from launching further attacks by his colleagues.

The Magistrates’ Court trial concluded. My client was convicted of assault despite acting in reasonable self-defence, supported by the footage and his first account in police interview. The reasoning for the decision? ‘I have seen incidents such as this many times before. Whilst you may have been surprised by the actions of the complainant, it is my judgment that you had played a prank on the complainant the week prior and so this later outcome was inevitable’. Essentially, my client was found guilty based on the Court finding that he ‘deserved it’. The judgment also conceded that self-defence was technically made out. The case naturally ended up being listed in the Crown Court for appeal (more than 24 months later), and the conviction was quashed.

The real issues in the Criminal Justice System

You might find this whole process impractical, and a huge waste of time and taxpayers’ money. I would be inclined to strongly agree with you. It is also unfortunate that this is not the measure of the impracticalities of judge-only trials. One pauses to consider the common issues encountered by defence lawyers in the lower court; namely, bad character applications, section 78 arguments, section 41 applications being dealt with by the same Judge or bench dealing with the trial. How can we, in cases as serious as (for example) sexual assault or s.18 grievous bodily harm, where years of imprisonment are on the line, be satisfied with the trial judge hearing applications regarding evidence that may not actually be admissible? In the lower court, the Crown will often make an application to adduce the previous convictions of a defendant on the day of the trial. Some say this is because of poor resources to enable full preparation in advance or maybe even mismanagement. A cynic might say this is deliberate, as the same judge determining guilt or otherwise will of course need to hear what the evidence is that the Crown seeks to adduce before deciding whether it is relevant and admissible. The outcome is that, should the Judge find the evidence inadmissible, they will rule that it ought not to be included as part of the evidence at trial whilst also having heard the evidence to deal with the application. A win-win for the Crown.

We are then left with feeble reassurances that the evidence will be ‘put out of their mind’ when it comes to deliberation. In a jury trial, however, the Judge is not currently tasked with determining guilt, and so will hear these same arguments without the jury present. This protects the jury from hearing potentially prejudicial evidence in a case. If the Judge deems it is not admissible, the jury will never know the evidence existed, and thus it will have no influence over their decision as to guilt.

It is perhaps clear from this article that the writer finds many issues with the concept of jury-free trials in the Crown Court. One could go on endlessly pointing out the issues this idea could cause in practice. It is of importance, perhaps, to focus closely on the main reason for the proposed ‘reforms’; to reduce the Crown Court backlog and enable more trials to take place in a shorter time-period. It is bemusing as to how this will be the case given that the same judge, defence lawyer and prosecution lawyer, sitting on the same trial on the same dates, will be able to suddenly find additional time to fit one more in.

There will be no ‘fancy another one?’ in terms of capacity for judges and lawyers to deal with trials, as there are not enough of them in the first place. So lies the real reason behind the backlog: there is nobody left to hear the cases listed as a result of a drastic cut in the amount of days per year that a Judge is permitted to sit in the Crown Court. It is easier to find juries than it is to find judges, prosecutors and defence lawyers for a case. Indeed, colleagues have reported attending for jury service only to be left waiting in the wings for a trial to arrive that could actually take place, before being sent home and discharged having not even set foot into a court room. Further, pay in this sector is a fraction of what colleagues in civil sectors are paid, and thus we are standing by whilst our justice system haemorrhages top talent as they flee for other, better remunerated areas where their contributions will be paid back in kind.

It appears that David Lammy’s proposals seek to falsely advertise that real work is being done to tackle the crisis of the court system. His proposals carry the same real-terms effect as rearranging deckchairs on the Titanic. If these reforms are approved, we face a hostile, unfair and internationally berated system. The right to a fair trial will be perhaps irreversibly eroded, and we risk losing the great respect our justice system has earnt over hundreds of years. The only certainty as a result of these proposals, is that there will be more convictions and thus a sharp uptick in the delivery of custodial sentences. Where are we planning to house these prisoners? The current prison estate is not fit for purpose as is, let alone with a further swathe of custodial sentences looming in the near future.

Juries are not the problem. Underfunding is the problem, a lack of Judges and court staff is the problem, a decimated prosecution and defence sector is the problem. When you might consider these reforms as ‘tough on criminals’, I would invite you to pause and imagine yourself in the shoes of the accused. Surely, if you were facing the prospect of someone else making perhaps the most important decision of your life, or that of a family member, wouldn’t you think 12 heads are better than one?

This is an opinion piece and does not constitute formal advice about your options. To find out more about the author, Ben Baker, please visit his profile and contact below.