TRIAL BY JURY AN ANCIENT INSTITUTION IN NEED OF OVERHAUL ?

Press, Volume CVI, Issue 31321, 17 March 1967, Page 10

TRIAL BY JURY AN ANCIENT INSTITUTION IN NEED OF OVERHAUL ?

< By

JUSTINIAN

in ihe “Financial Times")

i Reprinted from the "Financial Times" bp arrangement i

While the High Court in the Strand was last week stoutly defending the inviolability of jury decisions, members of Parliament in Westminster were unobtrusively subverting the hallowed institution of trial by jury. If that statement contains an element of hyperbole the contrast between judicial and parliamentary attitudes towards the jury system appeared just as starkly to many lovers of Anglo-Saxon mythology.

The Lord Chief Justice and two of his brother judges in the former case refused to allow a woman juror to deny her apparent concurrence to a unanimous verdict of her and her eleven colleagues at a trial last month at South West London Sessions. Once jurors could come along and reverse their verdict, the judges said, the floodgates would be opened. It is bad enough that accused and their friends sometimes nobble jurors during a trial: it would be intolerable if after an adverse verdict convicted offenders could forever pester jurors into swearing that they never agreed to the verdict of guilty. Parliamentarians have been equally concerned with both the nobbled juror—or perhaps one ought to say the embraced juror, since the offence committed by the “nobbier” is embracery—and the perverse juror. “Cornerstone Of Liberties” The supposed existence of these creatures of modern juries prompted the Home Secretary to breach the unanimity principle by legislating for majority verdicts. While countenancing 10-2 verdicts of guilty, the Home Secretary has disavowed any motive of jettisoning the jury system. He, like almost all Englishmen, swears blindly that the jury system is the cornerstone of our liberties.

Be that as it may, there is profound disquiet that cannot be assuaged by soothing shibboleths. Jury trials are infinitely more complex nowadays with the growing complexity of offences created by Acts of Parliament Fraud cases are well-nigh unintelligible to jurors untutored in the ways of the City, deprived of the sight of much documentary evidence adduced at the trial, subjected to hard benches in close proximity to one another and certainly no room to make notes even if (which they are not) encouraged to write down parts of the evidence. All this tends to tarnish the reputation of juries. Since noone in authority appears willing to put this ancient institution under the microscope of social inquiry, at least it ought to be made to wear a more modern look. Majority verdicts do not essentially change the archaicisms

attendant on the system and simply disturb the basic precept of unanimity. A unanimous verdict has at least the virtue of consistency with guilt beyond reasonable doubt. Two dissenting voices out of 12 logically might be said to represent a reasonable doubt. When the relevant clause in the Criminal Justice Bill came before the Standing Committee this point was forcibly made. It was swept aside by the Home Secretary citing a letter to him from the Lord Chancellor to the effect that the judges had

unanimously no majority decision here—approved the proposed change. This was blatant hearsay evidence, which is still not admitted as evidence in the criminal law. In fact, it is widely rumoured that not all Her Majesty’s judges are enamoured of the departure from the unanimity principle in juries.

Expert Panels? Perhaps the antagonists to the change would feel happier if the jury was made to appear a more demonstrably better instrument of justice. In fraud cases, would it not be better if a special City of London jury (composed of men of commerce and finance) were empanelled to try these difficult technical cases? And how can ordinary citizens give up weeks (and even months) sitting daily to try their fellow men? Even if they were fully compensated, it is an arduous task for professionals, let alone amateurs.

There is in fact a strong case for narrowing down the range of offences for which trial by jury is a right of the accused. A court composed of a judge with two lay assessors in all cases involving company accounts would be an infinitely preferable tribunal and just as likely to achieve justice. If that is altogether too revolutionary—and it is to be

remembered that judges have recommended abolition of jury trial for the offence of drunken driving—why must we always have 12 jurors? Is not seven (with 5-2 a good verdict) enough? They could at least sit in existing jury boxes with less discomfort—a not unimportant boon, to which any juror will testify. There is no magic in the number of 12. Public Reaction The public has reacted only peripherally to the change. Since a large section of the

public is directly affected it is surprising that no representation has been made to lighten the load of the juror and assist him much more in performing his task in the administration of criminal justice. Perhaps Parliament will yet wake up to the fact that the jury system itself is in jeopardy, and that the majority verdict is in a very real sense the thin end of the wedge. To balance the effect of diminishing the value of jury trial by this innovation, improvements to the mode of jury service are desperately needed.

The British Government last year decided to institute majori/.y verdicts—of 10 votes to 2—instead of the traditional unanimous verdicts of Juries, in a move to prevent the bribing or intimidation of jurors. A jurywoman who said she was too “frightened.” when the jury foreman gave a verdict she disagreed with, was not allowed later, when the verdict was appealed, to give testimony.