JURY SYSTEM

Evening Post, Volume LXXXVII, Issue 55, 6 March 1914, Page 11

JURY SYSTEM

QUESTION OF UNANIMITY (An Open Letter to the Prime Minister.) (Pot Favour of The Post.) Dear Mr, Massey,— > You may perhaps recollect that a- good many years ago I proposed several amendments of the law, some of which were adopted and others were not. Amongst the latter was one to empower Magistrates to feceive a plea of "guilty" in indictable cases, and to send the accused to the SupTeme Court for sentence mere' ly, instead of for trial; and another to dispense with the' necessity for unanimity in the verdict of the jury in criminal cases. A Bill embodying the former of I these proposals Was introduced by me I but failed to reach the Statute Book ; a few years later, however, it was taken up by the Minister of Jtistice, Mr. Pitt, and paesed-^-a. reform that must have saved the country some thousands of pounds in the expense© of prosecutions. We have already become so familiar with the new procedure that we are apt to forget that, even ivhen it was known that the accused intended to plead guilty, all the evidence had to be taken in the usual way, the accused had to be committed for trial and the witnesses had to attend at the Supreme Courtoften travelling long distances— only to find that they were not required, as the accused had pleaded guilty! Some years later Mr. M'Gowan, as Minister of Justice, introduced a Bill making provision for verdicts of three* fourths, but it met with such opposition that it was dropped. _ Although further observation and experience have left me more than ever convinced of the wisdom of such a change, I should probably never have thought of addressing you on the subject but for the fact that, within the last few days, the Chief Justice ha-s felt called upon to speak out very strongly on the subject from the Bench, by calling the attention of the Government and of Parliament to the necessity for a change in the law. When Mr. M'Gowan's Bill was before Parliament 1 wrote an article on the subject, and perhaps the Editor will permit me to quote some passages from it 1 : "By a little Bill of a single operative clause the Minister of Justice proposes to introduce one of the greatest changes ever made in our legal procedure^ — a change which, I believe, will prove a& beneficial as it is important. The BiJl referred to is one intended to do away with the necessity for the unanimity of the jury in criminal cases. It must be observed that^ the proposal is not to make the verdict of a bare majority sufficient, but to legalise in criminal cases a verdict of three-fourths, and that only in case of the_ jury, after three hours' retirement, intimating to the presiding Judge that there is no probability of their being unanimous — a rule that was introduced in. civil cases a good many years ago. "That a community co used to eweeping changes in. industrial and social mat' terns should so long have tolerated the mistrials, retrials, and miscarriages of justice, and the enormous expense and inconvenience directly attributable to this absurd law is indeed surprising. One can understand such conservatism and indifference in England, where the law of sanctuary 'and benefit of clergy was allowed to linger on for centuries, although it made the punishment of crmte a farce, and where, as late as 1818, the Judges of the ICing's Bench found them^ selves compelled to allow the- claim of Abraham Thornton, charged with having foully murdered Mary Ashford, to be allowed to meet the charge by throwing down his glqye (gauntlet) on the floor of Westminster Hall, and so challenging the- gifl's brother to mortal corribat; and where ac late as 1824 a litigant presented ■ himself at the Bar' of the King's Bench prepared with his compurgators to Aweai 1 away the debt! "The 1 rule requiring unanimity on the part of the jury is another of the common law relics of barbarism and superstition. Hallam described it long ago as 'a preposterous relic of barbarism,' and Bcntham denounced it as 'no less extraordinary than barbarous ' , and in 1831 the Law "Commissioners condemned it. In the TJnited States Judgje Cooley, an eminent authority on constitutional law, declared it to be 'repugnant to all 1 experience of human passions, conduct, and understanding,' and Mr. Justice Miller, of the Supreme Court of the United States, has condemned it. In several States of the Union it has been abolished, and with the happiest results, according to another Federal Judge. _ In almost all i countries where\trial by jury has been introduced ih modern times the practice is unknown. Hawaii, which has recently become a part of the American Republic, j has had for nearly half a century a ; judicial system modelled on that pi the I United States, with Judges of learning ' and ability ; and - Chief Justice Judd, who has had long experience at the Bar and on the Bench in that country, sam recently : ' Unanimity in verdicts has never been required. Nine of the twelve jurors who hear the case can render a verdict. Forty-five years' experience has not led the community to doubt the advisability of this principle, and we should part with it with regret.' , " I shall content myself with referring to two other countries — Germany and Scotland — 'in neither of which is a unanimous verdict required. In Germany a Verdict of eight of the twelve jurors is necessary^ for conviction, whilst a verdict of seven is sufficient for an acquittal. In Scotland the jury consists of fifteen mem- | bers, and a bare majority is sufficient either for acquittal or for conviction. In a recent number of Blackwood Lord Moncrieff says : 'It is seldom, indeed, that a verdict of ( a bare majority is given, especially in capital cases. . . . One great advantage of being able to obtain a verdict by a bare majority _is that in criminal _ cases there is no risk of the case having to be tried again, and in my experience I have found no tendency on the part of juries unduly to shorten their deliberations on account of the majority being able to return a verdict at once.' " All reason and analogy is against the rule requiring unanimity, and there is good ground for the belief that few of the more important sittings of our Supreme Court pass without acquittals of guilty persons that are directly attributable to it. Testimony from jurists and Judges of the widest experience could be adduced ad libitum ( in favour of the change, and I am convinced that, after a few years' experience of a rational system, we should all be wondering how we came to tolerate so long a practice so contrary to reason and common-sense. For obvious reasons it is to be regretted that the occasion for the remarks of the Chief Justice should have arisen in ; a prosecution connected with the strike ; but it is a good many years since Sir Robert first directed attention to the subject, as 1 happen to know from a newspaper cutting in my possession. The .ailure of the sedition trials is evidently attributable to this absurd survival from the dark ages, a:nd one cannot wonder that the Chief Justice dislikes having to play a conspicuous part in a farce that brings the administration of the law into contempt. I propose, with the Editor's permission, to direct your attention at some future time to another necessary reform in our criminal procedure — the abolition of the grand jury,— Yours truly, J. MACOBEOOB. j Dunedin ; 28th gebruary, 1914.