Evening Post. SATURDAY, AUGUST 25, 1917. THE JURY SYSTEM

Evening Post, Volume XCIV, Issue 48, 25 August 1917, Page 6

Evening Post. SATURDAY, AUGUST 25, 1917. THE JURY SYSTEM

Honourable members of the Legislative Council are to be congratulated upon their investigation of the jury system, and upon the leisurely way in which they have set about it. Yesterday was the fourth day which they devoted to the consideration of the Hon. J. MacGregor's Juries Act Amendment Bill, and the second reading was approved. Though the announcement by Sir Francis Bell on Thursday of the Government's opinion that the time is not opportune for sending such a Bill to the House of Representatives may seem to suggest that all the Council's labour will be vain, it really does not justify so pessimistic a conclusion. The thoroughness with which Mr. MacGregor's Bill was discussed will help to mould public opinion, and accumulate a store of material in which honourable gentlemen of " another place " will be able to delve with profit when they have the time and the inclination to do so. For the present, it must be conceded that there are more urgent duties to occupy their attention. A statement made by Mr. MacGregor, in moving the second reading of his Bill, suggests that even before the war legislators were not particularly anxious to ■■use the ampler leisure then allowed to them for considering the reform of the jury system. Twenty years ago he had submitted to the Legislative Council an extensive programme of reform, and the. greater part of it has since found its way on to the Statute Book. But the restless energy which during that long interval has explored and developed so many other fields of reform has left this particular matter severely alone. The putcry produced frooi Uvt» to tim« by *orao glaring miscarriage arising irom.ihe p;'e<

sent jury system has not been sufficiently strong or continuous to constitute an effective demand for reform.

The debate in the Council has well illustrated the difficulties which are presented to the reformer by the inherent conservatism of human nature, oven in one of the freest and most independent communities in the- world. Though the subject is not one on which the notorious sophistry of self-interest comes in to complicate the issue, the doctrine that " whatever is, is right," proves quite strong enough on its own merits—or demerits—to cumber the path of reform. "Trial by jury in civil cases," said Sir Francis Bell on Thursday, "is a mera fetish," but he added that trial by jury in criminal cases was quite a different matter. So different a' matter does itappear to many minds, both lay and professional, that they are almost as ready to resent even the mild instalment of reform proposed by Mr.'MacGregor—viz., the abolition of the rule requiring a unanimous verdict in a criminal trial—as though he were, seeking to. treat Magna Charta like, a German scrap of paper, or to lay unhallowed hands upon the solar system.

A good instance of this narrow conservatism was supplied in a. quite liberal review of the Report of Lord Mersey's Committee on the reform of the jury system in 1913. "It has been said;" wrote the Spectator, " that the ultimate aim of Uie whole British Constitution is to get twelve good men into a box. Evidently such a system is an ark of the covenant on which hands must not be laid thoughtlessly, or irreverently." The limitation of the Spectator's outlook was displayed not in any unreasonable antagonism to reform, but in assuming that the jury system of England applies to the ■whole of Great Britain. It is not the British Constitution, but the English, that seeks to get twelve good men into a box. In English criminal trials the unanimous verdict of a jury of twelve is required; in Scotland the number is fifteen, and a majority vote is accepted. The aim of the British Constitution, so far as Scotland is concerned, may therefore be said to be to get fifteen good men into a box, and allow eight of them to bring in a verdict over the heads of the other seven if there is a disagreement. That the sun nevertheless continues to shine in Scotland, that the criminal law is as well administered there as in England, and that life, liberty, and reputation are as safe to the north of the Tweed as they are to the south, are patent facts which should disarm some of the prejudices prevalent on the subject, even in this enlightened country.

There is really nothing sacred or foreordained about the unanimity of a jury in a criminal trial any more than about its number, though on the latter point at any rate the learned men of old were glad to fortify themselves by scriptural authority. " And, first, as to their number twelve," said one of these authorities; "and this number is no less esteemed by our law than by Holy Writ. If the twelve apostles on their tvrfelve thrones must try us in our eternal state, good reason has the law to appoint the number of twelve .tcr try our temporal. The tribes of Israel were twelve, the patriarchs were twelve, and Solomon's officers were twelve." We might reply to this authority on his own lines that, just as some of the tribes of Israel were lost, bo are a few jurymen occasionally lost to the sense of duty ; and if even among the apostles .one black sheep vras found, it is not surprising that among the twelve men selected by lot for the trial of a criminal one sometimes appears to ruin the work of the eleven others under the rule of unanimity. Of the system in the United States Mr. Arthur Train, an American ' lawyer of high standing and long experience; says: "Th« writer believes, therefore, that some allowance should be made for the single lunatic or anarchist that gats himself drawn on about every fifth jury, for if he once be empanelled a disagreement will inevitably follow." Even in war-time our Legislature would do no wrong in passing so modest an instalment of reform as this.