Over very recent times the domestic jury system has become under greater scrutiny than at any time. To be judged as to innocence or guilt by a jury of your peers has been somewhat entrenched into our legal system and other common law systems for as long as we care to remember. It is now apparent that reform and rejuvenation are the order of the day for many commentators, politicians, lawyers and judges. Within this answer I wish to evaluate what recommendations have been made by whom, what responses have been forthcoming and what alternatives might we be faced with in the advent of change.
My first question is, why? Why do those who wish for change believe change is necessary? Are we looking at change for change sake? Or are we so encumbered with an archaic system of justice that change is needed before chaos ensues? There are many fine quotes in support of the jury system such as that of Lord Devlin along with those from commentators who regard the system to be fine the way it is and central to the system of common law and justice in England and Wales, if not elsewhere in the English speaking nations of the world who have adopted such systems.
Critics of the Jury system rely on a belief that juries are unable to understand the nature of the law with which they are dealing, base their verdicts on what evidence they can recall and are at worst a difficult barrier to justice standing between the prosecution authority and a just verdict, citing many alleged miscarriages of justice as defense of this accusation.
However, supporters of the jury system argue this latter point in reverse, that it is essential that a jury of common men and women should stand between the authorities and the accused to ensure the 'fair' element of the trial process and to ensure that state ordered prosecutions do not prevail. As Gary Slapper puts it, "a democratic humanising element" ensuring "reference to the opinion of the lay majority"1).
One of the most outspoken commentators in recent times on the jury system has been Penny Darbyshire, who in 1991 went as far as to say that juries are "an anti-democratic, irrational and haphazard legislator, whose erratic and secret decisions run counter to the rule of law"2). Her stance is legitimate with regard to finding reasons in favour of juries other than the emotive ones, but she does go to the extreme. She suggests that "it's symbolic significance is magnified beyond it's practical significance"3).
Gary Slapper and David Kelly agree with her stance as regard to not allowing emotion as a basis for acceptance but criticise Darbyshire for her apparent contradictory remarks that juries fail to remedy the lack of due process and fail to apply the brake on oppressive state activity. 1) This suggests that the jury has a role in ensuring due process and executive or state control, which is central to the argument mentioned earlier in favour of juries. Penny Darbyshire's stance on juries in November 2000 was less bombastic than earlier and more critical of the way in which juries are formulated.
Her argument and conclusion put forward to Sir Robin Auld prior to delivery of his report was not such that would see an abolition of jury trial but more a 're-appraisal' of the method buy which jurors are selected and how the court process should affect them. 2) She concludes that juries in England and Wales are 'unrepresentative of certain groups, notably women and ethnic minorities'3). She goes on to suggest that because the excusal rate is so high and the rate of non-response is equally high that juries will they haven't already become unrepresentative.
However, this argument is flawed as it supposes that the absentee jury prospects are of greater calibre and better suited to the role than those that do make it into the jury box. There is no research as far as Penny Darbyshire is willing to concede that shows that jury service evaders are composed any differently to jury servers. Thus why should there be any difference. She is very concerned with making the 'jury pool more representative' 4). But the question is 'representative of what, exactly'?
Is the jury meant to be representative of society at large, society at a local level or should it be representative of the defendant? She continues making the assumptions that jurors naively treat evidence in trials as 'stories' and that the way in which evidence is presented is obstructive to the formation of those 'stories'. This it seems is rather belittling of the public at large and of the system of trial. Whilst the public may not have an acute understanding of the law and of procedure, they are not perhaps as 'simple' an animal as Darbyshire makes them out to be.
She suggests that juries find it difficult to 'understand and apply judicial instruction'5), implying again a deficiency on their part but surely the deficiency is that of the judges in ensuring understanding. Whilst the comments of this writer may seem in condemnation of Penny Darbyshire's findings, there are indeed some parts of her recommendations to Sir Robin Auld that have great relevance and should be considered. Firstly I would agree that it is incomprehensible that a jury should or in fact could remember every aspect of a trial and all the relevant evidence.
It should not be for the jury to note take but for the court to supply transcript on request of evidence and of judicial direction. There is a strong argument for the 'presence' of the judge during the jury's deliberations to ensure there is no misunderstanding of what has been said and what his directions were. The underlying basis of her later work is that if jury trial is to remain then it should be taken into account that juries are not perfect and certain issues should be dealt with out of common sense.
In fact she does not suggest that jury trial should be abandoned, which falls a way short of her earlier thoughts. Gary Slapper and David Kelly discuss in detail examples of jury 'impropriety' as forming some basis as to why criticism is rightly laid at their door. 1) In particular reference is made to jurors using a ouija board to consult with the victim as to the guilt of the accused2) and of excessive drinking whilst being 'detained' at a hotel during a trial, and of 'improper relations' between jurors and the general public and members of the jury protection force.
To this writer these are not reasons for the abolition of jury trials but for closer scrutiny and control of what members of the jury are occupied with when not in court or the jury room. It is the responsibility of the trial judge to control what happens in his court and outside his court as far as the prosecution and defense are concerned and ultimately it should be his responsibility to ensure that a jury is aware of their role, it's significance, and the responsibility upon them to maintain decorum.
Some reference is to be made to the principal of Jury Equity. It is agreed that to acquit in the face of undeniable evidence of guilt is an anomaly that supporters of jury trials would prefer not to see. However, there is some scope for argument that occasional 'perverse' decisions such as that in the Clive Ponting case in 1985 send political answers back to the prosecuting authority in the face of political prosecutions.
Arguably it is the unusual decisions made by juries in such instances that add a measure of control and give credence to the system as a whole in that the majority of cases do not raise the eyebrows of the judiciary or other observers. It is such statements of dissatisfaction with the law as it stands that put forward the views of the 'man in the street'. It is a way for the lay man to inform the state that it believes the law is wrong. One must ask who should be responsible for policy decisions on statute, the state or society? The state is surely an instrument of society and not an autonomous lawmaker.