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Two models of justice

Oliver Letwin is one of my favourite Parliamentarians, so I was pleased to find an article by him in today’s Telegraph. He is defending the right to trial by jury – which is under attack again by Our Glorious Government. He makes the very good point that the legal system should be bottom-up, rather than top-down:

There are, in essence, two models of justice. In the first, justice is an item imposed from above upon the community. In the second, justice is the means by which the community uses the power of the state to protect itself.

The significant difference between these two models is that, if justice is seen as something imposed from above, the citizen begins to regard the law and its enforcement as alien forces; whereas, in the second model, justice is understood to be something in which we all have a stake – and hence, as an activity in which all honest citizens can co-operate.

This of course helps protect individuals from abuse by the state:

The fact that amateurs have this role is one of the guarantees against the state arbitrarily imprisoning an individual.

The depressing thing is that David Blunkett just doesn’t get it. He doesn’t see why the people need protecting from him. After all, he’s an altruist and New Justice is in everyone’s interest. He’s from the government and he’s here to help.

Labour’s first term in office was relatively moderate for a Labour government. Most of the damaging policies were done by stealth or – with policies like foxhunting – put off until the future. This term, however, Labour is much more authoritarian, openly raising taxes, creating regulations and destroying civil liberties. But a third term, with Blunkett still in the Home Office and possibly Brown as PM, is not a prospect I like to think about.

9 comments to Two models of justice

  • Dave O'Neill

    While no fan of other models, I do have concerns about certain trials by jury, especially the kind of trial we’ve seen over the last few years involving serious fraud.

    I don’t think it is remotely fair to expect ordinary citizens to have to sit in judgement of a case which is argued by a bank of subject expects dealing in legal minutia often for periods up to a year.

    Jury service is fine, but most people are not in a position to put their lives and careers on hold for a 9 month trial (which is what some of these SFO ones turn into) – there might have to be a re-evaluation for this type of proceeding.

    For the more conventional case, I don’t think there is much of a case to answer.

    However, interestingly, my wife can’t abide jury trials having been brought up under a different system she finds them completely unfair.

  • I’m just guessing here, but aren’t jury trials more likely to acquit the defendant? I’ve heard that bandied around a bit before.

    If true, and they are more lenient than trials without a jury, it seems that any inherent unfairness is mitigated a bit by the fact that the accused has less likelihood of being thrown in the nick…

    I can’t see Trial by Appointed Expert as being remotely fair. Case in point, the current controversy over expert witnesses in cases of infanticide. Expert opinion can so often be wrong. After Trupti Patel was acquitted (by a jury, despite expert evidence), several others have come forward to complain, discrediting the “expert” witnesses involved.

  • Guy Herbert

    Significantly more likely, Toryboy. That’s one of the things about them that makes them less “efficient”–the CPS being assumed never, ever to accuse anyone who isn’t guilty–and why other less obvious safeguards (sorry, inefficiencies) such as rules of evidence are being tidied up simultaneously.

    The SFO is a potentially dangerous organisation, particularly in its reliance on common law conspiracy to defraud and the second limb of false accounting, both of which call on a bizarre juristic theory of economics. If I were accused on those grounds I’d definitely want a jury to judge my honesty, and be able to set aside the strict rigour of the law. If cases are difficult then lets have special juries, by all means.

  • Dave O'Neill

    Well, being realistic for a moment. Most places don’t have “trial by appointed expert” they have trial by a panel of presiding judges with expertise, depending on the country the number ranges from 3 (I think to 7), France often has a single magistrate to whom the case is presented but they also have investigative powers of their own.

    If cases are difficult then lets have special juries, by all means.

    A great idea, of course, if you are to try complex cases you’ll need to pay the specialist juries accordingly.

    If I were accused on those grounds I’d definitely want a jury to judge my honesty

    From a strictly legal perspective, that’s not all that important. “Honest” people commit crimes everyday.

  • Guy Herbert

    It is precisely because I realise that “from a strictly legal perspective” I commit crimes every day that I want a jury to be able to decide that the legal perspective is unreasonable if I’m in danger of imprisonment or heavy fines. Our law is teeming with offences that are very readily made out, and the jury is one restraint on it’s being used oppressively.

    Maybe I’m wrong, Dave, but I don’t think that conspiracy to defraud has yet been abolished as the Law Commission recommended in 2002 (as “so wide that it offers little guidance on the difference between fraudulent and lawful conduct”). It’s not just me that thinks the law’s bad on this point.

  • Chris Josephson

    We are imperfect people with imperfect systems. The right to trial by jury is not perfect, but it would be one of the *last* things I’d want changed.

    I don’t trust the government or ‘experts’ as much as I trust fellow citizens. If I were on trial, I’d want a jury, composed of imperfect ordinary citizens, to decide my guilt or innocence. I would not want to leave it to a judge or judges.

    Trial by jury helps to remind our judiciary and government that it’s the *people* they are supposed to serve, not themselves or special interest groups.

    These days, our government needs all the reminders we can give them that it’s the people who are supposed to be in charge, not career politicians.

  • David Jaroslav

    Something else to throw into the mix here: as I recall, English juries are vastly more likely to acquit than are American ones. This may be due to the greater prevalence of pleabargaining in the US, i.e., because of this, a greater percentage of people who actually go to trial are factually guilty, but perhaps there are additional factors explaining it as well?

  • Chris Josephson

    David Jaroslav:

    Don’t know how this may account for the differences, but in most US jury trials the entire jury must agree. If not, they call it a ‘hung jury’ and try the case all over again.

    My understanding is that only a majority of the jury must agree for a verdict in the UK.

    I wouldn’t think this difference, alone, could account for the tendency to acquit in the UK.

    I wonder if it has anything to do with how the jurors are selected? In the US, you get a card in the mail and are told to show up at a certain courthouse for jury duty. It is against the law *not* to respond. Employers are required to give you time off.

    If you can’t make the date for some reason, you must explain it to a judge and he/she decides to give you an alternate day or not.

    If you are chosen for a jury, lawyers for both sides can question you and decide if they want you. Of course, each side wants jurors they believe will be sympathetic to their side. (An entire profession of ‘jury consultants’ exists in the US to help lawyers pick jurors likely to side with them.)

    Getting a card for jury duty isn’t popular here. But, I don’t know one person who has not gone .. and I know many (myself included) who have been called at least once. I know others who have been called and have gone more than once.

    I’ve also noticed that since the ‘experiments’ of the 60’s and 70’s, people are fed up with crime and letting criminals off easy. A jury is much more likely to convict and agree to a harsh sentence today than they were 30 yrs. ago.

    30 yrs. ago we all concentrated on the criminal as ‘victim’ of something. Making a victim of the criminal tended to cause juries to be lenient. Well, we learn from our mistakes.

  • Guy Herbert

    This discussion goes to the heart of the problem. The Home Office wants to get rid of juries and change the rules of trials so they get more convictions, more easily. Those of us who worry about this assume it will lead to more people being convicted who shouldn’t be, and the changes make this more likely–within our system.

    But the trial process is complex in both jurisdictions: we can’t say that American juries are more likely to convict because of the way the jury works, because the rest of the trial process (and prte-trial process) is also different. I recall that the Constitution forbids trial upon indictment without arreignment by a grand jury. Grand juries were abolished in Britain in the 19th century. So for serious offenses, at least, the US has a much more demanding process just to reach trial.

    Equally we can’t really know how much difference the changes in England and Wales (Scotland and Northern Ireland have different systems again) will make, but it is pretty clear that they are founded on a conception of the function of trials as bureacratic disposal of cases, rather than testing of a fallible accusation, and that they are openly intended to make proceedings less fair to the accused.