Anyone looking for evidence that the current Conservative/Liberal Democrat government in the UK has the same tidy, but severely limited intelligence of its predecessor need do no more than read this story suggesting that thousands of jury trials held in the country could be axed to save what appears to be a relatively paltry sum, when measured against the dangers and cost to individuals of being wrongfully convicted.
I can understand why jury trials can be an easy target. In my distant past I had a spell covering court cases in the UK and watched several juries at work. It struck me – especially in the more complex fraud cases – that there are clear problems. And maybe – although no politician will dream of saying so – that the British are not as law abiding as they presumably were 50 years ago and therefore the average jury panel reflects this fact. But historians would point out that juries in, say, early 19th Century England could be an awkward bunch. But therein lies the strengths of trial by jury – it is one of the few elements in which ordinary members of the public can be brought into the affairs of civil society by sitting in judgement on the alleged guilt or innocence of their fellows. Juries remind the powerful and the legally sophisticated about the proper order of things.
As I remarked the other day about the dangerously misconceived move by the previous Labour government to scrap the double-jeopardy rule, the ongoing attempts by administrations of all political hues to gut the English Common Law, and the checks and balances of the system, remain one of the most foolish trends in our public life. And that such an idea is being contemplated makes a mockery of the idea that having the Lib Dems in the government coalition will increase, in any way, the supposed liberality of this administration.
“Juries remind the powerful and the legally sophisticated about the proper order of things.”
Well put. Unfortunately, that’s precisely why “the powerful and the legally sophisticated” despise juries.
But without this ‘boil-a-frog’ approach to transformation, how else can this countries supra-national elite move from the Anglo-Saxon common law to the Code Napoléon?
Since this is clearly the objective. Why else have successive UK governments allowed the EU to undermine our laws?
It is not surprising that power mad politicians would want to scap trial by jury (or at least elements within it). I’d rather see an expansion of it so that:
+juries decide what the law says (if the law is unreadable, it’s a bad law and needs to be re-written)
+juries can return a verdict of “unjust law” if they believe that whether or not the defendant committed the crime, (s)he is not worthy of punishment.
What should happen in such a case is less clear cut: maybe at times a second trial could be called for, or an aquital could take place, or maybe the local MP or judge can send the law to the house of Lords for possible ammendment/clarification. If two juries both return verdicts of unlawful law then an automatic aquital is probably in order.
(At the moment if juries believe there is an unlawful law, they should just return a verdict of not-guilty regardless of whether or not they think the defendant did what they were accused of doing).
This, coupled with an automatic referendum on any new laws would revolutionise the country.
It is not surprising that power mad politicians would want to scap trial by jury (or at least elements within it). I’d rather see an expansion of it so that:
+juries decide what the law says (if the law is unreadable, it’s a bad law and needs to be re-written)
+juries can return a verdict of “unjust law” if they believe that whether or not the defendant committed the crime, (s)he is not worthy of punishment.
What should happen in such a case is less clear cut: maybe at times a second trial could be called for, or an aquital could take place, or maybe the local MP or judge can send the law to the house of Lords for possible ammendment/clarification. If two juries both return verdicts of unlawful law then an automatic aquital is probably in order.
(At the moment if juries believe there is an unlawful law, they should just return a verdict of not-guilty regardless of whether or not they think the defendant did what they were accused of doing).
This, coupled with an automatic referendum on any new laws would revolutionise the country.
JP you mention that juries are not what they were 50 years ago.
Is it true that there was a modest property qualification to sit on a jury 50 years ago?
As for fraud trials.
The problem is more in the statutes (which are far too complex and do not follow clear principles).
Presuming that the issue here is of criminal not civil disputes, and we are still using the adversarial system of determining the qualification of specific human (once, in a university community I witnessed a charge of immoral behavior by a dog!) conduct, the role of a jury is verification of fact and determination of conformation of the facts found to the charges asserted.
In modern times, jury functions are a form of asserting, and to some degree assuring, dual accountability on the part of those having delegated authority.
In the U S, we have seen, even with jury actions, the results of failures of that accountability, usually by perversion of those holding delegated authority.
If we wish to retain effective powers of delegation, we must retain every miniscule of accountability at whatever costs and with the risks of inadequacies of those on juries charged with those functions.
My first reaction was to say something snarky about the advantages of a written Constitution over it being whatever the party in power in Parliament wants at the time. Then I thought about it. Our Constitution has the written provision for annual budgets and no spending without due appropriations. And when Buraq Hussein gives his State of the Union speech in a week or so, it will be on the 1000th day since we have had a budget that was not retroactive; because the Democrats in the Senate refuse to go on the record by voting for or against the budget. We have 34 Obama-appointed “Czars” and their offices exercising plenary power over Americans without statutory authority. And when the House zeroed the budget for some of them, Obama said he would fund them anyway. We have a government that since December 31 has statutory authority to arrest and detain Americans indefinitely without charge or trial. And they are trying to get authority to shut down anything on the internet [including probably sites like this] without formal charge on the claim that copyrights might be being violated.
So we have no room for snark, because our Constitution seems like it has been unwritten.
I’ll just ask you not to talk so loud, because abrogating trial by jury will definitely seem like something they will want to try.
Subotai Bahadur
I have both Summoned (I used to work for the Lord Chancellor’s Office, now the Ministry of Justice) and many years later, after I had resigned and was outside the exclusion period, sat on one.
When I was in charge of Juries and their expenses etc, it was the official view that because it was so easy to get exemption or almost indefinate deferral (holiday booked etc) that we ended up with a rather poor class as person sitting, dole claimants etc. But I was always unsure of this prejudice, because the rate of conviction was really quite high, which was what we really cared about, after all.
Many years later I was summoned for Jury Service myself and happily went because i was curious to know what happened on the other side of the Jury-room door as it were.
Well fair enough, my fellow jurors (it was a drugs money laundering case) were perhaps not the sharpest, most prosperous folk in Bristol, but they were very conciencious, examined all the evidence thoroughly, worried that they could have been in the same position if their circumstances were different, but eventually we found the young Afro Caribbean part time hairdresser lady, who just happened to have fifty grand stashed in unusual places around her house, and was sending it on a daily basis via Wells Fargo under false names to her Yardie boyfriend, who had fled back to Jamaica.
I was much heartened by the experience. The system is working I thought. But the powers that be don’t like taking chances do they? Hence the steady erosion of the idea trial by your Peers. And John Galt is quite correct, the Code Napoleon is their ultimate aim and the end of English Common Law as we knew it. Too messy, to uncertain, too expensive.
Well Justice costs, and as a Law student I was taught that for Justice to be done, it must be seen to be done. But the powers that be don’t like that idea either. One of the main reasons I resigned from the LCO was the sheer anger I felt at having to Clerk the Court in the Family Division, usually held in camera, where Justice and due process went out the window decades ago (see Christopher Booker in the Telegraph on an almost weekly basis).
And of course, it is set to get even worse if that fuckwit Clarke gets his way…
http://www.guardian.co.uk/commentisfree/2012/jan/15/henry-porter-ken-clarke-bill-of-rights?fb=optOut
You have to remember effwits go into politics because they can’t get a job elsewhere.
“[T]he role of a jury is verification of fact and determination of conformation of the facts found to the charges asserted.”
RRS, you omitted judging the charges as well. Jury nullification has been an important part of the common law for centuries, at least since the Pitt trial in England and the Zenger trial in the colonies. Of course the courts (and prosecutors) hate it, which is why no court ever instructs juries on nullification (in fact, courts routinely lie to juries about that power, notwithstanding that the Supreme Court has upheld it), why they harass people attempting to inform potential jurors about it, and why the federal jury questionnaire (in my district, anyway) now contains a couple of explicit questions to ensure (under penalties of perjury) that no one who understands or believes in jury nullification is ever empanelled on one. But the possibility of jury nullification is one of the principal reasons jury trials are so important to a free people.
The problem is that bad actors evolve their behavior to exploit weaknesses in the system. Jury trials are slow and costly. The nation does not have unlimited resources for courts and prosecutors (and public defenders). Criminals often calibrate their crimes to be “not worth prosecutiing”. This is especially true when the maxiimum sentence is small.
In the U.S., the problem has been dealt with by the practice of plea bargains. This works only if there is a possibility of a severe sentence for the prosecution to remit. Most criminal convictions in the U.S. come from plea bargains. This is either a disgraceful corruption of the judicial process, or a necessary adaptation.
Aside from depression at the continued sodomy of our legal heritage – the process Sean Gabb has described as turning the law from a shield for the accused into a weapon with which to attack him – and the apathy of the public to this spectacle, the only thing of interest here is that the bastards still sometimes feel the need to legislate in order to forward their agenda; you would be amazed how often I as a criminal court practitioner have witnessed unlegislated-for demands on the accused to co-operate in his own efficient prosecution. Generally this occurs under the banal euphemism (they’re always banal, aren’t they?) of “case management”, which is the policy of serving the interests of the producer (in this case hm court service) by enabling it to dispose of as many cases as possible as quickly as possible. Judges and magistrates are keen supporters of this tool and apparently see nothing wrong in acting as the arm of a policy developed by a government department. It is, Rich Rostrom, only a necessary adaptation in a world where the state does everything and therefore inevtiably runs out of money to do anything. More accurately it is a disgraceful corruption of the judicial process and does to the morals of those who should be serving justice the same as health rationing on the NHS does to the working practices of British medical staff.
Don’t think that legislating to end jury trials in a limted number of cases is the the thin end of the wedge; the thin end of the wedge goes unreported 200 hundred times a day up and down the country, but occasionally the bastards feel obliged to legislate for a slightly bigger assault on our virtue.
Laird:
You are quite right and it is an important omission, although the targets of accountability are different.
Even if I had added “and conform the charges to the facts.” would not have been adequate.
Your point goes to the determination of what shall constitute Law in our social order.
Agreed, RRS.