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The Jury's Out?
January/February 2011


What do senior judges have against trial by jury? You would have thought they might prefer not having to take difficult decisions, such as whether or not a defendant is guilty. Far from it: judges seem to be queuing up to express their misgivings about one of our most cherished traditions.

The most recent judge to speak out was Lord Justice Leveson, the chairman of the Sentencing Council. Delivering the Roscoe Lecture in Liverpool on November 29,  Leveson said he yielded to no one in his admiration of and support for jury trial. He also insisted that he was expressing no opinion on matters of policy. 

But he then asked his audience to consider whether we had got the balance right by allowing all defendants accused of theft — however minor — to insist on trial by jury.

"You may say we have; and you may think that the costs that have to be expended as a result of allowing defendants to elect trial by jury are appropriate," he said, lapsing — perhaps unconsciously — into the terminology that judges find so useful when pretending they are not telling juries what to think.

"Alternatively, you may think that, as a society, we should reserve this Rolls-Royce approach to our most serious cases — or cases where the outcome will be life-affecting for those involved — and use the money saved in some other way."

Leveson is clearly suggesting that career criminals accused of stealing small sums of money could just as well be tried by magistrates. He also recognises that those whose careers would be ended by a conviction for dishonesty — judges, for example — deserve to have such charges tried by our most sophisticated fact-finding tribunal.

But where do you draw the line? It cannot depend on whether or not the defendant has a reputation to preserve, otherwise those electing for trial by magistrates would be presumed to have criminal records that left them ineligible for jury trial. And it cannot be based on the value of the stolen property, since the theft of even the smallest item would be life-affecting for those in positions of trust or authority.

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