The War on the Firmest Bulwark of our Liberty
Prosecutors, judges and politicians unite to deny us the right to trial by jury. Yet, like democracy, it is the least bad option
Prosecutors, judges and governments have always disliked juries. They are expensive, unpredictable and uncontrollable. How much more convenient if they did not exist. In some ways the miniature democracy of a jury resembles another irritant to the governing class: the electorate as a whole. But while abolishing the electorate may be an unattainable dream, abolishing juries is a much more practical objective and every few years a government tries to do just that. Juries in most civil cases are now all but extinct. Yet repeated attacks on criminal juries — whether to try complex frauds or simple shoplifting cases — have generally been repulsed.
The current government’s legal aid cuts will inflict terrible damage on the legal profession and the criminal courts but the Coalition has largely shied away from attacking the jury system itself.
Yet all but unnoticed by the press a new attack on juries has begun. The Crown Prosecution Service (CPS), the senior judiciary and the Labour Party are all set on a path that could lead to the emasculation and eventual extinction of the jury system.
Ostensibly the CPS has no anti-jury agenda. Indeed, no high-profile acquittal is complete without a ritual announcement from the police and CPS that they “respect the jury’s verdict”. In fact, however, prosecutors are getting increasingly exasperated at the refusal of juries to convict in sexual cases. The reason, they suggest, is not that the evidence is weak but that jurors are prejudiced and too easily swayed by “societal myths” about rape.
When the CPS is criticised for being trigger-happy it always responds that it does not prosecute unless a case meets the “evidential test”. This means that there must be a “realistic prospect of conviction” before charges are brought. If there is no such prospect “the case must not proceed no matter how serious or sensitive it may be.”
What does this actually mean? The CPS explains that it is the situation in which “an objective, impartial and reasonable jury . . . is more likely than not to convict the defendant”. This sounds eminently sensible; only prosecute if you think you will probably win.
But that is no longer what the CPS means. It assumes, especially in rape cases, that actual juries are not necessarily “objective, impartial and reasonable”, so it is wrong to base a decision to prosecute on what an actual jury would be likely to do. Instead, the CPS imagines what a notional jury would do if it was, in the words of the Director of Public Prosecutions Alison Saunders, “wholly unaffected by any myths or stereotypes of the type which, sadly, still have a degree of prevalence in some quarters”.
It is almost a throwback to the days when only rich men were considered to be “objective, impartial and reasonable” enough to sit on juries. Women were too emotional and the poor were too stupid.
What are these “societal myths” about rape which the CPS believes are hindering its conviction rate? They are helpfully listed on the CPS website:
1. Rape occurs between strangers in dark alleys
2. Women provoke rape by the way they dress or act
3. Women who drink alcohol or use drugs are asking to be raped
4. Rape is a crime of passion
5. If she didn’t scream, fight or get injured, it wasn’t rape
6. You can tell if she’s “really” been raped by how she acts
7 Women cry rape when they regret having sex or want revenge
8. Only gay men get raped/only gay men rape men
9. Prostitutes cannot be raped
10. If the victim didn’t complain immediately it wasn’t rape
These myths, says Ms Saunders, are “brought into the jury room and form an obstacle to obtaining convictions”. In other words, whatever its spokespeople may say on the court steps after a high-profile acquittal, the leader of the CPS doesn’t trust juries in rape, or for that matter other sexual, cases. Short of introducing some sort of “right-thinking” selection test for jurors it is impossible to see how a jury free of such prejudices — and many others besides — could ever be guaranteed. And if juries cannot be trusted to do justice the logical thing to do is to abolish them altogether.
Ms Saunders’s immediate predecessor as DPP, Sir Keir Starmer, has now embarked on his own attack on juries, although again for the moment it is oblique rather than explicit. He is the leader of the Labour Party’s victims taskforce, an organisation set up by Ed Miliband promising “a radical shake-up in the justice system”. Just how radical it will be remains to be seen but Sir Keir has already suggested that judges rather than defence counsel conduct the cross-examination of “vulnerable” prosecution witnesses. This would transform the trial judge from an impartial umpire into a player — albeit a purveyor of friendly long hops to the prosecution witnesses rather than the sort of Mitchell Johnson-style strike bowler that most defendants would prefer. It is impossible to see how jury trial could survive such a change.
Anyone looking to the judiciary to stand up for juries will be disappointed. In fact, it seems to be developing its own critique of the system. In a little reported lecture in March the Lord Chief Justice, Lord Thomas, revived Lord Justice Auld’s 2001 suggestion of an “intermediate court consisting of a judge sitting with two magistrates” for less serious Crown Court offences, a proposal described at the time by Joshua Rozenberg as “a shard to the heart for trial by jury”. At the other end of the scale Thomas has proposed that the way serious fraud is tried should be “reconsidered” and even hinted at support for a more “inquisitorial” system generally. These changes would, he points out, save money, a pretty powerful argument for any government.
It is quite easy to see how a future government could accommodate all this. Sex cases would be tried by a special inquisitorial court charged with doing justice certainly, but doing so without upsetting the “victims”. Frauds would be tried by a special fraud panel of judges and accountants. The jurisdiction of magistrates would be widened to include most thefts and assaults. Juries might linger on in a small rump of cases for a few years before being abolished as an absurd anachronism.
A jury gives no reasons for its verdict, its members cannot be questioned and — barring some legal technicality or dramatic new evidence — its verdicts cannot be challenged on appeal. It is positively encouraged to have regard to the “demeanour of witnesses” so if it wishes to decide cases by the defendant’s smirk, or the irritating way the investigating police officer answers every question with an unctuous “My Lord” it is perfectly free to do so. It is a rationalist’s nightmare. There are limits, of course: the jury that used an ouija board to decide the fate of a murderer was criticised by the Court of Appeal (not that it helped the defendant: the jury’s, or perhaps the spirit world’s, verdict was triumphantly reasserted at the subsequent retrial).
Nevertheless, despite their glaring imperfections, juries remain one of the few popular parts of a justice system that generally fails to command the enthusiasm of the public. It is popular not because it is rational but because it is human. Humans are often irrational, often prejudiced and often stupid. Judges too, being human, display all these traits. But bring 12 randomly selected people together into a jury and they tend to become deeply conscious of the solemnity of their task, and to become more sensible, level-headed and fair-minded. Their prejudices are not removed but they are at least the prejudices of society as a whole and the worst ones tend to cancel each other out.
On the other hand, elevate one person onto a dais and address them for year after year in language that hovers somewhere between the respectful and the fawning, give them enormous power over others and they tend to become less sensible, more prejudiced and less fair. Lawyers even have a word for this incurable affliction that affects most judges to some extent: “judgeitis”. Put a perfectly decent lawyer on the bench and watch as he or she gradually becomes more pompous, more self-righteous, more prejudiced and more distant from those that he or she is judging.
Next year we will celebrate the 800th anniversary of Magna Carta and the need for vigilance in the defence of our liberties has never been greater. The jury system is a central part of that defence. Juries protect our freedom from unwarranted prosecutions, from government bullying and, occasionally, even from the judges themselves. No one put it better than Thomas Jefferson in 1789:
“It is left . . . to the juries if they think that the permanent judges are under any bias whatever in any cause, to take on themselves to judge the law as well as the fact. They never exercise such power but when they suspect partiality in the judges; and by the exercise of this power they have been the firmest bulwarks of English liberty.”