The Jury’s Out?

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.

Leveson was right to point out that trial by magistrates — who dispose of some 95 per cent of criminal charges — is much cheaper than trial by jury. So how do we persuade defendants to save money? It can only be by offering lighter sentences, unprincipled though even that may appear.

Leveson was speaking just a week after another member of the Court of Appeal called for reforms in the way that juries were handled in court. Lord Justice Moses said there was no point in discussing the desirability of juries since no government would abolish them in the foreseeable future. Sounding somewhat disappointed, he used the Bar Council’s annual law reform lecture to argue that judges in England and Wales should no longer sum up the case to the jury at the end of a trial.

Moses was scathing about the ability of juries to absorb “a lecture in a foreign language about foreign subjects which may last without break for an hour or more and continue for a day or even days”.

Legal directions showered on to the heads of the jury could cover “the burden and standard of proof, the separate consideration of different counts and different defendants, the difference between direct evidence and circumstantial evidence” and so on. “Everyday life does not require people to distinguish between inference and suspicion,” the judge said. “Few, if any, ask themselves if they are driven to a conclusion.”

And Moses also questioned the need for summarising the evidence. “The modern judge eschews anything which might light up the tilt sign of the pinball machine of a criminal trial,” he said. But if the judge was not going to comment on the facts, what was the point? “Let us no longer pretend that judges can assist a jury’s recollection by a recitation of the facts.”

In his review of the criminal courts nearly a decade ago, Lord Justice Auld recommended that trial judges should devise — and then put to the jury — a series of questions, the answers to which would lead logically to a verdict of guilty or not guilty. Endorsing that approach with enthusiasm, Moses said it would reduce the risk of the jury becoming deadlocked and lessen the chances of an appeal against the judge’s summing-up.

Moses delivered an entertaining speech to an audience which included many of his fellow judges. But he rightly suspected that there would be little support for his proposals. Perhaps he didn’t help his case by telling his own “jury” that its members believed in fairy tales, “spooky jurisprudence” and humbug. 

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