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Common Law Review
Domů arrow Články arrow Issue 1 - The British Constitution arrow 03: Tomáš Holčapek - The Lamp that Shows that Freedom Lives?
03: Tomáš Holčapek - The Lamp that Shows that Freedom Lives? PDF Tisk E-mail

"The Lamp That Shows That Freedom Lives?"


A Sceptical European Looks at the English Jury



Tomáš Holčapek



"The first object of any tyrant in Whitehall would be to make Parliament utterly subservient to his will; and the next to overthrow or diminish trial by jury, for no tyrant could afford to leave a subject's freedom in the hands of twelve of his countrymen. So that trial by jury is more than an instrument of justice and more than one wheel of the constitution: it is the lamp that shows that freedom lives."

Lord Devlin - Trial by Jury, 1966



In the eyes of most "Europeans" (that is, citizens of continental Europe) the English legal system (and the other legal systems of the world derived from it) is strongly connected with the institution of the jury made up of laypersons and the crucial role it plays in deciding what are called the facts of the case. Its significance, especially in criminal law is of no doubt, and this is discussed below in greater detail. Yet although juries do not exist only in the United Kingdom, in other, continental, states they are not veiled in the same cloud of mystery and magic, they do not "show that freedom lives" but merely give verdicts. However, in the UK their importance embraces a lot of irrationality, as can be seen in Lord Devlin's opening argument. This must be borne in mind whenever any change to English criminal procedure and the place of the jury within it is being considered. This is why, when the current government, particularly Jack Straw, the Home Secretary, recently introduced proposals to reduce the use of the jury in criminal trials, an excited emotional debate immediately began.


The importance of juries in British criminal justice does not lie in numbers. Although the vast majority of criminal cases that appear before a court (around 97 per cent) are tried before magistrates – unpaid laypersons with no formal education in law (!) who are chosen from the community to work as part-time judges – and only one per cent or less are tried before a jury in the Crown Court, juries try the most serious crimes, such as murder, manslaughter, treason, rape and so forth. No doubt these are the cases that the public focuses on and which they pay most attention to. The small number of jury trials as compared with magistrate trials is therefore no argument against juries. Some cases could be decided without them, but that does not mean that all the cases currently heard before them could be handled in a simplified manner. To get rid of juries, the critics must come up with something more against them than just count up the number of cases and deliver an immediate verdict.


The Right to "Trial by One's Peers"


No freeman shall be taken or imprisoned, or dispossessed, or exiled, or in any way destroyed, nor will we go upon him, nor will we send upon him, except by the lawful judgement of his peers or by the law of the land.

Magna Carta, 1215, clause 39



In the law of England juries made their first appearance in the early Middle Ages. At that time they operated rather as a group of local witnesses directly familiar with the background of the case and who were expected to answer questions put to them by the judge concerning particular facts the court required to know. The formal answers given by the jury were called their verdicts. By the 13th century, juries represented one of the basic elements of England's highly developed criminal legal system, a system which was incomparably superior to those of the rest of the medieval world. Gradually, their character changed so that by the 17th century juries were no longer expected to know the facts of the case themselves, but rather to come ignorant to the court and decide the facts of the case on the basis of the evidence presented to them during the trial. Thus their function continued unchanged and they remained triers of fact as originally intended. It was left to the judge to determine the questions of law before the court. And so it continues to this day.


This extremely long tradition itself has seemed to provide a powerful reason for keeping juries alive, at least until fairly recently. Many writers have tried to trace juries back to Magna Carta, where they believed King John had conceded the right to trial by jury to all free Englishmen. This view was particularly strongly held during the struggles between King and Parliament in the 17th century. In fact no such constitutional right was created by Magna Carta and the clause mentioned above has nothing to do with jury trial, but only protects the right of the barons to be judged by their fellow-barons, acting as both finders of law and fact, without interference from the King. It was not really before the last few decades that juries started to face serious criticism concerning their value, and even their necessity. This has come from various directions, but perhaps the strongest criticism has arisen because there is now clear evidence from many countries whose judicatures operate without juries, that it is possible to have fair and just trials using other methods. Or at least to have trials which are no less just or unfair than British trials.


However, tradition is not the only explanation for the almost universal admiration for juries in the common law countries. There are some remarkable examples from British history of how that group of 12 laypersons called the jury has acted as the sole defender of civil liberties against the overwhelming power of the state. It was famously the refusal of a jury in the Case of the Seven Bishops (1688) not to convict a group of King James II's political opponents, despite strong pressure from the government to do so, which led to that particular tyrant's downfall in the Glorious Revolution of the same year. Even in more modern, democratic times juries have sometimes chosen not to follow the letter of the law and convict an apparently guilty culprit because they suspect the prosecution has been brought for political reasons. In such cases the jury, with no need to give reasons for its conclusions, has returned a perverse verdict, that is despite the prima facie guilt of the defendant they have decided to acquit. One of the most famous of such cases is R v Ponting (1987), when a civil servant, Clive Ponting, was charged with leaking information to Parliament about the sinking of the Argentinean cruiser, the General Belgrano, during the Falklands War. It was as a result of the Ponting's action that the world learned that it was the Prime Minister, Margaret Thatcher, who had personally taken the decision to sink the ship with the resulting loss of hundreds of Argentinean lives. From the point of view of the Official Secrets Act 1911, under which he was prosecuted, it was clear that Ponting had communicated the secrets without legal authorisation and therefore committed the offence. The jury, however, decided in his favour because it seemed to support the idea that the public has a right to know about its government's acts, especially those which the government would prefer to be kept secret.


Triers of "Fact"


Let us take a brief look at what deciding matters of fact means. The judge's task in the criminal justice is to ensure that the procedure exactly follows the appropriate laws and to administer the whole trial he/she presides over. The jury, on the other hand, should decide whether a particular event happened, whether it was the defendant who committed it and whether as a result he/she is guilty of the offence as charged. Of course, in real life it is not always so easy to separate legal and factual issues, and the jury may well depend on the instruction on the law as the judge gives it. Only when the judge has ruled on such doubtful questions of law can the jury apply this information to the facts of the case and give their verdict.


There are clearly some disadvantages in dividing these fact and law-finding functions between the jury and the judge. One of the main features of the jury system is the philosophy that a group of laypersons equipped with common sense can best solve questions of whether something happened and how it happened and can decide on the moral blameworthiness of the defendant's behaviour. That is why there is no appeal against an acquittal given by the jury. This conception, however, much depends on the abilities of that particular group of randomly chosen individuals, and also carries its own risks. In countries where there are tribunals made up just of a few members, who possess both law and fact-finding competence, the same aim is intended to be achieved allowing a complete appellate review of the trial as a whole. The credibility of such an arrangement is concentrated in the necessity of both levels of courts agreeing on the judgement. In other words, while the former system emphasises selecting the best decision-making body possible, the latter scheme believes that whenever two bodies independent of each other agree about a decision, the probability of drawing the right inferences greatly increases. This is closely linked with the need for giving reasons for the judgement: whereas a jury does not explain why it decided in that particular way, a system based on two independent levels strongly relies on giving its reasoning, which is the only way of communication which can exist between those two levels of courts.


What's Wrong with Juries?


It is not clear that jury members are necessarily the best people to make such decisions. In fact there is no evidence as to why juries should be more reliable when determining guilt or innocence than magistrates or single sitting judges, who in today's democracy are no longer slaves of the state, but truly independent arbiters. Not only do individual jurors tend to be lacking in understanding of the complexity of law, they are also laypersons in other fields of expertise which come before the courts such as the worlds of finance or medicine. Combined with their lack of experience in dealing with professional barristers using all their charms and tricks to manipulate the jury, they can often get confused about the merits of the case. And these are just some of the commoner weaknesses inherent in the jury system. Others are far more bizarre and alarming in character. In October 1994, the Court of Appeal ordered the re-trial of a man convicted of double murder on the ground that four of the jurors had attempted to contact the murder victims using a Ouija board (an occult method - Slapper & Kelly, Sourcebook, 1996). In other trials jurors have allegedly settled the guilt or innocence of the defendant by tossing a coin. This clearly brings the system into disrepute. In fact, critics of the jury system have left almost none of the principles upon which it is built untouched by their scepticism.


First of all, although in theory the jury should represent the community at large this is clearly not the reality. The system used for choosing (or empanelling) juries is by random selection from the electoral register and this system is not without its problems. Not all citizens competent for jury service are on the register and, what is worse, the selection procedure seems to favour juries drawn from a narrower social and ethnic band than the general population. As a result, critics often claim that juries are simply a group of twelve white, middle-aged and middle-class, conservative men. This certainly might have been the case in the past when only house-owners were allowed to sit on a jury. Criticism of this state of affairs led to the passing of the Juries Act 1974, which extended eligibility for jury service to anyone whose name appears on the electoral register. The defence can challenge jurors for cause, but this does not ensure a balanced cross-section of community anyway. A proposal was made by the Runciman Commission - a body established by the government to consider proposals for the reform of the jury - to give the right to both prosecution and defence to insist on three jurors being selected from ethnic minorities, but this has met with strong opposition. It was feared it could open the way to destroying the whole system of random jury selection (as expressed e.g. by Lord Taylor CJ, who called such proposals "attractive sounding, but deeply flawed" and "the thin edge of a particularly insidious wedge", and added: "We must on no account introduce measures which allow the State to start nibbling away at the principle of random selection of juries." (Speech to NACRO reported in Guardian, 1999.)).


Critics can also quite easily point out other practical disadvantages of jury trial. It is usually slow and clumsy and extremely expensive. The selection of jurors, the judge's summing up of the evidence and the deliberation of the jury, these are all stages that would not be necessary if there was a more simplified trial procedure before a judge or magistrates. An average jury trial costs £ 13,500, an average summary trial, i.e., one heard before magistrates, only £ 2,500 (The Times, 19 May 1999). To proclaim that justice should not concern itself with such trivial matters as money has little to do with reality. This naturally contributes to doubts about juries and leads to efforts to curtail people's "right" to enjoy a jury trial. It should be pointed out, of course, that this is not a real constitutional right and is in no way comparable to the one granted to its citizens by the U.S. Constitution. In Britain it is barely more than a generally shared point of view. Another important point is that because jury trial is so expensive, there is a considerable aversion of judges to discharge a jury when doubts occur as to whether it is still impartial or not, and the judges have sometimes even openly admitted this aversion in the proceedings.


A Reluctant Defence of the Jury


But the defenders of the current arrangement can easily raise at least three arguments in support of jury trial. Juries allow for the participation of ordinary people in the complicated legal procedure, which brings in the common sense as opposed to a too strict reliance on regulation by law. In addition, the jury's concern for "natural" right can avoid some obvious injustices. Another argument states that juries also provide for the necessary legitimacy in a system dominated by a small group of professional lawyers. And lastly, the juries enjoy a greater degree of trust than magistrates by the "users" of the system, the accused themselves. This clearly makes it more likely that verdicts will be accepted. There is a widespread belief that magistrates tend to feel too much bound by legalism and trust the police without good reasons. That is why, in the cases in which the defendant may choose between trial by magistrate and trial by jury, he/she usually chooses the jury, for there is a greater chance of an acquittal in the Crown Court (57 per cent as compared to 30 per cent in the magistrates' courts, the Runciman Commission Report), or perhaps just of a treatment that seems fairer in the eyes of the accused.


A conclusion can be drawn from what was just said: a reconciliation of those two extreme points of view is highly desirable. Any proposal for reforming the jury or for replacing it with a trial procedure involving only judges or magistrates, i.e., one which would be far less expensive and have fewer practical problems than the jury, would face the obstacle of needing to satisfy public confidence. This would hardly be possible without maintaining the important role in the procedure currently played by laypersons in the form of the jury. So it seems there is here a strong argument for saving the jury, but does it have to remain in its current form? I believe that in order to deal with the arguments of critics a balance should be sought between the professional and lay elements. Maybe this could be done by creating mixed tribunals of three members or so made up of both laypersons and judges. However, such an approach would probably vanquish the difference between fact-finding and law-finding functions, making a broad spearhead into the traditional legal doctrine. Another strong objection states that, because of the enormous prestige which judges enjoy in British society, joining judges together with a jury of laypersons and who no longer have their distinct legal functions separated from each other would inevitably result in a body dominated by the judge, whom the lay members would follow mindlessly.


Whatever the answer may be, the present system is so deeply stuck in popular consciousness that any proposal for change automatically provokes a powerful emotional reaction as Jack Straw himself has discovered. Perhaps in the end this is the real reason why juries are likely to survive, rather than because of any legal or scientific justification. As with elsewhere in the British Constitution it seems that, whenever there is any conflict between reason and tradition, it is tradition that is likely to prevail.        



Barnett, H., Constitutional and Administrative Law, 2nd edn., 1998

Berlins, M. & Dyer, C., The Law Machine, 1992

Slapper, G. & Kelly, D., Sourcebook on English Legal System, 1996

Slapper, G. & Kelly, D., The English Legal System, 4th edn., 1999


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