Introduction: the Pryce of justice
The dismissal of the Vicky Pryce jury has once again raised the question of whether jury trials should be modified or abandoned completely. Needless to say it is among the most emotive of all questions regarding the criminal justice system. It seems to me that many of the usual justifications regarding juries do not withstand scrutiny, and yet paradoxically logic may not have the last word.
Mrs Pryce is the former wife of the former MP Chris Huhne. Both were charged with perverting the course of justice after it emerged that Mrs Pryce had claimed responsibility for a speeding offence which Mr Huhne had in fact committed (he wanted her to have the three points so he could retain his licence). Mrs Pryce pleaded not guilty and so was tried before a jury. While the jurors were considering their verdict, they submitted a list of questions to the judge. These included: “Can a juror come to a verdict based on a reason that was not presented in court and has no facts or evidence to support it?”; and “Would religious conviction be a good enough reason for a wife feeling she had no choice … to obey?”. The latter question was asked in spite of Mrs Pryce’s religious convictions never being mentioned in the case, let alone placed in issue.
The calibre of the questions was enough to convince the trial judge that the jury simply did not have the faintest idea what they were doing. He therefore dismissed them and ordered a retrial.
There was a wide spectrum of reaction in both the popular and legal press. Some saw the case as an aberration; the fact that juries are dismissed so rarely was itself evidence that the system was basically sound (in over 99% of cases juries reach a verdict, according to a study of Crown Courts from 2006-2008), or reasoned that it was simply an example of the safeguards of the system working. Others seem to think it was indicative of the collapse of Western civilisation, given that 12 ordinary people taken at random from the electoral role did not have a grasp of the English language or of English institutions. Research by the Ministry of Justice in 2010 actually tended towards the latter, as it showed some two-thirds of jurors did not fully understand the judge’s directions. Certainly, the study coupled with the Pryce saga gave valid reason to debate whether we should continue with the jury system in its present form. It will not do simply to trot out the usual chestnuts about juries being enshrined in Magna Carta; brining independence into the courtroom; or having the value of the “ordinary person’s experience” as opposed to the extraordinary rest of us. Let us consider each of those justifications in turn.
The “historical justification”
It is often argued that we have had juries for centuries and they accordingly form a central part not simply of the criminal justice system but society generally.
An immediate qualification is required: the mention in Magna Carta of trial by one’s “peers” was certainly not a reference to “equals” in the modern sense. Instead, mediaeval juries served two primary purposes: first, to define what the law was, by reference to the norms of the local community; and secondly, to bring to bear their personal knowledge of the defendant when determining his guilt. Both purposes were appropriate to small, undeveloped and isolated communities. Neither is appropriate today, when the law is supposed to be determined in advance by duly elected or appointed law makers, and a prerequisite for a fair trial is that none of those involved on the part of the state have personal connections to the defendant.
A modern jury is supposed to be only a fact-finding tribunal, which has to determine the weight of evidence as presented in the trial. In this form juries date more from the time of the Glorious Revolution as opposed to 1215.
In any event, we can dispose of the “historical justification” much more simply. The age of an institution or human practice is hardly a decisive argument in its favour: the fact that women were denied the vote until the twentieth century, for example, was not an argument against them obtaining it. Other, more substantial grounds are needed to defend the jury system.
The real world
In 2012 the experienced criminal barrister Felicity Gerry offered the following (Trial by jury: the importance of “ordinary” jurors, Halsbury’s Law Exchange, 8 February 2012):
“[J]udging their fellow man or woman, jurors bring to court their experience of real life.
I don’t know how many privileged people have had sex in an alley or taken cocaine or carried a knife for protection or, God forbid, had sex with a family member, but an understanding of real life, in all its shades, helps when considering issues in a criminal trial.”
With the greatest of respect, it is completely random how many – if any – jurors bring such experience, and it is not as though judges are completely inhuman either. More to the point, judges in criminal trials will have spent years representing or prosecuting the worst elements of society and, far from being “out of touch”, will actually have much more insight into the lives of the average criminal than the sort of middle class married people commonly found on juries.
Moreover, if juries are there simply to determine guilt or innocence, rather than empathise with the defendant’s exotic peccadillos, then the more salty experiences they may have had should not be relevant to their task.
The next argument is that juries bring “independence” to the trial process, being the one link in the prosecutorial chain that is not in the pay of the state. This of course ignores the basic principle of judicial independence as is now long established. Judges nowadays have fixed salaries and security of tenure. No-one has impugned judicial independence in the civil sphere or demanded that jury trials be reintroduced for civil disputes. Nor is it true to say that criminal proceedings are necessarily more important than civil: that might be true of murder, but the fate of, say, someone’s house or their job in a civil action will be of greater importance to them than a criminal charge from the lower levels of offences triable by juries.
If the public (howsoever defined) have more confidence in jury trials, then that would form a strong justification for juries. But is this true? There is no suggestion of a dearth of confidence in the civil sphere, which has long dispensed with juries save for the odd exception such as libel trials. Nor is there a serious suggestion that the Court of Appeal, Criminal Division, lacks confidence even though it regularly overturns the verdicts of juries. Since the 1930s it has done so on the ground of the evidence not supporting the verdict (as opposed to a defect in the trial process), when allowing appeals against conviction. In more recent times even the once-hallowed principle of double jeopardy has been abandoned. Neither step can really be said to have eviscerated public confidence or led to a feeling that elitist judges should have no place undermining the verdict of twelve good men (or women) and true.
Moreover, trials such as that of Pryce or other well-known examples of jury failures have eroded such confidence as there is in the system. They might be thought rare – but perhaps should not be, given the Ministry of Justice study mentioned above.
If the public has more confidence in juries because they represent the verdict of twelve as opposed to one, then statistically there is not much to bear out such an assumption.
Then there is the question of a bulwark against injustice: someone technically guilty but attracting moral sympathy might expect to escape a conviction due to a sympathetic jury. Such cases are few and far between, morally and legally dubious, and not much of a counterpoint to the argument that juries are fundamentally flawed in the majority of cases. They would also have to be balanced against jury decisions which the public consider blatantly wrong, which occur as often as ones in which they ape the Chancellor’s foot and deliver a popular verdict contrary to law.
Further, there are forms of trial which are manifestly unsuited to juries – complex tax or accounting fraud cases – and surely the general public would trust the verdict of an experienced Chancery judge over lay people in such cases.
Were juries to be abandoned one immediate benefit would ensue: much of the law of criminal evidence could be abandoned. Substantial savings in cost and time would follow, which would mean legal aid could receive some of the money (and would go further as trials would be cheaper) and the courts would get through cases much more quickly.
There are already alternatives in the justice system to simply single judges or juries. In wet shipping cases for years elder bretheren of Trinity House have (wholly uncontroversially) sat as assessors to assist the judge. In the Employment Appeal Tribunal it is common for two lay members to sit with one judge.
Or we might look to France, where the Cour D’Assises are composed of a jury of 6 jurors and a panel of 3 active judges at first instance, and 9 jurors and 3 active judges on appeal. A similar system here (though I see no need for a jury on appeal, as we do not have one now and there is no serious call for it) would address most of the above concerns about the flaws of juries whilst preserving the public confidence which – rightly or wrongly – seems to derive from the demotic element they involve.
The other alternative would be to reform the jury system itself, by requiring some form of qualification (see here for an interesting discussion). This certainly has a precedent, albeit not a very good one, in that until recently jurors were required to be property owners and over the age of 21. An IQ test would be an obvious though invidious alternative; perhaps a more palatable one would be some form of written test. There would still be all manner of problems with such a measure, however, not the least of which being that it would give an easy escape route to those who cannot be bothered with their civic duty, and we would end up with juries about as representative as Justices of the Peace have been over the years.
Another suggestion is for juries to give written reasons for their verdict. The chaos that would follow in the form of appeals, reviews and public outcries needs no elaboration.
I must admit to wavering somewhat on the issue. Perhaps, rather like Churchill said of democracy, we may end up concluding that juries are the worst possible system except for all the alternatives. Or perhaps it is time to grasp the nettle and make a radical change that is overdue.