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Law - The Justicial System

We do not know how juries reach their verdicts. Any research on that topic is precluded by the Contempt of Court Act, and juries do not give reasons for their decisions. Occasionally, horror stories emerge as to the way in which the jury has set about its task. In one recent murder trial some members of the jury sought to contact the victim by using a ouija board. In another case where the accused, a Mr Qureshi, had been found guilty of the arson, a female member of the jury alleged that disparaging and racist remarks about the defendant were made by some jurors throughout the trial, that one juror fell asleep in court and another was deaf and could not hear all the evidence.

Sometimes a member of the court staff stumbles on what has been going on. At the end of a recent trial, the judge retired to await the jury's verdict. A harassed jury bailiff then told him that two of the jury had climbed through a window and were sitting on a ledge smoking cigarettes (or similar) and refusing to participate in the jury's deliberations.

We are almost alone in Europe in our use of juries. The French use them, but only for the most serious crimes, where the court is presided over by three judges with nine lay jurors. Very sensibly, they decide guilt and sentence together; previous convictions are known to all; and a simple majority is enough for a verdict, voting being carried out by secret ballot. Holland relies entirely on professional judges. Italy puts its trust in a tribunal of three judges, while Germany, Austria, France, Finland and Sweden prefer to try criminal cases with mixed tribunals consisting of a professional judge and a number of laymen. Even in England and Wales only about 1% of criminal cases culminate in trial by jury.

Is it not at least worth asking why everyone else is marching out of step except for us? Should we not find out how juries are performing? Irrespective of the advantages trial by jury may bring, the institution of the jury - a randomly picked and legally untrained body - must stand or fall on its ability to find the truth. Many judges who daily preside over trials in the crown court are of the view that wrongful acquittals happen far too frequently. These are, on the whole, not "perverse" acquittals (in the sense that the jury has acquitted because it disapproves of the law or the prosecution in seeking to enforce it); they appear to result from a failure of the jury to apply to the evidence the intellectual rigour necessary for its members to feel sure of the defendant's guilt. There are no appeals against such decisions.

Some judges estimate that the jury gets it wrong in about one in four cases. There are, of course, many trials where there is room for more than one conclusion on the evidence, and where it is understandable that the jury's view differs from that of the trial judge. There are many others, however, where no such indulgence is possible. Of the approximately 20,000 defendants who pleaded not guilty in the crown court in 1999 and were tried, 64% were acquitted. In the magistrates' court, the equivalent figure was 5%.

In his recent Review of the Criminal Courts, Lord Justice Auld expressed deep reservations about the jury system. He recommends that the trial judge or the court of appeal should be able to inquire into any alleged impropriety by a jury and that the law be amended to allow research into how juries reach their verdicts. It is perhaps a measure of his limited confidence in the jury system that he also recommends that jury trial for intermediate offences, where the likely sentence is no more than two years' custody, should be abolished and replaced by trial by a judge and two lay magistrates and that in serious fraud cases the judge should be able to direct that the trial be by judge and two experts; in the case of young defendants (under 18), trial should be by judge and two youth magistrates, and in all indictable cases the defendant should, with the consent of the court, have the option of trial by judge alone.

Consultation on the review came to an end on January 31. Some three weeks before that deadline, the Times reported that the Cabinet had decided to reject the Auld recommendations to remove trial by jury in the cases referred to. Apparently, the united opposition of the Bar and the Law Society was enough to persuade the government to surrender the field even before any serious debate had begun. Research should now be carried out into how juries reach verdicts. We need to know if the jury is a reasonably efficient fact-finding tribunal. If it is not and cannot adequately be improved, it should be replaced by some other method of trial that is likely to err less frequently. For that we could do worse than study the methods of our continental neighbours.


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