The Criminal Justice Act 2003 provides that a trial without jury may be held where there are fears jury tampering would take place, and if measures to protect jurors are inadequate. Last year the Court of Appeal ruled that the £1.75m armed robbery alleged to have been carried out by John Twomey, Peter Blake, Barry Hibberd and Glen Cameron at a warehouse at Heathrow in February 2004 be heard by a judge alone because of the danger of jury tampering. The last trial had to be abandoned over those fears.
The Times noted: “Defence counsel had unsuccessfully tried to appeal to the Supreme Court to challenge the jury-less trial. But, they were told, the justices of Britain’s highest court had no jurisdiction to hear the appeal.”
Trial by jury is enshrined in our constitution and criminal practitioners I have been able to speak to thus far are staunch advocates of the system. I am not a practitioner but raise the thought for discussion that while it places a burden on the judge to both ensure a fair trial compliant with the laws of evidence and take on the responsibility otherwise taken on by twelve men and women, is it necessarily the case that a jury would do a better job of determining guilt than a lawyer with considerable experience of trials, experienced at analysing factual information and unlikely to be swayed by factors which may prejudice a juror one way or the other?
I did not think it was a particularly good idea, some years back, when the rules were changed to permit practising lawyers and judges to sit on juries, partly through concern that they may dominate discussion in the jury room but partly because of their experience and knowledge of the system.
I can see why there is a need to have an exceptional provision to hold trials in cases of ‘jury nobbling’ – and, inevitably, because I am not a criminal law practitioner my response to trials without a jury is based on gut instinct and the emotional response that trials should be tried by 12 ‘ordinary men and women’. Is this emotional response logical? Would it necessarily be a bad thing to remove the need for juries in more serious cases? I invite discussion and would be particularly interested in hearing the views of lawyers and others who are specialists in criminal law.
To focus discussion on this – should readers wish to comment- I post this as a ‘single issue’ Law review and will post comment on other legal stories of the day separately later today.
The decision to allow the appeal was in my view wrong. The Courts as the guardians of justice, had in that case, ceased to be such custodians and instead crumbled to the will of Parliament and the CJA 2003.
I can’t imagine how a judge alone case would work. A judge who hears all the evidence, but has to have two states of mind? They are persuaded by the same counsel who when summing up, may have successfully argued for evidence to be excluded, that may be highly probative of guilt because it may have been obtained illegally or unfairly, that their client is free, however how can a judge realistically avoid referring back to that excluded piece of evidence.
A new system would need to be adopted for these trials, you would effectively need two trials, one where all the evidence is put to a Judge, whom then goes on to decide what evidence can be admitted and not, then he would carefully handover the assessed evidence to another judge for an assessment of criminal liability.
Its ridiculous, that you can hear the evidence and legal argument to exclude such evidence, for which the jury is sent out for. It is a complete legal fiction, which I don’t think is viable.
Of course if this becomes frequent the Judge will have to give reasons as to why he convicted and therefore would possibly be easier to appeal against conviction.
In Japan they’ve been moving in the other direction, introducing “lay judges” into criminal trials early last year after abandoning it in 1943. Although arguably the problem they’re seeking to remedy (a 99% conviction rate with notable miscarriages of justice) might be more attributable to a more deferential culture, it would be naïve to exclude the idea that an all-judge panel is likely to be biased against defendants.
As far as I can see, juries are useful because a degree of blindness helps uphold the standard of proof. The considerable experience of trials strikes me as the most compelling reason why judges should not be assessing this evidence, and similarly why (at least criminal) lawyers and policemen should not serve on juries. The prosecution will have a less onerous burden to discharge as judges will, even if only unconsciously, make their own inferences and draw conclusions that the prosecution would otherwise have to spell out. It pulls the evidential burden towards the balance of probabilities
We’d also lose the useful check on state power of jury equity.
C & E talks about the mental gymnastics will be too much for judges, so two trials will be needed: funny, trials in magistrates’ courts don’t work like that. Too often these debates go on without anyone paying attention to the magistrates’ courts where so many criminal trials happen without juries. If district judges can do it, then circuit judges should be able to, too.
I’m a great fan of juries – Benjamin makes a good point about Japan and the value of juries. I don’t want the category of “either way” offences to be cut down or non-jury trials in fraud cases. But this change is a defence of the jury system at its weakest point: its vulnerability to jury-nobbling by violent, organised crime interests. I welcome this change which will help stop the jury system falling into disrepute.
As for judges’ reasons – I’m not sure if they’ll be given, but I’d welcome that.
I need to rummage in some boxes, but I know there was work done on conviction rates in Diplock courts which is very much on point given the Twonery case’s allegations of jury tampering.
Have to disagree with Benjamin above – juries bring a lot of prejudices to their deliberations, and it’s only a refusal to allow proper jury room research which prevents the evidence on this from being incontrovertible (cf the work on police ‘canteen culture’ which was so influential in the 1980s).
While judges (and criminal justice professionals) may suffer from institutional capture, they are less likely to harbour irrational or unfounded prejudices (they may harbour some rational and founded prejudices, but that’s a different issue!).
My main objection to the way the CJA2003 implements non-jury trials is the lack of any real change in the Judge’s role. You have to hope that a judge in this situation will take a more proactive role – asking more questions, and pressing both sides on points – given he has to make a decision based on the evidence. I’m not advocating an inquisitorial system, mind you!
Let us start with a simpler case. Imagine that the trial had been reconvened with a new jury. They would not be told the allegation of jury tampering for fear of prejudicing the trial.
With few exceptions juries should not even be told of previous convictions, let alone unproven allegations, against the defendant.
Why should we expect a judge, sitting without a jury, to be able to set aside the knowledge that the defendant (or an associate) has attempted to influence a previous jury?
Strangely enough, this would be less of a concern if it were normal to hold certain trials without a jury, because it would then be possible to conceal the allegation of jury tampering from the judge.
Carl Gardner refers to reasons. The Judge is required to give a judgment stating the reasons for the conviction at, or as soon as reasonably practicable after, the time of the conviction: Criminal Justice Act 2003 s48(5). There seems to be no requirement for a judgment if there is an acquittal.
Part 7 of the CJA 2003 deals with trial on indictment without a jury. This enactment needs to be seen in the context of a government which was actively seeking to reduce jury trial. In the 1999-2000 Parliamentary session there were two bills which would have abolished the defendant’s right to elect jury trial in “either-way” cases. Those bills were defeated. Next came Auld LJ’s review of criminal justice which was essentially a one man exercise in trying to make major changes to the law. It was Auld who proposed that previously exempt categories (e.g. Police Officers and Magistrates) should be eligible to sit on juries. Very mistaken in my view. Auld also proposed that, in either way cases, the court and not the defendant should determine venue. That recommendation was not accepted.
When the Criminal Justice Bill came before Parliament, the government had changed tack and proposed limiting jury trial in particular types of case. The eventual outcome of all this was Part 7 of the Act which is now limited to fraud cases and jury tampering.
It would appear that the risk of jury tampering is significant in certain types of trial. The House of Commons Select Committee on Home Affairs, 2nd Report (2002) informs us that the Metropolitan Police spent some £9million on jury protection in the period 2000-02 and that it required 72 officers to protect one jury. Naturally enough, the Police supported the introduction of non jury trial in such cases. Unfortunately, the report did not include data on how many juries or individual jurors had actually been tampered with. In this very case the Court of Appeal referred to cost estimated at £1.5 million and the loss of 32 police officers from their other duties for six months.
Thus, we see that the background to the Act is a government which is certainly not wedded to retaining jury trial. [It may not even be wedded to the idea of retaining lay people in the criminal justice system at all since, in recent years, there is a marked increase in the use of District Judges in the Magistrates' Courts].
I have no doubt that experienced criminal judges will be able to conduct the so-called mental gymnastics. Perhaps the real question is whether such a trial will be seen to be fair. If a judge is persuaded to exclude evidence (e.g. under PACE 1984 ss76 or 78) but goes on to convict, people are bound to say that the excluded evidence might nevertheless have had an effect on the decision making. In the Magistrates’ Courts there is the possibility (under the Courts Act 2003) of a pre-trial binding ruling on such matters. That procedure prevents the trial court hearing the application to exclude. No similar provision exists in Part 7.
It must also be added that trial by jury has public confidence which, in a democracy, is crucial. The Diplock Court system never attained that degree of confidence. Parliament seems to be rather too keen to legislate away civil rights and many, rightly in my view, see Part 7 as the thin end of the wedge for jury trial in England and Wales.
Another very important point is the absolute right of a jury to acquit even in the face of clear evidence pointing to conviction. This right (stemming from Bushell’s Case in the 17th century) has been effectively used from time to time with the Clive Ponting case being a possible example. It is to be doubted whether a judge alone could do this.
I think that the balance lies in favour of having Part 7 (for jury tampering) but it would be very worrying if its use became commonplace and applications should only be made where there is clear evidence of actual or possible tampering of jurors or their relatives. The considerable resources in protecting a jury are relevant and, in this case, the Court of Appeal felt that the more burdensome package of measures thought to be necessary would be unfair on Police resources and also on the individual jurors.
http://www.bailii.org/ew/cases/EWCA/Crim/2009/1035.html
The jury may be the lamp which shows that freedom lives (per Lord Devlin). However, it is sad that the lamp burns rather less brightly today.
Dear All – thank you for your contributions – and also to others who may follow. This is a fascinating issue and your comments will, I am sure, be appreciated by readers…. about 1950 so far today… so thank you
Sorry Carl, yes I omitted reference to the mags, I am not a practitioner so I am unsure of truely how much legal debate goes on, after only viewing a handful of cases there myself, but I can imagine that it would not be as high or nearly as important as a trial on indictment.
There are a couple of articles in the Criminal Law Review etc that deal with how the effect on magistrates about hearing that the defendant has bad character, I’ll have a look to see what the study of the outcome of the study was.
Do not forget that Judges have a “gut” feeling too, they are also suspectible to “instinct” as is any normal juror. However what makes the distinction in the jury system is that you will have people going either way, instead of just one person alone with their “gut” feeling.
Picking up on ObiterJ’s comments yes, my qualm is probably more theoretical than real. The problems that present themselves are in terms of erosion (which I picked up on in my blog yesterday) and public confidence.
Though the diminution in the standard of proof may be minimal, it could pave the way for other “reforms” that continue to chip away at this. If we’re not careful, we risk running into the same problems faced with witness anonymity (R v Davis). Although s.44(6)(c) of the Criminal Justice Act 2003 suggests a greater evidential requirement is needed in this case than for witness anonymity (Criminal Evidence (Witness Anonymity) Act 2008, s.4), the same risk exists, although it may take longer for the problem to materialise. That the legislation appears not to have taken account of this in amending the procedure leaves room for concern.
Jury equity wasn’t just useful in cases like that of Clive Ponting, but meant that Peel was able to secure the abolition of the death penalty for over a hundred offences when Home Secretary. Were judges to do this it would stop being a check on the power of the state and be pure judicial activism.
Crime and Evidence – apologies for not putting your blog on blogroll earlier! Mea culpa
Obiter J – “The jury may be the lamp which shows that freedom lives (per Lord Devlin). However, it is sad that the lamp burns rather less brightly today.”
I do hope we do not see ‘mission creep’ here.. I would rather have fallibility from a jury than fallibility from a judge. It is an awesome responsibility to place on the shoulders of one judge – especially in the more serious cases where imprisonment could be for a very long term.
Listening to a debate of this issue on the Today program yesterday, the columnist they found who’d sat on several juries claimed juries to be a terrible institution.
His absolute certainty on the issue and undisguised condescension of those who argued against him (Michael Mansfield QC!) entertained in my mind how frustrated he must have become with those juries when he found 11 (some perhaps ‘uneducated’) people who may not have agreed that every word he uttered was fact and that his interpretation of who was telling the truth and who was not may have been wrong. No wonder he found jury service so galling. And, of course, his cries of dismay may well be ringing endorsements of the system.
I have no doubt that there are faults with the system, but as with Democracy, it is the worst system, other than every other system that has been tried throughout the world from time to time.
Just like that columnist on the Today program, Judges need to have personalities where they accept they are always right, how could they sleep otherwise? They can become jaded and cynical, and dogmatic in their approach to certain offenders and defences; Newton hearings certainly testify to this.
Obiter J speaks (very eloquently) of mission creep. That magistrates will be able to try individual charges where sentence on conviction can be expected to reach 12 months is a further example of this.
By far the most concerning of this creep however is that Magistrates already have the power to try those who they believe will, on sentence, receive a sentence of up to 2 years in the Youth Courts. How is it that the most vulnerable in society are the least protected?
Justice is often a balancing exercise, and I have no concerns that, due to the inordinate expense and logistical complexity, the least serious of offences should be tried summarily.
Further, I can accept that there may need to be a mechanism whereby, if jury trial is rendered impossible due to jury tampering, a judge should be able to hear the case. I make no comment on whether I think that bar was reached here.
But that juries might be inconvenienced, even for protracted periods of time, I’m afraid carries no weight with me. We should make their position as comfortable as possible, but there is a cost to living in a civil society, and responsibilities on citizens. This is one of them.
Should this system of non-jury trials spread; I hope not but fear it may, then I would like to posit this.
Juries (to the wider world) are anonymous, judges are not. Therefore, talking about bias and prejudice, what happens when we see Tabloid headlines: “Peado Protecting Judge ? endangers all children by freeing monster again”. Or, “Murderers’ Mate Judge ? frees fiends. What do our readers think should happen to these namby-pamby judges?
Correct me if I’m wrong, but the relevant section of the Act does not seem to require no evidence, or even an unsupported claim, that the danger of tampering originates from the defendant.
Indeed, under the literal wording of the Act, it appears that police officers could threaten to a judge that they (or their friends) would tamper with any jury empanelled for the case, upon which the judge would have no alternative to hear the case without one.
In a way that may be intended, ostensiby to protect the defendant against a prejudiced jury. The problem there would be that it would make it easier for the media to villify defendants, as the result wouldn’t be an acquittal, but a judge-only trial. Slippery slope indeed.
David W – you are not wrong. The “real and present danger that jury tampering would take place” does not have to emanate from any particular source even if, in most cases, it probably does emanate from “friends” of the defendant. Section 44(6) of the Act gives some examples of cases where there may be evidence of a real and present danger of tampering. They include (a) cases where the trial is a retrial and the jury in the earlier trial was discharged because tampering had taken place; (b) cases where tampering had taken place in previous criminal proceedings involving the defendant or any of the defendants and (c) a case where there has been intimidation, or attempted intimidation, of any person who is likely to be a witness in the trial. Section 44(6) is slightly worrying because it could be read as suggesting that there ought to be judge only trial in those cases. However, s44(6) gives 3 examples and this subsection would have to be read with the requirement that the 2 conditions in sections 44(4) and 44(5) must be met. Hence, I would not be too worried about section 44(6).
It is perhaps worth mentioning that under section 46 it is possible for a jury to be discharged mid trial and for the trial judge to then continue the trial judge only. As far as I am aware, this particular section of the Act remains untested.
Some observations of a layperson (but one who has done jury service)
i) In criminal trials guilt must be proved “beyond reasonable doubt”. A judge and a layperson may have significantly different views as to what constitutes “reasonable doubt”.
ii) A jury consists of 12 people of varying opinion and considerable debate occurs in the jury room. A judge sitting on their own has nobody to challenge their assumptions.
iii) I strongly believe in the right to trial by jury. But if you are going to remove the jury, it should be replaced, not combined with the role of judge. That is there should be a judge who acts as judge in the case, and a separate judge who sits unrobed in the jury box and acts as proxy for the jury. Being unrobed is important, since it is a constant reminder to the court that the judge is acting as jury, not as judge and jury.
iv) Having said (iii), and mentioned the importance of debate within the jury, I think that if the jury is replaced, then it should actually be replaced by at least two judges who sit unrobed in the jury box.
v) Having three judges for a trial is undoubtedly expensive, but the expense serves as a disincentive to removing the jury.
Martin – A very interesting idea… and the expense would certainly be a lot lower than witness protection programmes.
We could also have had a Judge sitting with two lay assessors. the old Restrictive Practices Court certainly used to work well with that format from my recollection of my old Competition Law studies!
For Louis-Blom Cooper QC,
“The jury is the high point of amateurism, potentially a recipe for incompetence and bias. The mood of civilised systems of criminal justice increasingly demands professionalism. I am not contemptuous of the amateur’s ability to judge human conduct, only the task of evaluating evidence in the courtroom, which is a job for professionals.” (http://business.timesonline.co.uk/tol/business/law/article995775.ece)
I agree with him.
Charles… Indeed … but then we get a case, as today, R v Ellis
http://www.independent.co.uk/life-style/gadgets-and-tech/news/free-music-site-creator-cleared-in-fraud-case-1869191.html
Although we don’t know how the judge directed the jury – some say that the jury is giving the music industry the bird… and some say that the jury can tell the state with what lawyers call ‘perverse verdicts’ that a law is bad.
Interesting debate.. and thank you for putting Louis Blom-Copper’s very logical observation into the comments – appreciated.
As one would expect, Sir Louis Blom-Cooper QC put up a well argued article (The Times 21st October 2003). By the time the Criminal Justice Act 2003 was passed, the case for judge only trials had been accepted by Parliament in two instances only: Complex or lengthy fraud trials and Jury Tampering. The problematic proposal of a defendant waiving his right to jury trial was dropped so I don’t see the need to comment on that further.
Lack of jury research is one of those arguments frequently trotted out by those who see it as a means to condemn juries. Such people start from the abolitionist position and are hardly likely to be persuaded otherwise irrespective of the outcome of the research. [There would also be major questions about appointing the researchers, the impartiality of the researchers, how they present their findings, how government chose to interpret the findings etc]. Of course, there might be ways to assist juries to do their duty better. The Lord Chief Justice touched on this angle recently – see:
http://business.timesonline.co.uk/tol/business/law/article6882947.ece
Blom-Cooper also made great play about Human Rights but, with respect, I think he overstated the matter of giving reasons. The Human Court of Human Rights is hardly likely to condemn the British system of trial by jury on the basis that they do not give a sleep-inducing multi-page judgment made all the lengthier because the judge did not have time to make it short.
In fact, there are some arguments that trial by a judge only might infringe Article 6 since the judge could be required to hear material which is actually inadmissible. For instance, concern has been expressed that, in cases where questions of public interest immunity arise, judge only trial would not withstand an article 6 challenge unless some form of special counsel procedure is invoked. The use of those “creatures” is a growth industry!
The senior judiciary continues (rightly) to be the elite of the legal profession but they are hardly representative of society as a whole. For example, it is still a matter of comment if a female is appointed to the High Court bench and there is still only one female at the House of Lords/Supreme Court level. For all their legal knowledge, there is nothing inherent in the profession of lawyer to give them the moral right to have the power of judgment over the citizen. The moral right of the jury stems from the fact that the jury comes from the people and a randomly selected jury is likely to be more representative of society than a judge.
Of course, many other nations did not adopt a system of trial by jury. They rely on the legal profession though, in serious cases, it is not necessarily a single judge trial but rather a panel. However, there have been times in the histories of some of those continental nations, when they looked in envy at our nation and its institutions such as the jury. The period of the trials before the “Volksgerichtshof” come to mind:
http://en.wikipedia.org/wiki/People%27s_Court_%28Germany%29
Ultimately, if one strips away all the arguments in Blom-Cooper’s article, it comes to a fundamental question of where power ought to lie. The fact that this power lies ultimately with the people is a crucial thing to hold on to.
The argument that it is difficult to conduct jury research so jury research is odd, but it is down right bizarre to dismiss anyone arguing that the lack of jury research is a cause for concern about juries with the words:
“Such people start from the abolitionist position and are hardly likely to be persuaded otherwise irrespective of the outcome of the research.”
Is there any evidence to support this? It seems on its face to be a straight-forward prejudice against those who would like to see jury research conducted, a prejudice no more valid than that you are ascribing to “[s]uch people”.
Similar concerns were raised when the earliest systematic research was being done into the internal culture of the British police in the 1970s and 1980s, and the outcomes of that work is well known. The picture it painted was deeply troubling, and continues to inform efforts to shape police practice.
Given that academic research is conducted into rape trials, the investigation of child sex abuse, and into the conduct of criminal cases by prosecution and defence alike, it is difficult to see the arguments raised against jury research as anything other than special pleading.
My personal view – similarly unsupported! – is that many who oppose jury research have latent misgivings about what it might turn up.
It may be unlikely that juries are routinely reaching the heights (depths?) of the Stephen Young case, but I believe most people would accept that juries reach decisions based on personal beliefs and prejudices. Leaving aside anecdotal evidence, and research with mock trials, the very existence in the US of the jury research industry demonstrates that it is considered possible and practical to make predictions about the likely behaviour of jurors based on extraneous facts connected to the jurors, not the defendant or the case.
Any argument judge only trial violates Article 6 is self-evidently wrong: were this the case, no magistrate in this country could safely hear a case, nor could large parts of the continental judicial system continue to function. The only possible ground for such an argument would be the degree of sentencing power, and I can’t see the ECHR making an arbitrary distinction at 6 month’s imprisonment.
As for the reference to the People’s Court:
http://en.wikipedia.org/wiki/Reductio_ad_Hitlerum
The abuses of legal power in the period after 1933 owed little to the lack of juries, and rather a lot to the co-option of a considerable number of judges, lawyers, legal academics, and politicians.
There is some force in the argument that the judiciary are unrepresentative, but personally I am not convinced that this is a bad thing. A black or Muslim defendant in London or Stoke is unlikely to be comforted by the idea that one member of the jury probably voted BNP. Whilst judges will have their own personal prejudices, it is far more likely that these will be identified and addressed – unlike a potential juror.
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Excellent arguments are made by MTPT and I readily acknowledge their force. A good debate.
However, I remain convinced that many advocates of jury research in this country come at the subject with the preconceived idea that it will throw up problems which they would then use as a reason for abolition. I say this against the background of a government which has already tried to limit jury trial – (please see my first post above) – and, as we know, they have succeeded in part. In this situation, who would trust the government’s choice of researchers or, as I mentioned above, the government’s interpretation of their findings? Of course, there is no guarantee one way or the other how research might turn out. For example, this American article spoke favourably about juries and British research might produce evidence supporting the jury:
http://www.america.gov/st/usg-english/2009/July/20090706164826ebyessedo0.4126551.html
I agree that “ouija boards” are thankfully rare and I think that most jurors act entirely responsibly. Also, it may be that some jurors might be influenced by “extraneous facts connected to the jurors” but, unlike a judge only trial, there are other jurors there to challenge their viewpoints. I do not entirely agree with the assertion that it would be far more likely that the personal prejudices of judges would be identified and addressed. How would they be, especially as there is no other member of the tribunal to challenge their views?
It is also true that academic research is conducted into rape trials, the investigation of child sex abuse and so on. I think that such research is valuable. However, in setting about research you have to define the aim of the research and there must be no hidden agenda. Yet again, I would have concerns that such an agenda might exist if the government were to commission jury research.
I did not argue that judge only trial would violate Article 6. I merely pointed out that there are problems as, for example, discussed here:
http://www.publications.parliament.uk/pa/ld200304/ldjudgmt/jd040205/hc-1.htm
On reflection, I think I agree with you about the Volksgerichtshof. Whilst the judges there were corrupted I doubt that having juries would have made much difference in the realities of the pre-war Germany of the 1930s. However, there are many places where people might wish that their criminal trial was conducted before an impartial body such as a jury. In some States, judges are merely seen as State officials and doubts about their independence exist – e.g.
http://www.carnegieendowment.org/events/index.cfm?fa=eventDetail&id=650
I think the views of Scots lawyer Donald Findlay QC are interesting:
http://www.heraldscotland.com/leading-scots-lawyers-england-is-wrecking-justice-by-ruling-to-scrap-trial-by-jury-1.826841
Findlay is critical of the English position under the CJA 2003. His views are pertinent:
“My view is that the jury is the last real example of democracy at work. I take the view that political democracy disappeared a long time ago. “A jury is chosen at random, with no qualifications. It brings together collective experience, and that to me is what democracy is all about. It’s at the heart of our legal system.”
Interestingly, the Scots jury is 15 members and a simple majority decision suffices. A Scottish Government consultation has concluded that the number should stay at 15 and the reasons may be read here:
http://news.scotsman.com/politics/Scotland39s-unique-15strong–juries.5252536.jp
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