The Right to a Fair Trial

Thom Brooks

• Publisher: Routledge
• Year: 2017
• Print ISBN: 9781138378520
• eBook ISBN: 9781351540995
• Edition: 1
• Topic: History
• Subtopic: World History
• Index: History

The right to a fair trial is often held as a central constitutional protection. It nevertheless remains unclear what precisely should count as a 'fair' trial and who should decide verdicts. This already difficult issue has become even more important given a number of proposed reforms of the trial, especially for defendants charged with terrorism offences. This collection, The Right to a Fair Trial, is the first to publish in one place the most influential work in the field on the following topics: including the right to jury trial; lay participation in trials; jury nullification; trial reform; the civil jury trial; and the more recent issue of terrorism trials. The collection should help inform both scholars and students of both the importance and complexity of the right to a fair trial, as well as shed light on how the trial might be further improved.

Part I
The Right to Trial by Jury

[1]
THE SACRED COW OF TRIAL BY JURY

R.J. O’hanlon

I. Introduction

I propose to commence this lecture by outlining what is meant by the constitutional right to trial by jury and to follow up by giving the historical background to these provisions in the Irish Constitution. Finally I intend to invite you to look at these provisions critically and consider whether it is in our best interests to retain them as part of the Constitution and as a fundamental part of the law of the land.

Article 38 of the Constitution of 1937 is headed, ‘Trial of Offences’. It is fairly short and simple. It provides that what we called ‘minor offences’ may be tried summarily – this refers to the right of a District Justice, sitting without a jury, to try in a summary or fairly informal manner, criminal charges which relate to petty or minor offences. These are offences which do not call for the imposition of a sentence of imprisonment of more than 12 months, or the imposition of a fine of a very large sum of money, say in excess of £1,000.¹

The same Article provides that military tribunals may be set up to deal with a state of war or armed rebellion, and such emergency courts would be composed of army officers, sitting without a jury. Such courts can also be set up to deal with offences against military law committed by members of the Defence Forces while subject to military law – the conventional court-martial with which we are all familiar.

Another provision in Article 38 permits the setting up of Special Criminal Courts when it is determined in accordance with law that the ordinary courts are unable to deal adequately with certain categories of offences and the Act under which such courts are set up will determine the mode of trial – who may sit as judges in the courts and what procedure is to be followed.

With these exceptions – trial of petty offences in the District Court, trial of members of the Defence Forces by army courts, the use of military courts in time of war or armed rebellion, and the use of Special Criminal Courts when the ordinary courts are considered inadequate to secure the effective administration of justice and the preservation of public peace and order – all other serious criminal charges must be tried before a judge and jury sitting in the Circuit Criminal Court, or in the Central Criminal Court (which is the High Court dealing with murder charges and a few other of the most serious criminal charges).²

Because these provisions are written into the Constitution, it means that we are committed to trial by jury in almost all serious criminal charges, unless and until the Constitution is amended to provide otherwise – and this would now involve going to the people by referendum and obtaining a majority vote in favour of a change by those who vote in such referendum.

It was not necessary to include these provisions in the Constitution. England, the birth-place of trial by jury, has no written constitution and could change over to trial by judge alone by simple Act of Parliament. The Constitution of the United States, however, contains a similar guarantee to that found in our own Constitution that the trial of serious offences will be trial by jury.³ Some other countries make no mention of criminal procedure in their constitutions and deal with the matter in their penal code, that is to say, by ordinary legislation.

Why are these special provisions found in our own Constitution and in the American Constitution? The answer to the question involves some examination of the historical background to this method of trial.

II. Historical Background

The Normans brought the concept of the juror with them to England, but in those early days the expression merely referred to a person who was required by the king to take an oath about something. For example, in the compilation of the Domesday Book, recording the title to land all over England, people were required to swear up to their right of ownership. The oath was at that time a fairly sure guarantee of the truth of what was being stated.⁴

The primitive methods of trial of offences generally involved trial by combat, or trial by ordeal. In the first case, the victor in combat was taken to have proved his case – he was regarded as having God on his side. In the second case – the ducking of suspected witches, for example – if the body floated to the surface it was considered that the water was rejecting the person, and he or she was regarded as guilty, whereas the person who sank to the bottom was regarded as having been accepted by the water and innocent, so they went free if it was possible to fish them out in time for this verdict to be of benefit to them.⁵

As trial by ordeal derived much of its efficacy from the apparent approval of the Church, it lost its appeal when Pope Innocent III in November 1215 proscribed trial by ordeal by forbidding clerics to take part in it.⁶ The science of law and legal procedure were much further advanced on the Continent than in England and new methods of trial were quickly devised, but the filling of the vacuum in England was a slow and laborious procedure.

The first appearance of the juror in criminal procedure was in the ‘jury of presentment’ – not unlike the grand jury which operated here and in England down to early in the present century and is still alive and well in the United States. The king’s judges were sent out all over England to do justice, and a jury of presentment in each area they visited reported on oath as to the persons suspected of committing certain crimes.⁷

This happened in the reign of Henry II, and by a gradual process a jury of 12 jurors evolved which took a more active part in the criminal trial. If 12 jurors could be assembled who would swear to the guilt of the party charged, this was sufficient to convict him – so at that stage the jurors, or ‘compurgatores’, were swearing as to their own knowledge as to the offence committed and the person responsible. Very unlike our modem juror, who would be immediately disqualified from service if it emerged that he had any personal knowledge of, or contact with, the subject-matter of the charge.⁸

The king’s travelling judges appear to have devised the new form of trial on their own initiative – was the prisoner willing to ‘put himself upon his country’ and be tried by his peers? If so, let him plead not guilty and take their verdict.

The prisoner could not be tried unless he agreed to this course, and many held out against trial because a guilty verdict could carry with it the forfeiture of all their lands. Many were willing to endure anything rather than leave their families destitute. Every effort was made to persuade them to change their minds – including the procedure of peine forte et dure, which involved the piling up of sacks of earth on the recumbent body of the accused person until he either submitted to trial or was crushed to death slowly and painfully.⁹

In 1352 it was enacted that no member of the jury of presentment (who swore up to the charges) should be included in the jury of inquest, yet the old formula of charging the jury, which read as follows, was still in use in England up to the year 1948:

If anyone can inform my Lords the King’s Justice or the King’s Attorney General, on this Inquest to be taken between our Sovereign Lord the King and the Prisoner at the Bar, of any Treasons, Murders, Felonies or Misdemeanours, done or committed by the Prisoner at the Bar, let him come forth and he shall be heard, for the Prisoner now stands at the Bar upon his Deliverance.¹⁰

By slow degrees the jury changed from a body that acted on its own inherent knowledge to one that received information from outside. And having heard all the evidence and received directions from the judge about the rules of law applicable to the case, the jury of 12 retired to the privacy of the jury-room and worked out their verdict. This was announced to the judge by the foreman of the jury and the judge had to enter judgment finding the defendant guilty or not guilty in accordance with the jury’s verdict, regardless of whether he agreed with it or not. The jury could not be asked to explain their verdict or how they arrived at it or give an account of their deliberations, and this is still the position in modem times.

Lord Devlin in his Hamlyn Lectures entitled Trial by Jury, published in 1956, and to which I am indebted for much historical information on the origins of jury trial, said:

Judges give their reasons, to satisfy the parties or because they themselves want to justify their judgments. Even arbitrators detail their findings of fact. The jury just says Yes, or No. Indeed it is not allowed to expand on that and its reasons may not be inquired into. This is still an essential characteristic of the system.¹¹

III. Who May Serve on the Jury?

The object is to gather together 12 ordinary, reasonable men and women who will apply their collective common-sense to the task of weighing up the evidence, determining what witnesses are telling the truth and what witnesses are not, and reach a conclusion based on what they have heard in court (but not otherwise), as to whether the defendant is guilty or not guilty.

For most of its history, spanning several centuries in England, and in this country to which it was introduced as part of the Common Law of England, the jury was drawn from a very small and confined class of people – the owners of property. It was felt that men of property were more trustworthy as a class than the rest of humanity. The test laid down in England from 1825 onwards required that the juror own property of a certain yearly valuation, or should live in a house containing not less than 15 windows.¹² (It must be remembered that people were taxed for many years both in England and Ireland on the number of windows in their houses – which probably explains the terrible squalor of the windowless cottages in which people in Ireland were still living in the 19th century.)

Women were regarded as unfitted for jury service until 1919 in England,¹³ and were effectively excluded from jury service in this country until much later (Juries Act, 1976). Lord (then Sir Patrick) Devlin said in 1956:

The jury is not really representative of the nation as a whole. It is predominantly male, middle-aged, middle-minded and middle-class – ...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Table of Contents
• The International Library of Essays on Rights
• Acknowledgements
• Series Preface
• Introduction
• PART I THE RIGHT TO TRIAL BY JURY
• PART II LAY PARTICIPATION
• PART III JURY NULLIFICATION
• PART IV TRIAL REFORM
• PART V THE CIVIL TRIAL
• PART VI TRIALS AND TERRORISM
• Name Index