Unreasoned Verdict

The Jury is Out

Louis Blom-Cooper

• Publisher: Hart Publishing
• Year: 2019
• ISBN:
  9781509915248
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

The system of jury trial has survived, intact, for 750 years. In the light of contemporary opposition to jury trial for serious offences, this book explains the nature and scope today of jury trial, with its minor exceptions. It chronicles the origins and development of jury trial in the Anglo-Saxon world, seeking to explain and explore the principles that lie at the heart of the mode of criminal trial. It observes the distinction between the professional judge and the amateur juror or lay participant, and the value of such a mixed tribunal. Part of the book is devoted to the leading European jurisdictions, underlining their abandonment of trial by jury and its replacement with the mixed tribunal in pursuance of a political will to inject a lay element into the trial process. Democracy is not an essential element in the criminal trial. The book takes a look at the appellate system in crime, from the Criminal Appeals Act 1907 to the present day, and urges the reform of the appellate court, finding the trial decision unsatisfactory as well as unsafe. Other important issues are touched upon – judicial ethics and court-craft; perverse jury verdicts (the nullification of jury verdicts); the speciality of fraud offences, and the selection of models for various crimes, as well as suggested reforms of the waiver of a jury trial or the ability of the defendant to choose the mode of trial. The section ends with a discussion of the restricted exceptions to jury trial, where the experience of 30 years of judge-alone trials in Northern Ireland – the Diplock Courts – is discussed. Finally, the book proffers its proposal for a major change in direction – involvement of the defendant in the choice of mode of trial, and the intervention (where necessary) of the expert, not merely as a witness but as an assessor to the judiciary or as a supplemental decision-maker.

1

Justice and Fairness: The Basis of a Fair Trial

At the heart of the public’s passionate approval for the jury system – nowadays, somewhat diminishing numerically in its unadulterated adherence – there exists alongside the trial process the separation in the two systems of civil and criminal jurisdictions. If the binary systems are engaged in a uniform device of seeking justice, they were irreparably dissociated after abolition (almost) in 1934 of the jury in civil cases. (Apart from a limited application of the discarded jury in defamation trials, the civil law – in England, but not in the United States – discards the use of juries.)

If you have ever had the misfortune to be involved in a trial in the civil courts, you will have at least heard or read the reason for the judge’s decision. That result comes from the process of hearing both sides of the dispute (legally represented), and the handing down of the articulated judgment (frequently reserved) which the judge gives for deciding the winner and the loser, and the costs of the case. So too, the public is alerted, because there is rightly a demand for openness of the proceedings, subject only to the extremely rare occurrence of a secret trial, to protect national security. It is unthinkable that the verdict of the court would be given without a reasoned judgment. The whole process is impregnated with a sense of awe and majesty, suitably decked out to denote the purpose of law in society, a crucial instrument of the tripartite role of democratic government. As a public institution within the legal system, professionalism is the watchword. Not so, the inscrutable verdict of the amateurs that compose the tribunal of lay persons. Why then should the result of criminal proceedings, that potentially involve the loss of liberty or of other civil rights, be so different? The harsher effect of the criminal trial needs to be explained and justified.

If you are charged with a serious criminal offence before a judge and jury in the criminal court or other courts composed of laymen, either alone or in participation with judges, you have no choice over the mode of trial. You will have your guilt or innocence determined by a jury uttering a monosyllabic vote. Nothing more will be offered, let alone said. Yet, subject to directions from the trial judge determining the relevant law and a summing-up of the evidence elicited in the courtroom, you will be treated with no more than the single word. But that is the English model for a fair trial before an independent and impartial court. Does it ensure that you will get a fair trial, when you are not told why the court found you guilty, or indeed innocent? Fairness is the essence of a just process.

Most, but not all (as I will explain in a later chapter of the book) democratic societies have swallowed the nascent social demands that lay participation in the judicial system can contribute materially to the trial of cases and the decisions made on evidential material that confronts the ordinary citizen in everyday existence. Indeed, they assert that it is highly desirable that there should be some lay participation in a criminal trial. The injection of a lay element into the criminal process necessitates three demotic aspects: (i) participation; (ii) representation of the lay element in the panel; and (iii) deliberation of the admitted evidence and its assessment to reach a reasoned verdict. Each of the three elements exposes problems in the mixed tribunal; each element is not without criticism that reflects the inherent question of harmonising and harnessing the principles of justiciability of the professional judge and the layman’s participation in the judicial process, its most troublesome aspect being the quality of a reasoned verdict. As an academic commentator rightly observed in 2015:¹ ‘the future prospect of requiring criminal courts to offer some sort of explanation for their verdicts may not be so far off on the horizon as had once been imagined’.

Every aspect of the procedure in cases of criminal trials was separately treated in principle and in practice. There was no reference to the civil system, and since the Criminal Appeal Act 1907 it has been separately administered. The twin appeal systems were administratively united in the Criminal Appeal Act 1968 under the Court of Appeal’s structure. But the forensic processes for civil and criminal trials markedly differed, while some (but not all) Lords Justices of Appeal sat in both jurisdictions. That apart, the criminal law catered for appeals on law and fact to its own Division of the Court of Appeal, presided over by the Lord Chief Justice. It also allowed for appeals against the sentence imposed exclusively by the trial judge following the conviction by the jury. (In English law, the jury, strictly speaking, had no function, except indirectly by the conviction for the particular offence(s), on the question of sentencing.) If confirmation of the separateness of the criminal system were needed, the sentencing process demonstrated (and still demonstrates) such separateness, almost a juristic apartheid. The criminal practitioners form a distinct group within barristerial functions. Studies of the earlier reports of sentencing appeals disclosed the absence of any counsel for the Crown as the respondent to the appeal, although often Crown counsel did appear on the hearing of the appeal, and then only ‘to assist the court’. It was accepted that any question of a penal sanction was a matter for the sentence, directing the prison administration, or other authority exercising deprivation of liberty or property, to execute the sentence of the court. Thus, effectively, the penal administration has no official standing as part of the criminal justice system. The separation of penal administration from the criminal justice process is established. The division of function in the disposal of convicted offenders is important. There is no opportunity, other than inferentially from the Crown’s ‘assistance’ in the process of determining the appropriate sanction, for the criminal court to respond to demands from the prison administration and other penal consideration. By contrast, when the Dutch government in the recent past resolved to reduce its prison population, it gave instructions to prosecutors to lower their sights; it effectively reduced the size of the prison population, although the trend has recently been reversed. The separation of powers precludes the right of executive government from dictating penal outcomes. The example is obvious. The criminal justice system should hereafter provide an audience to the Crown about the state of the country’s imprisonment.

Hitherto, there had been some doubt whether the judiciary, aside from its function in the Court of Appeal (Criminal Division), had a reviewing function over the sentencing of trial judges. The doubt was resolved by me, when unearthing, in the April 2017 issue of Public Law, a judicial gem in the form of a dissent by Lord Wilberforce in the House of Lords in 1971 in Kennedy v Spratt.² A positive alliance between the judicial review of civil and criminal jurisdictions was thus established, judicially. The common denominator is that both systems guarantee a fair trial before an independent and impartial judiciary. That element of independence and impartiality for trying serious criminal offences depends on the unreasoned verdict of 12 (exceptionally, it may be ten) citizens drawn at random from the lists of the electorate.

I.SENTENCING: A NON-JURY FUNCTION?

As I have noted, the jury plays no part in directly deciding the disposal of a convicted offender; jurors simply return their verdict of guilt or innocence, and the penalty imposed on the convicted defendant is exclusively a matter for the trial judge. The task for the jury is clear enough. The juror’s oath demands that he or she will declare a verdict according to the evidence evinced in the courtroom, and not otherwise. He or she does so after reasonable assessment of such evidence. But what do we say about a verdict of guilt or innocence that palpably defies the terms of the oath? Does the perverse verdict prevail? If the perversity ends in a conviction, the appellate process can remedy the defect. If, however, the result is a jury acquittal, that is the end of the matter, subject only to the rare event of fresh evidence emerging in the prosecutorial investigation.³

The proponents of the jury system, however, argue that perverse acquittals are the prerogative of the jury and are sustainable in the eyes of the law. They constitute theoretically the appropriate nullification of the jury’s verdict. Is that so? At least those commentators can properly refer to much of the jury’s task effectively influencing the range of penalties in the criminal calendar.

A shining example is the case of murder. The law provides that in the case of a conviction for murder there is automatically only the sentence of life imprisonment. Some, if not most, cases of murder involve a potential alternative verdict of manslaughter which the jury may impose. If so, the judge is relieved of the mandatory sentence. He can impose a sentence of life imprisonment as a maximum, or anything less. Thus, effectively, a jury in a murder case can decide that the ultimate penalty should not be imposed, by passing a manslaughter verdict. The jury can thus properly pre-determine a penalty of less than life imprisonment. Similar, but less clear, results may arise from convictions for other offences. Much plea-bargaining that takes place is motivated by the potential of conviction for less serious offences than those initially charged.

A defence of an institution can often be a way of defending the vision that went into building it along the historical continuum. The devotion among many legal (and other) professionals for jury trial is an example of the imperfect vision. At least four factors in the last 300 years disclose the defective mode of the criminal trial; the history before the Civil War is hugely problematical. Fairness hardly emerged as a safeguard to the offender any time before the nineteenth century.

The jury system was adversarial only after the eighteenth century. As the authors of The Trial on Trial observed,⁴ ‘the turning point for the development of the modern adversarial trial’, on which much pride has been expended, ‘was the passing of the Treason Trials Act of 1696, permitting those charged with treason to have full access to counsel for the preparation and conduct of their defence’. Hitherto the mode of trial by one’s peers had been altogether different. The impact of the 1696 reform was more subtle, with the advent of a right to a full legal defence in trials for felony, which was recognised with the passage of the Prisoners’ Counsel Act 1836.

Second, it was not until 1898 that defendants were allowed to give evidence on oath, although in fact defendants routinely made statements from the dock to the court. As the US Supreme Court declared ringingly in 1970 in Williams v Florida,⁵ the purpose of the jury trial ‘is to prevent oppression by the Government’, and it went on to say that

a criminal trial is in part a search for truth. But it is also a system designed to protect ‘freedom’ by insuring that no one is criminally punished unless the State has first succeeded in the admittedly difficult task of convincing a jury that the defendant is guilty.

This right to the accused to go into the witness-box happily persists, but in modern times it is not often that the defendant declines to exercise that right. The attitude of putting the Crown to proof of the accused’s guilt prevails in theory, if not in practice. The adversarial feature is axiomatic.

Third, the system of trial by jury was, until 1972, thoroughly undemocratic. Only property-owners qualified to sit as jurors. The only women who could qualify were spinsters and widows. Thereafter the qualification was further induced so as generally not to disqualify those who are involved in the administration of criminal justice.

Fourth, the fundamental principle of fairness for both civil and criminal jurisdictions – to ensure the equality of arms in the trial process – is vouchsafed by Article 6 of the European Convention on Human Rights, a right that was protected in England in 1966 by according the defendant the right of individual petition to the European Court. That right was further underlined in the Human Rights Act 1998 which conferred the right in domestic law.

Article 6 of the European Convention on Human Rights sets out the specific rules that relate to a defendant’s rights in a criminal trial, whether or not the criminal prosecution qualifies exclusively for trial by jury. All major democracies determine the defendant’s rights in some form and all have a formal presumption of innocence. Article 6 highlights the various principles requiring a conviction beyond a reasonable doubt, the presumption of innocence (evidentially, throughout the proceedings), a deep-seated approach to a conviction, and in dubio pro reo (if in doubt, you must decide in favour of the defendant). All these mark out the constraints on the court from deciding to condemn a defendant to a violation of his civil liberties; they all apply whatever the mode of tribunal, including a jury. The glaring omission is the reasoning which sustains the verdict. Even adjudications by lay persons in some modes of trial require some kind of rationale from the mixed tribunal. Juryless trials (infrequently used) exhibit the same treatment – a fully reasoned judgment from the court.

No global survey of evidence (as far as I am aware) about the models for criminal justice in the civilised administration of a democratic country indicates that the jury is an essential ingredient of a fair trial, only professional judges. Trial by jury is neither logical nor rational in the administration of a modern legal system. Judging in a trial is a professional skill; it may, however, include other considerations of a political nature which reflect media distrust (the judiciary as ‘enemies of the people’) by the body politic of the governing elements of its legal system. A lack of judicial independence in past centuries, as tools of the kingly rule, motivated the counterbalance of popular involvement in decision-making. Politics may reasonably influence the scope of a criminal trial in respect of more serious offences. Otherwise, however, professionalism prevails. The fair trial is the ultimate object of the European Convention on Human Rights. Article 6 so provides for the members of the Council of Europe.

About one half of the major democracies have rejected jury systems altogether; adjudications by lay persons in some form or another, however, appear, but the form they take varies a great deal. The motivation for mixed tribunals (judges and lay people) also varies.

England conspicuously favours trial by jury, but only for a fraction (about 5%) of all criminal trials. For the large remainder there is the magistracy. It is widely claimed that the vast range of criminal trials is conducted by the magistracy, a number of stipendiaries (lawyers) and appointed Justices of the Peace who are not legally qualified. Since those magistrates must undergo special training and sit for at least 26 days a year, they are recognisably selected for their magisterial role. They demonstrate a non-lawyerly expertise, but they are not amateurs in their role of decision-makers in the Magistrates’ Court; they are quasi-judges.

In short, there may be cultural reasons to justify the promotion as a sign of democratic triumph, or as an aspect of the Rule of Law. If so, it emanates from neither of those constitutionalisms. As an indicator of democratic achievement it emotionally evokes the call for a jury of one’s peers or of the populace, which comes stridently and resoundingly only from the United States.

If the jury is not a necessary qualification to the design of democratic policies, what social justification can sustain its existence, nay even its social importance? Some salutary effects may exist. Once the alleged right is modified (in essence a duty to undergo jury trial), other factors in the process of a fair trial become effective. What then is effective? The burden of this book is to examine in detail the present system and to analyse how better the mode of trial can be made. Other relevant facts about the administration of criminal justice will also be considered.

¹Jonathan Doak, Durham University, ‘Enriching Trial Justice for Crime Victims in Common Law Systems: Lessons from Transitional Environments’ (2015) 21(2) International Review of Victimology 139 at 146.

²[1972] AC 83.

³I have more to say about this in Chapter 14 dealing with safeguards for the unreasoned verdict.

⁴The Trial on Trial vol 3 (Oxford, Hart, 2007) at p 41.

⁵399 US 78 (1970) at 100 and 113.

2

The Theory of Jury Function

Imprisonment – the putting of people in prison – is as old as society itself. But not until the abandonment of transportation to the colonies of Australia in the 1860s was imprisonment, with its concomitant disqualifications, used as a penal sanction. Transportation was legitimised on conviction by a criminal court. Apart from the imposition of the death penalty and the mandatory sentence of life imprisonment for murder after abolition in 1965, the emerging penal system was a function of the criminal court after conviction; the jury took no part in the disposal of the offender. And so it uniquely remains the case. Most other democratic societies have variously entertained the participation of lay persons to supplement the judicial institution of the criminal court, both in decision-making over guilt or innocence and in sentencing.

Under transportation, the offender was instantly labelled as morally unfit to live in the country of his birth. If it was only a journey to a penal colony far away, it was a banishment with little or no prospect of return. Few in fact returned to their home-land after the transportation was served. The vast majority had little choice but to become emigrants to the penal settlement. As Radzinowicz and Hood, in their essay on the legacy of transportation, observed: ‘Riddance from society was the ready resort as the reluctance to enforce the capital code [execution by hanging] was gaining strength’.¹ While hanging persisted for another century, it was an infrequent penalty when it was finally abolished in 1965. Thereafter, Britain learnt to consume its own smoke. The prison estate was enlarged in the latter part of the nineteenth century. But its population of convicted offenders was made up of those criminals assigned by the judiciar...