In Defence of the British Jury

Lord Delvin described trial by jury as "the lamp that shows that freedom lives". The lamp—and our freedom—has come under attack in recent years. Simon Jenkins claims that "juries should go the way of the ducking stool" and are hopelessly out of date, compared with the "professional" continental system. This dangerous erosion of our rights in the name of "professionalism"—such a reasonable, wholesome-sounding word—will most likely see a return to the ducking stool.

A common complaint against the jury is that it is biased. Now, it's indisputable that biased juries exist, to say otherwise would be delusional. The juries in the segregation-era Deep South who convicted almost all black defendants for crimes against whites were almost certainly biased. However, bias isn't as prevalent as commonly assumed. A two-year study by Professor Cheryl Thomas of UCL shows that all-white juries are not more likely to convict a black or Asian defendant than to convict a white defendant. All-white juries were no more likely than racially mixed juries to acquit white defendants of racially-motivated crimes. The "bias" argument also fails to present a viable alternative. Judges, of course, often feel that the decision should be in the hands of judges. Defending the Guilty describes "a very senior judge" who, if on trial, would be concerned about an "irrational conviction" from a jury. But what about an irrational conviction from the judge? If a defendant is convicted, sentencing is the judge's responsibility (although there are guidelines which he's supposed to follow). And there is a racial bias is sentencing. In the 1990s, the Guardian reported that black people were twice as likely as whites to go to prison for the same offense. Roger Hood's West Midlands study found less drastically, but still alarmingly, that black defendants were 8% more likely and Asian defendant 5% more likely to go to prison than a white defendant for the same offence. Furthermore, black defendants serve an average of 3.4 months longer than whites, and Asians 9 months longer. (There is a complicating factor, which is that black defendants are less likely to plead guilty, and pleading guilty usually gets the defendant a more lenient sentence.) Hood also noted geographical variation in sentence length. Birmingham Crown Court, for example, had no measurable racial bias in sentencing. Dudley and Coventry did. If judges shows bias is sentencing, then I suggest it's logical to assume that if judges are given control of the verdict, the same bias will be displayed.

There's also the simple numbers. A jury is made up of twelve people at the start of the trial. The minimum number of jurors remaining on the jury (for example, if some are dismissed for misconduct) is nine, before the case has to go into re-trial. A defendant would be very unlucky to get twelve racists or twelve sadists on his case. It is possible that twelve is too large a group for optimum decision-making—research suggests that optimum decision-making is made by groups of between five and seven people—but the essential point is that a group of people protects the defendant from individual bias.

The Criminal Justice Act of 2003, in addition to its other erosions of the rights of the accused, allows the judge to try a case alone, without a jury, when he believes that there is "evidence of a real and present danger that jury tampering would take place". The Act is worryingly vague about what constitutes "evidence of a real and present danger", and places potentially excessive faith in the relevant judge's definition of such "evidence". It also fails to address what happens if there's an attempt to interfere with the judge. After all, judges are also human and can be bribed, threatened and car-bombed like anyone else. If anything, someone determined to interfere with a trial would probably find it easier to find the judge—whose name will be most likely be in press coverage—than the jurors in their private homes. Or do judges honestly imagine that they have some sort of guardian angel who'll stop bullets for them? But the essential point I'm making here is that a case which is tried by a judge alone is tried by one judge. In 2009, Igor Judge, the Lord Chief Justice of England and Wales, tried the first ever Crown Court trial without a jury for 400 years, the Heathrow robbery case. John Twomey, Peter Blake, Glenn Cameron and Barry Hibberd were all convicted. Continental systems without juries are unlikely to have a single judge deciding a serious case. (I oppose, in principle, the category of "serious cases" which seems to be ubiquitous in all countries' justice systems, and the attitude that a parking ticket is worthy of less care and attention than murder. It's about the principle of justice: any wrongful conviction is a shame on the state.) In Germany, for example, the usual number of judges on a case in five. But our Criminal Justice Act allows serious crimes to be heard by one person. That's a worrying amount of responsibility for that one person.

There's also the politics of trial by jury. A succession of governments wishing to be "tough on crime" would find it very convenient to abolish trial by jury, not only because it would save money but because it would probably increase conviction rates. In the magistrates' court, cases are heard by self-selecting voluntary magistrates (rumour has it that they're mostly Freemasons, but there's no real way of knowing that), unlike juries who are intended to be randomly-selected citizens. Over 2016/17, 64% of magistrates' trials ended in conviction. Only 52.2% of Crown Court trials ended in conviction. That's a difference of nearly twelve percentage points. Reliable statistics about conviction rates in jury-less Crown Court trials is hard to come by, because there have been so few of them, but the evidence from the magistrates' court suggests that the jury provides the best chance for the defendant, maddeningly from the point of view of the "tough on crime" governments but thankfully from the point of the innocent defendants. The right of the defendant to demand a trial by jury is increasingly under threat. Traditionally, an either-way offense could be heard in either the magistrates' or the Crown Court, according the wishes of the defendant. Magistrates are increasingly encouraged to keep hold of as many either-way offenses as possible. Sir Brian Leveson's 2015 Review of Efficiency in Criminal Proceedings is a shamelessly blatant cost-cutting manual, which seeks to abolish the defendant's right to a say in which court his case is tried in, and place the decision wholly in the hands of the court—with the hope that more cases will be tried by cheap, conviction-happy magistrates.

On the other hand from the "irrational convictions" argument comes the argument that the jury doesn't convict enough (opponents of trial by jury like to cover all bases), especially in rape cases. To begin with, the conviction rate for rape cases is 55%. More convictions than acquittals. A higher percentage of convictions than for attempted murder or grievous bodily harm. The urban myth that there's some sort of pro-rape conspiracy among jurors is simply an urban myth. The more-convictions-please argument ignores some uncomfortable problems with the nature of rape cases. They are often word-versus-word contests between the defendant and the complainant, with no "hard" evidence. A jury may find a complainant credible but not consider it proof beyond reasonable doubt. Rape requires that the defendant did not reasonably believe that the complainant consented. In cases in which the defendant admits that sexual intercourse took place and the case turns on whether or not it was consensual, then a great deal rests on the jury knowing what was in the head of the defendant at the time. Which the jury cannot know. If we were to operate on balance-of-probabilities, there would probably be a lot more rape convictions, but we (rightly) don't. The jury must be satisfied of the defendant's guilt beyond all reasonable doubt. If anything, a jury is likely to get a better impression of the complainant's credibility than the judge is. The judge will have to rule on whether, for example, bad character or previous sexual history can be admitted, and possibly be influenced by that evidence, but if that evidence isn't admitted the jury need never see it at all. There's a perception that the general public is some sort of homogenous mass of prejudiced rape apologists. Which I think shows more about how out-of-touch a lot of legal experts are with public opinion than anything accurate about public opinion. The public's attitude to convicted rapists is (rightly) fiercely condemnatory. Any account of a rape conviction in the news will have a string of death threats and "let-me-get-my-hands-on-him" in the comments section. When Brock Turner was released from prison, armed protesters camped outside his house with placards reading "shoot your local rapist". There is no pro-rape conspiracy in the general population of the Western world. Frankly, I think the whole rape-convictions argument is intellectually disingenuous. It's not really about juries. It's about the problems inherent in prosecuting rape trials. It's taking a depraved crime that we all agree is abhorrent and using it to provoke emotional support, without encouraging us to think about how relevant this argument actually is to the issue. If you actually care about the legal system's handling of rape cases, bring back the noose (abolished in 1841). If not, shut up.

The other big argument against trial by jury might be called the "professionalism" or "modernity" argument. It's the argument Jenkins used comparing the "professional and technical" German system to the "Shakespearean" British system. The obvious problem here is that just because something is "modern" or looks slick doesn't necessarily make it better. The very "professionalism" of judges is a danger. Juries have a fresh mind. The case is new for them. This is very important, because in English law, a case must be decided on its individual merits. The judge is, obviously, a judge for a living, who may have been a judge for years and a lawyer for decades before that. He may have seen literally hundreds of similar cases. And if the previous similar cases ended in conviction, is it not possible for the judge to be biased towards a conviction in this case? "Blind-spot bias" means that people are aware of the biases of others without thinking about their own biases. It's particularly dangerous among experts in a certain field—doctors, psychologists, researchers etc—who can slide into imagining that their training or knowledge in their field means that they're not susceptible to bias. Judges, obviously, have training in and knowledge of law. I have been unable to find research into whether judges specifically are better at spotting lies than lay-people, but I have found Garrido and Masip's research into professionals—such as police officers and psychiatrists—vs lay-people detecting truth and lies. They found that although professionals are better at detecting lies than the general public, they are worse than detecting truths. Essentially, the general public has a truth-bias—lay-people are more likely to believe someone. However, professionals have a lie-bias—they are more likely to think someone is lying. The general public is more likely to believe a liar, but professionals are more likely to disbelieve someone who is in fact telling the truth. Obviously, this is very dangerous when one considers the possibility of wrongful confessions.

There's a related point about professionalism which might sound cynical but is tragically true. The judge is making a career out of it. An unpopular decision will be remembered by his superiors and will affect his prospects of advancement. For jurors there is no career in this and they make the best decision they can according to the evidence and their consciences. With the government pushing the "tough on crime" approach an unpopular decision would (if judges were to decide verdicts) be an acquittal, and there is pressure on everyone in the legal system to get convictions. In 2008 conviction targets were introduced to the CPS. In 2016, for example, the domestic abuse conviction target was 76.5%. Targets have the double effect of possibly encouraging the CPS to drop prosecution of cases in which a conviction looks unlikely (something which it has always denied) and of encouraging a culture in the legal system which sees conviction as the correct outcome for a trial. The problem with the inquisitorial system is it assumes the state is neutral and impartial, able and willing to give the defendant a fair chance. For as long as the Tough on Crime doctrine that gave rise to the 2003 Criminal Justice Act remains, that idea is dangerously delusional. Jurors do not give a damn about career advancement, conviction targets or performance goals. They just care about reaching the correct verdict.

The one of the greatest advantages of trial by jury is that the jury can decide what the correct verdict is. There is a restriction on this: the jury cannot convict at will. If, at the close of the Crown's case, the judge agrees with the defence's submission of no case to answer, the defendant is acquitted without the case going to the jury. But what the jury can do—and this is the corner-stone of British justice—is acquit at will. The tradition of the perverse verdict was established by R. vs Penn and Mead in 1670. After juror Edward Bushel refused to pay a fine for contempt of court in acquitting Quaker Thomas Mead of unlawful assembly, Sir John Vaughan, Chief Justice of the Court of Common Pleas, declared that the jury could not be punished simply for returning a verdict the judge did not like. This simple idea has remained ever since, as Michael Zander, QC, puts it, a "safeguard against unjust laws, oppressive prosecutions or harsh sentences".

Since then, the closest the British jury's right to return a perverse verdict has come to being questioned was R. vs Michael Randle and Pat Pottle in 1991, which remains a triumph for what the justice system, for all its faults, is capable of. Randle and Pottle were forced to self-represent after their defence of necessity was declared illegal, and therefore impossible for a barrister to present to court. Despite the official line of barristers being that self-representation is suicide (a line which doubtless helps to keep barristers in work), the jury acquitted them both of aiding George Blake's escape from Wormwood Scrubs. This was a blatantly political prosecution, which, considering the evidence of guilt—they had written a book called The Blake Escape: How We Freed George Blake—and Why—would almost certainly have ended in conviction on the Continent. But in England, the right to convict does not rest in the hands of state agents. After this verdict, Sir Robin Auld claimed that a law should be passed "by statute if need be, that juries have no right to acquit defendants in defiance of the law or in disregard of the evidence", but this proposal was rejected. Michael Zander was particularly firm, describing it as "a serious misreading of the function of the jury". Which it is, of course. If the jury is the trier of fact, and the jury can only convict if satisfied of the defendant's guilt beyond reasonable doubt, then if someone like Auld does challenge a verdict, it can simply say it wasn't satisfied beyond reasonable doubt. The beauty of a perverse verdict is that it's impossible to prove that it's perverse.

Similar perverse acquittals followed in 1996, after two women sabotaged a fighter jet, and 1999, after members of Trident Ploughshares sabotaged a nuclear submarine. Trial by jury prevents the criminal justice system degenerating into political show trials. It makes tyranny—real tyranny on the scale of Nazi Germany or Francoist Spain—impossible.

Perverse verdicts give the public a direct say in the running of a democratic country. The 1988 Canadian case R. vs Morgentaler ended in a perverse acquittal which was appealed all the way to the Supreme Court. The result was that the (in my opinion excessively harsh) Section 251(4) of the Criminal Code was repealed, ultimately leaving Canada without any criminal laws regarding abortion at all (in my opinion, excessively lenient). But that's how democracy works—I don't always get the result I want and neither does anyone else— and the right of the jury to acquit defendants whom it feels are being persecuted is part of the citizen's right to participate in democracy.

Some people may be thinking "all right, loonie leftie, we've had Soviet spies and nuclear submarines, is this just you pushing your agenda?". Let's discuss a case a little less violently controversial. Sometimes it isn't the law that's unfair or the government seeking political scape-goats. Sometimes the defendant is just more sinned-against than sinning. Such a case was R. vs Marguerite Fahmy, 1923. Her husband, Ali Fahmy Bey, beat her, threatened her with a gun in Luxor, threatened to throw acid at her, coerced her into sex and imprisoned her on his yacht. When she threatened to kill herself he casually suggested that she jump out of a window. In July 1923, Marguerite shot him three times with a pistol in a corridor in the Savoy. She claimed it was self-defence, and maybe it was. But the jury's decision was clear: Ali Fahmy had disgracefully wronged his wife. It took only half an hour to reach the verdict of not guilty of either murder or manslaughter. Marguerite Fahmy left the Bailey without a stain on her character. Few people would accuse Marguerite Fahmy of any wrong-doing and that's the great beauty of trial by jury. It allows the jury to act in accordance with its conscience. It protects the freedom of the individual from the state, by placing the right to convict in the hands of our fellow citizens. It allows a distinction between the strict letter of the law and moral guilt.

One of the most important aspects of trial by jury is that people believe in it. Indeed, it's one of few aspects of the legal system which people do have faith in. The legal system cannot function if people have no faith in it. "Legal cynicism"—people losing faith in the criminal justice system to provide justice for them, and often taking the law into their own hands in consequence—increases after injustice has been done. Violent crime in black American neighbourhoods is often most common in the neighbourhoods where the police are least diligent in investigating the death of black and working-class victims and most brutal towards black suspects. After the police attacked Frank Jude in 2004, 17% fewer 911 calls were made over the next year, the biggest decrease being in black neighbourhoods. Homicides, however, increased in black neighbourhoods. A fair, effective criminal justice system is needed to protect the innocent of wrongful convictions, protect the citizenry from crime and violence and maintain a law-abiding population. A 2009 survey by Julian V. Roberts and Mike Hough from King's College London found that public confidence in the jury was higher than in any other arm of the criminal justice system except for the police, and that while public confidence in the police had declined over the past five years, confidence in the jury remained unshaken. When asked to rate the importance of six rights in a democratic society, on a scale of one ("not at all important") to seven ("very important"), 72% of respondents chose seven and 15% chose six. The right to trial by jury was judged to be more important than the right to protest against the government, the right not to be detained for longer than a week without being charged, the right to privacy, the right to public free speech and the right not to be exposed to offensive views in public. Only 27% agreed that the right to trial by jury should be restricted to save money. When asked to choose between trial by jury and trial by a judge and two magistrates, 64% of respondents preferred the jury and only 25% the judge and magistrates. When respondents were given a list of suggested rights and asked which should be included in a Bill of Rights, the right to trial by jury, along the right to hospital treatment in a reasonable period, was identified by the most respondents as worthy of inclusion in a Bill of Rights. It's also worth noting that there was very little variation in responses by demographic categories such as age, religion and sex—for example, 78% of men and 79% of women were confident in the positive contribution of juries to the fairness of the criminal justice. Although surveys into the attitudes of ethnic minorities into receiving fair treatment by the justice system generally have found concern from ethnic minorities into whether they will be treated fairly, no breakdown of the population by race with regard to faith in the jury specifically has been done. What was found was that 49% of black and 46% of Asian respondents would be "concerned about the racial composition of the jury" if they were on trial. However, this doesn't imply opposition to the principle of the jury system. For example, there was no difference between white and ethnic minority respondents in their willingness to do jury service.

Trial by jury seems to be one of the most universally popular rights in this country. Perhaps surprisingly (it surprised me, at least) the strongest support for trial by jury came from the right. Ninety-two percent Liberal Democrat voters, ninety-one per cent of Conservative voters and eighty-eight percent of Labour voters said that they supported the right to trial by jury. The conclusion we can take from this is that any attempt to restrict the right to trial by jury—with the possible exception of terrorism charges, which 45% were willing to see tried without a jury—is flying in the face of public opinion of what claims to be a democratic country. It's already questionable whether our political and economic systems make true democracy possible in this country, but to infringe on our right not to be imprisoned on the whim of the state, contrary to the will of the majority of the population, and then call ourselves a democracy, is laughable.

This isn't to say that the criminal justice system is perfect by any means, or that it couldn't be improved.

One of the biggest problems facing the criminal justice system is lack of money. Legal aid fees have been cut, leaving the poorest people in society struggling to afford legal representation. The police have faced funding cuts, leaving officers struggling to follow up leads, properly examine forensic evidence and all too often simply turning to the nearest suspicious-looking person. The CPS, meanwhile, is dropping cases it thinks are too complicated, time-consuming and expensive to pursue. All this results in more innocent people being convicted and more guilty people escaping justice. However, this isn't a problem with the jury system per se, but with trying to run a justice system on the cheap. The jury can hardly be expected to reach an accurate verdict when the police and the lawyers can't do their job of presenting the evidence necessary to reach a verdict, because they don't have enough money to do their jobs properly.

A problem more specifically to do with the jury is the difficulty juries can have understanding and remembering the judge's instructions. However, this needn't be an insurmountable obstacle. A written summary of judge's directions, for jurors to consult, improves their understanding of the law. In 2008, the Lord Chief Justice suggested that courts should present more information visually to jurors, and written juror guide-lines are increasingly common in courts. I've personally seen them in use. The Judicial Studies Board now recommends written guide-lines in all but the most simple cases.

About the only point Jenkins (yes, him again) makes with any validity is that sometimes juries ask questions about the meaning of such concepts as "reasonable doubt" and "burden of proof", which the judge struggles to answer. Again, this is the sort of situation where written guide-lines and explanatory notes could help wonders. But the other issue, which he doesn't even consider, is that these are difficult concepts. The concept of proof beyond reasonable doubt is, in principle, very simple indeed, but there's a whole world in that word "reasonable". Recent guide-lines suggest using the phrase "prove so that you are sure" to the jury, but I think if anything that actually more ambiguous, as "sure", to me at least, suggests more a gambling attitude and the balance of probabilities than proof beyond reasonable doubt. This isn't a failure of the jury's understanding. This is because the phrase "prove beyond reasonable doubt" is the main-stay of our justice system, worth the time taking to explain, and if the judges are unwilling to explain this idea, with all their patience and ability, then that suggests that they don't really care about it themselves. Judges, if put in charge of verdicts, would have our uncritical faith that they know what it means and will stick to it. And we've already discussed how they might not.

A further obstacle to the jurors' satisfactory performance of their duty is the technical language used in court, which judges do not always bother to explain. Furthermore, the rules of evidence are not always explained to jurors properly, which can, for example, lead them to place undue weight on forensic evidence and "hard" evidence and ignore oral evidence as not "real" evidence. In general, jurors report that they would appreciate more information and guidance about how to carry out their duty, and I don't think that any country which claims to value rule of law should think that an unreasonable request. The main problem is not that jurors are inherently incapable of understanding criminal cases, but that judges are, if not being wilfully obscure, at least unwilling to take measures to make sure that they do, in fact, understand.

T.S. Eliot claimed that the world doesn't end with a bang but with a whimper. (This is the only T.S. Eliot quotation I know.) In the same way, freedom won't die with the sudden insurgency of some Orwellian cult. It'll die quietly by the back door, killed by cost-cutting, Criminal Justice Acts and "professionalism". But I'll have to die first.