Why is jury trial a human rights issue?
Neither the International Covenant on Civil and Political Rights (ICCPR) nor the European Convention on Human Rights (ECHR) expressly guarantee the right to jury trial. This is unsurprising, given the different legal systems in place across the world and in the Council of Europe. Further, it is possible for a fair trial to take place without a jury. However, in adversarial legal systems like that of England and Wales, which are based on scepticism of state power, jury trial is one of the primary safeguards for trial fairness as well as other fundamental rights. It has traditionally been important in protecting defendants from oppressive or politically motivated prosecutions. It gives members of the public the opportunity to ensure that the criminal laws are being properly applied.
For these reasons, the constitutions/bills of rights of the United States, Canada, New Zealand and the Commonwealth of Australia, all common law jurisdictions, all recognise the importance of the right to jury trial.((See the 6th amendment to the US Constitution, s24(e) of the New Zealand Bill of Rights Act 1990, and s11(f) of the Canadian Charter of Rights and Freedoms 1982, and s80 of the Commonwealth of Australia Constitution Act 1900)) It is also notable that states making the transition from non-democratic to democratic regimes – such as Spain and Russia in the 1990s – have introduced juries. JUSTICE believes that in England and Wales jury trial for all but minor offences has acquired the status of a constitutional right.
While it is true that magistrates’ courts hear the vast majority of criminal cases in England and Wales, defendants can elect or are obliged to undergo jury trial for most non-minor offences. There is an automatic right of appeal against conviction and the appeal consists of a full re-hearing of the case. Further, many magistrates’ court cases are tried by lay magistrates, who like juries are members of the public who provide an element of democratic participation in the criminal justice system.
Why has jury trial recently become controversial?
In recent years there have been several legislative attempts to widen the categories of case in which jury trial is unavailable or can be rejected. In 1999 and 2000, the Criminal Justice (Mode of Trial) Bill and the Criminal Justice (Mode of Trial) (No. 2) Bill attempted to prevent defendants from electing jury trial in either-way cases. These Bills did not make it onto the statute book; however, the Criminal Justice Act 2003 contains several limitations on jury trial: some are not yet in force. The Act’s provision to increase the magistrates’ maximum sentencing powers for a single offence to 12 months could have reduced the number of jury trials (this is not yet in force); in addition, provisions were passed allowing trials without a jury to take place in the Crown Court in certain categories of case. S44 CJA 2003, which is now in force, allows such trials to take place where jury tampering has occurred or is likely. S43, which is not in force, allows non-jury trials in serious and complex fraud cases where ‘the complexity of the trial or the length of the trial (or both) is likely to make the trial so burdensome’ to the jury that ‘the interests of justice require that serious consideration should be given to the question of whether the trial should be conducted without a jury’.
Will s43 be brought into force?
S43 is subject to the affirmative resolution procedure which means that both Houses of Parliament must vote, with a majority of each being in favour of the commencement of the section. Attempts to bring the section into force have so far been unsuccessful in the House of Lords. The latest attempt, the Fraud (Trials without a Jury) Bill, has been delayed by six months by a recent Lords vote but could be forced through in the next Parliamentary session.
Are some kinds of cases just too complex for juries?
We do not accept that the evidence in fraud trials is by its nature incomprehensible to jurors. Following the collapse of the ‘Jubilee Line’ fraud case, one juror gave an interview in which she asserted that the jury understood the evidence and that it was very easy to understand.((D Leigh, ‘Juror tells of outrage after collapsed trial’, The Guardian, 24 March 2005)) Also, as jurors are members of the public, if the evidence is presented in a manner that jurors would not comprehend it is likely to be similarly unintelligible to the public at large. This would increase the risk that the defendant would not be able effectively to participate in his trial, which would be contrary to his rights under Article 6 ECHR. It would also undermine the principle of transparency – it is in the interests of public confidence in the administration of justice and the maintenance of a fair trial process that the public can understand the evidence for and against an accused person and the reasons why he is convicted or acquitted.
Further, at the heart of many fraud cases is the question of whether a person has been dishonest – an issue that a jury is best placed to decide, since where it is necessary to define dishonesty part of the test is ‘whether according to the ordinary standards of reasonable and honest people what was done was dishonest’. ((R v Ghosh [1982] QB 1053 CA)) The new offences of fraud in the Fraud Act 2006 rely upon the concept of dishonesty rather than deception: in some cases, dishonesty may be all that separates legitimate conduct from a serious criminal offence.
What can be done to make cases manageable without getting rid of juries?
The removal of the jury will not necessarily result in shorter trials. The example of the BCCI litigation has shown us that civil cases can be even more protracted than criminal ones. Evidence will still have to be put before the court and legal arguments will still have to take place.
What will be effective to shorten trials will be the concerted use of case management powers by judges – the Criminal Procedure Rules 2005 and the Lord Chief Justice’s protocol on the control and management of heavy fraud and other complex cases make clear that judges have extensive powers to prevent unnecessarily protracted litigation. Further, the Fraud Act 2006 – which simplifies the law of fraud – has only just received Royal Assent. The new fraud offences should be allowed to take effect before further reforms are considered.
In any event, where multiple counts are charged, the Domestic Violence, Crime and Victims Act 2004 already provides for the trial by jury of sample counts only, if certain conditions are fulfilled, with the remaining counts to be tried by judge.((See ss17-21 of the Act)) The relevant provisions of the Act were only brought into force in January 2007.
We agree that trials should last no longer than six months unless the circumstances are exceptional. However, it should be possible to reduce trials to a manageable length using the above measures. Alternative measures could also be considered, such as the provision of alternative jurors who can step in, in the event of jurors becoming ill, etc, to prevent the collapse of the trial. We would also welcome a review of the facilities provided to jurors, allowances available, and the restrictions upon unfair treatment by employers as a result of long jury service, in order to ensure that the experience of jury service is not more disruptive to a person’s life than necessary.
Where can I find out more?
Law Society of England and Wales
S Lloyd-Bostock, ‘The Jubilee Line Jurors: Does their Experience Strengthen the Argument for Judge-only Trial in Long and Complex Fraud Cases?’ [2007] Crim LR 255