The purpose of this essay will be to explore the function of the jury and its role within the Criminal Justice System. The proposition in the essay will be to advance that trial by jury is not the appropriate means of determining a certain class of criminal case, namely complex trials for example fraud cases and triable either way offences (TEW), at present prosecutions are in three categories. Those such as murder or rape automatically go to the crown court and the lesser offences dealt with by magistrates. Those between the two, ‘either way’ as it is known may be tried in the magistrates’ court if the magistrates are willing to hear the case and the defendant consents, but the defendant has the right to be tried in the Crown Court. Around 80 per cent of cases tried in the crown court fall within this category, it is these offences such as theft, burglary, criminal damage, and a range of serious offences against the person that should be restricted. The primary aim of our justice system is to be fair and just and the rights of the defendant must be paramount, but we also have a responsibility to ensure that those rights are not abused.
The public generally regards the jury as a cornerstone in the criminal justice system, an important element in legitimating the system and ensuring public acceptance. Defended by some as the bastion of democracy, castigated by others as old-fashioned system that allows miscarriages of justice to take place, the jury has been part of the Criminal Justice System in one form or another since the twelfth century. The more
mundane functions of the jury include listening to the testimony and evidence provided by the prosecution or defence, the argument of the counsel and the summing up and directions of the judge. Jurors are expected to perform a difficult and important function in uncomfortable surroundings and without preparation, this was quite apparent when Mr Justice Swallow passed this comment:
“Gentlemen of the jury, the facts of this distressing and important case have already been put before you some four or five times, twice by prosecuting counsel, twice by counsel for the defence, and at least once by each of the various witnesses who have been heard; but so low is my opinion of your understanding that I think it is necessary, in the simplest language, to tell you the facts again” Lord Justice Auld (2001)
It is their function to assess the credibility of a witness, the measure the weight that should be given to any piece of evidence and to determine the existence or non-existence of the facts in the case. Once Jurors have been called and not challenged they take the jury oath and a place in the jury box. The complete jury is then charged with returning a verdict on the charge or charges in the indictment. A jury is of course only required when the defendant pleads not guilty, so a plea is taken before empanelling the jury. Once the jury is sworn in the trial can begin.
Proceedings within the jury room are entirely privileged. Jurors are forbidden to discuss the case or their deliberations with anyone else for fear of distorting the trial process. If they do so they may be charged as being in contempt of court.
The right to a trial by jury involves the concept of being tried by ones peers. It is therefore essential to this principle that jurors are randomly selected from all sections of the population. The randomness of the jury selection process is designed so that it ensures that it produces a jury, which is reasonably representative of the wider community, and thus represents the view of the common man.
The right to a trial by jury handed down from ancient times and the Magna Carta, is being abused by defendants and needs to be restricted. This has been the subject of conflicting views among lawyers, politicians and the public at large. The determining factors should include the gravity of the offence, the defendants record, the complexity of the case and the likely effect on the defendant including sentence. There are several arguments in favour of restricting the right to trial by jury are that juries can affect the law itself. They acquit the guilty, in so-called ‘equity’ verdicts, juries have acquitted on the grounds that they think that the law is not right even when the accused has quite clearly committed the act. (Croall and Tyrer, 1998, p.211) point out “this was apparently the situation in 1986 when Clive Ponting was prosecuted under the Official Secrets Act and acquitted by the jury despite a clear directive by the judge that he had no defence.
Jury trials should also be restricted in cases where jurors might be subject to intimidation one reason for this is jurors dealing with such cases might be subjected to threats or intimidation. A good example is in Northern Ireland where cases connected
with political violence are tried not by a jury but by a judge sitting alone in the Crown Court in what are known as the ‘ Diplock Courts’.
It has long been the case to the justice system authorities that defendants in many cases on the advise of their lawyer are abusing the system by demanding crown court trial for no good reason other than to delay proceedings. Once they elect for trial by jury they end up pleading guilty anyway so that they get a more lenient sentence. Croall and Tyrer (1998, p.196) cites Hedderman and Moxon (1992) as finding that “research published in 1992 indicated that 7 per cent of defendants acted on the advise of their lawyer. Rather unusually, 59 per cent of respondents in the survey thought that they would receive a lower sentence in the crown court”.
It was also found (Vennard, 1985, cited by Croall and Tyrer, 1998, p.196) that “juries are more likely to acquit than magistrates and there is some justification for this view as the acquittal rates in the crown court have been found to be higher than in the magistrates courts”. About 40 per cent of people pleading guilty are cleared in Crown Court compared with just 25 per cent appearing before Magistrates. It may be therefore that defendants are encouraged to elect trial by jury under the mistaken belief that it affords better chance of acquittal. However the study found that 70 per cent of those defendants who elected trial by jury pleaded guilty to the charge on the day of the trial. Since this research was carried out important changes have been introduced. This allows the defendant to plead guilty at an earlier stage of the proceedings than was the case before 1997 with the aim of reducing the number of ‘cracked cases’. It was found that (Judicial Statistics, 1996, cited by Croall and Tyrer
1998, p.197) These are cases in which preparation for a contested trial at the crown court have been made with witnesses and evidence assembled and barristers briefed; and if at the start or during the trial, the defendant changes his plea to guilty, then an enormous amount of effort, time and money is wasted. In 1996, of the 16,212 cracked trials, 10,722 (66.1%) were a result of a late guilty plea.
Prior to the Criminal Procedure and Investigations Act 1996, determination of the mode of trial for either way cases required that the court ask the accused where he wanted to be tried, and he had the right to elect trial either by jury or magistrates. During the 1980s the number of TEW cases committed to the crown court rose sharply resulting in an overall caseload, which was burdenous for the court and unnecessarily costly for the criminal justice process. Furthermore the crown court lacks sufficient court rooms and judges to handle the backlog of cases and this has led to an overcrowding of the prisons that must house defendants in custody awaiting trial, to longer waits for those on remand and a rising legal aid. In 62 per cent of the cases sent to the crown court the sentence imposed was within the power of the magistrates and savings could be made if these were tried summarily in the magistrate’s court. This costs the taxpayer thousands of pounds in extra costs and Legal aid; it also wastes valuable time of Police Officers, Prosecutors and Judges. Sanders and Young (2002, p.555) cites Hedderman and Moxon (London: HMSO, 1992, P.16) “ some respondents ( Justices’, Clerks and Magistrates as well as Chief Crown Prosecutors) questioned the logic of allowing defendants the automatic right to take to the Crown Court matters which were so trivial that Judges and Prosecutors felt they could not sensibly be pursued there”. There were 89,000 Crown Court cases in
England and Wales in 1995 at an average cost of £12000 each. One concerned a £2 theft.
One of the strongest arguments for restricting trial by a jury is in complicated fraud cases where the evidence will be too difficult for a jury to understand. A complex fraud case is not necessarily one in which enormous sums of money are involved, or one in which the documentation is copious, or the witness list long, although it would be normal if some – if not all – of these ingredients were present. It is a fraud in which the dishonesty is buried in a series of inter-related transactions. The complexity lies in the fact that the markets, or areas of business, operate according to concepts, which bear no obvious similarity to anything in the general experience of most members of the public, and are governed by rules, and conducted in a language learned only after prolonged study. There is some basis for questioning whether ordinary Juries can understand and return fair and accurate verdicts on matters as complex as insider trading, bond washing and so forth. There have been a number of high profile and complex fraud cases where the defendants have been acquitted. The trial of Maxwell brothers in 1996 was one of the key cases that exposed this, they were found not guilty of fraud charges after a trial that lasted eight months and cost taxpayers more than £25 million. The jurors in the case spent 11 nights in a hotel before reaching a verdict. Another case, which caused concern, was the Blue Arrow fraud trial, which ended with four prominent city financial advisers being convicted of conspiracy to defraud. The trial cost £10 million. However, the convictions were later quashed on appeal.
Significantly, the recent major review of the criminal court system in England and Wales, conducted by Auld LJ, accepted that trial by judge and jury should continue as the main form of trial of the most serious offences, albeit subject to certain exceptions. The simpler approach would be to restrict trial by jury to leave juries decide cases which involve what are essentially jury questions, but not to use a jury system for complicated trials. (McConville & Wilson, 2002, p.348) stated “ there is no suggestion that English courts are going to go down the road of Diplock trials. England and Wales, with its tradition of jury trial in the Crown Court and lay magistrates in the magistrates’ courts, has relied less upon trials by judges alone than possibly any other European jurisdiction. But there are signs that in future there may be more reliance on the professional judge to determine the outcome of trials.”
In brief, the arguments in favour of abolishing the defendant’s right to opt for jury trial in ‘either way’ cases and deployment of juries in serious fraud cases include the reduction of delay; the saving that would be effected in terms of cost; the important point that a large number of defendants who opt for jury trial do so for purely tactical reasons (such as to delay the proceedings or pressurize the prosecution into accepting a plea to a lesser charge), many of whom in turn end up pleading guilty, thereby entailing further unnecessary expense; and the contention that the decision on what form of trial should take place ought to be made by the court on an objective basis rather than by the defence on the basis of what kind of trial it thinks might work to its advantage.
Auld Report (2001). Juries. Retrieved December 6, 2004, from
http:// www. Criminal courts review.org.uk/auldconts.htm
Davies, M., Croall, H., & Tyrer, J. (1998). Criminal justice, United Kingdom: Addison Wesley Longman Ltd.
McConville, M., & Wilson, G. (2002) The Criminal Justice Process, New York: Oxford University Press.
Sanders, A., & Young, R. (2002). Criminal Justice (2nd ed.). United Kingdom: Lexis Nexis Butterworths Trolley.