So the jury system in Britain is coming under question once again (https://www.bbc.com/news/articles/cy7vdvrnnvzo). This is nothing new. The jury system is a messy one, with twelve ‘ordinary citizens’ having to be recruited each time at random, to have the last word on the guilt or innocence of people accused of crimes, and being forced (‘Jury duty’ is not voluntary, although there are ways of getting out of it; and it’s not paid) to sit in court for a couple of weeks or more, listening to the arguments on both (or all) sides, before coming to their conclusions.
The general or principled objections to it are that (1) it wastes people’s time; (2) ‘ordinary citizens’ are too stupid to reach unprejudiced judgments; and (3) – and this is the current argument – it delays justice while the trials are being set up. (At present the backlog is said to be around 78,000 cases.) Justice Minister Lammy’s proposal is one that would only affect relatively minor or middling crimes, with murder, rape and issues of public importance being exempted, and tried by juries still. Does that make a difference?
Most of the public discussion just now about this centres on people’s own experiences as jurors. I could contribute along those lines too, having been called up for jury duty on two occasions in the past; but I wouldn’t like to generalise on the basis of those two cases, when everyone’s experience is likely to have been different. In brief: the first of my trials resulted in a ‘guilty’ verdict. I was the jury foreman – level of education, I presume – and after my ‘guilty’ call the ringleader of the gang yelled at me ‘I hope you die in your bed!’ (That didn’t alarm me greatly; I wouldn’t be averse to dying in my bed too.) – The second case involved the theft of a ‘Maharaja’s uniform’, but was cancelled when the defendant changed his plea to ‘guilty’ – to my disappointment. In both these cases I was impressed by the fairness and rationality of my fellow jurors, which would cover objection number (2). But that may be because the people of Hull are particularly fair-minded. In any case I don’t want to argue that they were typical.
My main reasons for supporting the jury system are – as you might expect from a historian – historical. The principle that accused people should be judged by their ‘peers’ goes back at least to Magna Carta (1215), and indeed to the Saxons before that. (I loved that Tony Hancock line in his version of Twelve Angry Men: ‘Remember Magna Carta! Did she die in vain?’) It was the foundation stone in the slow building up of our modern ‘democracy’: protecting ordinary people from tyranny from above, including tyrannical judges. This should appeal to self-styled ‘patriots’ especially. It also gave everyone a small stake in the governing of his country; and of hers, when women were finally admitted to the role. It was part of your duty as a citizen. Which is why it’s compulsory now.
Indeed, in the 19th century the principle of being tried by your peers even extended to foreign criminals, who were entitled to have juries half comprised of other foreigners. (Did you know that?) Usually defendants could gain brownie points by turning the privilege down, on the grounds that they ‘trusted to the good sense of twelve honest Englishmen’. That went down well with juries. (I learned this when I was researching the history of foreign refugees in Britain.) It was certainly canny when it came to prosecutions with political aspects to them, when the ‘democracy’, represented by the jurors, overturned judges’ clear recommendations in a number of trials. In one such case, the trial of the French murderer Emanuel Bartholémy in 1853, the jury acquitted him on the grounds that, being French, he probably didn’t realise that murder was a crime in Britain. (That only worked on one occasion; after his second murder he was sentenced to death. He was an atheist, and his last words on the scaffold were ‘Now I’ll know whether I’m right’. You’ve got to hand it to the man.) In more recent times – 1985 to be precise – it was a jury that contravened a judge’s clear instructions by refusing to convict the civil servant Clive Ponting of an offence under the Official Secrets Act. ‘Ministers aghast’, was the Daily Telegraph’s headline reaction. Another way of looking at it might be as a victory for democracy, against a would-be authoritarian state.
This is the original and ultimate argument in favour of juries. They are more venerable than all the other trappings of democracy in Britain, to set against justice only meted out by judges, who can get things wrong. (Judges are usually drawn from a particular and distinctive class of people, with special prejudices of their own.) In Sweden we don’t have juries: only a judge flanked by two lay assistants representing the major political parties (I think). It seems to work efficiently (I’ve attended one such case); but a number of bad mistakes have been made under this system in recent years (see https://www.lrb.co.uk/blog/2013/december/the-thomas-quick-affair). And juries are certainly not infallible either, as we know – again – from past history. The point here, however, is that in a jury trial twelve people (or sometimes ten), plus the judge, have to be convinced; which gives you a better chance than the 1:1 odds of a judge-only hearing.
I’m not yet entirely convinced on this either way. We shouldn’t base everything on historical precedent. Retaining juries only for more serious crimes, as David Lammy is suggesting (see today’s press), might be a valid compromise. If it gets us out of the present ‘backlog’ problem it’s probably worth considering. But personally I’d like first to be convinced that it would save time and money; better than employing more judges, for example. (Has anyone done the calculations?) And in any event we shouldn’t ever lose track of the centuries-old jury system’s importance as a foundational aspect of British democracy. (And, of course, American.)
Porter’s Pensées 