Jury Trials: Justice Suspended is no Justice: A historical trip down memory lane – Louise Sweet QC, 2 Bedford Row

As we welcome the restarting of jury trials at the Old Bailey after huge disruption [1]  to our Criminal Justice System caused by Covid 19 one thing we can all agree on is that suspended justice is not justice at all. Not for victims, not for the accused and not for society as a whole. Much comment has been passed as to how we were to safely move forward to restart the system without putting justice or our health at risk. Geoffrey Robertson QC advocated judge only trials [2] . Lord Burnett, head of the Judiciary in England and Wales, suggested smaller jury numbers.  (The only time jury size was slashed from 12 to seven was during Second World War) He said then: ‘It is going to be necessary to look at more radical measures to enable jury trials to continue’. These thoughts have been temporarily shelved while we assess the impact of our country on the move again after the controversial weekend announcement by the Prime Minister.

Perhaps it is not surprising that radical changes have been put on hold. As a country we may not be united about everything but we are united about our right to a fair trial. We are rightly proud of our right to a fair trial, which underpins criminal law in the United Kingdom, the USA and many other nations, and can be traced back to Magna Carta in 1215. The Great Charter defined a person’s right not to be imprisoned ‘but by the lawful judgment of his peers’. In the UK  that judgement on guilt or innocence is now delivered by 12 jurors selected randomly from the electoral roll. [3]

Over the ages our legal rights have continued to evolve. The seeds of the modern jury system were sown by Henry II (1154-1189), who established a jury of 12 local knights to settle disputes over the ownership of land but there are a few twist and turns in history and some more recently than others that reflect the historic and political context in which they existed. We await the practical outcome of jury trials restarting in the middle of the Corona Pandemic and, whilst I am not advocating any reversion to the past methods of judging our fellow citizens, it is interesting, sometimes amusing and sometimes horrific to look back and see what has passed before as acceptable justice.

1215: Trial by ordeal: Before Magna Carta, a barbaric system of justice held sway in Britain and across much of Europe. Between the 9th and 13th centuries a person’s guilt or innocence was determined by trial by fire or water. Suspects were burnt with hot metal, or else bound and thrown into a pool, it was left to God to spare the innocent. Trial by ordeal was considered then as highly effective in this superstitious era as most guilty criminals naturally preferred to confess so as avoid trial. The practice was banned by Pope Innocent III in 1215. The number of not guilty verdicts arising as a result is not recorded!

Trial by Combat: Criminal and civil disputes could be decided by trial by combat, with a win held to prove either innocence or the right to whatever property was being disputed. Either side could even employ their own champions, perhaps not a million miles away from deploying the best barrister on your behalf? Trial by combat gradually fell into disuse in the Middle Ages disappearing in the course of the 16th Century (where God, it was hoped, would favour the righteous in battle) and replaced by a less chancy affair as the case was decided by 12 local Knights (a change brought about by Henry II along with other popular changes including the Assizes)

1670: “A verdict or you shall starve’: We take it for granted today that a jury should be left to settle on a verdict of its own choosing in its own time. In the modern era careful directions are given for a jury to feel no pressure of time, but this wasn’t always the case.  In 1670, as the state clamped down on non-conformist religions, one plucky jury refused to deliver the guilty verdict expected of it by a judge. The jury in the trial of Quakers William Penn and William Mead was promptly locked up without food or water in England’s worst jail to reconsider its not guilty verdict. After juror Edward Bushel, in his prison cell, sought a writ of habeas corpus from Chief Justice Sir John Vaughan, a ruling was made which safeguarded the future independence of juries.(4)

The fact is the numbers and makeup of the jury have evolved considerably over time.

WWI and WW2: It is worth remembering that during both world wars many thousands of members of the British armed forces were tried and convicted by court martial for a variety of offences ranging from murder to sleeping on duty itself an adaptation justice. Moreover, in the modern Court Martial, The Board (the jury equivalent) try a full range of criminal offences with the same sentencing powers as civilian courts. Such Boards are ordinarily constituted by a panel of five where a majority decision of one is acceptable. Senior military Judge Advocate Jeff Blackett openly criticised both the makeup of the panel and the majority of one [5].   Any reduction in jury numbers for civilian trials would be the first in peacetime since World War Two when juror numbers were reduced to seven (notably except in cases of treason or murder)

1920: Ladies of the jury: As is well known [6]  the key roles in the criminal justice system were the sole preserve of men until after the end of World War One. A controversial change at the time bought about the first female jurors who were sworn in at Bristol Quarter Sessions on 29 July 1920, where they heard evidence in the case against William Henry Ayton, 52, who was accused of stealing parcels at Weston-super-Mare station.

1973: Judge only trials: The Diplock courts were criminal courts in Northern Ireland for non-jury trial of specified serious crimes (“scheduled offences”). They were introduced by the Northern Ireland (Emergency Provisions) Act 1973, used for political and terrorism-related cases during the Troubles and were abolished by the Justice and Security (Northern Ireland) Act 2007. Non-jury trial remains possible in Northern Ireland on a case-by-case certification rather than automatically applying for scheduled offences. Lord Diplock cited two primary reasons in his report: the danger of “perverse verdicts” and the “ample evidence” of jury tampering. Such trials were abolished by the Good Friday agreement after it was successfully argued that the lack of a jury denied the accused the right to a fair trial.

2003: Judge only trials Fraud Cases: The Criminal Justice Act 2003, allows trials without a jury in complex fraud cases (s.43) and where there is a risk of jury tampering (s.44)

Further, The Supreme Court recently approved unanimously trial without jury for former soldier Dennis Hutchings accused in relation to a fatal shooting.  Lord Kerr, delivering the judgment, said trial by jury should not be assumed to be the unique means of achieving fairness in the criminal justice process. He stated: “Trial by jury can in certain circumstances be antithetical to a fair trial and the only assured means where those circumstances obtain of ensuring that the trial is fair is that it be conducted by a judge sitting without a jury.”

2014: Trials in secret: In 1923 Lord Chief Justice Hewart coined the phrase: ‘Not only must justice be done; it must also be seen to be done.’  This key legal principle was challenged in 2014 when the Crown Prosecution Service sought to stage an Old Bailey trial in total secrecy. When this attempt was overturned by the Court of Appeal the trial, of 26-year-old suspected London terrorist Erol Incedal, was held in partial secrecy. Some evidence was heard completely in secret.

Reflection:

Historical context is all important and clearly demonstrates that our ideas as to the means of judging cases to best achieve justice continues to evolve and sometimes very radically. If there is to be justice, then cases must be tried. We all hope that the resumption of jury trials this week is a huge success while properly balancing the need to keep us all safe in this difficult time.

Louise Sweet QC
2 Bedford Row

Notes:

[1] A backlog of around 37,434 cases

[2] Geoffrey Robertson opinion piece

[3] Juries Act 1974

[4] The trial of William Penn

[5]  BBC News

[6] Thanks to the recent high profile project celebrating women in the law: First 100 Years