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Role Of The Jury In A Criminal Trial Law Essay

The provisions of the Criminal Justice Act 2003 allow for trials without a jury for serious offences in cases involving jury tampering. In March 2010, the first judge only trial in England and Wales resulted in convictions for armed robbery.

The use of the jury in criminal trials represents one of the key hallmarks of fairness within the English legal system. Being tried by a body of one’s peers almost ensures that the decision makers are both objective and representative. Indeed, Blackstone hailed the jury as being the “sacred bulwark of our nation” [1] and many seem to attest to the powers of the jury system in ensuring a fair application of the law. With some erosion of jury trials in key criminal areas, however, the role of the jury has come under close scrutiny, with some taking the view that in certain cases, such a trial is unnecessary, and in others undesirable due to the possible danger to jurors or the prevalence of national security matters. The decision in R v Twomney [2] has revived such discussion once more, with proponents of the jury system arguing that a defendant tried on indictment without a jury may not receive a fair trial under Article 6 of the European Convention on Human Rights (ECHR) [3] . It is argued, however, that such defendants can and do receive a fair trial in accordance with Convention rights even when a jury is not present, and that there are indeed valid reasons for a trial without jury in some circumstances.

The jury fulfils both a practical and theoretical role in a criminal trial. In general terms, the role of a jury in a criminal trial is to assess the case put forward by the prosecution along with the arguments advanced by defence counsel and, after direction as to the legal aspects by the judge, to make a decision on the guilt or innocence of the defendant. [4] In simple terms, the jury decides whether or not the prosecution (acting for the State) has met its burden of proof, proving beyond a reasonable doubt that the defendant is indeed guilty. The vote should be unanimous, or can be taken on a majority (10 out of 12 jurors) if there is divided opinion. It has no input with regards to the legal aspect of the case, but makes its decision based on the facts, assisted by guidance from the judge as to what elements make up the offence in question. The use of the jury system in most criminal trials adds legitimacy to the judicial system and in practical terms, allows for public participation in the legal process. It has been argued that the role of the jury is “not just a hallowed principle but a practice that ensures that one class of people don't sit in judgement over another and the public have confidence in an open and representative justice system”. [5] 

However, the concept of the jury also has a more sociological foundation, in that it is supposed to provide a check against the State, and also reflect community values in the legal system. Lord Devlin famously stated “that trial by jury is more than an instrument of justice and more than one wheel of the constitution: it is the lamp that shows that freedom lives”. [6] This reverential statement in respect of the jury encapsulates a common sentient in respect of its role: that the jury represents democracy and fairness within the judicial system. Being tried by a jury of one’s peers is supposed to inject community conscience into the judicial process, applying the values of the society from which the defendant hails to make a judgement on their actions [7] . The diversity of the jury pool and the status of civic duty attached to jury service all ensure that this community justice role is served by the members who are chosen. Blackstone and De Toqeuville, civil libertarian thinkers, argued that the role of the jury is also to protect the defendant against the excesses of the State and from unlawful and arbitrary deprivation of liberty due to an overzealous application of the law. The members of the jury, drawn from a wide pool in society, also provide the perfect counterbalance to the background of many judges who are from white, middle class backgrounds and are often thought to be out of touch with mainstream values in society.

The role of the jury in criminal trials has, however, been undermined by the enactment of legislation that allows for non jury trials in certain circumstances. Under s.44 of the Criminal Justice Act 2003 (CJA), there are two conditions which must be met before a judge can accept the prosecution arguments and direct that the case be tried without jury (as sanctioned by s.46 CJA). There must be a real and present danger of jury tampering and notwithstanding any reasonable steps that the police may take; the likelihood of misconduct would be such that it would be in the interests of justice for the trial to be conducted without a jury. Examples where s.44 may operate are given in the legislation as where the case is a re-trial after previous tampering, involves a defendant who has previously had a trial in which the jury were tampered with, or where there is a likelihood of witness intimidation. This must be proved beyond all reasonable doubt. [8] It must be noted from the outset that the imposition of these stringent conditions required before a non-jury trial can even be considered clearly limit the circumstances where such recourse will be had to all but the most exceptional of cases. And it is by definition the sheer exceptionality of these cases which merits further discussion as to whether trial by jury will actually ensure a just outcome or rather lead to injustice, whether this is due to the need for a re-trial or by other means. Indeed, Leigh correctly states that “an order for non-jury trial remains an exceptional measure proof of necessity for which needs to be made to the criminal standard”. [9] However, some have argued that it does not take very much for an exception to lose its exceptionality, citing “bad character applications under the 2003 Act as a further example of how the exception quickly becomes the norm”. [10] 

Article 6 of the ECHR guarantees, amongst others [11] , the right, “to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”. [12] The Article, therefore, is clearly focused on a number of situations where a fair trial may not be provided due to procedural irregularities within the judicial system. Before addressing arguments of non-compliance with the specifics of the provision, it is important to note that “Article 6 ECHR embodies no guarantee…of trial by jury”. [13] As such, a criminal trial without jury does not, of itself, amount to a violation of the ECHR and its provisions. Indeed, there is no jury present for the trial of public order offences or situations of criminal damage where the loss caused is below £200. [14] Such a trial does not breach the ECHR as long as other procedural safeguards, such as impartial judges and the right to examine and question prosecution evidence are met. Indeed, this very point was argued by Lord Chief Justice Judge in R v Twomney who stated that as “the trial would take place before an independent tribunal and, as it seems to us, for the purposes of article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, it is irrelevant whether the tribunal is judge and jury or judge alone”. [15] As such, the fact that s.44 CJA outlines certain circumstances where a jury may not be suitable to hear a criminal case, does not automatically conflict with Article 6 ECHR.

R v Twomney represented the first non jury trial in respect of an indictable-only offence in more than 350 years. The presiding judge weighed up the cost of protecting the jurors in the case [16] , due to fears of intimidation, and decided that a non jury trial would be both in the interests of justice and the public. The controversy regarding Article 6 compliance arises from the fact that much of the material was kept secret due to Public Interest Immunity arguments made by the prosecution. This meant that the defendants were unable to argue against an order being made because they had not seen much of the evidence that the prosecution to prove that jury intimidation was likely. Indeed, the defence argued that “it was contrary to Article 6 for the defence to be refused an opportunity to make meaningful representations against an order for trial by judge alone and that this was the situation in the present case because so much material was presented to the court ex parte”. [17] Under Article 6, enough information must be afforded to the defendant so that representations can be made on his behalf and evidence can be contested. This should amount to equality of arms which allows for adversarial proceedings between prosecution and defence.

However, the Lord Chief Justice outlined the fallacy of this argument, that were non jury trials only allowed when the defendant had access to all the material against him “the process could not apply where the actual or potential interference with the jury was of the most serious or sophisticated kind, and where, for example, disclosure of the evidence might imperil life or health or involve the disclosure of police operational evidence or methodology which, if disclosed, would be of considerable interest to the criminal world and damaging to the public interest”. [18] Although this would be the ideal circumstance that all the evidence was disclosed, the nature of the situation is such, and the public interest in secrecy so great, that the ideal cannot be achieved. Furthermore, a jury could not be used in circumstances the integrity of the jury was compromised “whether because of intimidation, bribery or any other reasons…allowing anything to undermine or qualify the juror's duty to give a true verdict according to the evidence”. [19] If a juror or jury is pressured and intimidated, they no longer fulfil their objective role so should not be utilised in a trial.

Some have argued, however, that resort to non-jury trial cases in the circumstances envisioned by s.44 is disproportionate and that other, more reasonably measures can be invoked to have much the same effect. The use of the secret jury [20] (but a jury nonetheless) has been offered as a solution to the situations in which s.44 of the CJA applies. By using a two way mirror, or seating the jury in a separate room with monitors, it would be possible to preserve their anonymity and protect them from any fear of intimidation whilst preserving the jury trial for a defendant. However, as the authors of the idea state, this may preclude challenge for cause, and end up leading to a re-trial if one of the jurors has a grudge but does not report it, and issues a verdict. A possible use of special counsel was considered by the Lord Chief Justice in R v Twomney but ruled out due to the specific facts of the case. [21] And it seems that this approach will continue, with options being considered depending on the special merits of each case, and indeed it is correct that it should be this way. Although there is undoubtedly a lack of certainty, flexibility is required in such circumstances to ensure justice.

In conclusion, it is clear that although statutory provisions which remove the availability of jury trial may seem to amount to unfairness under Article 6 ECHR, they do not of themselves actually infringe Convention rights. The decision in R v Twomney correctly interprets the legislation in a restrictive manner and it is clear that attempts were made to try alternatives such as police protection before resorting to the extreme measure of trial without jury. Ever since the Auld Review in 2001 considered the use of judge only trials for indictable offences, the implementation and use of such provisions were only a matter of time. Although it has been claimed that “the dam has finally cracked. It remains to be seen whether what follows will be a trickle or a torrent” [22] , such a view is overly dramatic. Instead, “it is now clear that the court proposes, save where the statutory conditions are clearly satisfied, to maintain the historic integrity of the system of jury trial”. [23] The role of the jury in the majority of criminal trials has been maintained, and in circumstances where it is not used, the defendant can still receive a fair trial, compliant with Article 6.

Bibliography

Books

Phipson on Evidence 17th Ed. Chapter: Chapter 11 - Rules of Evidence Relating to the Course of a Trial: General Documents

Elliott, Catherine and Quinn, Frances, English Legal System, Chapter 12

Devlin, Sir Patrick,Trial by Jury, Chapter 6

Journal Articles

Bisgrove, Michael, “Judges as tribunals of fact: to what extent do the provisions for a defendant to be tried on indictment by a judge sitting without a jury conflict with the defendant's right to a fair trial where issues of PII are present?” [2010] Crim LR 702

Craig, Rosemary, “Non jury courts in Northern Ireland” (2009) 173 JPN 363

Kirk, David, “Fraud Trials: A Brave New World” (2005) 69 JCL 508

Levine, Seth, “Practice points – Dangerous Precedent?: Practical consequences of Twomey case for non-jury trials” (2010) Law Society Gazette 19, 15th April 2010

Mahoney, Paul, “Right to a fair trial in criminal matters under Article 6 ECHR”, Judicial Studies Institute Journal (2004)

Pattenden, Rosie, “R. v T: trial by judge alone” (2009) E. & P. 13(4) 355

Taylor, Nick, Case commentary: R v T; R v B; R v C; R v H [2010] Crim LR 82

Wolchover, David and Heaton-Armstrong, Anthony, “Star Chamber of a Secret Gang of 12?”(2009) 172 JPN 420

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