The Lord Chancellor, Robert Buckland, has suggested that the right to elect trial by jury might be ‘suspended’ due to a backlog caused by court closures in response to the coronavirus. This argument should fail at first base. The predominant cause of the delays is cuts by the Ministry of Justice to the numbers of courtrooms holding trials. Around 37,500 jury trials were awaited in December 2019, a number that rose by only 10%, to 41,000 cases, by the end of May.
The claim that this measure would be ‘temporary’ will be as reassuring as the income tax’s temporary status for the duration of the French Revolutionary wars was and very pointedly still is. As Joshua Rosenberg has said, whether or not a ‘sunset clause’ is included in an Act, Parliament cannot bind itself or its successors. A government content to remove a fundamental right from defendants charged between June and December 2020 will be capable of arguing that it is unnecessary for any charged before 2025 or beyond.
The suggested reform is that those charged with ‘either way’ offences would be tried either by magistrates or a judge and two magistrates. This is the panel that hears appeals to which anyone convicted by magistrates is entitled, which take the form of a re-trial. It is not a substitute for a jury but an extra protection for those convicted of minor offences without the benefit of trial by jury. Yet a charge of serious criminality not exclusively tried in the Crown Court has always granted an accused the right to choose to be tried by jury. These ‘either way’ offences include all charges of dishonesty, as well as serious violence – accusations that, if proven, would lead to prison sentences and the loss of a person’s reputation and career.
Irrespective of when and how courts may reopen, a temporary backlog in cases is an exceptionally poor reason to deny a fundamental right to anyone unfortunate enough to be accused of an offence at a particular time; something not suggested even during the Second World War, where the pragmatic measure of juries of seven was introduced, which might be a tolerable short term solution now.
Yet what of its merits? Lord Devlin described the right to trial by jury as ‘the lamp that shows that freedom lives.’ The innocence of the accused is presumed unless a random collection of fellow citizens are all (or by an overwhelming majority of 10-2) sure of guilt; and, while told to follow the judge’s directions as to the law, they may acquit even where the admitted facts provide no defence. It is thus impossible for the state or anyone appointed by the state (including both judges and magistrates) to convict a person of serious offences: something vividly demonstrated in 1688, when even the imprisonment of jurors failed to result in their convicting bishops tried for refusing to acquiesce in the misuse of the Royal Prerogative. This loss of state control through ‘jury equity’ stands with representative government as a key guarantor of freedom.
A jury of twelve is more likely to include people who have been in the circumstances faced by a defendant
Having appeared both before juries and judges determining facts alone, I suggest there are two particular differences between criminal and civil trials that justify juries in the former only.
An allegation of a criminal offence routinely requires a jury to determine not just facts but what the defendant was thinking – whether he intended to do the harm required commit an offence or actively considered the possibility and carried on anyway (recklessness). Although dishonesty is sometimes alleged in civil cases, civil claims very rarely require the judge to make findings about a witness’s or litigant’s thoughts. Some examples suffice. Disputed contract cases often depend upon whether words exchanged by parties would, to a ‘reasonable person’, entail agreeing to a particular term; in ‘tort’ cases a judge must determine whether a person’s actions were ‘negligent’, which depends (for example) on whether a reasonable driver could have turned, stopped or gone at a particular speed while driving safely; and unfair dismissal claims in the employment tribunal are determined by asking whether the response of an employer was one that any other ‘reasonable’ employer might have reached.
Another difference is the higher standard of proof almost applied by juries – that they are ‘sure’, said to be identical to the older formation of ‘beyond reasonable doubt’. Judges in civil cases almost always determine them on the balance of probabilities.
Common to both is that a jury of twelve is more likely to include people who have been in the circumstances faced by a defendant, both because of their wider range of ages and backgrounds and simply because there are twelve times as many. Whether something is possible (not just more likely than not) is a judgement better reached by a wider pool of experience of how individuals react to circumstances that might be alien to a judge but familiar to others. And the same applies to whether an individual might have behaved in a way that is on its face unlikely.
The key difference between civil and criminal cases, though, is that in the latter the state imposes its coercive power on an individual, whereas the former regulate relationships between individuals and organisations. That coercive power is immense, the resources that may be applied to an investigation and prosecution potentially unlimited and the consequences profound. It is for this reason that we impose a presumption of innocence and a very high standard of proof; and for this reason that those facing serious charges must have the right to a trial by their peers.
Francis Hoar is currently acting in a judicial review of the ‘lockdown’ regulations.
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