The lone assessors

For many schooled in the common law tradition, the jury is an inalienable right and forms the cornerstone of the adversary trial system for settling serious criminal altercations. Yet in many jurisdictions the jury trial is to an increasing extent being restricted to limited classes of offences. Trial by judges and assessors sitting alone have become standard in countries such as India, Israel and Singapore. In the United States and Canada, which many would consider to be the jury's most sheltered domains, it is possible for an accused to elect for a trial by a lone judge in all but the most serious cases. Moreover there are some jurisdictions that, although having maintained jury trials under conventional circumstances, have been compelled by certain exigencies to forsake them for circumscribed classes of cases. Thus, cases associated with the emergency situation in Northern Ireland (which form the empirical bedrock of this book ) and trials with terrorist connotations in the Republic of Ireland are conducted in the absence of a jury. The fundamental aims of this work are to delineate and appraise practice in jury and non-jury trials and to advance debate on the consequences of a trial without jury on the accusatorial or inquisitorial nature of courtroom proceedings.

The Troubles created a plethora of problems for the ordinary criminal courts in the six counties. The intimidation of witnesses and jurors, evidential constraints and perverse acquittals by partisan juries were key factors that vindicated the discontinuation of jury trials in cases arising out of the emergency situation in 1973. From this point onwards, "scheduled offences", which included murder, manslaughter, riot, most nonfatal offences against the person, robbery, aggravated burglary, arson, offences involving firearms and explosives and membership of proscribed organisations, were to be tried in Diplock courts by judges sitting alone. Their introduction was accomplished with the minimum of adjustment to the formal rules of procedure. Despite the publicity that has attended this system of trial, only a sprinkling of Diplock trials have attracted publicity and little has appeared on how these cases have been processed. It is the prosaic and mechanical operation of such cases that serve as the nucleus of John Jackson and Sean Doran's study.

The book considers whether a process such as the Diplock trial, which replaces the jury with a judge as the trier of fact, is inclined to propel the criminal process to a more inquest-oriented model of proof. Is a judge in such a court more predisposed to adopt an active role in trial procedures, whether in relation to the rejection of certain lines of inquiry, or in terms of summoning witnesses or requesting counsel to elicit certain evidence? If so, does this reflect an unequivocal shift to a process that is more inquisitorial in nature? Perhaps one of the main findings to be derived from their discussions is that it is not apposite to portray the modus operandi of Diplock trials as purely adversarial or inquisitorial in nature. Deviations in the way trials are conducted appear to emanate more from the individualistic approaches taken by judges and from the disparate working practices created by the professional participants in various trials, than from any distinct procedure insisted upon by the mode of trial. Nevertheless these deviations in the conduct of Diplock trials do seem attributable to the absence of a jury. Thus, despite all the capriciousness of a jury, the authors suggest that it does appear to promulgate a particular symmetry and regularity in the way trial proceedings are conducted.

One of the concerns raised about the Diplock process is that judges may become case-hardened over time and consequently become more susceptible than lay triers to convict defendants. The authors, however, conclude that the argument about case-hardening has proved refutable and that further methodical anatomisation is necessary to elucidate why the results in jury and non-jury cases may be divergent. They argue that a purely statistical approach to this issue fails to give a true interpretation of judicial fact-finding and their sample of cases, albeit small, illustrates the difficulties inherent in making sweeping generalisations on the basis of quantitative data. Hence there is a need to advance beyond the statistics and evaluate the procedure adopted by individual judges who hear the cases and the reaction of counsel appearing regularly before them, as well as the types of cases concerned and the matters of contention debated.

The foremost lesson, then, to be inferred is that the nonexistence of a jury does not conduce judges to forsake ineluctably their traditional umpire's role to assume a more active case management approach that significantly magnifies the guilty plea and conviction rate. Jackson and Doran advocate, as a consequence, that although it is proper to pursue a system that will safeguard the degree of adversarial protection the jury bestows on an accused person when considering alternative decision-making mechanisms, it does not automatically imply that the most appropriate means of securing justice is to introduce procedural characteristics from jury trial. To do so, in their opinion, would be to fail to liberate ourselves from the long history of jury thinking.

Shane Kilcommins is researching a Phd in law, University of Wales, Aberystwyth.