Defence of the jury is an open and shut case

March 2, 2007

If we abandon trial by our peers, we abandon the transparency essential to a robust legal system, argues Thom Brooks

Why should we have a right to a trial by jury? An increasing number of academics and politicians, not least Tony Blair, argue that the use of jury trials should be curtailed, if not ended. It is estimated that scrapping them would save the Treasury at least £120 million a year and its detractors flatly deny that such a move would entail a loss of liberty.

After all, why entrust justice to 12 randomly selected members of the public rather than a professionally trained judge or magistrate?

Consigning jury trials to history seems to make good economic sense and further the cause of justice, they argue. But we would be wise to reject such claims. The right to trial by jury is a curious right with a long history, but it is a right worth defending.

Justice must not only take place, it must be seen by the public to take place. This idea is at the heart of any defence of the jury trial. If they were scrapped, the vital transparency of the legal process would be lost.

Law is a public good that serves and protects the rights of all. We believe that it is necessary for persons to be found fit for trial before it commences. They could then be expected to understand the charges brought against them and the reasons justifying their conviction. Why would we think a defendant would understand the reasons he or she is on trial and the justification of sentencing without a jury trial? They force legal professionals to discuss public justice not merely among themselves, but with the rest of us. The public must be persuaded beyond reasonable doubt that a defendant is guilty. Most of us are not trained in law and its increasingly technical vocabulary. It is not unreasonable to suppose that a defendant of modest intellect might not sufficiently comprehend court proceedings.

One safeguard against this problem is our guarantee of legal counsel.

However, the best safeguard is a jury. Not only do they ensure that trials are not held in private and, thus, defend publicity, they also ensure full transparency in forcing legal professionals to speak the public's language in the public interest deciding matters of justice in accordance with the rule of law.

If juries often reached mis-taken verdicts, as their critics argue, then we would expect them to acquit defendants out of line with how judges decide similar cases. While there has not been enough recent research on jury deliberation, the evidence we have is clear and to the contrary: juries do not decide cases out of line with judges. This is true even in fraud trials, despite the routine efforts of politicians to criticise jurors for their "inability" to handle such difficult cases.

Of course, a jury's ability to arrive at verdicts is not best enabled by denying them transcripts or from taking notes as is currently the case.

They should not be prevented from using such tools to help them render verdicts, unlike judges or magistrates who are not constrained in those ways.

There is one final consideration. Even if I am correct to argue that juries render verdicts in line with magistrates and judges and that they ensure transparency, critics of such trials argue that jurors are susceptible to intimidation in trials involving paramilitary groups or organised crime. Of course, a defendant would have to intimidate not one but three jurors against his conviction to ensure a "not guilty" verdict. They would need only intimidate one judge to get the same result.

I do not for a moment believe judges are subject to such treatment. Nor do I fear for mistaken verdicts due to jury intimidation. We hear these claims regularly and yet the evidence is scant. In fact, if juries are subjected to intimidation, then it seems to clearly be a case for greater police protection not the scrapping of the institution. It is not an argument against the use of juries: they should be afforded the same protections offered to judges and magistrates.

We increasingly hear critics deride the jury as a poor body to decide cases. But their claims that there is nothing to lose and we will make substantial monetary savings if we follow their advice are pure nonsense.

Curtailing the use of juries will lead to greater cynicism of the judicial system.

In fact, juries enjoy wide support among the public, with citizens far more likely to vote after jury service than before. The system is therefore a great public good worthy of special protection, not degradation. If we abolish jury trials, the province of law will be a realm from which the public will be excluded, preventing us from participating in our own political life.

Thom Brooks is lecturer in political thought at Newcastle University and editor of the Journal of Moral Philosophy .

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