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LEE MERRY

IN A RECENT letter to this newspaper, the writer declared emphatically that trial by jury is “a disservice to justice.” The basis for the assertion, in a nutshell, was that jurors are fickle mortals who are more often than not “bamboozled” by skilful defence attorneys. According to the writer, they also fail to adhere to guidance on the law given to them by judges, either because of their general lack of intelligence or an inability to control their inherent biases.
These observations cannot be discarded outright. Similar arguments have been posited for decades by those critical of the jury system. But while there are strong arguments that can be made in favour of abolition, there are equally strong arguments against the suggested alternative – judge-only trials.
Judges have their own biases. The beauty of the jury system is that jurors are required to deliberate and exchange their ideas on the case, which ought to lead to the consideration of different perspectives. The single judge considers only their own perspective. Thus, there is arguably a higher risk that an inherent bias (conscious or unconscious) will be dominant and affect the outcome of a case.
Judges are "brought up" in the legal system. They start out as attorneys and must work in the legal profession for many years before being appointed to the bench. In a small country it is inevitable that judicial officers will form connections with certain attorneys, or certain groups of attorneys, while they are in practice.
Equally, judges are likely to form bonds with attorneys who appear before them regularly over a lengthy period of time. There is nothing alarming about this, it is human nature. There is, however, a risk that judges will subconsciously allow these relationships to affect their conduct of the case. Jurors on the other hand have no connection to the legal system or the attorneys who appear in their cases.
Judges are trained to give the correct decision in law. This does not necessarily equate to the just decision. "Jury nullification" is the name given to the decision of a jury to acquit a defendant who is guilty in law on the basis that their conscience requires them to do so. This power is firmly established and the jury cannot be punished for passing an "incorrect" verdict.
In the US in the 1800s, juries in the north consistently refused to convict people charged with harbouring slaves contrary to the Fugitive Slave Act. In Canada, Henry Morgentaler was acquitted at various trials in the 1970s and 1980s on charges of operating an abortion clinic.
In a recent example in the UK, four men were acquitted of the offence of criminal damage for toppling the statue of a historic slave trader, Edward Colston, during a Black Lives Matter protest in Bristol in 2020. In each case the jury’s decision was decried by the respective government, but courts have consistently defended the juror’s right to follow his conscience.
The jury system therefore acts as an important check on state overreach.
By far the most important argument for keeping the jury system is that the jury is still perceived to be the best means of arriving at a just decision in serious criminal cases.
This is largely due to the influence of the US (our predominant cultural influence) and the UK (our predominant legal influence). In both countries the jury system is deeply enshrined and there are no serious moves to abolish it. It has existed for centuries whereas trial by judge alone for serious criminal matters, in our jurisdictions, is comparatively untested.
The argument that juries should be abolished because of possible intimidation is weak. Judges have the same frailties as jurors yet they are not protected by anonymity. Will the perception of justice be more readily achieved where a judge sitting on his/her own decides to acquit in a high-profile gang/politically charged case? Or will there be attempts to discredit the decision? Refer to recent events for your clues.
In order for the jury system to work, however, significant change is required in order to achieve at least three outcomes.
First, the jury system cannot work without equality of arms. While there is an obvious need to provide more resources to the prosecutorial arm of the State, there is an equally pressing need to devise a system of mandatory continuing education for all attorneys at the bar. Defence attorneys are equally at risk of losing strong cases by being "bamboozled" by a more experienced prosecutor.
Secondly, our judges need to be firmer in their exercise of case management powers to reduce the risk of unfair outcomes. This relates both to the behaviour of trial attorneys and the management of cases to avoid unnecessary delay. Speedy trials will make citizens more willing to serve on juries and will avoid the pitfall of juror fatigue.
Thirdly, urgent steps must be taken to widen the jury pool. Juries are supposed to be reflective of society as a whole, yet large segments of society are not permitted to serve under our current laws. This includes doctors, lawyers, schoolteachers and a host of public servants, including members of the defence force, postal workers, fire officers and prison officers.
In the UK, amendments to the law have significantly widened the jury pool, with even judges and lawyers now eligible to sit. Similar changes should be introduced here to ensure that the jury pool is properly reflective of the society in which we live.
The Government appears to believe that a move away from jury trials is an important step towards reducing the current backlog in the criminal justice system. I doubt this very much. There are other far more pressing reforms that are required, albeit more complex and difficult to achieve.
I must mention that there are significant advantages of judge-only trials such as the provision of written reasons which can be reviewed on appeal. The current system achieves the best of both worlds by giving the defendant the option of a judge-only trial. Removing the right to trial by jury is a serious step that ought not to be taken lightly.
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