Judge and Jury: Towards a New Division of Labour in Criminal Trials

AuthorJohn Jackson,Sean Doran
Published date01 November 1997
Date01 November 1997
Judge and Jury: Towards a New Division of Labour in
Criminal Trials
John Jackson and Sean Doran*
The interdependence of judge and jury in the task of fact-finding is an underplayed
theme in Anglo-American literature on the criminal trial process. In particular, the
debate on the efficacy of jury fact-finding is habitually conducted without
reference to the significance of judicial control in shaping the contours of the jury’s
task. In this article we suggest that future directions in the criminal trial arena
should seek to maximise the contribution of both judge and jury to the fact-finding
goal in accordance with the respective strengths of lay and professional decision
makers. Throughout the article we draw upon a study of judicial fact-finding in so-
called ‘Diplock’ or judge only trials in Northern Ireland.
In the first section, we
explore contemporary trends in the debate on the efficacy of the jury. It is argued
that it is important not to view jury fact-finding in isolation and that a greater
understanding of judicial fact-finding could provide significant pointers to
ameliorating trial decision making mechanisms in the future. The second section
of the article carries this theme a step further by arguing that judicial and lay fact-
finding have different strengths; judges, for example, may be better placed to deal
with questions involving identification evidence and scientific evidence, while
juries may be better equipped to determine questions of credibility. The upshot of
this argument is explored in the next section, in which it is contended that the
traditional division of labour between judges and juries should be redrawn in order
to enable judges to take greater responsibility for areas in which their fact-finding
strengths are located. The focus of the article turns then in the remaining sections
to a consideration of what measures might be adopted in order to translate these
ideas into practice in the context of the jury trial. In particular, both judges and
The Modern Law Review Limited 1997 (MLR 60:6, November). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA. 759
* Faculty of Law, Queen’s University Belfast.
This article is based on papers which were presented at a seminar on ‘Reconstructing Reality in the
Courtroom’ organised by Michael Hart QC and Adrian Zuckerman at All Souls’ College, Oxford in May
1995, at the First World Conference on New Trends in Criminal Investigation and Evidence, The Hague,
December 1995 and at the 1996 International Conference on Law and Society at the University of
Strathclyde, Glasgow, July 1996. Thanks are due to participants at these events for their constructive
1 Jackson and Doran, Judge without Jury: Diplock Trials in the Adversary System (Oxford: Clarendon,
1995). The term ‘Diplock’ derives from Lord Diplock who recommended the introduction of judge-
only trials in Northern Ireland in 1972. See Report of the Commission to consider legal procedures to
deal with terrorist activities in Northern Ireland (London: HMSO, 1972) Cmnd 5185.
juries need to be given greater encouragement to ask questions of witnesses and to
enter into communication with the parties at appropriate stages of the trial. This
would involve a change in the traditional role of the trier of fact in the Anglo-
American trial, from detached observer to more active participant in the trial
process. But it is a change which is necessary in order to assist the trier of fact and
it should also benefit the parties by enabling them to obtain an understanding of
what the trier of fact is thinking and to correct any misunderstanding or prejudice.
Juries and the expanding role of professional decision makers
Jury trial still remains an article of faith in England and Wales. Any discussion of
the jury is capable of evoking considerable passion, as the outcry against the
proposal to abolish the right to elect for trial in either-way offences illustrated.
There is an assumption, even amongst those who are critical of many aspects of the
jury system, that trial by jury remains the ideal method of trying serious criminal
cases. This appears largely attributable to the belief that only juries as outsiders of
the system are capable of that independence from state officialdom which is
considered essential within the Anglo-American tradition for a ‘fair trial’ in
criminal cases.
This independence is not considered so vital in civil cases where
the use of the jury has been allowed to decline to a much greater extent than in
criminal cases.
The belief in the importance of the jury as a central justifying
feature of the criminal process is linked to a conception of the criminal process as a
dispute between the individual and the state which demands that those who
arbitrate between the disputants are entirely unconnected with the state.
Despite the passion that trial by jury still evokes, however, there would appear to
be much less confidence in the jury as an institution than there has been in the past,
even in England and Wales. It may be an exaggeration to say that society is
undergoing a major crisis of confidence in the jury system,
but it is certainly more
acceptable in the 1990s to question the efficacy of the jury than in the days when
Lord Devlin and others were extolling its virtues.
One of the reasons for this
would seem to be a decline in faith in the jury’s ability to deliver truthful verdicts.
Special concerns have been raised about the complexity of certain trials. Most
notably, there has been extensive debate over whether it is appropriate for juries to
deal with fraud trials.
Concern has also been raised about the composition of
2 The proposal was first recommended by the Royal Commission on Criminal Justice, Report (London:
HMSO, 1993) Cm 2263, recommendation 114, and was more recently mooted by the Home Secretary
in February 1997 following the publication of the Narey Report on Review of Delay in the Criminal
Justice System (1997). See HC Deb vol 291 cols 429–442 27 February 1997. For comment on the
outcry following the Royal Commission’s report, see Maher, ‘Reforming the Criminal Process: A
Scottish Perspective’ in McConville and Bridges (eds), Criminal Justice in Crisis (Aldershot: Elgar,
1994) 59.
3 Damaska, ‘Evidentiary Barriers to Conviction and Two Models of Criminal Procedure: A
Comparative Study’ (1973) 121 U Pa LR 507, 583.
4 The limited circumstances when trial by jury is provided for in civil cases are provided for in s 69,
5 See Zuckerman, ‘Law, Fact or Justice?’ (1986) 66 BULR 487.
6 This claim is made by Enright and Morton, Taking Liberties: The Criminal Jury in the 1990s
(London: Weidenfeld, 1990) 1.
7 Lord Devlin, Trial by Jury (London: Stevens, 1956).
8 See Roskill Committee on Fraud Trials (London: HMSO, 1986); Levi, The Investigation, Prosecution
and Trial of Serious Fraud (London: HMSO, 1993), Royal Commission on Criminal Justice research
study no. 14. The acquittal of the Maxwell brothers in January 1996 once again sparked off the
debate: see McConville, ‘Putting Juries on Trial’, The Times, 30 January 1996.
The Modern Law Review [Vol. 60
760 The Modern Law Review Limited 1997

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