Jury Trial in Criminal Cases
| Author | Peter Copley |
| DOI | 10.1177/0032258X7404700207 |
| Published date | 01 April 1974 |
| Date | 01 April 1974 |
PETER
COPLEY
JURY TRIAL IN CRIMINAL CASES
Afamous actorof stage, screen and televisionappears in anew
role in this accountand criticism oftrial by jury
An Englishman asked to name his privileges under our con-
stitution might well includethat of judgment by his fellows ona
criminal charge, theprivilege of trial by jury. Does the Englishman
value this privilege because he believes that thejury protects the
innocent, himself included, from oppression and unjust convic-
tion? Is it indeed his privilege at all? Or does the Englishman
believe it to behis only becausefor centurieshe has claimed it
as such?Ishe now deluding himself when in fact theprivilege
todaymay be that of the guiltyman toescape being shownguilty?
"Every Englishman," said Lord Goddard, "has a vested interest
in a perverse jury". The Observer wrote: "Only the boldest would
urge the abolition of such a hallowedAnglo-Saxon institution,
butfew can beentirelycontent with the existing jury system".
Many do urge its abolition: are they justified?
Ahundred years ago the majority ofboth civil andcriminal
cases were triedby juries.Today 98 per cent. of civil actionsare
tried without them: this is thechoiceof litigants themselves and
confirmed by statute; they believe that justiceis more likelyto
be done in their cause by a Judge sitting alonethanby verdict of
a jury. In criminal cases summary trial by magistrates has increased
at theexpenseof trialby jury.84 per cent. of indictable offences
and 97 per cent.of all criminal cases are triedsummarily.The
police often reducea charge to enableit tobe triedsummarily,
e.g., unlawful wounding becomes assault. Parliament, with expense
and time in mind, has progressively extended the power of sum-
mary trial.
The trend then is against trialby juryexcept forgrave offences,
most of which are committed by oldoffenders who mustearlier
have been dealt with by magistrates. Butthemyth,if it is amyth,
that the individual's freedom from unjust oppression is dependent
on his fellows' verdictremains. Evenif it was formerlya reason-
able proposition, it has alwaysbeen described inwordswhich go
beyond reason. Lord Camden, an18th century Lord Chancellor,
called the jury
"the
foundation of our free constitution: take that
away andthe wholefabricwill moulder into dust". Blackstone
described it as "the glory of the English law: the liberties of
England cannot
but
subsistso longasthisPalladium remains
sacred and inviolate". Lord Erskine, who had many victoriesof
advocacy beforejuries, wasso enthusiastic one night at dinner that
Byron sitting nextto him felt instinctivelythat juries shouldbe
ApUlm
1~
abolished. Even Lord Brougham, a legal reformer of the early
19th century, claimed that
"a
jury affords all men, even thehum-
blest, a perfect security against the ruin
that
power and its minions
might bring upon them". These are notjust legaleffusions from
an age when the jurycould indeed mitigate the law'sharshness.
They reflect the Englishman's belief that it is somehow wiser to
entrust his fate to a group of laymenwhoarehisunidentified
fellows, in fact to a committee of amateurs whichis all ajuryis,
than to a single professional individual, however skilled, who could
be an instrument of executivetyranny making an unchallengeable
decision.This attitude still persists: aTimes editorial in Nov-
ember, 1965, spokewithpride of "a man's right to
put
himself
upon the country" and added that "the country's view, as repres-
entedby the jury,may be most influential uponthe law itself".
A lawyer, David Napley, wrote in The Times "whatever the in-
adequacies of the jurysystem(andthese undoubtedly exist) it
remains in relation to the liberty of the subject a check onthe
executive and a bulwark of freedom". The Royal Commission on
Capital Punishment reported in1953 that it had been"struck by
the almost unanimous tributes paid by the Judgesandother
experienced witnesses to the reliability and common sense of
British juries". And Lord Devlin recently called the jury
"the
lamp that shows that freedom lives" and again "the privilege of
the common people of theUnited Kingdom".
Is this truth or idolatry? Is it simply thepractitioner's
instinct to retain institutions which appear an integral
part
of the
established order in which he functions,even though their material
purpose would be better effected by some newsystemorpro-
cedure? Has instinct even become self-deception?
For
an analo-
gous attitude of reverence consider Sir Frederick Pollock speaking
at Columbia University in 1890:"We arehere to do homageto
Our
Ladyof theCommon
Law:
we are hermenof lifeandlimb
and earthly worship.Butwe donotworship her as a goddess
exempt from human judgement and above human sympathy. She
is no placidMadonna sittingin a rose garden: rather she is like
the fortitude of the Florentine master, armed
and
expectant, her
battlemace lightly poisedin fingers readytoclose, atoneswift
motion, to the fighting grasp.Neither is shea coldminister of the
fates. Hersoul is foundedin an order older than the gods them-
selves, but the joy ofstrife is not strange to her,
nor
yet the humours
of the crowd.She belongstothekindred of Homer's Gods, more
powerful than men but not passionless or infallible.She canbe
jealous with Hera, merciless with Artemis and astute with Athene".
May onenotreject thisas rubbish, yet still admire
our
common
law as an instrument of justicecapable of flexibleresponse to
social change? May one not similarly admire the jury for having
been in the past an essentialprotection against corrupt Judges
143
April
1974
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