Jury Trial in Criminal Cases
| Date | 01 April 1974 |
| Author | Peter Copley |
| DOI | 10.1177/0032258X7404700207 |
| Published date | 01 April 1974 |
| Subject Matter | Article |
PETER
COPLEY
JURY TRIAL IN CRIMINAL CASES
A famous actor of stage, screen and television appears in a new
role in this account and criticism of trial by jury
An Englishman asked to name his privileges under our con-
stitution might well include that of judgment by his fellows on a
criminal charge, the privilege of trial by jury. Does the Englishman
value this privilege because he believes that the jury 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 be his only because for centuries he has claimed it
as such? Is he now deluding himself when in fact the privilege
today may be that of the guilty man to escape being shown guilty?
"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 hallowed Anglo-Saxon institution,
but few can be entirely content with the existing jury system".
Many do urge its abolition: are they justified?
Ahundred years ago the majority of both civil and criminal
cases were tried by juries. Today 98 per cent. of civil actions are
tried without them: this is the choice of litigants themselves and
confirmed by statute; they believe that justice is more likely to
be done in their cause by a Judge sitting alone than by verdict of
a jury. In criminal cases summary trial by magistrates has increased
at the expense of trial by jury. 84 per cent. of indictable offences
and 97 per cent. of all criminal cases are tried summarily. The
police often reduce a charge to enable it to be tried summarily,
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 trial by jury except for grave offences,
most of which are committed by old offenders who must earlier
have been dealt with by magistrates. But the myth, if it is a myth,
that the individual's freedom from unjust oppression is dependent
on his fellows' verdict remains. Even if it was formerly a reason-
able proposition, it has always been described in words which go
beyond reason. Lord Camden, an 18th century Lord Chancellor,
called the jury
"the
foundation of our free constitution: take that
away and the whole fabric will moulder into dust". Blackstone
described it as "the glory of the English law: the liberties of
England cannot
but
subsist so long as this Palladium remains
sacred and inviolate". Lord Erskine, who had many victories of
advocacy before juries, was so enthusiastic one night at dinner that
Byron sitting next to him felt instinctively that juries should be
ApUlm
1~
abolished. Even Lord Brougham, a legal reformer of the early
19th century, claimed that
"a
jury affords all men, even the hum-
blest, a perfect security against the ruin
that
power and its minions
might bring upon them". These are not just legal effusions from
an age when the jury could indeed mitigate the law's harshness.
They reflect the Englishman's belief that it is somehow wiser to
entrust his fate to a group of laymen who are his unidentified
fellows, in fact to a committee of amateurs which is all a jury is,
than to a single professional individual, however skilled, who could
be an instrument of executive tyranny making an unchallengeable
decision. This attitude still persists: aTimes editorial in Nov-
ember, 1965, spoke with pride of "a man's right to
put
himself
upon the country" and added that "the country's view, as repres-
ented by the jury, may be most influential upon the law itself".
A lawyer, David Napley, wrote in The Times "whatever the in-
adequacies of the jury system (and these undoubtedly exist) it
remains in relation to the liberty of the subject a check on the
executive and a bulwark of freedom". The Royal Commission on
Capital Punishment reported in 1953 that it had been "struck by
the almost unanimous tributes paid by the Judges and other
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 the United Kingdom".
Is this truth or idolatry? Is it simply the practitioner'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 new system or pro-
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 are here to do homage to
Our
Lady of the Common
Law:
we are her men of life and limb
and earthly worship. But we do not worship her as a goddess
exempt from human judgement and above human sympathy. She
is no placid Madonna sitting in a rose garden: rather she is like
the fortitude of the Florentine master, armed
and
expectant, her
battlemace lightly poised in fingers ready to close, at one swift
motion, to the fighting grasp. Neither is she a cold minister of the
fates. Her soul is founded in an order older than the gods them-
selves, but the joy of strife is not strange to her,
nor
yet the humours
of the crowd. She belongs to the kindred of Homer's Gods, more
powerful than men but not passionless or infallible. She can be
jealous with Hera, merciless with Artemis and astute with Athene".
May one not reject this as rubbish, yet still admire
our
common
law as an instrument of justice capable of flexible response to
social change? May one not similarly admire the jury for having
been in the past an essential protection against corrupt Judges
143
April
1974
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