Reviews

DOIhttp://doi.org/10.1111/j.1468-2230.1957.tb02716.x
Publication Date01 Sep 1957
REVIEWS
TRIAL
BY
JUEY.
By
THE
HON.
SIR
PATEICK
DEVLIN.
(The
Hamlyn
Lectures. Eighth series.) [London
:
Stevens
&
Sons,
Ltd.
viii and
179
pp.
1956. 15s.
net.]
FOE
good and sufficient reason those who hold judicial office in
this
country
tend to confine their efforts to the task of applying the law in court, before
the eyes of
all,
and are less ready than their foreign colleagues to expound
it
also in theoretical
or
critical writings. Yet there are certain broad aspects
of the law-and procedure must rank high among them-upon which judges
could speak with authority and insight gained from daily experience on the
Bench which
is
denied to others. This
is
what gives special value and
significance to the fact that Devlin
J.
chose for last year‘s Hadyn Lectures
the subject of
Trid
by
Jury,
which has of late become something
of
a
contro-
versial one.
Not that Sir Patrick intends to throw the weight of his argument decisively
upon either side in this controversy. He points out that there is no modern
English work either on the history of trial by jury or on
its
present-day
mechanics, and in these Lectures, which are addressed
by
their terms “to
the Common People of the United Kingdom,” he simply sets out
to
supply
this unfortunate gap.
Trial
by
Jury
is thus primarily an exposition of the
working of present-day English trial seen-if not from the (closely guarded)
jury room-from the vantage point of the Bench, and if Sir Patrick Devlin
in the end comes out unequivocally with his own opinion, he does
so
in
a
strictly judicial spirit, adjudicating, as befits his oEce, upon the broad
merits of
a
case upon which he himself has
no
doubts.
The
first
three of these six Lectures
are
devoted, consecutively, to the
(historical) Origin of the Jury, to the Composition of the Jury and to the
Rules which govern it in the discharge of its judicial functions.
It
is upon
foundations thus firmly laid that the lecturer comes to the crult of the matter
:
the question how it is possible
to
enforce the law successfully on the strength
of the views of twelve men and women, selected
at
random and unaccustomed
to any serious intellectual exercise, who give their verdict in one word and
without reason. Sir Patrick’s plain answer is that it isn’t; “the reality of
trial
by jury,” he says, “consists of
a
combination.
of judge and jury.”
It
is in the exact definition
of
the relationship between the two such as
it
has
grown in the practice of English courts, in the description of their subtle
interplay and balance, that Devlin
J.’s
Lectures, though designed in the
first
place for laymen, reveal an originality of approach which can perhaps
be fully appreciated only by lawyers.
The usual generalisation that the facts
are
for the jury and the law for
the judge
is
here dismissed as
I‘a
deceptive brocard” which “misses the
reality” of jury trial; at another point
it
is rejected
as
“quite misleading.”
The jury, it is true, can in theory approach the facts in any way they like,
but neither their constitution nor the
trial
process
is
designed to encourage
them to do
so.”
The central portion of Devlin
J.’s
Lectures, then, and its
most weighty one,
is
devoted to what he calls “The Control of the Jury,”
the extensive limitations upon the jury’s function as judges
of
fact. The
control which the judge exercises
at
the
trial
over the jury
is
both formal
and informal. “The effect of every rule of law is to limit the power of the
jury,” says the author, but “there
are
also informal ways in which the judge
influences and shapes the verdict.”
515
5
16
THE
MODERN
LAW REVIEW
VOL
20
Only from
a
member of the Bench can we get such
a
clear picture, the
inside story,
so
to speak, of the various means by whkh “the judge controls
the mind of the jury.” Not the least of them is the high prestige enjoyed
by judicial office.
As
a
net result, the domain of the jury is
far
less great than
is
popularly conceived and,
as
the author insists by giving examples (like
Hohs
v.
D.P.P.
[1946]
A.C.
688)
even in
our
days “the courts are still prepared
to encroach on (it) for practical reasons.” There is no likelihood nowadays
of the jury defying the law;
“I
do not suppose,” says Devlin
J.,
“that
any judge sitting today has ever had to consider what he should do
if
a
jury
returned a verdict contrary to his direction.” As for advice tactfully but
unequivocally given in the summing-up, the judge has every reason to expect
that he will be followed, for his influence partakes of “guidance
as
well
as
of commandment.”
IS,
then, Devlin
J.
to be numbered among those who are inclined to
consider jury
trial
an outmoded form of procedure? By no means. He
acknowledges of course that trial by jury in civil matters has seriously
declined of late, and gives valuable and hitherto unpublished figures to show
that this decline (where jury trial is available upon application under the
Administration of Justice Act,
1988)
is due to the fact that juries
are
not
being asked for. The reason, according to Sir Patrick, is “the need and
desire to confine fluctuations in awards and verdicts within conventional
limits (of which only the judge knows what they are).” In any case which
runs more
or
less to pattern
it
is
obviously far easier to predict the result
of
a
trial before the judge alone than before
a
jury, especially in the matter
of damages.
On the other hand, civil cases with exceptional features
or
a
sharp conflict
on the facts, “where there is going to be hard swearing on both sides (the
author speaks of
wholesale perjury
at
another point), are unpredictable
anyway and these often fall into the limited categories in which jury trial
is
given
as
of right. Indeed-and this applies to criminal matters as well-
his experience leads Devlin
J.
to the view that, “if judges
are
by training
better equipped for the drawing of inferences and reaching sound con-
clusions upon
a
mass of facts,” they are not
as
good as the jury in deciding
upon credibility:
‘‘I
think it must be agreed,” he writes, “that there are
some determinations in which twelve minds are better than one, and most
people would accept that the determination whether
a
witness is telling the
truth
is
one of them.”
No
doubt this is one of the reasons why courts
consisting of puisne judges are no longer in favour on the Continent in
criminal matters
or
even in civil litigation of any importance. Continental
lawyers might not a’ccept without qualification Devlin
J.’s
statement that
“no way has yet been found of gaining the superiority of the jury as the
judges of the primary facts without being saddled with their inferiority as
judges of the secondary.” The French might consider that their practice
in criminal matters, where the jury jointly deliberates (and votes)
zvith
the
professional judges both on the question of guilt and punishment (rather
along the lines
of,
say, a Quarter Sessions Appeals Committee),
goes
some
way towards
a
solution, and similar claims have been made for the Assessor
system
as
practised today in Italy,
W.
Germany and elsewhere. What cannot
be denied is that the particular way in which “the coalition of the lay mind
with the legal
has come to be established in the English system has gradually
revealed certain inherent incidental disadvantages, among which the unduly
technical and complicated rules of the law
of
evidence are certainly
conspicuous.
Ultimately, indeed, the chief argument in favour of jury trial,
as
against
all
other alternatives which have been,
or
are being, mooted, does not derive
from considerations of judicial expediency
or
efficiency. Devlin
J.’s
unhesitating adherence to jury trial rests fundamentally,
as
it must do, on
grounds of broader import to the whole administration of the law and the
constitution.
It
is founded on the belief that even today the jury offers
SEPT.
1957
REVIEWS
517
it
vital safeguard against autocratic rule, dictatorship
or
tyranny of the
State. In the first place he holds that “the existence of trial by jury helps
to ensure the independence and quality of the judges,” since in the past, and
presumably in the future, compliant judges are easier come by than amenable
juries. What is more, the speaker gives it as his view that there is “no
real check today” upon the power of the executive other than the knowledge
that, “in dealing with the liberty of the subject, it must not do anything which
would seriously disturb the conscience
of
the average Member of Parliament
or of the average juryman.”
Jury trial helps to ensure that the law,
or
certainly
at
least the criminal
law, and its administration will conform to the ordinary man’s idea of
what is fair and just. In times
of
gradual and peaceful constitutional
evolution this may be self-understood. But he would be
a
bold man who
would dare to scorn Devlin
J.’s
description of the jury as
a
“Lamp of
Freedom” on the mere ground that,
at
the moment when he delivered his
lucid Hamlyn Lectures, the privileges which in law and custom we enjoy
seem
so
firmly established that we are inclined to take them for granted.
H.
A.
HABZMELMANN.
ROMAN
FOUNDATIONS
OF
MODERN
LAW.
By
H.
F.
JOLOWICZ,
LL.D.,
D.c.L.,
Late Regius Professor of Civil Law
in
the University
of
Oxford. [Oxford: Clarendon Press.
1957.
xx,
206
and
(index)
11
pp.
a%.
net.]
IT
had been evident for some time before the death of Professor Jolowicz that
he regarded the
Coy?us
Juris less and less as
a
terminus
ad
quem
and more
and more as
a
terminus
a
quo.
In an age of greater leisure the historian and
the philologist happily plied their excursion trains oyer the well-worn routes
between the classical period and the codification of Justinian, rattling noisily
over the points at innumerable junctions. But the modern utilitarianism hss
signalled the need for an examination of the extensions of Roman law into the
legal systems of the present day. Jolowicz always appeared to be among
those who realised that the
Corpws
Juris-indeed in many cases the Institutes
alone-had been tending to become
a
dead end
for
the student of Roman law.
All too frequently the student arrived at his destination only to be greeted
with the cry of
‘‘
All change here
!
As if the power of Roman law had been
finally exhausted in the sixth century of the Christian era
!
As if new drivers
had not taken over-some perhaps very much later-and as if new fires had
not been kindled to
set
the engine running on lines more and more remote
from its
first
halting-places
1
So
this posthumous publication begins
:
For
our
present purpose we have
to start from the
Corps
Juris as from something given.” And in an extract
from the author’s notes appearing in the Preface we read:
‘‘
Explain also
how the modern teaching of Roman law from
a
purely historical point of view
has militated against the understanding of Continental systems, whereas
previously it was possible to refer to “civil law
generally in comparison
with English law, either favourably
or
unfavourably, and, where found con-
venient, to borrow principles from it.”
It
is a part of
our
regret at Jolowicz’s
untimely death that he was able only to begin the fulfilment of the important
task he had set himself. About the beginning of the classical period there
lived
a
Rabbi who said that even if
a
man realises that he may not be
able to complete a task he is not free to desist from
it.
Some such reflection
may have been in the mind of Jolowicz.
To
those who have helped to ensure
that this incomplete work should not be lost to future generations we must
be eternally grateful.
About half of the book
is
devoted to the sources
of
law; and since its
VOL.
20
844

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