Jury service is carried out by an average of 390,000 British citizens a year. Famously described as “the lamp that shows that freedom lives”, trial by jury is one of the guiding principles of the UK legal system [Ref: Guardian]. But a recent Court of Appeal ruling brought this ‘hallowed principle’ in to question, by allowing the first criminal trial without a jury to take place in England for over 400 years [Ref: BBC News]. The case, involving four men accused of armed robbery, saw the court use powers bestowed under the Criminal Justice Act 2003 to allow the proceedings to take place in front of a single judge who will consider the evidence, deliver a verdict and enact a sentence [Ref: Office of Public Sector Information]. The judges in the Court of Appeal were of the opinion that the possibility that the jury would be ‘tampered’ with meant that a fair trial could only be guaranteed if the jury was removed all together. Such trial without jury (known as a bench trial) has only previously been employed in Northern Ireland to try individuals charged with involvement with the IRA, in the Diplock Courts [Ref: BBC News]. The decision has reignited an age-old debate about the effectiveness of the jury system in administering justice. Indeed, whilst many consider trial by jury to be the paradigm of democratic fairness, others question whether the tradition should, and can, continue in the contemporary context [Ref: The Times]. The fate of trial by jury raises important questions about our democratic freedoms and the administration of justice [Ref: The Times]. Is trial by jury, in the words of Sir Louis Blom-Cooper, ‘a recipe for incompetence and bias’, or in those of Winston Churchill the ‘supreme protection…for ordinary individuals against the state’? 

The Fair trial
The right to a fair trial is guaranteed by article 6 of the Human Rights Act [Ref: Office of Public Sector Information] and as a principle of English law dates back to the Magna Carta [Ref: The UK Statute Law Database]. Since it was first introduced, trial by jury has not only been thought to be the fairest form of justice but has also acted as a powerful safeguard against tyranny [Ref: Freedom-central.net]. But in recent years a number of commentators have asked whether this assumption holds water [Ref: Guardian]. The claimed pervasiveness, especially in high-profile cases [Ref: The Times], of jury tampering and human fallibility also continues to pose a threat to the fair trial [Ref: Guardian]. A number of commentators have suggested that juries are often unrepresentative of the population at large. In particular the disproportionate occurrence of ‘middle class opt-out’ of jury service has caused particular concern [Ref: The Lawyer], and continues to do so, despite the narrowing of opt-out clauses since the Lord Aulds review of the justice system in 2001 [Ref: Criminal Courts Review]. One juror described his experience as “Twelve Stupid Citizens” [Ref: Independent]. But defenders of trial by jury argue that attacks against the practice reveal an anti-democratic distrust of the people. They argue that one of the great strengths of the jury lies in its independence from government and distance from vested interest. As judges are in the pay of the state and act on behalf of it, the presence of ‘twelve angry men’ drawn from the people is currently the most democratic way to hold the state to account [Ref: spiked].

Complex trials
In 2007 MPs voted in favour of introducing The Fraud (Trials Without A Jury) Bill [Ref: Parliament], which would end trial by jury in complex fraud trials cases. Although scuppered by the defeat of the bill in the House of Lords, many argued that cases too often fail owing to complexity, and ultimately damage justice as a result. Critics argue that juries can no longer be expected to understand, process, and judge the kind of evidence involved in modern cases. The time has come, says journalist Simon Jenkins, to professionalise justice and to do-away with the charade of ‘the real life whodunnit’ that is trial by jury [Ref: The Times]. But defenders of jury trials, including the Law Society, dismiss these suggestions, arguing that juries’ competence is rarely the problem in complicated trials [Ref: Barrister Magazine]. Not only, they argue, is it the role of judges, advocates and experts to explain and distil the evidence for jurors - something they are clearly failing to do in some instances - but it is precisely the amateurism of a jury, made up of ‘twelve good men and true’, that ensures that criminal law conforms to what ordinary citizens think is fair and just [Ref: Guardian]. Leaving the administration of justice to judge alone, they argue, moves society away from the sentiment of ‘for the people, of the people’, and towards a technocratic and anti-democratic system of justice [Ref: Battles in Print].

Either you’re with us, or against us?
One of the strengths of trial by jury, says Oliver Letwin MP former Shadow Home Secretary, is that it represents public participation in the justice system [Ref: Daily Telegraph]. Here, justice is not imposed from above, but emanates from ‘the community’. Criminal law, some suggest, is founded on the idea that society as a whole is calling an individual to account for their actions. It is precisely because the defendant has transgressed society’s norms in allegedly committing a crime that they can be called up by a court of law. The jury, in their breadth and diversity of interests, represent that society. But, say others, one of the central premises of the law - that the majority of people hold the same views about what conduct is dishonest - is erroneous. Far from being representative of society as a whole, juries tend to be swayed by one or two vocal individuals. Far better, they suggest, that the expertise and rationalism of a seasoned judge decides innocence or guilt, than a noisy few [Ref: Flatrock].