The form of jury-less criminal trials
The first major criminal trial to be held without a jury in Britain for more than 350 years (the Heathrow Airport Robbery Trial) concluded yesterday. Until this case, and since the abolition of the Court of Star Chamber in 1641, all serious criminal offences on indictment were tried by jury. Trial by jury traces its roots back to Article 39 of the Magna Carta signed by King John in 1215.
Trials on indictment without a jury were made possible by The Criminal Justice Act 2003. A judge may now order a jury-less trial in the specific cases of complex fraud and jury tampering.
There has been much discussion about the ramifications of the removal of the right to trial by jury in criminal trials. I think that the right to trial by jury of ones peers is an important right, and I think it was wrong to remove that right.
But, in the context of our situation where we have had our right to trial by jury removed, I want to talk about something else – the form of those jury-less trials.
The jury should be replaced, not eliminated
In a jury trial, broadly speaking, the judge rules on matters of law and is responsible for sentencing; the jury decides matters of fact (by evaluating the evidence). What’s more the jury consists of individuals with varying opinions and backgrounds – the debate that occurs between jurors in the jury room is an essential part of establishing a verdict. A judge sitting on their own has nobody to challenge their assumptions.
When a case is tried by a single judge, both the form of the trial and the dynamic of the courtroom is radically changed.
Part 7 (Trials on indictment without a jury) of The Criminal Justice Act 2003 addresses the problems of complex and lengthy trials and the problems of jury tampering. These are problems resulting from having citizen jurors, not problems resulting from a having a jury per se.
Rather than solving the problems by complete removal of the jury, I believe that the less drastic measure of replacing the citizen jury by an appointed jury should be adopted. In particular:
- The jury should be replaced, not combined with the role of judge. That is there should be a judge who acts as judge in the case, and a separate judge who sits unrobed in the jury box and acts as proxy for the jury. Being unrobed is important, since it is a constant reminder to the court that the judge is acting as jury, not as judge and jury.
- Having said (2), and mentioned the importance of debate within the jury, I think that if the jury is replaced, then it should actually be replaced by at least two judges who sit unrobed in the jury box.
- The sitting judge should treat the appointed jury of judges just like a citizen jury.
- Having three judges for a trial is undoubtedly expensive, but the expense serves as a disincentive to removing a citizen jury.