Time to scrap trial by jury?

[Tristan]

We really really need to get over our obsession with trial by jury in this country. Plenty of democracies with decent performing legal systems don’t use them as much as we do if at all.

Here’s an example of a trial that has collapsed because of the stupid selfish behaviour of jurors.

https://www.bbc.co.uk/news/articles/c0ke14er8djo

This isn’t to say Lammy’s proposals are the right ones. They reduce juries whilst still keeping the adversarial system we have. But I’d like to see more people making the argument for wider reform and adoption of inquisitive type systems like those on the continent.

[bjn]

Anecdote not data.

My anecdote, I’ve sat on six juries, no one did anything so stupid.

How many court fail because of the jury being stupid as opposed to other screw ups in the judicial system?

[snoozeofreason]

The jury here were daft, and they broke one of the rules that allow our system to restrict the evidence available to a jury when determining the fact of guilt (as opposed to that used by a judge to determine the extent of guilt when passing sentence). But, in the absence of a jury system, it is difficult to have such rules in the first place.

One of the roles the judge plays in jury trials is to act as a gatekeeper for evidence. Hence (s)he can enforce rules that require juries to consider only the evidence presented in court, and also control what evidence does get presented - for example limiting the use of "bad character" evidence, to which juries might attach more weight than it merits. The judges themselves need to have access to a wider body of evidence and information because this is needed when, after a jury has decided on the fact of guilt, an appropriate sentence is to be determined.

One of the problems with Lammy's proposals is that, even in serious cases, judges would somehow be required to act as gatekeepers for themselves. It would be impossible to impose rules that prevent judges doing their own research, or having access to evidence that would not get presented to a jury. That doesn't matter if you imagine that judges are cut from a completely different cloth to ordinary human beings and can create some kind of Chinese wall in their mind that separates evidence that is probative of guilt from any other evidence that they are aware of, but I suspect that they are just as human as the rest of us.

In any case, the argument being put forward for Lammy's proposals is not that juries are occasionally daft, or that judges are never daft. The proposal is being advanced on the grounds that it would reduce the backlog in the courts. A recent report by the Institute for Government suggests that it would in fact, have virtually no effect on that backlog. There are many other factors that limit the speed of the justice system - the difficulty in finding barristers to prosecute and defend criminal cases, the creaking physical and IT infrastructure of the courts, etc. All of these could be addressed without making the kind of radical change to the justice system that Lammy is proposing.

[bob sterman]

One of the problems with Lammy's proposals is that, even in serious cases, judges would somehow be required to act as gatekeepers for themselves. It would be impossible to impose rules that prevent judges doing their own research, or having access to evidence that would not get presented to a jury.

Hugely important point.

Also - removing juries removes the possibility of "jury nullification" - i.e. when juries refuse to convict someone they agree is technically guilty - e.g. because they believe that the law itself is unjust or the prosecution unwarranted. This is an important safeguard against political interference in the judicial system - and politically motivated prosecutions.

[Fishnut]

Surely the biggest problem with Lammy's proposal is that juries aren't why we have a massive backlog in the courts.

[snoozeofreason]

Surely the biggest problem with Lammy's proposal is that juries aren't why we have a massive backlog in the courts.

Indeed! The Secret Barrister's most recent post sets out a long list of things that Lammy might want to look at before messing about with trial by jury.

[IvanV]

We really really need to get over our obsession with trial by jury in this country. Plenty of democracies with decent performing legal systems don’t use them as much as we do if at all.

Here’s an example of a trial that has collapsed because of the stupid selfish behaviour of jurors.

https://www.bbc.co.uk/news/articles/c0ke14er8djo

This isn’t to say Lammy’s proposals are the right ones. They reduce juries whilst still keeping the adversarial system we have. But I’d like to see more people making the argument for wider reform and adoption of inquisitive type systems like those on the continent.

And the key point here is that our broader legal system is the main problem. I think if we are to take juries out of it entirely, then it does have to be redesigned to ensure that it has the protection it needs to ensure it isn't a one-sided they're-all-guilty that we tend to suspect is what happens at state level in the US.

And I do worry about judges in this country. Maybe it's just a minority. But there seems to be an unwillingness to accept that that the justice system can get things wrong. So judges are very unwilling to set aside prior judgments where the implication is that the justice system misbehaved. And protect their own. Miscarriages of justice cases typically take many years to become exposed. And few of us think that is because there is a correct attitude of protection because these miscarriages are rare, rather it is suggesting that miscarriages are common and few manage to be exposed.

Examples of judges with wrong attitudes:

Denning and the Birmingham Six. When the Six tried to suggest they had been fitted up by the police - as indeed they had been - Denning just wouldn't have it that could possibly have happened. He very eloquently told us all that our justice system depended on not questioning what the police said as gospel.

Slightly different point, but protection of the establishment - the judge in the Jeffrey Archer libel trial - who believed his lying wife, because, "is she not fragrant?"

Eady, a libel judge, who regularly sided with the oligarchs trying to protect their reputations, thus keeping the shysters who offer that very profitable business in business. Tom Bower was only able to - justly - defend his libel suit from Richard Desmond because he twice successfully appealed Eady's rulings to exclude key evidence.

And the recent separate success of all three shysters in the "reputation protection" business, who had disciplinary rulings against them for sending threatening letters full of what you or I would call lies, in having those disciplinary rulings set aside, suggesting a tendency of judges to protect their own, if you can't take down solicitors for such egregious behaviour.

[jimbob]

<snip>

One of the problems with Lammy's proposals is that, even in serious cases, judges would somehow be required to act as gatekeepers for themselves. It would be impossible to impose rules that prevent judges doing their own research, or having access to evidence that would not get presented to a jury. That doesn't matter if you imagine that judges are cut from a completely different cloth to ordinary human beings and can create some kind of Chinese wall in their mind that separates evidence that is probative of guilt from any other evidence that they are aware of, but I suspect that they are just as human as the rest of us.

In any case, the argument being put forward for Lammy's proposals is not that juries are occasionally daft, or that judges are never daft. The proposal is being advanced on the grounds that it would reduce the backlog in the courts. A recent report by the Institute for Government suggests that it would in fact, have virtually no effect on that backlog. There are many other factors that limit the speed of the justice system - the difficulty in finding barristers to prosecute and defend criminal cases, the creaking physical and IT infrastructure of the courts, etc. All of these could be addressed without making the kind of radical change to the justice system that Lammy is proposing.

Nicely put

[Formerly AvP]

There was an interview with Denning in the Spectator, by AN Wilson.
https://archive.spectator.co.uk/article ... is-england
I'd suggest a trigger warning, but it would be for everyone, really.

[jimbob]

Surely the biggest problem with Lammy's proposal is that juries aren't why we have a massive backlog in the courts.

To be fair, that's why it's pointless, but that's not the biggest problem in my opinion.

[jimbob]

Surely the biggest problem with Lammy's proposal is that juries aren't why we have a massive backlog in the courts.

To be fair, that's why it's pointless, but that's not the biggest problem in my opinion.

What I mean by that, is that if it was predicted to be likely to reduce the backlog, the other aspects would still make it bad.

[noggins]

One of the problems with Lammy's proposals is that, even in serious cases, judges would somehow be required to act as gatekeepers for themselves. It would be impossible to impose rules that prevent judges doing their own research, or having access to evidence that would not get presented to a jury.

Hugely important point.

Also - removing juries removes the possibility of "jury nullification" - i.e. when juries refuse to convict someone they agree is technically guilty - e.g. because they believe that the law itself is unjust or the prosecution unwarranted. This is an important safeguard against political interference in the judicial system - and politically motivated prosecutions.

Or, what if the scope of the trial is total b.llsh.t?

Eg you were an IT expert and Computer Weekly subscriber on the jury of a Post Office Trial.

[snoozeofreason]

One of the problems with Lammy's proposals is that, even in serious cases, judges would somehow be required to act as gatekeepers for themselves. It would be impossible to impose rules that prevent judges doing their own research, or having access to evidence that would not get presented to a jury.

Hugely important point.

Also - removing juries removes the possibility of "jury nullification" - i.e. when juries refuse to convict someone they agree is technically guilty - e.g. because they believe that the law itself is unjust or the prosecution unwarranted. This is an important safeguard against political interference in the judicial system - and politically motivated prosecutions.

Or, what if the scope of the trial is total b.llsh.t?

Eg you were an IT expert and Computer Weekly subscriber on the jury of a Post Office Trial.

The general principle in such circumstances is that you can still serve as a juror if you have expert knowledge of a subject that is relevant to the case, but you must not use that knowledge to influence other jurors by discussing matters not presented in open court. There have been some successful appeals based on the failure to correctly anticipate and mitigate the risk posed by an "expert" juror. There is an article on the topic here.

[bob sterman]

One of the problems with Lammy's proposals is that, even in serious cases, judges would somehow be required to act as gatekeepers for themselves. It would be impossible to impose rules that prevent judges doing their own research, or having access to evidence that would not get presented to a jury.

Hugely important point.

Also - removing juries removes the possibility of "jury nullification" - i.e. when juries refuse to convict someone they agree is technically guilty - e.g. because they believe that the law itself is unjust or the prosecution unwarranted. This is an important safeguard against political interference in the judicial system - and politically motivated prosecutions.

Or, what if the scope of the trial is total b.llsh.t?

Eg you were an IT expert and Computer Weekly subscriber on the jury of a Post Office Trial.

Indeed. Judges are not well known for their in depth understand of technology.

And with today's announcement regarding massive national investment in facial recognition for policing - soon we'll have people being arrested and charged due to false matches, their cases padding out with LLM hallucinations, and then being convicted and sentenced by judges sitting alone.

[Tristan]

One of the problems with Lammy's proposals is that, even in serious cases, judges would somehow be required to act as gatekeepers for themselves. It would be impossible to impose rules that prevent judges doing their own research, or having access to evidence that would not get presented to a jury.

Hugely important point.

Also - removing juries removes the possibility of "jury nullification" - i.e. when juries refuse to convict someone they agree is technically guilty - e.g. because they believe that the law itself is unjust or the prosecution unwarranted. This is an important safeguard against political interference in the judicial system - and politically motivated prosecutions.

Or, what if the scope of the trial is total b.llsh.t?

Eg you were an IT expert and Computer Weekly subscriber on the jury of a Post Office Trial.

Depends which IT expert. The post office called IT experts to give evidence mulitple times. It's easy to say with hindsight that an IT expert would have seen through it all, but I don't think that's necessarily true. They'd have to have been quite specialist, but even then they can't investigate anything themselves and can't challenge or ask to see specific evidence.

They jury was limited to the evidence presented and didn't see the counter evidence that came out subsequently.

Also, under our jury system then a subscriber to Computer Weekly shouldn't be on the jury. Edited: Actually, not sure this is the case. BUT if they read Computer Weekly and saw anything related to the case during the case then they shouldn't be on the jury.

You could argue a less adversarial system with investigative judges could have helped avoid something of the scale of the Post Office Horizon scandal. In a system like France's the judge would have a legal obligation to pursue alternative hypothesese. Exculpatory evidence wouldn't be optional disclosures by the prosecution. Judicial control of which experts get called could help against partisan expert framing by the parties. Invesigatory judges could consolidate cases more easily, so a rising number of similar allegations could raise alarm bells much earlier than we saw here.

[snoozeofreason]

<snip>
Also, under our jury system then a subscriber to Computer Weekly shouldn't be on the jury. Edited: Actually, not sure this is the case. BUT if they read Computer Weekly and saw anything related to the case during the case then they shouldn't be on the jury.
<snip>

As I mentioned above, it's normally fine for a juror to have expertise in a matter related to a case, so long as they don't act as an "expert witness" in the jury room (making statements to fellow jurors that cannot be contested by the defence or prosecution). While the case was on, the ability of the press to publish anything that didn't happen in open court would be curtailed.

<snip>
Exculpatory evidence wouldn't be optional disclosures by the prosecution. Judicial control of which experts get called could help against partisan expert framing by the parties. Invesigatory judges could consolidate cases more easily, so a rising number of similar allegations could raise alarm bells much earlier than we saw here.
<snip>

In our system, disclosure of exculpatory evidence by the prosecution is definitely NOT optional. In our system, cases can be, and frequently are, consolidated. The ability of judges to ban "partisan" experts would be - in either an inquisitorial or an adversarial system - severely limited because of the defendant's right, under article 6 of the ECHR, to "... obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him."