Thursday, 26 May 2011

Abolish the Jury System

It is regularly pointed out that juries have difficulty dealing with the evidence in complex fraud cases. Expert witness evidence is commonly given inappropriate weight by juries, such as in the Sally Clarke case where she was convicted of murdering her baby which had actually died from natural causes. As society, and crime, have become more complicated, trials have got longer and tying up members of the public for weeks and months is not only unsatisfactory for their lives, it means that they are being asked to apply an expertise that they do not have.

The crucial flaw in the jury system is its susceptibility to the public mood. Whenever some atrocity takes place whether it is terrorist mass murder or child rape and murder for example, the pressure to apprehend and convict somebody is intense. This has led to horrible miscarriages of justice. The Birmingham six and the Guildford four are examples in the case of terrorism. Stefan Kiszko's wrongful imprisonment is just one example of the sex murder of a child. (Ref:http://en.wikipedia.org/wiki/Murder_of_Lesley_Molseed ). What happens is that the ferocity of opinion conveyed by tabloid media and court gate crowds causes jurors to feel that they must convict and they do convict even if the evidence is weak or suspect. To get a feeling for this, consider the recent murder of Joanna Yeates. Her landlord was arrested and immediately subjected to character destruction and crowds baying for his conviction. Had he been charged at an early stage, the investigation to find the real killer would have ceased and his chances of aquittal would have been minimal. That is despite the fact that there was no evidence to link him to the crime, there was only the circumstance of him having had the opportunity and the prejudice that he was a likely candidate.

In the USA there are large numbers of cases of executions having taken place of people who have subsequently been proved to be innocent or whose convictions were unsafe. There are good indications of racial, class and lifestyle bias playing a part in the jury decisions that sent these people to their deaths.

In recent decades, justice has improved substantially in developed nations. This owes nothing to justice systems which have remained trapped in very poor historic processes. The improvements have come from the emergence of DNA evidence, progress generally in forensics and most of all, the spread of mobile phone video and photography. Without the video there is not a chance that Ian Tomlinson's death would have been examined and the brutal police behaviour given any credibility at all.

Again the US gave us an early and shocking example with the severe beating of Rodney King. This kind of racist assault by police had been common practice and gone without redress until video evidence from the public forced some accountability. (Ref: http://en.wikipedia.org/wiki/Rodney_King ).

The origin of juries is when fixed courts and police did not exist. When a crime was committed in a community a jury of responsible people would apprehend a suspect. They put that person in the local lock-up and waited for a circuit judge to come round. The jurors would then tell the judge why their detainee was known to be guilty and the judge passed sentence. This kind of 'trial' would take a few minutes, even when the sentence might be death. It can be seen here that the respectable sounding jury is the equivalent of the posse and lynching where no process exists at all. To that extent it was progress towards justice by due process. It has changed over time, but it can no longer meet the needs of justice.

This has been recognised where very difficult situations exist. For example, from 1973 to 2007 jury trials had to be abandoned in northern Ireland for many cases because the sectarian divide and the influence of paramilitaries meant that it was not safe for jurors and they could not be relied on to overcome sectarian bias. So called Diplock courts were established in which judgement was given by a judge. These courts were phased out as part of the peace process, but trial without jury may still take place in special circumstances. The concern in these cases is of 'perverse acquittals' rather than the wrongful convictions which I have described above.

In grand crimes such as those handled by the Nuremberg hearings of the Nazis or the International Criminal Court and its trials of Charles Taylor and others it is taken for granted that a panel of judges must produce the verdict.

It is time for us to recognise that the evaluation of evidence and the establishment of guilt beyond reasonable doubt requires a degree of skill and objectivity which can only come from professional training and substantial experience. The whole of the lay magistracy needs to be abolished as well for similar reasons.

What is needed is for the summary hearings which are now handled by magistrates to be conducted by a single district judge. Middle range cases carrying potential sentences of between one and ten years custody need to be adjudicated by a panel of three senior judges. Above that level of seriousness the judging panel should be five. The appeal system doesn't need radical reform because juries have no part in it

Moving from a jury and magistracy system to a properly professional system for determining guilt or innocence is only one part of the restructuring the judicial system requires. It is also necessary to move away from the adversarial court system. This is just a continuation of trial by combat and should be discontinued.

Our present theatrical joust of two be-wigged posers competing to see whose eloquence can win the favour of a jury for their client is a pathetically inadequate substitute for a genuine investigation into whether a person may or may not have committed a specific crime. But that is a whole other subject which must wait for now.

2 comments:

  1. >However you do not say what you would replace juries with.

    I have elsewhere:
    http://outspokenrabbit.blogspot.com/2011/05/abolish-jury-system.html

    >A European inquisitorial system?

    Broadly yes. They vary from country to country, but I favour a system based on the Napoleonic code with some modernisations.

    >Who appoints the judges?

    Judges should work for themselves in the same way as barristers. solicitors, doctors, etc. They could work alone or associate in practices, chambers or whatever they want to call them. They don't need to be appointed. As with other professionals, they get themselves accredited after gaining the necessary qualifications and then offer themselves for work at the fee provided.

    >How do you ensure they are not politicised?

    Their independence is the best protection. The separation of powers is essential to freedom under the law. British governments claim to support this principle, but in fact we do not have separated powers in this country and the existing judicial system is politically influenced.

    >The excellent film linked to by Griff http://www.youtube.com/watch?v=lUpZhhbKUBo on the lack of legal basis of the US income tax laws featured a juror who had refused to accept the instruction of a judge that the defendant, who had not filed a return, had to be convicted.

    >I accept such happenings are rare, but at least they provide a potential protection to the individual from the tyranny of the establishment.

    Rare is a very big understatement. Not even a potential protection, but the illusion of protection.

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  2. Thank you for writing this! You took the words right out of my mouth! I wish more people thought like you.

    I don't understand why the general population doesn't speak up ENOUGH on this issue. I guess the US government has successfully indoctrinated the majority of people with the false notion that we somehow owe our "services" to them, euphemistically labelling it "civic duty." Just that term itself makes my blood boil!

    I also think the general population has a puritanical mob mentality with a blood lust for revenge. Not sure where their frustration towards the individual comes from. But if I were the accused, I would hate the thought of having a bunch of ignoramuses deciding my fate. America's problem is not crime, but the criminal justice system. With the world's highest incarceration rate, it's a shame most citizens can't wake up to the crimes committed by this government. Instead they get defensive whenever anyone speaks out against jury conscription! I for one, would much rather defend the rights of individuals than defend a flawed and corrupt government system. I try to understand why people get so jingoistic on 4th of July when the government doesn't even respect the right of its citizens.

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