This week, the Law Commission’s proposal to reform elements of the law on contempt of court includes a proposed offence for jurors seeking out information beyond the evidence presented to the court. This puts the spotlight on trial by jury and the wider questions raised by such trials. Does the jury system work and is it worth fighting for in an age of economic stringency?
This week the Law Commission published a report with recommendations to reform elements of the law governing contempt of court. They include creating a statutory offence for jurors who intentionally seek information beyond the evidence presented in court.
My office has worked closely with the Law Commission on the proposals and the Government is examining them closely. My personal view is that the proposals seem to have very considerable merit. By creating a specific criminal offence of misconduct by a juror, the proposals emphasise the importance of jurors following judges’ directions, and can give clarity to jurors about what is and is not permissible. But crucially, the proposals also provide jurors with an additional layer of protection if they are accused of such misconduct, as they would themselves be able to advance a defence to a jury of their peers. In other words, these proposals are themselves another endorsement for the principle of trial by jury.
Trial by jury is an essential element of the justice system of England and Wales and deeply ingrained in our national DNA. The protection of historic freedoms through the defence of trial by jury was part of our coalition agreement when the Government came into power. Trial by jury provides a vital safeguard in a free society.
In England and Wales some form of trial by jury has existed for probably about a thousand years, although in its early incarnation it bore little resemblance to the system we have today. The right for a man to be punished only pursuant to the ‘the lawful judgement of his equals’ was enshrined in King John’s Magna Carta in 1215. The ‘right’ was of course a limited one, but it does have some resonance even now, because it lays the foundation stone for the principle of judgement by one’s peers. By the 17th century the right to be judged by one’s peers was confirmed in the Act which abolished the Star Chamber; and then proceedings in the Bushel’s case of 1670 confirmed the principle of juries’ independence that we value so greatly and which provides an essential guarantor of freedom.
In the past year, 2012/13, of 97,182 cases prosecuted by the Crown Prosecution Service in the Crown Court, just over 15,000 proceeded to trial. 69,971 guilty pleas were entered (72 per cent of cases). Just to put that in context, the total number of cases dealt with by lay benches or District Judges in the Magistrates’ courts is around a million but the fact that only a small minority of criminal cases are disposed of by Crown Court jury trial in no way undermines the principle that it is an essential safeguard. Crown Court trials amount to a very considerable number of cases, including of course trials for the most serious offences.
Jurors, like all of us, can sometimes make mistakes, but the experience of lawyers, judges and others working in the Criminal Justice System is overwhelmingly that juries almost always do a conscientious job and do it effectively. That is my experience too. Such views are also supported by the fact that appeals against conviction which rely on complaints about failings of jurors are rare.
I welcome the Law Commissions proposals as they are another endorsement for the principle of trial by jury. The Law Commission are saying – and I agree – that we can trust a jury to make a reasoned decision, even in cases where jurors are themselves on trial. You might even say that the Commission has put the principle of jury service itself on trial – and found in its favour. I am both pleased but also unsurprised by that outcome.
Jury trial is a bulwark of our freedoms, it works, and I hope and expect that it is here to stay.
*The Rt Hon Dominic Grieve QC MP, Attorney General for England and Wales, considers ‘Trial By Jury’ in Politeia’s new justice series, Justice in a Free Society.