Are trials without juries always illiberal?

24 May 2010 by Adam Wagner

Under threat?

The Coalition Government has pledged to “protect” the right to trial by jury. It is often assumed that the a jury is needed to ensure a fair trial, but Sir Louis Blom-Cooper argues in an interesting article in the Guardian that juries may not always be essential, particularly in cases involving serious organised crime.

Blom-Cooper, an academic and barrister, argues that jury-less trials need not always be illiberal. He says “The experience in Northern Ireland over three decades suggests that serious organised crimes can effectively and efficiently be tried before a professional court ‑ a single judge or perhaps three judges.” He also suggests that defendants ought to be able to waive their right to trial by jury as is the case in many other jurisdictions.

An increasingly limited right

In its Programme for Government , the Coalition partners have promised to “protect historic freedoms through the defence of trial by jury.” lt is anyone’s guess what this will mean in practice. What is indisputable, however, is that the New Labour government chipped away at the right to trial by jury and earlier this year, for the first time in 350 years, four men were convicted to long prison sentences without a jury deciding on their guilt or innocence.

The position of juries in the modern legal system is in flux. Whilst ensuring the right to a jury trial forms a significant part of a State’s obligations under Article 6 of the European Convention on Human Rights, this does necessarily extend to every trial. As Blom-Cooper highlights, “there is no constitutional, or indeed any form of general, right to trial by judge and jury. There is only an unqualified obligation to submit to it in indictable cases, which form only about 2% of all criminal trials, although the proponents of the system regard the institution of the jury as a fundamental principle of English justice.”

Indeed, the civil (non-criminal) courts now operate almost entirely without juries, as do Magistrates’ courts, although magistrates are only permitted to impose custodial sentences up to a maximum length of one year.

The right to a jury trial has been further eroded in recent years with the passing of the Criminal Justice Act 2003, the effect
of which is to limit the right to trial by jury in the Crown Court, where sentences can be much longer. Section 44 provides for the option of judge-only trials if there is a “real and present danger” of jury tampering.

We posted last month on the historic “Heathrow Heist” case where four men were convicted in the Crown Court to long prison sentences in a trial without a jury. After three initial trials collapsed, the Court of Appeal ruled last June that there was a serious danger that the jury could be influenced, and as such set up the fourth, final and judge-only trial. The mens’ lawyers have said they will appeal to the European Court of Human Rights, claiming a breach of their Article 6 right to a fair trial.

Not necessarily a bad thing

The key question for the Coalition Government will be whether “protecting” the right to trial means ensuring that all Crown Court trials will again have juries. Although this policy would probably be popular with the public, it may in fact be a retrograde step. Blom-Cooper suggests that the historic right to trial by jury should be viewed by the Coalition Government through 21st century spectacles, suggesting that “advances in technology, communication and science, together with the complexity and sophistication of today’s criminal law, the intricacies of admissible evidence and the length and cost of jury trial, should lead any politician or legislator to consider modifications of jury trial.”

He suggests two modifications to the existing system, both of which would lead to less jury trials. First, the introduction of trials without jury in cases of serious organised crime, and possibly for cases involving serious fraud. Second, he argues that defendants should be able to opt for trial by judge alone in all cases tried on indictment. This proposal was rejected by the previous Government, despite being common in other jurisdictions such as in the United States.

Whether either recommendation will be taken up by the Coalition Government is not clear. The “protection” of trial by jury could mean many things, and is perhaps the kind of pledge which is simpler to make in opposition than in Government. Ultimately, it may not stand up to consultation with experts in the field such as Mr Blom-Cooper. But some will no doubt argue that the increasing absence of jury trials represents not a practical solution to a complex problem, but rather an illiberal and dangerous precedent.