jury trial is the traditional mode of determining issues of fact at common law

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University of London Common Law Reasoning and

Institutions

Essay Title The jury is an outmoded institution and ought to be discarded. The fact

that many countries that once had the jury have abandoned it only

reinforces this point.

Discuss with reference to the use of the jury in England and Wales and

the position in at least one other jurisdiction.

Student Number: 090315969

Candidate Number:



Trial by jury is believed to be a concept of great antiquity; many ancient societies have had

forms of trial resembling the jury system where the accused was judged by a group of

individuals f rom his own society. According to historians trial by jury was brought to England by

William of Normandy after the Norman Conquest in1066, it is believed that they discovered this

system of trial in the continental provinces they conquered f rom the Caroline kings. Thus

contrary to common belief trial by jury did not originate within the English common law.

However it is once brought to England it has acquired a unique identity peculiar to the English

common law. Early jurors were drawn f rom among members of the local community who f itted

certain criteria, and there duty was to discover and present f acts about crimes that they knew

or have heard about.

With the passage of time trial by jury underwent many changes to its nature and in its functions

during the thirteenth century two bodies were involved in trial by jury which were the jury of

presentment which played a ma jor role in preventing indiscriminate prosecution of the accused

person and the petty jury that was able to replace the horrid method of trial by ordeal in deter

mining the accused guilt. By the seventeenth century jury has developed to resemble the jury

that we know today to a great extend. Though trial by jury did not originate in England it played

a ma jor role in the spread of trial by jury around the world, during the time of the British

empire. A number of former British colonies still maintain the system of trial by jury . for

example in America it has became an integral part of their legal system in both civil and criminal

law cases, with the exception that a more summary procedure was permitted in petty cases.

The U.S. Constitution, in Article III, section 2, contains the provision that "The Trial of all Crimes,

except in Cases of Impeachment, shall be by Jury and the seventh of the ten articles of

amendment includes a provision to the effect that in common law suits involving more than

twenty dollars, the right to trial by jury should be preserved.

Despite this extraordinary evolution and spread of trial by jury, it has not been without

criticisms. Historically the jury was mainly criticized based on the property requirement in the

selection of jurors, and on the undue inf luence judgers had on directing juries. Douglas hey

claims that the property requirement was a way of protecting the class inequality witch the



criminal justice system was built around. P.G Lawson claims that the principle task of the jurors

continues to be the selection of prisoners whose execution would provide an appropriate and

there for a deterrent example. Though this is true to a very great extend looking at the social

background of judges at this time one can see that they have been aristocrats, with

conservative inclinations who believed that the class inequality was inevitable or necessary,

thus one may be able to argue that the accused would have still had a better chance with a

jury. Since then much have changed, judgers no longer have the right to interfere with jury

decision making, plus the jury is no longer selected based on property ownership, and many

safe guards have been put in place to ensure that the jury is as representative as possible of

society.

However today the trial by jury is still criticized, and more than ever before many academics,

judges and lawyers are calling for its abolition they seem to believe that trial by jury is an

anachronism which has no value today, this has mainly been due to new developments in law

which has made it more complex, the proactive role judgers play in public interest litigation,

and the presence of legislation which provides for the safety of individual rights and f reedoms

with regards to trial. In the light of these developments many seem to believe that the jury has

grown obsolete.

Critics points out that trial by jury leads to clogged court calendars, and that the jury is

inadequate to deal with complex questions of law and f act. While civil juries are subjected to

the heaviest criticism, criminal juries too, are under attack. Further, Jury selection has become

painstakingly slow, and many attempt to avoid jury duty. According to Penny Darbyshire trial by

jury is an anti democratic irrational and haphazard legislature whose erratic and secret

decisions run contrary to the rule of law. These trends have substantially changed the role of

the jury around the world. In UK there have been many changers in recent times to limit access

to trial by jury - with regards to civil cases; section 69 of the Supreme Court act 1981 has

reduced the right to jury trial to four specif ic areas (f raud, def amation malicious prosecution

and f alls imprisonment), - with regards to criminal cases sections 44 and 46 of the CJA 2003 has

provided for a trial on indictment to be carried out without a jury where there is a danger of



jury tampering, and there has been a number of f ailed attempts at restricting trial by jury even

further. In USA these trends have resulted in substantial changes to the mode of trial by jury,

most of which attempted to control the jury and increase predictability. Increasingly, jury trials

are not required in cases involving petty offenses, and in all cases, including cases involving

serious crimes, the right to trial by jury could often be waived by the parties.

According Penny Darbyshire trial by jury is more of a ideological belief that a jury is likely to

provide a more sympathetic hearing, or a f airer one, and its symbolic signif icance has been

magnif ied beyond is practical importance by the media and advocates of jury. This last point

that jury provide a more sympathetic or a f airer hearing may be disputed. For example, in

highly emotional cases, such as child rape, the jury may be tempted to convict based on

personal feelings rather than on conviction beyond reasonable doubt.

Another issue with jury trials is the prospect of jurors been inf luenced by prejudice, including

racial biases and discriminations. By example: In may 2004 the ECtHR held by a ma jority of 4:3

that the rights of British Asian Kudip Sander had been violated on the basis of alleged racism in

the jury that had convicted him. Another inf amous case was the 1992 trial in USA the Rodney

King case, in which white police off icers were acquitted of excessive force in the violent beating

of a black man by a jury consisting mostly of whites without any black jurors, despite an

incriminating videotape of the action. Such decisions by juries show to a grate extend that it is

not the sympathetic, just system some claim it to be.

The positive belief about jury trials still present among ordinary people in the UK and the U.S.

contrasts with popular belief in many other nations, they consider it to be illogical to put once

f ait in the hand of a untrained laymen. For example of one looks at Japan, for instance, they

used to have optional jury trials for capital and other serious crimes between 1928 and 1943.Like the in the English system the defendant could f reely choose whether to have a jury or trial

by judges, hoe ever the decisions of the jury were non-binding a pone the judge. During the

T j-regime this was suspended, on the argument that any defendant who risks his f ate on the

opinions of untrained laymen is almost certainly guilty. Though it may not be true, one can seen



the logic behind such a statement. Similarly, jury trials were abolished by the government of

India followed by Pakistan soon afterwards during the 1960s, on the grounds that they would

be unable to be biased due to media and public inf luence. One Pakistani Judge called a trial by

jury "amateur justice". Malaysia too abolished its jury system f rom 1 January 1995, citing inter

alia the danger of jurors untrained in the legal profession delivering verdicts coloured by

emotions or popular perception.

Another ma jor issue in jury trials is the secretive nature of the process by which they makes a

decision and they are not required to reveal any details of the reason for the decision . While

proponents may say that it aids in the protection of liberty by protecting the jury f rom undue

inf luences, opponents contend this notion as preventing or hindering the transparency of the

trial. The f act that juries do not often have to give a reason for their verdict is also criticized,

many argue it is unf air for a person to be deprived of life, liberty or property without being told

why it is being done so. In contrast where there is a decision by a judge or a bench, they are

required to give often detailed reason of both f act and law as to why such a decision is given. It

should be noted that there have been many occasions where this secretive nature was

discovered to have produced unjust results ad led to cases being repealed or dismissed. By

example in October 1994 court of appeal ordered a retrial of Young convicted of a double

murder after f inding out that 4 of the jury men has tried to contact one of the victims using a

Oui ja board this was seen by the courts to be a drunken experiment. In 2000 December another

extraordinary case of jury incompetence was reviled when a trial was stopped after incurring

1.5 million pounds of costs, due to jury misbehavior when a female juror was found to have had

improper relations with one of the male members of the jury protection force. Ironically this

has been the second time the trial has been stopped due to inappropriate behavior of the jury

where the f irst time the trial has been stopped after f inding out that some jury members have

been playing cards when they were supposed to be deliberating.

Another concern that has been raised is the ability of a jury to fully understand statistical or

scientif ic evidence. It has been said that the expectation of jury members as to the explanatory

power of scientif ic evidence has been raised by television in what is known as the CSI effect. In



a number of English trials the misuse or misunderstanding of statistics, as well over reliance on

expert witnesses who sometimes bring unproven scientif ic theories to court, has led to the

wrongful conviction. Good examples of such unfounded convictions were those made on the

expert evidence that was given by Sir Roy Medow, based on the so-called Medow theory with

regards to Sudden Inf ant Death Syndrome.

Looking at the above points one can see that trial by jury is no longer what it used to be in the

past. Jury trial to a very grate extend has lost its value in the light of new developments in the

law and today it only survives because of the ideological symbolic value it holds in the minds of

ordinary people. However there are signs predicting, that in the very near future that trial by

jury will be history altogether.

Recently, in England and Wales, Lord Goldsmith, the government's Attorney General, has been

actively pressing forward[4]

with the Fraud (Trials Without a Jury) Bill in Parliament, which seeks

to abolish jury trials in ma jor criminal f raud trials. The Bill was subject to sharp criticism f rom

both sides of the House of Commons,[5]

, but passed its second Commons reading in November

2006.[6]

The Bill follows the Government's earlier, unsuccessful attempt to pass measures

allowing trials without jury in the Criminal Justice Act 2003.

In 2009 June The Lord Chief Justice, Lord Judge, made legal history by agreeing to allow the trial

of four men accused of an armed robbery at Heathrow Airport in 2004 to be heard by a judge

alone. Subsequently the four men were convicted without a jury in the UK on the 31st of March

2010 by Mr Justice Treacy at the Old Bailey.[7]



Bibliography

y Trial by Jury: Some Empirical Evidence on Contested Criminal Cases in England, JohnBaldwin and Michael McConville, Law & Society Review, Vol. 13, No. 4 (Summer, 1979), pp.

861-890,Stable URL: http://www.jstor.org/stable/3053148

jury trial is the traditional mode of determining issues of fact at common law

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