An article by David Mallard at New Matilda reflects on some observations (canards?) by the Lord Chief Justice of England and Wales, Lord Judge (!!) about the allegedly malign influence of the Internet generally and social media in particular on the integrity of jury deliberations in the criminal justice system.
Deficiencies in the jury system have been discussed before here at Troppo. The very future of the jury system has also come under discussion recently within the legal profession itself following a report by academic Judith Fordham on juror intimidation in Western Australia. Malcolm McCusker QC responded in an article in Brief (not free online) which canvassed the possibility of abolition of juries. An extract is over the fold along with further discussion.
Although perhaps unintended, Dr Fordham’s reports lend support to the argument for the abolition of the jury system, the major defects of which are well known:
- No reasons are given for a verdict – in an age which values “transparency” !
- Inconvenience and economic loss for those compelled to serve, making some jurors resentful or distracted.
- Few jurors have any experience in object ive evaluation of evidence, or understanding and applying often complex legal principles. The quip that an accused “puts his fate in the hands of 12 people not smart enough to get out of jury duty” may have less force with proposals to “widen the jury net”, but the problem remains. A 2006 NSW survey found that in 40% of trials surveyed, at least one juror, and as many as four, thought (wrongly) they had been told to acquit by the judge. A 2010 UK report said that two-thirds of jurors surveyed had not fully understood the judge’s directions.
- Dr Fordham reported last year that a number of jurors interviewed had felt “unprepared to deliberate, pressured to vote sooner than they would have liked, or into voting in a certain way” . Her recent (edited) report says that “intimidation” felt by jurors surveyed mainly came from other jurors. Often, one or two individuals pressure others to reach a verdict in a hurry, or to vote a particular way. Comments on Dr Fordham’s report , on PerthNow website, bear this out – as well as a general disillusionment with jury trial.
- The internet has radically changed the way people now take in information – and make it almost pointless to direct juries not to “look up” pre-trial publicity or an accused’s history.
Comments to me from former jurors have been, almost invariably, critical of the system. In an article Scales have fallen on the Jury System, a journalist last year described her experience on a jury as a “travesty of the justice system” . She is not alone. Many ex-jurors, including author Richard Dawkins, have said that if they were innocent, they would hate to place their future in the hands of a jury; but if guilty, they would “take their chances” with one. A retired judge from the Tasmanian Supreme Court urged replacement of the jury system as “inefficient and costly” and said he believed that in about 25% of jury trials he had presided on, the jury had “got it wrong”.
It is surely time to have a critical and unemotive look at this “system” of trial, instead of treating it like a “sacred cow” .
What do you think? I don’t have a concluded view. My tentative opinion is that the obvious shortcomings of the jury system are mostly capable of being mitigated by a range of sensible safeguards. It’s probably not unlike Winston Churchill’s famous quote about democracy:
Many forms of Government have been tried, and will be tried in this world of sin and woe. No one pretends that democracy is perfect or all-wise. Indeed, it has been said that democracy is the worst form of government except all those other forms that have been tried from time to time.
I do, however, think there’s quite a strong case for having complex questions of expert evidence, which most lay jurors have Buckley’s Chance of even understanding, determined by a judge sitting with appropriate independent expert lay assessors.