JURY TRIALS

It is beyond reasonable doubt that the British public remains wedded to the concept of trial by jury. It is seen as an ancient tradition, dating back to Magna Carta, that a man should be judged by twelve good men and true, and the export of the practice to England's colonies and dominions is held to be a cherished part of the country's contribution to world civilisation. Yet the practice is odd, for a number of reasons.

1. First, the link with Magna Carta is almost certainly a myth. What spurred the development of the jury was the Church's decision at the 4th Lateran Council in 1215 (the same year, coincidentally, as Magna Carta) to prohibit the clergy's participation in ordeals, the then standard procedure throughout Europe for trying crime. Ordeals, either ducking in a pond, or carrying a hot iron, were seen as the judgement of God. However, without the participation of a priest or monk, the practice lost its validity; and secular authorities had to scramble around for something else. In some nascent states, rulers plumped for the undoubtedly effective solution of torture. But torture in England has, albeit with exceptions, never really caught on. What came gradually into being instead was the jury, which had previously been used in some ad hoc situations, and seemed a promising alternative.

2. Secondly, despite the jury's high profile, less than 1% of criminal cases in England and Wales are decided by jury trial, the standard procedure being a hearing before (lay) magistrates. Furthermore, of the charges brought against defendants in a Crown Court, almost 60% result in a plea of guilty, thereby obviating the need for a trial. It is, therefore, only a very small minority of cases that require a jury. These are, however, cases involving the most serious crimes, such as murder, rape and criminal damage.

3. Thirdly, in an age in which public decision-makers of every kind are increasingly both required to give detailed reasons for their decisions, and to have those decisions potentially subject to judicial review by the courts, juries remain a striking exception. Once a jury has given a verdict of not guilty, that is that, however perverse that verdict may appear to third parties or the judge (a guilty verdict can be appealed by the defendant, but a not guilty verdict can not). How and why the jury came to their decision is off limits; and there are severe penalties under the Contempt of Court Act for both jurors who spill the beans and outsiders, such as newspapers, who try to find out what went on.

Might a greater understanding of how juries make their decisions help debunk the myths surrounding them? The first, tentative, steps in that direction have come about by the publication this week of Professor Cheryl Thomas' research on juries for the Judicial Studies Board. This analysed all 551,669 charges laid in all of the Crown Courts in England and Wales between 1 October 2006 and 31 March 2008, quite an undertaking. Her conclusions were broadly positive. The jury system is "fair, effective and efficient", and she managed to get rid of two major myths along the way; that all-white juries discriminate against black and other ethnic minority defendants, and that the conviction rate for rape offences is low (it is in fact 55%, higher than the conviction rate for other serious crimes such as manslaughter and grievous bodily harm).

Nevertheless, a lot more remains to be done (as Professor Thomas herself recognised), in two areas in particular. First, the current system is that the judge explains the law, and the jury then applies the facts (i.e. the evidence) to the law. However, the research showed that many jurors have difficulty in understanding the law, with only 31% understanding the instructions "fully in the legal terms used by the judge". To be fair, this is not all the fault of jurors. The mental element required for murder was only finally decided by the House of Lords in 1998 (R v Woollin), the mental element required for criminal damage was overturned by them in 2003 (R v G), the partial defence to murder of provocation was not cleared up until Holley (2005) and the defence of consent in rape was amended by the Sexual Offences Act 2003. If the substantive law for long-standing common law offences is changing, then it is perhaps not surprising that jurors have difficulties keeping up. One sensible suggestion from the research is for the judge always to give his directions on the law in writing (they currently have a discretion). The percentage of jurors' understanding rose to 48% in the study when this was done, an improvement which is understandable, given the complexities of some parts of the criminal law.

Secondly, almost half of jurors said that they did not know what to do, or were uncertain about what to do, if there was impropriety in the jury deliberating room. Many jurors also admitted to looking for information about the case on the internet, something they are not supposed to do. These two things are obviously linked, since the theory of juries is that they make a decision based on the evidence submitted in court and on that evidence alone. Information obtained elsewhere (whether for or against the defendant) punctures that theory, and if one knowledgeable juror persuades the others to change their view on the basis of that information, then impropriety may occur.

To address some of these problems, Professor Thomas recommended that jurors be given written guidelines, setting out what they can and cannot do during a trial. However, while that may tackle some issues, they don't in my view tackle the biggest, namely the completely sacrosanct nature of the jury's deliberations. The public body responsible for deciding less than 1% of criminal trials is, alone of virtually all public bodies, exempted from giving reasons for its decisions. I don't believe that that exemption should continue.

Walter Blotscher