Innocent until proved guilty
A criminal trial is to go ahead at a Crown Court without a jury. Why worry? We are told that the case is exceptional, that the decision has been taken for fear of 'jury tampering'.
What do we know about this tampering? Nothing, actually. Evidence about it has been given only in secret. I am, I have to say, unsure why this should have had to be so. Was MI6 involved? And there was, in any case, an alternative. The Lord Chief Justice, Lord Judge, rejected the other possible course - holding the trial with a jury put under protective measures.
This would have cost about £6million and involved 82 police officers which the Judge said was an 'unreasonable' drain on the public purse and police time. The issue will also not be allowed to go before the House of Lords, which seems odd to me given its importance.
While delivering his judgement, The Lord Chief Justice thundered that 'In this country trial by jury is a hallowed principle of the administration of criminal justice. It is properly identified as a right, available to be exercised by a defendant.' Then he added the less thunderous get-out clause 'unless and until the right is amended or circumscribed by express legislation'. That was the important bit.
He concluded, in explanation of his 'historic' decision to breach the principles of centuries of English liberty, that 'the danger of jury tampering and the subversion of the process of trial by jury is very significant'. In this case, three men are accused of carrying out a robbery at the Menzies World Cargo warehouse at Heathrow in 2004. According to The Guardian, 'the police had been watching an employee of the warehouse and suspected a robbery was going to take place. Only one man has ever been jailed for the robbery, a supergrass who pleaded guilty after giving police information. During the armed raid six masked men rounded up members of staff at gunpoint and shots were fired at a supervisor. The robbers were caught on CCTV.'
This extraordinary change in the English justice system is allowed by the Criminal Justice Act 2003, sections 44 and 46, which came into force in 2007. The sections are quite tightly drawn, and a judge has to be convinced that tampering has taken place or that there is a grave danger of it.
Why does this worry me? Quite a lot of criminal lawyers say they would prefer trials in front of judges, point out that miscarriages of justice frequently happen with jury trial, and so on. I accept all these points, though I also know of jury trials where it is plain that the jurors have acted with subtlety and discrimination, quite possibly preventing miscarriages of justice.
My concern is that, without juries, the power of the state is far too great. And that once you have accepted one excuse for abandoning jury trial, which is costly and makes lawyers work harder for their money, you have lost the battle for the principle and it will only be a matter of time before (probably under pressure from the EU, where independent juries are largely unknown outside the British Isles) the whole idea is quietly dispensed with. In a way, the Crown Prosecution Service already functions as a sort of continental Examining Magistrate system, and 'anti-terror' law is fast undermining the principle of Habeas Corpus, increasingly permitting the prejudicial and dangerous lengthy pre-trial detention that is a feature of continental criminal procedure. Increasingly, the authorities can ruin your life without ever having to prove anything against you, and put irresistible pressure on you to cooperate in your own prosecution.
Hard cases make bad law, and the issue of criminal trials is in many ways a red herring. The outcomes of most criminal trials probably wouldn't be significantly different if we had a non-jury system. It's the principle of innocence till proved guilty that's so important. Modern rules of evidence, the general feebleness of the police and courts and the CPS, seem to me to have far more impact upon the general power of the law against criminals than the occasional alleged case of jury tampering.
While researching my most reviled and abused book A Brief History of Crime, I spent a fascinating day at the enormous Liverpool Crown Court complex, where I found what I described as 'a near-breakdown of respect for justice', including widespread intimidation of juries and witnesses, about which nobody did anything at all. The whole experience is described in the chapter entitled Twelve Angry Persons. The fault lay not in the jury system, but in the general weakness of the police and the authorities, resulting from 40 years of cultural revolution and Fabian legislation.
In the same chapter I noted a general hostility in the English state towards jury trial, disturbingly expressed in Lord Justice Auld's 'Review of the Criminal Courts' in October 2001. I warned that the Blair government was using the growth of crime under its rule as a pretext to limit liberty.
But my main point was this, and I repeat it now in a shorter form. Jury trial is a happy accident, never willingly or knowingly handed out by authority in this country, but fortunately arising out of Magna Carta and sustained by a series of important court victories since then.
The most important guarantee of freedom in the world was never 'democracy', often a threat to freedom via the tyranny of the majority. It is the existence of independent juries, and the presumption of innocence which this requires.
In a non-jury country, a trial is an assembly of servants of the state, meeting to decide what to do with somebody they already believe to be guilty. In a jury country it is a trial with an uncertain outcome, in which the Judge is compelled to be impartial and the prosecution must prove its case.
The criminal law, in these circumstances, simply cannot be used to put away people the state does not like. The powers of the police against the law-abiding are severely limited. The relation between individual and state is transformed. Faced with having to give up elections or jury trial, I would have no hesitation in saving jury trial. It is a much greater restraint on the state.
I explain in my book that juries in this country were badly weakened in the 1960s. First they were damaged by an egalitarian campaign which abolished the old property qualification, and failed to replace it (as they should have done) with a higher age limit or an educational test. This means that an 18-year-old with no experience of life and a very limited education can now ruin your life in afternoon. The property qualification ensured that experienced and mature people, with a stake in society predominated on juries. It could easily have been reformed to allow women to sit on juries in equal numbers. I think this ill-thought-out and rash decision to open juries to all but criminals and the certifiably insane might explain some of the odder verdicts in recent years.
Second, they were wounded by the introduction of majority verdicts, again on the grounds (as now, never detailed or proven) that there was a menace of jury tampering. This is immensely damaging. As the film Twelve Angry Men shows, a single determined juror can by sheer persistence and courage prevent a miscarriage of justice - in either direction. The introduction of majority verdicts means that he or she can simply be over-ridden. I am still amazed that this momentous change was pushed through with so little opposition.
Now, once again on a rather shaky and unsubstantiated pretext, the absolute right to jury trial is being salami-sliced away. If jury tampering is so serious, when are we going to see exemplary prosecutions of those involved? Have there been any such prosecutions? I have heard of none.
It is interesting that the question of cost was raised, as a reason for not adopting the alternative of special protection. A principle such as universal jury trial seems to me to be worth quite a lot of money, certainly more than we spend (say) on second homes for MPs or the armies of facilitators and outreach workers employed by local authorities? Does this country really not have £6million available to defend one of its most ancient liberties? As for 82 police officers, all you need to do is postpone a few diversity training courses and hey presto! There will be hundreds of extra officers instantly available for guard duty.
But if we are prepared, in general, to abandon justice on the grounds of cost, then the argument that jury trial is in itself too expensive will become increasingly powerful in the years to come, as we turn into a poor country.