When I trained in law, we were made to understand the importance of trial by jury. An ancient right ensuring justice for the people by the people. A bulwark against an oppressive state and state actors.
Our justice system has been emulated across the world. One of its cornerstones is trial by jury. Such a method to ensure justice acts as a strong safeguard against misconduct and mistake.
I have huge regard for many of our judges and our politicians. Many such men and women serve in their roles with good and noble intent. However, I have also seen how a system works to ensure bad laws are passed. I have seen how evidence in trials is selected and manipulated to ensure that the outcome matches the position, or the prejudice, of the presiding judge.
Justice demands that it isn’t just left to the ‘professionals’ – to the current political and legal elite; political and legal trend. Trial by jury trusts the ‘common man’ to make the right decision.
Trial by jury is a safeguard against possible tyranny Defendants are assumed innocent until proven guilty. The guilt or innocence of a defendant is determined by twelve ordinary men and women judging the matter having heard all the evidence in open court and making their decision together behind closed doors in discussion.
In my time as a criminal barrister I loved presenting cases to a jury. Instinctively, I felt able to make my best case to them and trust them with the outcome. I always felt that you can trust the judgement of the jury. The decision of a group of fellow citizens, ordinary tends to reflect common sense. That’s exactly what it is meant to do.
If we leave criminal trials just to individual judges, the natural checks and balances of the system will wither and the transparency will dim. An individual judge will be liable to his own views and partiality, as indeed is every juror. Twelve such views across a jury iron out any potential partiality and even if not perfect, work to a fair resolution: justice.
Indeed, in many of the Christian Legal Centre trials that we have done over the years we have fallen victim to the ‘political correctness’ of judges blinded by their own legal training. Admittedly most of our cases have been in Employment Tribunals or the Administrative courts.
I feel as if judges in our cases often think they are being impartial when what they demonstrate is a lack of understanding and insight into what freedom of religion, expression and speech really is. They have no concept of what it really means to love Jesus and to live for him in the workplace and elsewhere. Our clients have often been on the wrong end of judicial activism or partiality.
Now it is said that trial by jury faces its biggest threat since World War Two! Lockdown is causing problems for the courts, creating a huge backlog of trials. Many of our Christian Legal Centre cases have been postponed. This is not good for justice and puts enormous pressure on men and women waiting for justice.
If social distancing continues for many more months, then jury trials will be threatened.
One option would be to reduce the jury to seven people in order to facilitate social distancing. Another is to have virtual trials where the proceedings are heard online rather than in the same room. Both of these approaches make sense and could work. Indeed, we argued for the case of Seyi Omooba to be held in a virtual manner only this week and did not succeed in our application.
But some judges are proposing that we should have trial by judge alone. This is not entirely novel. It was done in Northern Ireland for terrorism trials where there was a risk of jury tampering. I can see a case for that in specific types of trials where jury tampering is a risk. However, Sir Richard Henriques argues:
“There is nothing to fear from judge-alone trials. Judges recognise a bad officer when they see one, can assess credibility, reject unreliable identification evidence, avoid bias and accurately apply the burden and standard of proof.”
Having seen how judges have ruled in some of our cases, I can honestly say that trial by judge alone is certainly not something to be encouraged. Too many judges display their own bias and seem totally unaware that they are doing so.
Why? Because they have qualified and been trained up within ‘the system’ and think just like it. Many have displayed open hostility and contempt for Christianity which has been breathtaking to witness.
Geoffrey Robertson QC argues for allowing defendants to elect to be tried by a judge. The difficulty with this is that defendants will feel under pressure to allow trial by judge, and if they request a jury they risk annoying the judge to start with. The pressure to save costs and time by electing for judge alone trial will risk undermining the very principle of trial by jury at all.
We also know that very often law follows practice. Once we have allowed judge only trials, society, and the legal profession will get used to the idea, find that it is cheaper and supposedly more efficient and the government will decides that it is a whole lot easier just to dispense with jury trials altogether. This is the risk we face.
Separately judges are being told that they can drop the phrase “beyond reasonable doubt” when instructing jury on how to reach their conclusion. Official guidance advises judges to tell jurors that they must be “satisfied so that they are sure” a defendant is guilty. This is not a mere alteration to get with the times. It erodes the standard. It chips away at the presumption of innocence. To the average juror ‘sure’ is a much lower standard than ‘beyond reasonable doubt’. The high standard required for conviction is to ensure that the innocent are not convicted. It is another vital justice safeguard.
The coronavirus crisis is forcing us to make some hard decisions and has caused the government to restrict basic freedoms in an unprecedented manner. There is a real risk that when we emerge from this crisis, we might find that we are not as free as we were before. Some of our practices which were mean to be temporary will become permanent. To lose trial by jury would be a calamity.
Author: Andrea Minichiello Williams.