Two propositions come before the States this week.
Removing Trial by Jury
“Jury trials could be scrapped for rape and child sexual abuse cases so that their outcomes aren’t threatened by islanders’ prejudices or misconceptions, if a proposed law change is agreed by politicians...Instead, such cases could be heard by the ‘Inferior Number’ – a judge and two Jurats.
In a hearing with the panel, he [the Attorney-General] suggested that a higher success rate could be achieved by educating police officers, lawyers and judges, as well as the “public at large” in a bid to stamp out misconceptions and prejudices about rape and consent. But he said that would be an “easier task” if trials were heard simply by a judge and Jurats, rather than a jury made up of members of the public. (Bailiwick Express)
What is alarming about this proposal is the proposition that it would be an “easier task” as if streamlining the system was an important factor in justice.
It may be asked: why should Jurats be any less susceptible to prejudices or misconceptions? In some ways, as Chesterton pointed out, their experience means they do not come to the case fresh as a jury might: "the horrible thing about all legal officials, even the best, about all judges, magistrates, barristers, detectives, and policemen, is not that they are wicked (some of them are good), not that they are stupid (several of them are quite intelligent), it is simply that they have got used to it."
A study of the Jury system by Michael Singer – “Jury Duty: Reclaiming Your Political Power and Taking Responsibility” (2012) looks at the claims for jury trials:
“Authority figures have made a variety of claims that juries do perform their regular trial task better than judges and so achieve better trial outcomes overall. A particular claim is that juries are overall more competent in assessing evidence, and another is that juries are overall fairer to the parties.”
He looks to an early set of USA studies in 1966 by law professors Harry Kalven and Hans Zeisel which published the results of a survey of trial judges conducting jury trials.
“After the jury retired to deliberate, but before it delivered its verdict, the participating judge specified how he would have decided the case. Over five hundred judges participated, covering more than thirty-five hundred criminal trials and four thousand civil trials. In almost four-fifths of both criminal and civil cases, judge and jury reached the same verdict.”
Now that was some time ago, but the survey has been repeated more recently:
“There were problems with the methodology of this survey. Also, trials have changed in the fifty years since the survey data were collected. There are now more scientific evidence and more complex expert testimony, and more women and persons of colour now serve on juries. For these reasons, several researchers carried out similar surveys with improved methodology in the 1990s and 2000s. All these surveys showed a level of agreement between judge and jury comparable to that found by Kalven and Zeisel.”
This came to the same conclusion, that in roughly one-fifth of jury trials, judge and jury would likely reach different verdicts.
Why is that important? To look at that, I will refer to “Punishment, Participatory Democracy, and the Jury” (2012) by Dzur. This looks at Chesterton’s point that the jury allows “fresh blood and fresh thoughts from the streets” to infuse courtrooms that otherwise become the mundane “workshops” of court professionals all too accustomed to the job, is well known.”
And Dzur, who is looking at UK cases, notes that:
“During a break in a recent criminal jury trial, a local prosecutor commented that even though court professionals were more knowledgeable about the criminal law, he believed the jury had the advantage of being less hardened. In his view, the advantage to having a jury was the fresh perspective jurors brought into the courtroom, in particular to hold open for perhaps longer than seasoned court professionals the possibilities of learning something about the offense, the offender, or the law that might transform a case type into something more human.”
This brings us back to Chesterton again:
“What the prosecutor had in mind was the moral calcification that can occur in complex organizations marked by formal rules, specialization, and social distance and pressured by resource and time constraints. G. K. Chesterton, as we have seen, was thinking of moral calcification when he wrote about courts as workshops that gradually and naturally calloused the judgment of professionals.”
As Chesterton put it: “Strictly they do not see the prisoner in the dock; all they see is the usual man in the usual place. They do not see the awful court of judgment; they only see their own workshop.”
And he concludes:
“Our civilization has decided, and very justly decided, that determining the guilt or innocence of men is a thing too important to be trusted to trained men.”
Chief Executive Officer Neville Benbow of the Jersey Law Society commented on the proposals:
“The suggestion that Jurats are better placed to deal with rape trials is misconceived. Jurats are just as likely to acquit if the evidence is weak. The right to be tried by one’s peers is a fundamental principle of our criminal justice system. That right is retained for the equally serious offences of murder and manslaughter but, if this amendment is approved, not for rape. This is illogical. The right of a defendant to be able to choose between jury or Jurat trial for such offences is important and must, in the interests of justice, be maintained.””
Taking away the right to remain silent
“Under Article 84 of the proposed new law, a defendant who has pleaded not guilty will be under a duty to provide a Defence Case Statement to the Court and to the prosecution setting out the nature of their defence.” (Bailiwick Express)
Meanwhile, also streamlining, the common law right to silence, present in almost every jurisdiction around the world, is about to be scrapped. This provision is seen as being of significant benefit in streamlining the management of cases before the island’s courts.
The law provides that a defendant still has a right to silence, but against that are threatened consequences if they do not provide a Defense Case Statement
"Where a defendant has legal representation and enters a ‘not guilty’ plea, there may be consequences for the defendant if they fail to serve a defence case statement or depart from the contents of the statement at trial. In such circumstances, there is the provision for the court to draw inference in deciding whether a defendant is guilty of the offence concerned. "
This goes against a fundamental principle: to keep silent as a means of defense.
"That no person should be punished for his secret thoughts was a fundamental axiom of Western law, accepted both by the English common law and by the European ius commune. De occultis non judicat ecclesia. Nemo tenetur prodere seipsum. These were not just counsels of prudence. They stated a rule of law. Its purpose, broadly speaking, was to protect men and women from overzealous prosecution and punishment. “(R. H. Helmholz)
It was used as a defence by no less that Sir Thomas More to refuse to speak at his trial. Henry VIII would surely have loved the changes in Jersey which would have forced Sir Thomas to provide a Defence Case Statement! Instead he had to rely on the perjury of Richard Rich.
The right to silence is a legal principle which guarantees any individual the right to refuse to answer questions from law enforcement officers or court officials. It is a legal right recognized, explicitly or by convention, in many of the world's legal systems.
Barrister Fawad Chaudhry, speaking in 2014, said that ““The adage ‘justice delayed is justice denied’ conveniently ignores the fact that justice rushed is justice crushed.”
“We need to create a system where delays can be reduced without effecting due process. This cannot be done by legislation but by better case management,”
It looks as if Jersey is moving towards justice rushed, and justice crushed.
“Jury trials could be scrapped for rape and child sexual abuse cases so that their outcomes aren’t threatened by islanders’ prejudices or misconceptions, if a proposed law change is agreed by politicians...Instead, such cases could be heard by the ‘Inferior Number’ – a judge and two Jurats.
In a hearing with the panel, he [the Attorney-General] suggested that a higher success rate could be achieved by educating police officers, lawyers and judges, as well as the “public at large” in a bid to stamp out misconceptions and prejudices about rape and consent. But he said that would be an “easier task” if trials were heard simply by a judge and Jurats, rather than a jury made up of members of the public. (Bailiwick Express)
What is alarming about this proposal is the proposition that it would be an “easier task” as if streamlining the system was an important factor in justice.
It may be asked: why should Jurats be any less susceptible to prejudices or misconceptions? In some ways, as Chesterton pointed out, their experience means they do not come to the case fresh as a jury might: "the horrible thing about all legal officials, even the best, about all judges, magistrates, barristers, detectives, and policemen, is not that they are wicked (some of them are good), not that they are stupid (several of them are quite intelligent), it is simply that they have got used to it."
A study of the Jury system by Michael Singer – “Jury Duty: Reclaiming Your Political Power and Taking Responsibility” (2012) looks at the claims for jury trials:
“Authority figures have made a variety of claims that juries do perform their regular trial task better than judges and so achieve better trial outcomes overall. A particular claim is that juries are overall more competent in assessing evidence, and another is that juries are overall fairer to the parties.”
He looks to an early set of USA studies in 1966 by law professors Harry Kalven and Hans Zeisel which published the results of a survey of trial judges conducting jury trials.
“After the jury retired to deliberate, but before it delivered its verdict, the participating judge specified how he would have decided the case. Over five hundred judges participated, covering more than thirty-five hundred criminal trials and four thousand civil trials. In almost four-fifths of both criminal and civil cases, judge and jury reached the same verdict.”
Now that was some time ago, but the survey has been repeated more recently:
“There were problems with the methodology of this survey. Also, trials have changed in the fifty years since the survey data were collected. There are now more scientific evidence and more complex expert testimony, and more women and persons of colour now serve on juries. For these reasons, several researchers carried out similar surveys with improved methodology in the 1990s and 2000s. All these surveys showed a level of agreement between judge and jury comparable to that found by Kalven and Zeisel.”
This came to the same conclusion, that in roughly one-fifth of jury trials, judge and jury would likely reach different verdicts.
Why is that important? To look at that, I will refer to “Punishment, Participatory Democracy, and the Jury” (2012) by Dzur. This looks at Chesterton’s point that the jury allows “fresh blood and fresh thoughts from the streets” to infuse courtrooms that otherwise become the mundane “workshops” of court professionals all too accustomed to the job, is well known.”
And Dzur, who is looking at UK cases, notes that:
“During a break in a recent criminal jury trial, a local prosecutor commented that even though court professionals were more knowledgeable about the criminal law, he believed the jury had the advantage of being less hardened. In his view, the advantage to having a jury was the fresh perspective jurors brought into the courtroom, in particular to hold open for perhaps longer than seasoned court professionals the possibilities of learning something about the offense, the offender, or the law that might transform a case type into something more human.”
This brings us back to Chesterton again:
“What the prosecutor had in mind was the moral calcification that can occur in complex organizations marked by formal rules, specialization, and social distance and pressured by resource and time constraints. G. K. Chesterton, as we have seen, was thinking of moral calcification when he wrote about courts as workshops that gradually and naturally calloused the judgment of professionals.”
As Chesterton put it: “Strictly they do not see the prisoner in the dock; all they see is the usual man in the usual place. They do not see the awful court of judgment; they only see their own workshop.”
And he concludes:
“Our civilization has decided, and very justly decided, that determining the guilt or innocence of men is a thing too important to be trusted to trained men.”
Chief Executive Officer Neville Benbow of the Jersey Law Society commented on the proposals:
“The suggestion that Jurats are better placed to deal with rape trials is misconceived. Jurats are just as likely to acquit if the evidence is weak. The right to be tried by one’s peers is a fundamental principle of our criminal justice system. That right is retained for the equally serious offences of murder and manslaughter but, if this amendment is approved, not for rape. This is illogical. The right of a defendant to be able to choose between jury or Jurat trial for such offences is important and must, in the interests of justice, be maintained.””
Taking away the right to remain silent
“Under Article 84 of the proposed new law, a defendant who has pleaded not guilty will be under a duty to provide a Defence Case Statement to the Court and to the prosecution setting out the nature of their defence.” (Bailiwick Express)
Meanwhile, also streamlining, the common law right to silence, present in almost every jurisdiction around the world, is about to be scrapped. This provision is seen as being of significant benefit in streamlining the management of cases before the island’s courts.
The law provides that a defendant still has a right to silence, but against that are threatened consequences if they do not provide a Defense Case Statement
"Where a defendant has legal representation and enters a ‘not guilty’ plea, there may be consequences for the defendant if they fail to serve a defence case statement or depart from the contents of the statement at trial. In such circumstances, there is the provision for the court to draw inference in deciding whether a defendant is guilty of the offence concerned. "
This goes against a fundamental principle: to keep silent as a means of defense.
"That no person should be punished for his secret thoughts was a fundamental axiom of Western law, accepted both by the English common law and by the European ius commune. De occultis non judicat ecclesia. Nemo tenetur prodere seipsum. These were not just counsels of prudence. They stated a rule of law. Its purpose, broadly speaking, was to protect men and women from overzealous prosecution and punishment. “(R. H. Helmholz)
It was used as a defence by no less that Sir Thomas More to refuse to speak at his trial. Henry VIII would surely have loved the changes in Jersey which would have forced Sir Thomas to provide a Defence Case Statement! Instead he had to rely on the perjury of Richard Rich.
The right to silence is a legal principle which guarantees any individual the right to refuse to answer questions from law enforcement officers or court officials. It is a legal right recognized, explicitly or by convention, in many of the world's legal systems.
Barrister Fawad Chaudhry, speaking in 2014, said that ““The adage ‘justice delayed is justice denied’ conveniently ignores the fact that justice rushed is justice crushed.”
“We need to create a system where delays can be reduced without effecting due process. This cannot be done by legislation but by better case management,”
It looks as if Jersey is moving towards justice rushed, and justice crushed.
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1 comment:
Well, my sole experience of being a juror in a serious trial (a stabbing) was the scary stupidity/deceptiveness of the arguments advanced by the advocates, both prosecution and defence, the obvious inappropriateness of the charge selected and, above all, the extreme prejudice shown by the majority of the other jurors towards the victim.
The bad guy got away with it, the victim suffered a monstrous miscarriage of justice but the letter of the law and the procedures associated with it were followed religiously (after I had to ask the Magistrate for legal clarification of the charge because not one of the other jurors was bothered that they hadn't got a clue, nor that no-one explained it to them...
Oddly, I found myself sharing a table with the defence advocate in an Alderney restaurant a few months later. Outside of the court setting, they were very bright and fully capable of acknowledging what an almighty cock-up the trial was!
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