Introduction
The institution of trial by jury has long been heralded as a fundamental pillar of the criminal justice system in England and Wales. Described by Lord Devlin as the ‘lamp that shows that freedom lives’, the jury is often seen as a bastion of liberty and a crucial link between the community and the legal process (Devlin, 1956). Despite this historical reverence, the modern jury system faces significant scrutiny. Critics question its effectiveness and fairness in an era of complex evidence, pervasive media, and escalating costs. This has led to a sustained debate about whether trial by jury has become an obsolete relic, or if it remains a vital component of justice. This essay will argue that while the jury system is beset by notable challenges that require reform, its core functions of ensuring public participation and acting as a constitutional check on state power prevent it from being considered obsolete. Its weaknesses are not so fundamental as to justify its abolition.
Challenges to the Modern Jury
The primary arguments for the obsolescence of the jury system centre on concerns about competence, bias, external influences, and efficiency. A significant criticism is that randomly selected laypeople lack the capacity to understand and evaluate the complex evidence presented in many modern trials. This is particularly acute in serious fraud cases, where evidence may involve intricate financial documentation and expert accounting testimony. The Auld Report highlighted this issue, noting the risk of jurors being overwhelmed and making decisions based on confusion rather than a rational assessment of the facts (Auld, 2001). This concern led to provisions in the Criminal Justice Act 2003 allowing for trials to be conducted by a judge alone in exceptional cases of complex fraud or where there is a serious danger of jury tampering (ss. 43-44). The use of these provisions, as seen in R v Twomey [2009] EWCA Crim 1035 where a non-jury trial was ordered due to tampering, demonstrates a legislative and judicial acknowledgement of the jury's potential vulnerabilities.
Furthermore, there is a risk that juror prejudice can undermine the right to a fair trial. Despite judicial directions to be impartial, jurors may harbour conscious or unconscious biases related to race, gender, or background, which could influence their verdict. The secrecy of jury deliberations, protected by section 8 of the Contempt of Court Act 1981, makes it difficult to detect or remedy such bias. While this secrecy is intended to promote frank discussion, it can also shield improper conduct. The case of Sander v United Kingdom (2000) 31 EHRR 1003 illustrates this tension, where an allegation of racist remarks in the jury room led to a finding by the European Court of Human Rights that the trial judge had not done enough to investigate the claim, potentially violating Article 6 of the European Convention on Human Rights.
Another modern challenge is the influence of the internet and social media. The principle that a verdict must be based solely on evidence presented in court is threatened when jurors can conduct their own online research. This can introduce inadmissible, inaccurate, or prejudicial information into the deliberative process. Cases such as Attorney General v Dallas [2012] EWHC 156 (Admin), where a juror was imprisoned for contempt of court after researching the defendant online and sharing the information with the jury, highlight the severity of this problem. In response, the Criminal Justice and Courts Act 2015 created specific criminal offences for jurors who intentionally seek external information. However, the practical difficulty of policing the online activity of twelve individuals for the duration of a trial remains a significant issue. These problems, combined with the higher costs and longer duration of jury trials compared to summary trials, contribute to the argument that the jury is an inefficient and outdated method of determining guilt.
The Enduring Relevance of the Jury
Despite these valid criticisms, the case for retaining the jury system remains compelling. Its central value lies in its role as an instrument of public participation in the administration of justice. The use of ordinary citizens prevents the legal system from becoming a remote institution controlled exclusively by professional lawyers and judges. This involvement is believed to enhance the legitimacy and public acceptance of criminal verdicts, as the decision is made by a group of the defendant's peers. The jury brings a "common sense" approach to the application of the law, ensuring that legal standards align with the community's sense of fairness.
Historically, the jury's most celebrated function is as a 'bulwark against the state'. The independence of the jury was famously established in Bushell's Case (1670), where it was confirmed that jurors could not be punished for a verdict that displeased the judge. This allows a jury to return a "perverse" verdict—an acquittal that runs contrary to the evidence—if it believes a conviction would be unjust. Such verdicts, as arguably occurred in R v Ponting [1985] where a civil servant was acquitted of breaching the Official Secrets Act after leaking information about the sinking of the Belgrano, serve as a powerful check on oppressive laws or malicious prosecutions. This power of "jury equity" provides a vital safeguard, as jurors can refuse to enforce laws they consider morally objectionable, representing a form of democratic veto.
Moreover, the argument that juries are incompetent or biased is not fully supported by empirical evidence. Research conducted for the Ministry of Justice by Professor Cheryl Thomas (2010) found that juries generally perform their role effectively. The study indicated that jurors were diligent, understood the legal directions given by the judge, and that there was no evidence to suggest that jurors from Black and Minority Ethnic backgrounds were more likely to convict or acquit defendants from their own ethnic group compared to white jurors. This research challenges the stereotypical view of juries as irrational and prejudiced, suggesting they are a more robust and fair decision-making body than critics often allow. The collective nature of the decision, requiring discussion and consensus among twelve people from diverse backgrounds, can also be seen as a strength, diluting individual biases and providing a more balanced judgment than that of a single, 'case-hardened' judge.
Conclusion
The question of whether trial by jury is obsolete requires a balancing of its undeniable flaws against its fundamental constitutional and democratic strengths. The difficulties posed by complex evidence, juror bias, and internet research are serious and require ongoing attention from Parliament and the judiciary. The legislative responses, such as the provisions for judge-only trials in limited circumstances and the criminalisation of juror research, show that the system is not static but capable of adaptation.
However, these challenges do not render the institution itself obsolete. The jury’s role in promoting public confidence, providing a check on state power, and ensuring that justice is administered with common-sense humanity remains as important today as it has been for centuries. The evidence suggests that while individual jurors may have weaknesses, the collective body is a competent and fair arbiter of fact. The problems facing the jury system are practical rather than existential. Therefore, while reform is necessary to modernise its procedures and safeguard its integrity, trial by jury is not an obsolete institution. It remains a vital, if imperfect, cornerstone of the English justice system, and the arguments for its abolition are outweighed by its enduring value. The focus should be on improving the jury, not removing it.
References
- Auld, R. (2001) A Review of the Criminal Courts of England and Wales. <a href="https://webarchive.nationalarchives.gov.uk/ukgwa/20111103212852/http://www.criminal-courts-review.org.uk/">London: The Stationery Office</a>.
- Devlin, P. (1956) Trial by Jury. London: Stevens & Sons.
- Thomas, C. (2010) Are Juries Fair? Ministry of Justice Research Series 1/10. <a href="https://www.justice.gov.uk/downloads/publications/research-and-analysis/moj-research/are-juries-fair-research.pdf">London: Ministry of Justice</a>.
Cases
- Attorney General v Dallas [2012] EWHC 156 (Admin)
- Bushell's Case (1670) 124 ER 1006
- R v Ponting [1985] Crim LR 318
- R v Twomey [2009] EWCA Crim 1035
- Sander v United Kingdom (2000) 31 EHRR 1003
Legislation
- Contempt of Court Act 1981
- Criminal Justice Act 2003
- Criminal Justice and Courts Act 2015
- European Convention on Human Rights, 1950
