RealNews

British government intends to marginalise juries

a contribution by Hector McNeill

"Jury members receive a pittance. Normally they receive in a day less than the legal teams each earn in an hour. So the jury can hardly be isolated as the cause of the high cost of complex trials."

Hector McNeill is the Co-ordinator of the European Campaign for Jury Rights

The British Parliament has been asked to approve a move to remove juries from so-called "serious and complex fraud trials" and have them take place before a judge, sitting alone.

This move has arisen as a knee-jerk reaction to cases which have failed but which happen to have been associated with juries. In the aftermath of such events the easiest target is the jury. But it should be the responsibility of a judge is to see that an issue is presented and analysed in a clear and intelligible way. If they do not, they themselves will become confused as will the jury and the likelihood of trial failure increases.

Any case can be broken down into a process consisting of decisions and effects. The motivation behind each decision can often be deduced from the resulting outcomes. Unfortunately, complex trials of any type have become fertile terrain for professional analysts and expert witnesses called in to explain technical and financial issues. Many view this process as no more than a money-earning exercise and by stretching out explanations, justifying subsidiary explanations they can add "credible confusion" and thereby justifying subsequent appearances; all with the objective of gaining a higher fee.

Part of the problem relates to the possibility of expert witnesses being brought in with intent to smother or confuse when the judge and the jury are in no position to cast doubt on the "expert's" opinion. Such an approach enables a defense, and indeed, the prosecution to milk the legal process, literally for £ millions by bringing in trains of colleagues and witnesses. The motivation for doing so could, paradoxically, be the income of all concerned. Trial confusion normally results from poor standards of evidence and presentation of argument. The poorer the standards the more likely is a judge and a jury to fail to comprehend, the more likely the trial will be a run-away financial bonanza for all concerned and justice becomes the victim.

What price justice?

"Turning to complex financial and fraud cases which often have poor standards of evidence and presentation, bills can run up to over £50 million on a failed case. However, the number of such high profile cases is small. Supposing there were 10 every year this could result in an annual bill of £500 million or £0.65/head of population/month; something like one and a half Fry's Turkish Delights or one of those larger bars of Cadbury's chocolate."

There is a need to improve standards of evidence and argument. The best test of success of the prosecution and defence attaining such standards is for them to have to present their cases before a jury.

In the name of efficiency & economy?

Part of the justification for removing the jury and replacing them with a judge is economics. When analysing the cost of court services it is important to weigh the number of cases served against the cost of the service and the quality of the legal process. Value for money, in legal terms, can be measured by the overall costs of a legal system which accords a satisfactory settlement of all cases.

In basic terms cases can:

involve amicable agreements which never come to court
be settled out of court
come before a single judge or magistrate
come before a jury

Before looking at costs, it is worth stating what the service being paid for (being costed) is. The service is one which settles a dispute between two or more parties. For society as a whole it is preferable that the first two cases listed above, amicable agreements and settlements out of court be maximised. Since this drastically lowers "legal" and court costs, in some cases to zero. One is left with cases facing a single judge or jury based decision.

In terms of quality of decisions there is evidence to consider all but simple statutory infringements should go before a jury. This is because experienced lawyers know how to "package" their cases for different judges. For this reason, some litigants are quite prepared to take that more than 50%/50% risk in bringing their cases before a single and identified judge. On the other hand, they know that it will not be so easy arguing their case in front of a jury.

How juries are more efficient and cheaper

"When a high profile and expensive trial goes wrong, the finger pointing almost always ends up with the jury in focus. In this game of musical chairs, it is always the case that the judge, the prosecution, the solicitors, barristers and the expert witnesses are able to bag chairs and the jury fails to do so. "

Evidence in civil juries in Canada ¹ indicates that although jury trials are individually more expensive than single judge trials their very existence curtails their wider use by encouraging people to settle out of court. Therefore the costs argument is not between single magistrates or judges on the one hand and juries on the other, but rather between the encouragement of settling out of court on the one hand and juries on the other. Besides the raised efficiency of legal process the overall costs of the system are lower simply because the civil juries exist. If they were not there, it is argued that many more cases would go to single judge and magistrate judgements and the overall costs of the system would rise.

This "filtering" effect of the civil juries also means that the more serious cases receive a higher level of close oversight, by a jury, and thereby receive the quality of treatment justified by the case. It is only natural that in such cases the costs will be higher. But then few would argue that this is not as it should be in such cases.

Jack Straw
Doubtful advocacy
doubtful efficiencies
doubtful savings

In spite of such evidence, recently the (then) British Home Secretary, Jack Straw, also wished to provide the option, in certain types of cases, going to judge/magistrate and or jury courts. His arguments referred largely to supposed gains in "efficiency" and "saved costs". The point of real concern however was an apparent failure to understand the options are not between judges/magistrates and juries but rather the overall imperative of seeking options which guarantee the quality of legal decisions.

What price justice?

The nature of the government's arguments also reflect a failure to appreciate the importance of jury neutrality as against less than neutral single person decisions. Jack Straw argued that him proposed changes would "save" something of the order of £120 million. According to those closer to this analysis, this figure is largely imaginary. Even if this were a "real" saving, it would work out at the equivalent to 17 pennies each month per head of population!

Turning to complex financial and fraud cases which often have poor standards of evidence and presentation, bills can run up to over £50 million on a failed case. However, the number of such high profile cases is small. Supposing there were 10 every year this could result in an annual bill of £500 million or £0.65/head of population/month; something like one and a half Fry's Turkish Delights or one of those larger bars of Cadbury's chocolate.

"Above all, there needs to be an effort made to improve standards of evidence and presentation against reasonable time limits. This should prevent complex trials from continuing to be moving feasts, or rather, cashflow pies. This would ensure that the community conscience, in the form of a jury, is able to exercise its essential purpose successfully."

Musical chairs, a displacement activity

When a high profile and expensive trial goes wrong, the finger pointing almost always ends up with the jury in focus. In this game of musical chairs, it is always the case that the judge, the prosecution, the solicitors, barristers and the expert witnesses are able to bag chairs and the jury fails to do so. So the next day press, by default, contributes to the raising of unjustified doubts as to the efficacy of juries in complex trials. Invariably the jury is blamed for the massive cash flow of fees which have benefited all of the members of the legal profession involved in the case. Jury members receive a pittance. Normally they receive in a day less than the legal teams each earn in an hour. So the jury can hardly be isolated as the cause of the high cost of complex trials.

The government should not be allowed to act in this knee-jerk and unjust fashion. At least, there needs to be an equiry into the last five or so high profile cases which have failed. The objective should be to ascertain the sums paid to all involved, including the jury. There is a need to identify the causes as to why time delays occurred. There needs to be an analysis to determine which aspects of trial proceedings could have been shortened without disturbing fairness. Above all, there needs to be an effort made to improve standards of evidence and presentation against reasonable time limits. This should prevent complex trials from continuing to be moving feasts, or rather, cashflow pies. This would ensure that the community conscience, in the form of a jury, is able to exercise its essential purpose successfully.

¹ See, The Civil Jury in Canada, W.A.Bogart, in World Jury Systems, Edited by Neil Vidmar (OUP, 2000) and citations contained therein to OLRC (Ontario Law Reform Commission) reports