12 heads better than one

The Court of Appeal has ruled that a criminal trial can take place at Crown Court without a jury for the first time in England and Wales.

The right to trial by jury dates back to the Magna Carta in 1215. It stated that a 'freeman shall not be... imprisoned... unless by the judgement of his peers'. This principle was later preserved in the Act that abolished the notorious Star Chamber in 1641. It remains fiercely guarded as the foundation of a free and just society. Lord Devlin described it as 'more than an instrument of justice and more than one wheel of the constitution: it is the lamp that shows that freedom lives'.

Sections 44 and 46 of the Criminal Justice Act 2003, which came into force in July 2007, allow for a trial without a jury when there is evidence of 'a real and present danger that jury tampering would take place', and where additional measures to prevent it would not fully succeed.

The Lord Chief Justice, Lord Judge, in the historic decision R v Twomey [2009] EWCA Crim 1035, agreed to allow the trial to be heard by a judge alone. The new trial will be the first Crown Court case in England and Wales to be heard by a judge alone using these powers.

The court held that a defendant's right to a fair trial was not prejudiced by holding a criminal trial without a jury where the danger of jury tampering was very significant and was not sufficiently countered by protective measures.

The allegations centre on an armed robbery at Heathrow Airport in 2004. The fourth trial in this case will now take place before a judge alone.

Lord Judge added: '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 unless and until the right is amended or circumscribed by express legislation.'

But, he said, the constitutional responsibilities of the jury were flouted if 'the integrity of an individual juror, and thus of the jury as a whole, is compromised. Such a compromise occurs when any juror, whether because of intimidation, bribery or any other reasons, dishonours or becomes liable to dishonour his or her oath as a juror by allowing anything to undermine or qualify the juror's duty to give a true verdict according to the evidence.'

Protective measures

Lord Judge told the court the cost of the measures needed to protect jurors from potential influence was too high and that such measures may not properly shield them.

More worrying is the paralysing effect on defence lawyers who are unable to address the information on which the decision is based. This was the case in Twomey, albeit despite the court's reassurance that the highest possible forensic standard of proof was required before the right was removed. A larger caveat was the principle that the Crown was not confined to evidence which would be admissible at a defendant's trial to prove the danger.

Commentators have criticised the underlying message to be taken from this case that we simply cannot protect witnesses, jurors and their families. What does such a statement do to the confidence of citizens in the system?

However, Lord Judge pointed out that it would be unfair to the jurors themselves to impose such a burden. Exact details of the proposed safety measures cannot be revealed for security reasons but they must have been necessarily intrusive to ensure protection. There has to be some truth to this. Is it right to expect jurors to be exposed to the intrusion that would arise from police protection? What brave citizen would knowingly and willingly put themselves and their family at risk in such circumstances? Is it fair to ask them to undertake such an obligation?

A professional judge, it can be argued, can be protected, can approach the matter dispassionately on the evidence and take a reasoned and considered approach.

What are the advantages of obtaining the lawful judgment of one's peers? We vary so wildly in our opinions, inherent and subconscious bias or prejudices that intellectually judgment by our peers is a risky option. Rodney King and OJ Simpson are good examples of such risk. Yet professional judges surely risk increasing detachment and a greater degree of cynicism over time. We are also currently failing to represent our diverse community among those on the Bench.

Independent minds

As Dawkins wrote in 1997 on the subject of why juries don't work: 'If I know myself to be guilty, I'll go with the loose cannon of a jury, the more ignorant, prejudiced and capricious the better. But if I am innocent, and the ideal of multiple independent decision-takers is unavailable, please give me a judge.'

In Dawkins' view, 12 heads are better than one, because they represent 12 independent assessments of the evidence. In Ancient Greece, the dikaste system involved juries on a large scale. For the most serious cases, those involving death or exile, for example, 12 citizens was insufficient. The trial was before a jury of 1,000 to 1,500 dikastai. However, increasing numbers cannot be the solution; two independent decision makers and ten sheep blithely following the most vocal and dominant jurors in the room does not make for justice. Neither does an unwieldy mass that cannot come to a decision.

However, the 'single judge' philosophy strikes at the core of our democratic values; that those who are in the minority are not judged by the ruling class, or that those who dissent are not judged by those in authority. Using Dawkins' example, letting a single judge decide a verdict would be like letting a single chick speak for the whole herring gull species. Surely reducing the number of independent minds to be applied to such critical decisions can never be a good thing.