Judge and jury

While giving evidence about his alleged imprisonment of a jury, Lord Chief Justice Keeling famously told the House of Commons: 'Magna Farta? What ado with this have we?'

That was in 1667. Nearly 350 years later, the second section of the European Court of Human Rights (ECtHR) appeared to second Lord Chief Justice Keeling's dismissal of the right to trial by jury.

A jury gives no reason for its verdict, therefore the jury violates an individual's right to a fair trial enshrined in article 6 '“ that's how the argument went on 13 January 2009 in Taxquet v Belgium (application no 926/50). By 16 November 2010 this blast against juries had become a mere grumble when the ECtHR's grand chamber handed down its final decision in Taxquet. But the case might still prove troublesome to the English jury.

The case involved the appeal of Belgian political assassin Richard Taxquet, who complained that his trial before Lieges Assize Court violated article 6(1) on the grounds that the jury had not provided reasons for its guilty verdict. Reasons for a decision are, according to the ECtHR's settled case law, central to a trial's fairness (see Ruiz Torifa v Spain [1995] 19 EHRR 553).

"Arbitrary justice"

The second section agreed with Taxquet that a jury verdict consisting of four 'yeses' was unfair, stating: 'Such laconic answers to vague and general questions could have left the applicant with an impression of arbitrary justice lacking in transparency.'

Although the commission and the ECtHR had held in the 1990s that the right to arbiters' reasons should accommodate lay juries' unreasoned verdicts (Zarouali v Belgium, application 20664/92, and Papon v France, application 54210/00) what is described in the judgment as 'a perceptible change in both the court's case law and the contracting states' legislation' led the second section to depart from precedent when it concluded that reasoned verdicts were 'essential to the very quality of justice and provide[d] a safeguard against arbitrariness'.

'Essential to the operation of the [English] jury system' (Lord Slynn in Mirza [2004] UKHL 2), however, is the jury's unreasoned verdict, which secures the finality of verdicts; spares untutored jurors the arduous task of drafting appeal-proof decisions (Ellis v Deheer [1922] 2 KB 113, 121); 'promotes candour' within the jury room; and 'protects jurors from harassment, censure and reprisals' (Mirza (supra) approving R v Pan [2001] 2 SCR 344).

Battle cry

Taxquet's requirement that a jury should give its reasons promised, therefore, to be the first alarum in a future battle between the convention and the Magna Carta. Would the lamp that shows freedom lives be found to violate article 6? Would the UK be forced to abolish trial by jury? Little wonder the UK applied for leave to intervene when Taxquet came before the grand chamber.

Taxquet in the second section evidently perturbed other signatory states with lay juries. Ireland and France joined the UK as intervening parties to Taxquet. The Canton of Geneva abolished trial by jury after requiring somewhat unsuccessfully in 1992 that juries provide reasoned verdicts. In A v The Public Prosecutor (2009/397), Norway's Supreme Court bound courts to issue statements of reasons in exceptional jury trials.

Belgium itself passed the Assize Court Reform Act, which required that jurors craft reasons for their decisions with judicial assistance. In DPP v Eamonn Lillis (unreported), Justice Barry White, sitting at Dublin's central criminal court, indicated that, in light of Taxquet, he would request the jury's reasons for its verdict; his recantation came only after vehement opposition from the defence and the prosecution.

Had the grand chamber followed the second section's iconoclastic judgment, a disgruntled English defendant charged with an indictable-only offence (and thus deprived of the right to choose a jury trial) might well have challenged 800 years of trial by jury. Instead, the grand chamber treated Taxquet as a case about the questions posed to jurors not, as the second section had done, a case about jurors' answers (or the lack of them).

Sufficient safeguards

Reasons, the grand chamber concluded, were not central to a trial's fairness as long as sufficient safeguards existed to enable a person to understand why he had been found guilty. Adequate directions, questions for the jury sufficiently particular to the defendant and distinct from those posed regarding any co-defendant and a right of appeal were all relevant factors in determining whether an unreasoned verdict was a fair verdict.

Taxquet's trial had been unfair, the grand chamber held, because the proceedings as a whole were too muddy for him to infer why he had been found guilty: the indictment was too vague; the questions posed to the jury had been general rather than specific to him and the charges he faced; and he had no right of ordinary appeal.

Although far less troubling than the second section's decision, the grand chamber's decision was no hymn to the jury. The grand chamber did not respond to Irish and French paeans to the jury's popularity and antiquity. While France fretted that a decision against the Belgium's juries would 'discredit'¦ the very concept of human rights', the grand chamber soberly adjudged that the use of juries lay within states' margin of appreciation and was a non-justiciable matter to be tolerated but not necessarily encouraged.

The first English responses to ECtHR's final decision in Taxquet were Lord Chief Justice Judge's Judicial Studies Board lecture, delivered on the day of the grand chamber judgment, and Moses LJ's Law Reform Committee lecture of 23 November 2010. Lord Judge CJ and Moses LJ confirmed that the potentially explosive elements within Taxquet had been defused by the grand chamber.

Both agreed that Taxquet placed the judge's summing up as central to the jury trial's fairness. Moses LJ went so far as to suggest that 'the institution of the jury may be of less importance than the mode in which it is administered', before recommending that judges should resolve factual issues and draw up questionnaires for juries on the facts of cases.

Judge CJ's and Moses LJ's reading of Taxquet discloses a worrying feature of the grand chamber's decision: if the lay jury's constitutional importance as a bulwark against the tyranny of one class over another be not considered as a relevant factor in determining a trial's fairness (which it was not by the grand chamber), is trial by jury only fair because a judge's summing up makes it so?

Guiding light

Recently, judges have been ever more keen to guide jurors towards verdicts: 'Written directions and, even more helpfully, a 'route to verdicts' should be applauded,' states R v A and Others (Joint Enterprise) [2010] EWCA Crim 1622 [2].

When combined with a detailed summary of agreed facts, as Taxquet encourages and Moses LJ recommends, would 'routes to verdicts' lead passive jurors to judicially sanctioned verdicts and relegate the jury to the role of ratifier of judges' decisions cloaked in (tilted) case summaries? Might Taxquet's elevation of the judge's summing up in the jury trial permit encroachments on the centuries-old principle, first enunciated in Bushel's Case [1670] 124 ER 1006, that jurors are the independent arbiters of fact while the bench is the arbiter of the law?

Or might Taxquet reopen a matter that appeared to be settled by the House of Lords in 2004, namely whether the secrecy of juries' deliberations should ever be breached? In Mirza, the house upheld the common law rule that, unless faced with an allegation of a jury's complete refusal to deliberate, courts should not inquire into matters intrinsic to jurors' deliberations no matter how distorted or perverse those deliberations might have been. A majority of the house concluded that the inviolability of deliberations should be maintained and that post-verdict evidence of jurors' racism in the jury room should not be admissible even at the risk of allowing a racist verdict to stand.

In coming to its seemingly unjust conclusion, the house suggested that the cordon sanitaire around juries' deliberations had the imprimatur of the Strasbourg court by relying on Gregory v UK [1998] 25 EHRR 577 and Sander v UK [2001] 31 EHRR 44.

Gregory and Sander involved appeals against judges' decisions not to discharge juries where evidence of jurors' racial prejudice came to light during trials.

The court in both cases recognised the legitimacy of English juries' silence. However, neither case was directly concerned with the lawfulness of deliberations' secrecy; Gregory and Sander instead focused on the adequacy of judges' remedial directions. After Taxquet, a jury's silence is not to be considered in itself justified: only when accompanied by sufficient safeguards, including an adequate system of appeals, is the unreasoned verdict a fair verdict.

Is a system that prevents evidence of bigoted, biased or bizarre jury deliberations coming before an appellate court equipped with sufficient procedural safeguards to justify unreasoned verdicts? Taxquet suggests not. Lord Steyn's dissenting view in Mirza that cogent evidence of perverse deliberations should be admitted on appeal might, after Taxquet, go from mere obiter dictum to the ratio decidendi of a future Supreme Court judgment.

For now, where does Taxquet leave us? In a situation where the rejection of a planning application requires clear and precise reasons, while juries' reasons for verdicts must be inferred from judges' case summaries and judges not jurors make a trial fair.