The commissariats of the Criminal Justice Act 2003 allow for tests without a jury for serious offenses in instances affecting jury fiddling. In March 2010, the first justice merely test in England and Wales resulted in strong beliefs for armed robbery.
The usage of the jury in condemnable tests represents one of the cardinal trademarks of equity within the English legal system. Bing tried by a organic structure of one ‘s equals about ensures that the determination shapers are both nonsubjective and representative. Indeed, Blackstone hailed the jury as being the “ sacred rampart of our state ”[ 1 ]and many seem to certify to the powers of the jury system in guaranting a just application of the jurisprudence. With some eroding of jury tests in cardinal condemnable countries, nevertheless, the function of the jury has come under close examination, with some taking the position that in certain instances, such a test is unneeded, and in others unwanted due to the possible danger to jurymans or the prevalence of national security affairs. The determination in R V Twomney[ 2 ]has revived such treatment one time more, with advocates of the jury system reasoning that a suspect tried on indictment without a jury may non have a just test under Article 6 of the European Convention on Human Rights ( ECHR )[ 3 ]. It is argued, nevertheless, that such suspects can and make have a just test in conformity with Convention rights even when a jury is non present, and that there are so valid grounds for a test without jury in some fortunes.
The jury fulfils both a practical and theoretical function in a condemnable test. In general footings, the function of a jury in a condemnable test is to measure the instance put frontward by the prosecution along with the statements advanced by defense mechanism advocate and, after way as to the legal facets by the justice, to do a determination on the guilt or artlessness of the suspect.[ 4 ]In simple footings, the jury decides whether or non the prosecution ( moving for the State ) has met its load of cogent evidence, turn outing beyond a sensible uncertainty that the suspect is so guilty. The ballot should be consentaneous, or can be taken on a bulk ( 10 out of 12 jurymans ) if there is divided sentiment. It has no input with respects to the legal facet of the instance, but makes its determination based on the facts, assisted by counsel from the justice as to what elements make up the offense in inquiry. The usage of the jury system in most condemnable tests adds legitimacy to the judicial system and in practical footings, allows for public engagement in the legal procedure. It has been argued that the function of the jury is “ non merely a sacred rule but a pattern that ensures that one category of people do n’t sit in opinion over another and the populace have assurance in an unfastened and representative justness system ” .[ 5 ]
However, the construct of the jury besides has a more sociological foundation, in that it is supposed to supply a cheque against the State, and besides reflect community values in the legal system. Lord Devlin famously stated “ that test by jury is more than an instrument of justness and more than one wheel of the fundamental law: it is the lamp that shows that freedom lives ” .[ 6 ]This respectful statement in regard of the jury encapsulates a common sentient in regard of its function: that the jury represents democracy and equity within the judicial system. Bing tried by a jury of one ‘s equals is supposed to shoot community scruples into the judicial procedure, using the values of the society from which the suspect hails to do a opinion on their actions[ 7 ]. The diverseness of the jury pool and the position of civic responsibility attached to jury service all guarantee that this community justness function is served by the members who are chosen. Blackstone and De Toqeuville, civil libertarian minds, argued that the function of the jury is besides to protect the suspect against the surpluss of the State and from improper and arbitrary want of autonomy due to an fanatic application of the jurisprudence. The members of the jury, drawn from a broad pool in society, besides provide the perfect counterweight to the background of many Judgess who are from white, in-between category backgrounds and are frequently thought to be out of touch with mainstream values in society.
The function of the jury in condemnable tests has, nevertheless, been undermined by the passage of statute law that allows for non jury tests in certain fortunes. Under s.44 of the Criminal Justice Act 2003 ( CJA ) , there are two conditions which must be met before a justice can accept the prosecution statements and direct that the instance be tried without jury ( as sanctioned by s.46 CJA ) . There must be a existent and present danger of jury meddling and notwithstanding any sensible stairss that the constabulary may take ; the likeliness of misconduct would be such that it would be in the involvements of justness for the test to be conducted without a jury. Examples where s.44 may run are given in the statute law as where the instance is a re-trial after old meddling, involves a suspect who has antecedently had a test in which the jury were tampered with, or where there is a likeliness of witness bullying. This must be proved beyond all sensible uncertainty.[ 8 ]It must be noted from the beginning that the infliction of these rigorous conditions required before a non-jury test can even be considered clearly limit the fortunes where such resort will be had to all but the most exceeding of instances. And it is by definition the sheer exceptionality of these instances which merits farther treatment as to whether test by jury will really guarantee a merely result or instead lead to injustice, whether this is due to the demand for a re-trial or by other agencies. Indeed, Leigh right states that “ an order for non-jury test remains an exceeding step cogent evidence of necessity for which needs to be made to the condemnable criterion ” .[ 9 ]However, some have argued that it does non take really much for an exclusion to lose its exceptionality, mentioning “ bad character applications under the 2003 Act as a farther illustration of how the exclusion rapidly becomes the norm ” .[ 10 ]
Article 6 of the ECHR warrants, amongst others[ 11 ], the right, “ to a just and public hearing within a sensible clip by an independent and impartial court established by jurisprudence ” .[ 12 ]The Article, hence, is clearly focused on a figure of state of affairss where a just test may non be provided due to procedural abnormalities within the judicial system. Before turn toing statements of non-compliance with the particulars of the proviso, it is of import to observe that “ Article 6 ECHR embodies no guaranteeaˆ¦of test by jury ” .[ 13 ]As such, a condemnable test without jury does non, of itself, sum to a misdemeanor of the ECHR and its commissariats. Indeed, there is no jury nowadays for the test of public order offenses or state of affairss of condemnable harm where the loss caused is below ?200.[ 14 ]Such a test does non transgress the ECHR every bit long as other procedural precautions, such as impartial Judgess and the right to analyze and oppugn prosecution grounds are met. Indeed, this really point was argued by Lord Chief Justice Judge in R v Twomney who stated that as “ the test would take topographic point before an independent court and, as it seems to us, for the intents of article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, it is irrelevant whether the court is justice and jury or justice entirely ” .[ 15 ]As such, the fact that s.44 CJA lineations certain fortunes where a jury may non be suited to hear a condemnable instance, does non automatically conflict with Article 6 ECHR.
R V Twomney represented the first non jury test in regard of an indictable-only offense in more than 350 old ages. The presiding justice weighed up the cost of protecting the jurymans in the instance[ 16 ], due to frights of bullying, and decided that a non jury test would be both in the involvements of justness and the populace. The contention sing Article 6 conformity arises from the fact that much of the stuff was kept secret due to Public Interest Immunity statements made by the prosecution. This meant that the suspects were unable to reason against an order being made because they had non seen much of the grounds that the prosecution to turn out that jury bullying was likely. Indeed, the defense mechanism argued that “ it was contrary to Article 6 for the defense mechanism to be refused an chance to do meaningful representations against an order for test by justice entirely and that this was the state of affairs in the present instance because so much stuff was presented to the tribunal ex parte ” .[ 17 ]Under Article 6, adequate information must be afforded to the suspect so that representations can be made on his behalf and grounds can be contested. This should amount to equality of weaponries which allows for adversarial proceedings between prosecution and defense mechanism.
However, the Lord Chief Justice outlined the false belief of this statement, that were non jury tests merely allowed when the suspect had entree to all the stuff against him “ the procedure could non use where the existent or possible intervention with the jury was of the most serious or sophisticated sort, and where, for illustration, revelation of the grounds might endanger life or wellness or affect the revelation of police operational grounds or methodological analysis which, if disclosed, would be of considerable involvement to the condemnable universe and damaging to the public involvement ” .[ 18 ]Although this would be the ideal circumstance that all the grounds was disclosed, the nature of the state of affairs is such, and the public involvement in secretiveness so great, that the ideal can non be achieved. Furthermore, a jury could non be used in fortunes the unity of the jury was compromised “ whether because of bullying, graft or any other reasonsaˆ¦allowing anything to sabotage or measure up the juryman ‘s responsibility to give a true finding of fact harmonizing to the grounds ” .[ 19 ]If a juryman or jury is pressured and intimidated, they no longer carry through their nonsubjective function so should non be utilised in a test.
Some have argued, nevertheless, that resort to non-jury test instances in the fortunes envisioned by s.44 is disproportional and that other, more moderately steps can be invoked to hold much the same consequence. The usage of the secret jury[ 20 ]( but a jury nonetheless ) has been offered as a solution to the state of affairss in which s.44 of the CJA applies. By utilizing a two manner mirror, or siting the jury in a separate room with proctors, it would be possible to continue their namelessness and protect them from any fright of bullying whilst continuing the jury test for a suspect. However, as the writers of the thought province, this may prevent challenge for cause, and stop up taking to a re-trial if one of the jurymans has a score but does non describe it, and issues a finding of fact. A possible usage of particular advocate was considered by the Lord Chief Justice in R V Twomney but ruled out due to the specific facts of the instance.[ 21 ]And it seems that this attack will go on, with options being considered depending on the particular virtues of each instance, and so it is right that it should be this manner. Although there is doubtless a deficiency of certainty, flexibleness is required in such fortunes to guarantee justness.
In decision, it is clear that although statutory commissariats which remove the handiness of jury test may look to amount to unfairness under Article 6 ECHR, they do non of themselves really infringe Convention rights. The determination in R v Twomney right interprets the statute law in a restrictive mode and it is clear that efforts were made to seek options such as constabularies protection before fall backing to the utmost step of test without jury. Ever since the Auld Review in 2001 considered the usage of justice merely tests for chargeable offenses, the execution and usage of such commissariats were merely a affair of clip. Although it has been claimed that “ the dike has eventually cracked. It remains to be seen whether what follows will be a drip or a downpour ”[ 22 ], such a position is excessively dramatic. Alternatively, “ it is now clear that the tribunal proposes, salvage where the statutory conditions are clearly satisfied, to keep the historic unity of the system of jury test ” .[ 23 ]The function of the jury in the bulk of condemnable tests has been maintained, and in fortunes where it is non used, the suspect can still have a just test, compliant with Article 6.
Phipson on Evidence 17th Ed. Chapter: Chapter 11 – Rules of Evidence Relating to the Course of a Test: General Documents
Elliott, Catherine and Quinn, Frances, English Legal System, Chapter 12
Devlin, Sir Patrick, Trial by Jury, Chapter 6
Bisgrove, Michael, “ Judges as courts of fact: to what extent do the commissariats for a suspect to be tried on indictment by a justice sitting without a jury struggle with the suspect ‘s right to a just test where issues of PII are present? ” [ 2010 ] Crim LR 702
Craig, Rosemary, “ Non jury tribunals in Northern Ireland ” ( 2009 ) 173 JPN 363
Kirk, David, “ Fraud Tests: A Brave New World ” ( 2005 ) 69 JCL 508
Levine, Seth, “ Practice points – Dangerous Precedent? : Practical effects of Twomey instance for non-jury tests ” ( 2010 ) Law Society Gazette 19, 15th April 2010
Mahoney, Paul, “ Right to a just test in condemnable affairs under Article 6 ECHR ” , Judicial Studies Institute Journal ( 2004 )
Pattenden, Rosie, “ R. V T: test by justice entirely ” ( 2009 ) E. & A ; P. 13 ( 4 ) 355
Taylor, Nick, Case commentary: R V T ; R V B ; R v C ; R v H [ 2010 ] Crim LR 82
Wolchover, David and Heaton-Armstrong, Anthony, “ Star Chamber of a Secret Gang of 12? “ ( 2009 ) 172 JPN 420