system?
Serjeant at the bar
Last week the British Home Secretary, Jack Straw, found himself under the political cosh. He introduced a Bill to restrict the right to trial by jury such that in a range of cases the choice of a jury trial would be given to the presiding magistrate. The Bill passed through the Labour dominated House of Commons, but came unstuck when it reached the House of Lords.
Some Labour peers who, unlike most of the Tony Blair government, have not blurred into Thatcherites, joined liberal democrats (ironically Tories) to vote down the Bill. It was seen as a fundamental attack on a basic right, namely trial by jury. In some countries the ill-considered advice of the policy units is summarily rejected. Is it too much to expect that similar nonsense by the new human rights lawyers in our policy unit will also be rejected?
But, that is only a small part of the story. More important is the range of argument which was employed to vote against the Straw Bill. Helena Kennedy, QC, who was created a life peer by the Blair government in 1997, wrote in The Guardian of January 20: “The folly in all this is that juries are a good thing. They really are democracy in action. While all the talk in Whitehall is about social cohesion and citizenship and the creation of social capital, and think-tanks are thinking and wonks are wonking, here we have one of the most awe- inspiring examples of citizen engagement being eroded by the same people who agonise at the loss of civic responsibility.”
In South Africa there is similar talk of social cohesion, there is much “think- tanking and wonking”, and there is even more talk of African values and Eurocentric illegitimacy. But there is no talk within legal circles of reintroducing this institution which others regard as so fundamental to a democratic society. Over the past year in particular, the judicial institutions in this country have been subjected to concentrated criticism. The main argument has been about the illegitimacy of the judiciary. This reduces to two essential criticisms, namely that the judiciary remains overburdened by the legacy of apartheid and, secondly, that the predominately white judiciary remains out of touch with the mores of the African majority.
Analysed within this context, it is surprising that so little consideration has been given to the jury system. Whatever its problems, the jury system in criminal cases allows for guilt to be determined by members of the South African community. If a jury reflects the demographic composition of the country, it would at least be perceived to be more in touch with the values and morals of the community It represents a central idea of democracy, namely rule by ordinary members of society in which everyone can be asked to take on the task of judgment of peers.
There are many arguments against the system. The OJ Simpson case is often cited as an example of how juries respond to popular pressure. Jerome Frank, a famous American jurist, once said: “The jury applies law it does not understand to facts it can’t get straight.” But comparative research in the United States and Australia indicates otherwise. Juries tend to do as well as judges in a long run of cases. In short, if the jury got it wrong in Simpson’s case, so have many judges in others – some in cases close to home.
Arguably the best argument against the jury system is that, unlike a judge, a jury gives its decision without having to provide reasons. Without the need to give reasons, a decision becomes suspect. A decision which is justified by reasons will be a more considered decision and hence more rational. This may be a less powerful argument than it appears at first blush. Anyone who has seen the film 12 Angry Men will have understood that although the jury’s decision is not accompanied by written reasons, the very dynamic of obtaining agreement among 12 people who have never met and come from different backgrounds, requires compliance with a group dynamic that works its own restraints.
The jury system in this country was abolished more than 30 years ago. Under a democratic system of government it is worth debating once more. The passionate manner in which it was defended in the United Kingdom last week indicates that, for some, it is central to a democratic system of criminal justice.