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The jury system has long been widely regarded as a linchpin of democratic societies across the world, but their role and effectiveness is under renewed scrutiny amid a shake-up of the Scottish legal system.
In England and Wales, anyone accused of a serious crime “is generally entitled to a trial by jury, which means the evidence is considered by a group of – theoretically – impartial citizens who can then deliver a non-biased verdict”, wrote Glamour magazine’s Lucy Morgan. Yet this long-standing element of the criminal justice system is “not without fault”.
The government in Scotland, where there is no right to trial by jury, is paving the way for pilots of jury-free trials for rape and sexual assault cases, in response to the country’s “notoriously low conviction rate”, Morgan continued. The proposals have met with “derision from the legal profession”, but supporters argue that jurors are “too often swayed” by “rape myths” that put the blame on victims.
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Here are some key arguments for and against trials by jury.
1. Pro: ensures representation
Having juries means that the “community is represented”, with members of any “race, religion, gender and socio-economic group” brought together to “decide the fate of a fellow citizen”, wrote Thomas Leonard Ross KC for The Sun.
Felicity Gerry KC, a professor of legal practice at Australia’s Deakin University, agreed that in cases where the “public has a vested interest” and the verdict could result in a “life-changing punishment”, it is “vital” that members of the community, rather than a lone “privileged professional”, decides on the innocence or guilt of a fellow citizen.
Jury service is “an exercise in democracy”, Gerry added in article on The Conversation.
2. Con: jurors can be biased
Jury members are “subject to all kinds of societal biases that may prejudice their interpretation of the evidence”, said Morgan in Glamour.
Finding out what goes on “inside the jury room” and “the biases that might influence jurors” is of vital importance, said psychologists Dr Itiel Dror of University College London and the Open University’s Dr Lee John Curley and Dr James Munro.
Like all humans, jurors are “fallible beings” who may have biases that can lead to confirmation bias – when jury members distort the evidence “against their preferred verdict”, or give “more weight to the evidence that favours their preference”.
Bias in the criminal justice system is a “significant issue”, the trio added, and can cause “miscarriages of justice”, but establishing “procedures” can help to “avoid the potential for bias to influence the process”.
3. Pro: boosts public confidence
Ditching the “anonymous balance” offered by a jury, said Scottish Criminal Bar Assocation president Tony Lenehan KC, in favour of the verdict of a “single middle-aged, university-educated person, most likely white and male”, risks “attacks in the press for every decision the vocal minority dislikes”.
The lone judges “will feel those eyes upon them”, Lenehan wrote for The Times, and it would be a “strong character indeed who pays no heed”. Allowing this “one interested party” to potentially have any sway in a case “robs” the justice system of “public confidence” and “essential transparency”.
4. Con: hung verdicts
Most juries are able to “reach their verdict unanimously”, said Jacqui Horan, an associate professor of law at Australia’s Monash University, on The Conversation. But in some cases, they “unable to agree” after deliberating “for several hours or days”. This usually results in a retrial with a new jury.
The defence is “usually at an advantage” in retrials, according to The Sun, because the prosecution faces the “hard task of trying to surprise the defence team” with new evidence. By contrast, the defence can use their knowledge of the evidence presented at the first trial to “block all loopholes” and “amend what needs to be changed to build a stronger case”.
5. Pro: checks on power
Scrapping juries would put “unprecedented power in the hands of judges”, said Spiked’s Luke Gittos, particularly in “complicated crimes” such as rape. Trials by jury are “inherently fairer” and are “an essential safeguard against injustice”.
Juries can also be crucial in preventing “excessive state power”, said lawyer Samantha Love in an article for the Oxford Royale Academy. They can help to prevent “laws being enforced with which the population do not agree”, as well as ensuring that “society is involved in the administration of justice” and “protected from the state”.
6. Con: expensive and time consuming
Although many argue that monetary cost should not be a “relevant factor” in determining the value of juries, “practicalities can be as important as principles”, wrote Love for the Oxford Royale Academy. And the jury system does “have costs for the economy and the state”.
Not only are jurors able to claim expenses for their travel and food during their jury service, they may also be absent from work “for sustained periods”, potentially costing them and their employer. To have to “sit in court for two weeks without ever being called to sit on a case” is not “uncommon”, Love added.
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