Jury trials for serious crimes have come to a halt. Twelve good men and women and true cannot be permitted to sit cheek by jowl in jury boxes, or expectorate in each other’s presence in cramped jury rooms, while Covid-19 remains a threat – as it will for months or even years until the longed-for vaccine.
We believe sentimentally that trial by jury is a defendant’s fundamental right – but why not give them the additional right to choose instead a reasoned verdict from a judge, as they have, for example, in most Australian states? That would get courts back up and running, even if barristers and judges have to argue through their face masks, and it would be a boon to defendants with good cases who do not want justice delayed.
It is, of course, an Englishperson’s enduring right not to be sent to prison for more than a year without the option of having his or her guilt determined by a jury of peers. But the right to jury trial was left out of the Human Rights Act, which merely adopted the European convention. Juries, as we know them, are not available in most continental countries, where first instance judges do an acceptable job of detailing rational reasons for findings of guilt that can then be scrutinised on appeal. There are cases in the UK where justice would be better served, and defendants would be better off, if they could choose trial by judge alone.
Trial by judge alone operates in all international criminal courts and was introduced in Northern Ireland at the height of the Troubles by the judge-only Diplock courts. There were civil liberty concerns at first but the Northern Ireland judges were generally astute and rejected some high profile RUC prosecutions. There is a rarely used power for prosecutors to apply for trial by judge alone, but only if they can show that the defendant is bent on jury tampering.
Cases where defendants may prefer trial by judge alone are those where the prosecution does not have the evidence to exclude a reasonable doubt, and trial by judge would predictably produce a speedy acquittal. This could also be preferable in cases involving defendants demonised either in person or because of their racial or religious group. When I defended Irish terrorist suspects and black activists in earlier days, juror prejudice was inevitable due to oppressive police security arrangements in court precincts and sensational media coverage, and it resulted in some notoriously wrongful convictions. In such cases, a defendant’s right to a fair trial would have been more secure had they been entitled to opt for trial by judge alone.
The most powerful argument against this was encapsulated by Lord Hutchinson’s response to my proposal: “It sounds fine in principle, but it will be the thin end of the wedge.” He was afraid, like many great criminal lawyers, that it would be the first step to abolishing a trial system that they knew instinctively was worth keeping. They thought it vulnerable to politicians’ attraction to cheaper, speedier and more rational justice.
But provision of a jury waiver option will not lead to the demise of a form of trial that has so much public acceptance, in particular because it involves the public in the delivery of justice. None of the Australian states that allow defendants (but not prosecutors) to waive jury trials have moved on to abolish jurors. One state that does not allow waiver – Victoria – was recently faced with the trial of a cardinal (George Pell) accused of child sexual abuse. It had to be held in secret – the worst of all alternatives – because of fear that publicity could prejudice a follow-on trial (although in the event prosecutors withdrew those charges). His conviction has just been overturned by the high court because the jury failed to recognise a reasonable doubt. Had he been entitled to a trial by judge alone, this objectionable secrecy would never have been necessary.
Jury waiver would help the justice system to handle some problems caused by Covid-19. But it should not be regarded either as a short-term expedient or as harbinger of the demise of jury trial. It should rather be accepted as the right of any person facing a substantial prison sentence to opt for trial by judge alone – or by three judges – in order to know the reasons why he or she is losing their liberty.
• Geoffrey Robertson is a human rights barrister and founder of Doughty Street Chambers. His books include Crimes Against Humanity and The Struggle for Global Justice