So writes Lord Sumption, in “The case against jury trials” (The Telegraph):
Juries do not give reasons for their verdicts. The drafting of judgments is a demanding task which we cannot reasonably ask juries to perform. They may have up to twelve different reasons. There is a real moral problem about convicting someone of a serious offence without saying why.
This is not just a moral issue. The big problem about jury trials is that we cannot have a proper system of appeals. In Britain, criminal appeals are usually only concerned with the regularity of the trial. Has the judge properly summed up for the jury? Has there been some procedural mishap? Was there any evidence to support the charge? If so, was it legally admissible? The one question which is not asked is whether, assuming that the trial was properly conducted, the jury got the answer right. Yet that is the most important question of all.
Every experienced criminal judge will tell you that juries are careful and conscientious and generally get the answer right. That is true. But inevitably juries sometimes get it badly wrong, especially in really terrible cases such as terrorist murders or sexual interference with children, when they may be too keen to achieve “closure”.
Professional judges can also get the answer badly wrong. They too can sometimes be guided by prejudices, misunderstandings or just plain errors. The difference is that the reasoning of judges is transparent. They give their reasons and their mistakes can be corrected on appeal. By comparison, the reasoning of juries is opaque, and impossible to scrutinise on appeal because we have no idea how they got to their verdict.
All human institutions are fallible. Wrongful convictions and miscarriages of justice do happen. That is why we need a functioning system of appeals to review the merits of criminal convictions and not just the procedural adequacy of the trial. At the moment we do not have one. And we never will, as long as serious cases are tried by juries who simply say “Guilty” or “Not guilty”.
An interesting argument on a fundamental structural flaw in the British justice system.
The system lacks a mechanism to adequately review the safety of the conviction on its merits. As long as the form of the trial is legally perfect, the substance of the jury’s decision remains unassailable, regardless of whether it is actually correct.
