A criminal proceeding may proceed by way of a jury trial, in which the jury of 12 will make all of the decisions about the facts (deciding, based on the evidence, whether something happened or existed), or as a judge alone trial, whereby the judge makes the decisions about the facts and the law.
Jury trials are not available in all criminal cases. Under the Criminal Procedure Act 2011 (sections 6 and 50) the threshold for election of trial by jury will shift from offences that carry a maximum penalty of more than 3 months imprisonment to offences with a maximum penalty of 2 years imprisonment or more. The Act will also remove the ability of the prosecution to elect a jury trial in respect of a certain category of offences that can be tried either way. The effect of this is that there are likely to be more cases heard by judge alone than previously.
There are concerns that a contributing factor to the low conviction rate in sexual offence cases is that they are generally tried by jury and, even after the reforms in the Criminal Procedure Act 2011 (set out above) come into force, will probably continue to be. Research suggests that juries come to the task with an array of myths and prejudices about the nature of sexual offending that cannot easily be dispelled by judicial instructions (see this extract from the McDonald and Tinsley book and here). Moreover, the use of generic judicial instructions may well introduce their own distortions into the decision-making process by leading jurors to take a particular view of the evidence that the judge does not intend.
Although that problem as described is peculiar to sexual offences, it may well exist in different ways in relation to other offences as well. Jurors may well bring prejudices to certain cases that are not transparent due to the secrecy of the reasoning process. There may be other cases in which jurors would have difficulty assimilating the evidence, such as long and complex fraud trials.
The continuation of jury trials in their current form may also be incompatible with our possible reform that judges play a much more active role in controlling the proceedings and questioning the parties. Part of the intent of that possible reform is to enable the fact-finder to make the decision by reference to the evidence that he or she wishes to hear, rather than the evidence that the parties wish to put to him or her. That feature of the proposed reform would be lost if the current distinction between judge and jury remained.
The facts in a trial would be decided either by a judge sitting alone or by a judge and two jurors, who would be selected to sit on a number of cases for a fixed term and receive some training before assuming the role. The jurors would sit on the bench together with the judge, and would receive a copy of the case dossier prior to trial so that they as well as the judge were familiar with the evidence. The judge and jurors would deliberate together as a joint panel.
There are three different options for using a judge and two jurors to decide the facts in a trial:
1. Sexual offences only;
2. A specific range of offences thought to be particularly problematic;
3. All cases currently able to be tried by jury.
The Criminal Procedure Act 2011 (sections 6 and 50) will give the option for serious cases that must currently be tried by a judge and jury to be heard by a judge alone, at the election of the defendant. However, it is still likely that the majority of such cases, both sexual and non-sexual, will be tried by jury.
Juries are often criticised for failing to do justice, particularly in cases involving sexual offending or complex and lengthy evidence. These criticisms may be summarised as follows:
- jurors bring prejudices, myths and stereotypes to bear in assessing the evidence and deliberating on their verdict, which cannot effectively be counteracted by judicial directions in the individual case (see this extract from the McDonald and Tinsley book and here)
- they sometimes fail to comprehend or to assimilate scientific or technical evidence, or evidence that is complex or presented over a long period of time (see here);
- for both of these reasons, they sometimes bring in perverse verdicts (particularly acquittals) that cannot be justified by the evidence;
- because it is believed that they are not necessarily capable of weighing all relevant evidence appropriately and putting aside any prejudicial effect it might have on them, there is an elaborate set of evidential rules to shield juries from relevant evidence that may be given undue weight or wrongly interpreted;
- because juries do not need to give reasons for their decisions, their reasoning process is non-transparent and non-appealable.
These criticisms should not be overstated. There is research evidence that jurors are generally extremely conscientious in approaching their task and, to the extent that individuals bring prejudices and myths to the jury room, these are generally counteracted or at least mitigated by the collective jury process (see here). Moreover, judges themselves are not necessarily immune from the prejudices and myths (particularly in sexual offence cases) that may adversely affect jury decision-making. Further discussion of the arguments for retaining the jury in cases of sexual offending is available in this extract from the McDonald and Tinsley book.
Moreover, the jury system has a number of other important functions. It allows community participation in the criminal justice system, thus assisting in the maintenance of public confidence in it; it acts as a safeguard against arbitrary or oppressive State conduct by allowing the community at large to determine the outcome of proceedings brought by the State; and, by allowing community input, it ensures that the system is sensitive to prevailing community values.
As a result, we do not think that there is any clear evidential basis for concluding that a judge is usually a better fact-finder than a jury, or vice versa. We therefore doubt that there is sufficient evidence to make out the case for the abolition of jury trials altogether and their replacement by trials before judges sitting alone.
When the Law Commission considered the jury system in 2001 (see here) it explored whether there were particular types of cases that were not amenable to trial by jury – in particular fraud and sexual offence cases. The Commission concluded in the case of sexual offence trials that the recommendations it was proposing on the laws of evidence were sufficient to protect complainants, and abrogation of the right to trial by jury was not justified. Notwithstanding that conclusion we now have reservations about the retention of the current jury model for at least some types of cases. We have three reasons for that view:
- Firstly, although judges may have many of the prejudicial attitudes as jurors, they can receive information and training on an ongoing basis to change those attitudes. This cannot be provided to jurors who sit only on one case; if attempts are made to provide them with equivalent information through, for example, expert evidence in the individual case before them, that is unlikely to change their attitudes and may well have unintended and adverse effects on their decision-making.
- Secondly, the fact that jurors deliberate in secret and do not provide reasons for their verdict means that their decisions are not transparent and open to scrutiny. Even if their reasoning process cannot be faulted, the veil of secrecy leaves room for speculation that they were improperly influenced by irrelevant considerations and thus undermines public confidence in the outcome.
- Thirdly, the removal of the current jury model would eliminate the need for most of the substantial and complex array of evidence rules that currently dictate what can be presented to the judge or jury at trial.
While these weaknesses with jury trials have particular force in sexual offence cases, they are obviously of more general applicability. This suggests that the current jury trial model should perhaps be replaced in other types of cases as well. In any case, there would be some difficulty in implementing a trial by a judge and two jurors solely for sexual offence cases. The role of lay juror might not be an attractive one if it involved sitting only on such cases. Moreover, the small number of such cases in certain parts of the country might make a system of lay jurors either unworkable or unjustifiable in resourcing terms. We are therefore inclined to think that, if such a system were to be introduced, it should be extended at the least to other specified categories of case as well.
If the current jury model were to be replaced, either in sexual offence cases or more generally, the question arises as to whether some other form of lay participation in the decision-making process is desirable. In European jurisdictions this is achieved in a number of ways:
- in Austria most serious cases are heard by a judge sitting with two lay jurors and a very small number of extremely serious cases are decided solely by a jury of eight (who sit with a panel of three judges to determine sentence);
- in Germany relatively minor cases are heard by either a single judge or a single judge and two lay jurors; serious cases are heard by two judges sitting with two lay jurors; and top end serious cases are heard by three or five judges with no lay jurors;
- in Denmark, where the prosecution is not seeking a sentence of four years imprisonment or more, or the defence waives the right to a “jury trial”, the trial is held before a judge and two lay jurors; more serious cases where the defence does not waive the right to a “jury trial” are heard by three judges and six jurors in the District Court or (in relation to top end serious cases) three judges and nine jurors in the High Court.
Further discussion on the use of lay assessors in European jurisdictions and in sexual offending cases can be found in this extract from the McDonald and Tinsley book.
We do not think that models involving substantial panels of judges and jurors can be justified. They would be resource intensive and there is little evidence that they would add much, if anything, to the quality of the decision-making. If judges were to be involved in determining the verdict, we think that some of the benefits of the current jury system could be retained if a single judge were to be accompanied in their task by two lay jurors.
These lay jurors would not be the same as those operating under the current system. As in European jurisdictions, they would be appointed for a fixed term tenure (perhaps 12 months or two years), and receive some training in the task. During the period of their tenure, they would be expected to sit on a certain number of cases per year (perhaps up to a dozen or more, depending upon the length of the trials).
More on enhancing the quality of decision-making can be found in this extract from the McDonald and Tinsley book.