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Professional Juries: Veritas or Vocation?

Written by Simone Farrer (2nd year LLB)

A strong title this may be, but one which will hopefully spark debate. Trial by jury is an intrinsic part of our justice system, capable of determining people's liberties, and ultimately impacting on the rest of their lives. This tradition of trial by jury has been a long-standing and distinguishing feature of Scottish courts. It can, in some form, be traced back 700 years[1]. It is the "jewel in the crown of the Scottish legal system"[2].                                                                                 

A jury in a criminal trial comprises 15 jurors, whose decision can be reached by a simple majority. Open to them are 3 verdicts: guilty, not guilty, or not proven. Jurors are members of the public on the electoral register who are called for jury duty. As long as they are qualified and eligible, and do not seek excusal, jurors are called to court[3]. They are given the name of the accused, a brief outline of the incident and the anticipated length of the trial; if at this point they know or have read about the incident, they can seek excusal. Following this, a ballot will decide who is to hear the trial. Once jurors are selected, they will be given more details about the incident and have another opportunity to be excused should they recognise this extra information. In the event of one or more jurors being excused, a further draw will take place. This process almost certainly warrants an impartial tribunal to judge the conduct of the accused. The element of impartiality is essential as the jury is in full control of the case outcome. What hangs in the balance can have a substantial impact on the accused, but also on the criminal justice system as a whole by guaranteeing a fair and balanced trial.

The concept of a professional jury is alien to the traditional formulation found in Scottish criminal trials. Members of the public are replaced by trained jurors who sit on juries for a living. A professional juror could be a retired judge, academic, lawyer or other experienced professional who is well-versed in the workings of the court setting and able to digest complex evidence. They could also be individuals embarking on their career who undertake a course of study to be trained in and familiarised with jury duty. The possibility of such a system in the future is, arguably, quite alarming. It already exists in Asia[4], and in part in Argentina[5]. An employed jury is capable of solving problems inherent with the current setup, however there are still great advantages of the current system and many disadvantages of professional jurors.

Two widely publicised issues involving juries are the misuse of social media and background internet research into cases[6], despite strict contempt of court warnings that are given to jurors. Though possible to escape without punishment[7], such activity can result in imprisonment[8]. This can mean the very costly stopping and retrial of a case. Professional jurors would risk losing their job, as well as being punished, which is certainly an incentive to follow the rules. Perhaps greater awareness in the training of professional jurors could delineate what is acceptable, and if the rules were followed, the high costs of retrial would be saved too.

In addition to heavy warnings and the potential sanctions jurors face, it has been shown that judges' directions can be unclear and incomprehensible to the layman[9]. Professionals would be capable of properly understanding such terminology and instruction. A broader knowledge of complex legal (or other) areas relating to the case would be useful during the hearing of evidence, as expert witnesses often need to use the language of their field, translating as jargon to many jurors. Though these problems should be balanced by a sound direction from the judge, understanding what evidence is actually being given in court is essential to coming to an informed decision as to the correct verdict. Lay juries are given only a brief introduction to the law. There is a huge volume of information for jurors to absorb. Such complexity is burdensome on jurors, and could be alleviated by more informed decision-makers. Could a more informed juror do a better job? They would be familiar with the court environment and procedure, therefore able to give more attention to deciding the case.

Jurors also bear the weight of financial loss. Some will not be paid for their time off work, and redress is not given in every case. Limited governmental resources mean jurors can only claim for public transport expenses, and must prove loss of earnings: a vast contrast to the professionals who would be paid for their service. For the 90% of jurors cited who are not needed after selection[10], their time and the court's time could be saved by having professionals ready to serve, thus saving money.

Professionals would also know from training - and over time, experience - what to look for beyond the persuasive arguments and techniques employed by counsel. A lay juror may be swayed by a more convincing argument from one side and, as such, could overlook some crucial fact. A professional could strip the case back to the skeleton argument and see what is really being put forward. Professionals would also be more familiar with complex terminology and the presentation of expert evidence[11].

As well as coping with case complexities, too many trials also involve hugely distressing evidential productions, which can be a harrowing experience for jurors. The emotional pressure placed upon them can be extreme. A study has confirmed that jury service can trigger severe anxiety and serious stress levels, even leading to symptoms of post-traumatic stress disorder[12]. Perhaps professionals could be screened and prepared for such upset. But is it possible that even trained jurors would not be vulnerable when exposed to this kind of material? They too may suffer within their employment.

The present selection process generally results in a representative group of the public to judge the accused. There exists a sense of justice when being tried by fellow citizens of the same 'status' of the accused, rather than professionals who have been given additional power to determine their guilt. The lay jury almost acts as a barrier on the judge's advantageous position in knowing the law. They bring a fresh set of eyes uncontaminated by the press and quite naive to the legal standing. A deficit in their knowledge of the law is their exact purpose: to judge on the facts and arguments put forth by either side. This common-sense approach is at the core of trial by jury.

Professional jurors know the law. Would this not tempt them to become judges rather than jurors to be persuaded? If so, it is not guaranteed that acting judges would make a sound decision, as can be seen in the purely judge-made decision in the Al-Megrahi case[13]. The case was referred by the Scottish Criminal Cases Review Commission to the Court of Criminal Appeal on the basis of a doubtful verdict. However, in the context of international criminal tribunals, it is the judge who has the final word. In Papua New Guinea, there is no jury system (even though it is a common law country)[14], so maybe this could work in practice. But is it compatible with our tradition? Would a complete overhaul be too much for our system and legal practitioners to cope with? Surely it would be the fall of true adversarial justice.

There is a risk of professionals analysing the case too deeply, and remaining set in their ways of thought as a judge or academic. They may decide the case according to their own training and thinking, as opposed to a lay jury who receive generic instruction. Having been a person of high authority, such as a judge, other jurors may look up to them and accord too much weight to their opinions. As they would be state employees, there is a risk to their impartiality as, and hopefully, this would never happen, their decision may impact their employment. We are in danger of forfeiting a balanced system for a fully state-run system. Though this may not cause problems, it could give those in the dock a feeling of alienation by having their fate decided by officials and not individually-minded civilians. They may begin to feel they are being tried unfairly where there is an imbalance of state power within the room.

A problem also arises with training the jurors: training would be incomplete because one of the most important parts of decision-making is the deliberation taking place behind closed doors. This can never be revealed to the public - it remains confidential. It is already an obstacle for academics and researchers so would be a fundamental missing component of a course in professional decision-making. Funding the training would be another hurdle facing this system. Government resources are already limited and there are more cuts by the week (such as the recent Scottish JP and Sheriff Court closures). Money-saving methods are being proposed, for example, developing the use of digital technologies in the court room. Without full training, it is difficult to see how a juror system could operate for those not already familiar with the court environment.

Such a concept damages tradition. The whole ethos of our justice system as it stands is to allow for society to be judged by society, achieved by bringing to the fore a wider range of influences in considering fair and appropriate judgment. Lord Kingsland has said that the jury trial "has been a central component in the conduct of all serious criminal trials... its contribution to the preservation of liberty of the individual, and to the legitimacy of government, is quite incalculable."[15]

Adversarial justice by jury is a defining institution of our court system. Although difficult to ignore the numerous positive aspects of having professional Jurors, it must also be remembered that to change the composition of a jury is to change the entire way justice is to be delivered: not upon the votes of fellow citizens, who either recognise a wrong or a potential miscarriage of justice, but upon the approval of jurors who are aware of the minutiae of the law, evidence presentation and counsel technique. Surely they would be tempted to act in more of a judicial than lay capacity? Would this trigger more unjust convictions? Or erase imperfections existing within the present system? The current system, whereby members of the public are charged with the authority to decide on innocence is, if not perfect, preferable to initiating a trained jury.

 


[1] Lord Kingsland, House of Lords Hansard Text, Column 1152, 20/03/2007

[2] Aamer Anwar, The Role of the Media in Criminal Trials, Scottish Parliament Justice Committee Publication 2012

[3] Scottish Courts, Information for Jurors (29/12/2013)

[4] Scottish Parliament Justice Committee Official Report 02/10/2012

[5] Jury and Judge Decisions: The Severity of Punishments in Cordoba Mixed Tribunals, Maria Ines Bergolio paper 27/05/2009

[6] For instance, Joanne Fraill who investigated further information online during a multi-million pound drugs trial while serving on the jury.

[7] Such as the juror in the Sheridan case, who identified herself via Facebook as one of the jurors in the trial.

[8] An English juror was jailed for 8 months after contacting the defendant.

[9] 31% of 797 jurors surveyed genuinely understood in full the legal terms used by the judge. (Are Juries Fair? Cheryl Thomas, Ministry of Justice Research Series 2010)

[10] "The Modern Scottish Jury in Criminal Trials", Part IV 2.6 Scottish Government consultation publication September 2008

[11] This is especially the case in fraud trials, and change has been considered south of the border: Fraud (Trials without a Jury) Bill 2007 following the abandonment of a 21-month complex fraud case.

[12] N Robertson, G Davies, A Nettleingham, Vicarious traumatisation as a consequence of jury service, Howard Journal of Criminal Justice 2009.

[13] HM Advocate v Al-Megrahi (No.4) 2001 G.W.D. 5-177

[14] T. A. Doherty, Evidence in International Criminal Tribunals: Contrast Between Domestic and International Trials,  Leiden Journal of International Law

[15] House of Lords Hansard Text, Column 1152, 20/03/2007

 

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