The glory of the English Law

The decline and fall of the jury system

Most people are keen to avoid jury service if possible. My dad’s advice, back in the days of jury selection, was to turn up with a copy of the Daily Telegraph under your arm, confident that the defence counsel would have you dismissed. This was years before the Curb Your Enthusiasm episode in which Larry tries to escape having to serve by making racially insensitive comments.

While ‘peremptory challenge’ is long gone, fewer of us may soon have to worry about being called, with Justice Secretary and Lord Chancellor David Lammy keen to phase out juries for all but the most serious crimes, stating in a memo that there is ‘no right’ to jury trials.

The justice system is in crisis, and like much of the state is drastically short of money; it is now so threadbare that some ongoing cases won’t go to trial until 2029 or 2030. Nevertheless, the story gives me that warm feeling of having all my prejudices confirmed once again - that the people who dress themselves in the clothes of moderation, who carefully patrol the boundaries of what is acceptable belief, who claim to follow ‘norms’, are actually extremists. The ruling party, which views international law as so sacred it prevents us from controlling our borders and forces us to hand over territory to a hostile state, is happy to remove one of our most fundamental rights, one enjoyed by Englishmen and women for 800 years. (Yes, strike me from the jury, I read the Telegraph.)

Trial by jury emerged in the reign of Henry II, although there had been traces of the system dating back as far as Ethelred the Unready. At the time of Henry’s reign in the 12th century, the two most common systems of justice were trial by ordeal or the more progressive method of trial by battle.

Trial by ordeal involved the accused having to walk over the sharp edge of a plough that had first been placed in a fire to make it red hot. A variation of the theme had the suspect holding two hot irons and walking nine paces, then leaving it a week to see if the wounds had healed; if they had festered, the suspect was judged to be guilty and hanged. Alternatively, you could opt for trial by either drowning or boiling, neither of which was ideal.

Trial by ordeal was killed off by the Catholic Church, which in 1215 banned priests from taking part. Four years later the system was abolished in England by Henry III. Trial by battle lasted into the following century, but was not formally removed from the statue books, forgotten about until one murder suspect invoked it in 1818. Legal experts had to look it up and realised that he was right, and the man got off after the victim’s rather baffled brother refused to fight him in combat; afterwards Parliament quickly abolished the archaic and quirky battle option.

In 1179 Henry II had begun to allow defendants to decide whether they wanted trial by battle, or the case decided by a group of a dozen local knights. Juries had developed from an Anglo-Saxon custom whereby the accused could bring a group of men, often but not always 12, to act as character witnesses. This evolved into a system where a dozen local men would be gathered to give their opinion on the suspect and decide what the (often threadbare) evidence about the case suggested; today, of course, juries do not judge on character, and are kept ignorant of previous crimes.

The right to trial by jury was further cemented by the treaty between Henry’s son John and his disgruntled barons, the Great Charter or Magna Carta. Its most important clause, 39, stated that: ‘No freeman shall be arrested or imprisoned or dispossessed or outlawed or banished or in any way molested, nor will we go upon him nor send upon him, except by the lawful judgment of his peers and the law of the land’.

John Morgan’s The Jury

Clause 39 is still the law in England, although conjoined with Clause 40 – ‘To no one will we sell, to no one will we deny or delay right or justice’ - and known as Clause 29 in the edited down 1297 reissue of Magna Carta. Together, they form the basis of English liberty and the concepts of due legal process and equality before the law.

When the United States Constitution came to be written it was heavily influenced by the charter: the Sixth Amendment, which states that ‘the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed’, was based on Clause 40, and uses the exact phrase, ‘lawful judgment of peers’ as it appears in Clause 39. Americans are so attached to these ancient liberties that, after John F Kennedy’s assassination, the British government gave a little corner of Runnymede to the United States, from where we are all presumably free to post offensive tweets without the police knocking on our door.

Juries are so central to our freedom that 18^th century jurist William Blackstone wrote in his Commentaries on the Laws of England: ‘Trial by jury ever has been, and I trust ever will be, looked upon as the glory of the English law. So that the liberties of England cannot but subsist so long as this palladium remains sacred and inviolate; not only from all open attacks (which none will be so hardy as to make), but also from secret machinations, which may sap and undermine it; by introducing new and arbitrary methods of trial; by justices of the peace, commissioners of revenue, and courts of conscience.’

The advantages of the jury system are not dissimilar to the advantages of democracy: it’s not that the public are wise, and will make the correct choice for the right reasons, but that it protects individuals from tyranny, corrupt or power-hungry officials, a far greater danger than the ignorance of the public.