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| Photo: BBC |
A bit of a plate-spinner here, pre-scheduled. I⁴'ve been meaning to open this one up for a while now but, well, events.
So: judge-only trials for criminal offences? OK, Lammy isn't the sharpest knife in the drawer [1] but then again, Justice Delayed is Justice Denied; and the backlog in the courts is appalling. Balancing the system by waiting for victims and witnesses to lose heart (or die) is no way to dispense justice. The guilty go free by default and simple delaying tactics.
But hey, if it's me in the dock, there are circumstances in which I probably want a jury; and I think most people agree. And, although it's strictly irrelevant to the criminal cases I'm most concerned with, I was once party to a massive civil case in the commercial courts which in the USA would have been heard by a jury, and (all parties agreed [2]) would definitely have gone only one way - but here, being heard only by a single judge, it went the other way on a judicial whim over an odd technicality, and required overturning at Appeal.
I reckon we know where the blame lies, not least in the shocking reduction in funding for the CJS by the Tories: and covid didn't help; nor the latitude given to defence lawyers to waste time - one of the juries I sat on (a murder trial) saw some remarkable time-wasting being accommodated, albeit testily, by the judge. Somebody has to address the situation, somehow - under whatever leadership.
So what can we agree on?
- truly, the backlog has got to be addressed decisively
- we've long ago sold the pass on really nasty terrorist cases (N.Ireland, where the threat to juries is chillingly real - and that might spread across more of the realm in years to come, you don't need me to paint the scenarios)
- having sat on three juries, I tremble at the thought of jury trials for complex cases of fraud & the like
- hey, I'm an old soldier and know all about summary justice at first hand: it has to be a very serious offence before it gets anywhere near a Court Martial [3]
- so like taxation, it's already happened, & how much more in future is all a matter of degree
What else then, does t'readership think on this most critical of issues for a society supposedly built on the rule of law? [4]
ND
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[1] And nowadays it seems to be OK to point this out: everyone else does. This has surprised me somewhat. I had several accounts of what a good impression Lammy made in a handful of trips to the USA in 2023/24. But there we have it - by common consent, the man's a laughing stock. Pity he's in charge of this difficult issue.
[2] So clear was this to all concerned that the party which won at First Instance was desperate to have the case heard in England, and they succeeded. Conversely, the other party had tried equally desperately to have it heard in the USA. Some $400m was at stake.
[3] For any US readers, in the British Armed Forces we don't term regimental-level justice a 'CM': it's a term reserved for full military trials with defence counsel etc. (No juries, though: an experienced panel.) At the regimental level or below ('CO's Orders' or 'OC's Orders'), evidence is taken, but it's summary justice, CO = judge-and-jury. As my first Sergeant Major explained, the process is straightforward: "March the guilty party in. Find the guilty party 'Guilty'. March the guilty party out." GP will be invited to elect for CM, but it never happens: Sergeant Major makes sure of that, too. Oh no, son, you don't want that. You definitely don't want that.
[4] I shan't open up an episode of History Corner on you - Henrys I and II, Edward I, and Henry VII
5 comments:
Tell the judges and the lawyers that some will be hanged every month until the backlog is cleared. That would work a treat. We'd just have to accept the booing by the population when the hangings ceased.
This isn't just an issue in the criminal courts, the Trade Marks Registry operates as a Tribunal to give a first-instance decision on competing claims to a trade mark right. They are currently looking at delays of about a year to two years in holding hearings (before a single judge-equivalent) and issuing decisions. I'm seeing clients drop perfectly good claims to a trade mark simply due to the delay and uncertainty that will inevitably follow.
There is no sign of a jury in the Registry, and there never has been. So Lammy's proposal seems like a convenient excuse to get rid of juries with no real prospect of that making an improvement. To dispose of the case, we will still need to hold a trial, provide a judge, call the witnesses, and put up with lawyers making applications that look like delaying tactics. No-one has explained to me why not having to have a jury will make all these things much easier.
Maybe we need to address the actual problem?
Just think, a few decades ago I could have said "They order these matters better in Scotland". After years of devolved government I suspect it's unlikely still to be true.
I’m ambivalent either way as to the, erm, merits of this case.
Juries can be just as fickle and prone to deciding on things like how defendants look and talk, lawyers’ bedside manners and judge direction as anything they heard in evidence.
Same, apparently, with the ETs.
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