Drug smuggling case to be heard without jury
Monday, February 11, 2008
Link: Drug smuggling case to be heard without jury - Telegraph.
Readers who feel voluntary arbitration on sharia law principles is "the thin end of the wedge" for the future of the English legal system have missed the thin ends of so many more important wedges. Jury trial, for example, was the last English institution in which we could have any confidence. For so long as randomly selected citizens decided guilt or innocence, we had a protection against wrongful conviction.
Apart from protecting us against the cynicism of case-hardened judges and the bias of those selected over a long period for their attractiveness to a politician (and perhaps even on the basis of their political donations) juries provided something more fundamental. What legal historians call "criminal equity" (refusal to convict the "guilty" where the law is unjust) means that a tyrannical government cannot guarantee to enforce its will as long as juries exist. A government criminalising one formerly legal activity per day must always have been painfully aware that criminal equity would kick in.
"Hard cases make bad law" and, no doubt, many readers will feel that there is "a real and present danger that jury tampering would take place" in this particular case. You are meant to feel that way. The option for a non-jury trial was introduced four years ago. The government has waited patiently for such a good opportunity to swing its axe at one of the key planks of English justice. Rest assured; there is such a "real and present danger" in every jury trial. The relatives of the accused made a point of hanging around in the car park noting the numbers of jurors' cars during the trial in which my wife was a juror last year. The response of the jurors was that of the English yeoman. They came by bus and on foot and they convicted. Future governments will undoubtedly wish to protect such citizens from their own courage. "For your own good" is the mantra of the totalitarian everywhere, from the overly-protective mother to other ruthless dictators.
Note also the phrase "jury tampering." Would you consider a threat to injure or kill yourself or your family to be mere "tampering" dear reader? What this anodyne phrase means is that law and order has so broken down that the government admits it cannot protect innocent citizens doing their civic duty. All the more reason to protect the last effective institution in the justice system - and the only one not controlled by the government which wrought such chaos - I should have thought.
Since the government measures the efficiency of criminal justice by conviction rates (as if a wrongful conviction were just as good a thing as a rightful one) I predict that this first non-jury trial will be hailed a success. Pretty soon, there will be more and more such "successes." One of them, dear reader, may be the trial that convicts you of a crime you did not commit. All of them will help to make English criminal justice the sort of "success" only its mother could love.
Pace Dawkins, I would rather have a jury than a judge in either case! Although I would like to think I would be pleading guilty if I were guilty. I don't remember the details of the Ponting case, but if it was as you recall, it would be a perfect example of criminal equity - a term used in legal history to describe the phenomenon whereby juries forced Parliament to repeal the Game Laws and other 18th Century iniquities because they would not convict poachers and other (by our standards) minor criminals, knowing that to do so would lead them to the gallows. When "guilty" person after "guilty" person was acquitted, Parliament realised the game was up. Although largely populated by corrupt purchasers of seats and younger sons of the aristocracy with no sympathy for poor people driven to crime, they had to amend laws to reflect the will of the people as expressed by jury after jury.
I am such a believer in juries that I would happily select Members of Parliament by the same method. They would be much more representative of the nation than the self-selecting egomaniacs and scoundrels who run for public office. They would perfectly reflect social, ethnic and other elements of our society. And we would all be spared the tedium of elections, with those manifestos and promises that our Prime Minister's lawyer was recently instructed to admit were a pack of lies, not to be taken seriously.
Posted by: Tom Paine | Wednesday, February 13, 2008 at 10:08 PM
Makes you feel like moving to Russia.
Posted by: jameshigham | Wednesday, February 13, 2008 at 06:47 PM
I didn't know the term 'criminal equity' but it describes an essential safeguard.
I remember the trial of Clive Ponting, who leaked documents about the Falklands war to Tam Dalyell, an MP. As I recall the jury more or less said, 'Yes, we accept that he did what the prosecution said he did, yes we understand that the judge says he has no defence, but we don't think he did anything wrong so "Not Guilty."' If my recollection is flawed please let me know, but the point is that it is essential that we retain some mechanism for the people to say, 'we don't accept that the defendant's action is a crime.'
Now another point.
Last week I was reading an essay by Richard Dawkins in which he said that if he was in court charged with a crime of which he was guilty he'd rather have a jury, if he was not guilty he'd rather have a judge. I've got no experience of criminal law; does Dawkins have a good point here about the wisdom of juries at times like that? (Not that that invalidates the need for juries who must still have the right to decide that some behaviour simply isn't criminal.My point is a different one; and it's a question .)
Posted by: Kevyn Bodman | Wednesday, February 13, 2008 at 05:57 PM
Dreadfully sorry, that link is to the the usual BS rubbish this and this is the good stuff.
Posted by: Diogenes | Tuesday, February 12, 2008 at 02:48 AM
I seldom post comments here, not because I don't wish to, but my pride prevents me from continually agreeing with every word said, but for this issue I cannot suppress my inner sycophant.
Checks and balances are thin on the ground in this country. At every turn juries are undermined and hamstrung by their ignorance of the law.
For example:- Juries are not told that the absence of character witnesses for the defense negates the prosecution's right to highlight the recidivism of the accused.
Also:- Juries are not told that they can ignore the judge's instuctions with impunity.
Individual jurors may find it difficult to discern prejudicial evidence but juries do not. The laws regarding evidence (eg PACE '84) should be made clear to all jurors so that they can make a balanced judgement, the evidence can seem scant when it has been distilled down to the unimpeachable fraction.
Most importantly the judiciary needs to recognise that they, much like the police, are mere functionaries within the system. The public are the source, the root, the cause, the need, the measure, the justification and the final arbiters of justice.
Bystander is having a rare (post Rogerborg) moment of clarity on this subject.
Posted by: Diogenes | Tuesday, February 12, 2008 at 01:48 AM
Bring on Kafka...
Posted by: Rob | Monday, February 11, 2008 at 10:34 AM
You will also note, dear Tom, that the Continent is noted for the lack of juries in its trials. This is, I fear, more harmonisation by stealth -- softening us up for the adoption of the EU's corpus juris...
DK
Posted by: Devil's Kitchen | Monday, February 11, 2008 at 09:36 AM