Editorial: Jury system should go on trial

Opinion

In asking the Law Commission to investigate an overhaul of the way cases of sexual offending are tried, Justice Minister Simon Power paradoxically goes too far and not far enough.

The minister wants the commission to consider the desirability of the so-called "inquisitorial" justice system, as used in France among other places. Our "adversarial" system has the judge act as referee while crown and defence counsel slug it out before a jury, whose members must be satisfied "beyond reasonable doubt" before they convict. In the inquisitorial system, the judge (or sometimes judges) are much more central: the judge dictates the shape of the proceedings and seeks to collect and determine the facts of the case: the aim is not for one interpretation of the evidence to prevail, but to try and get to the truth of the matter.

Power sees room for the use of an inquistorial system in cases involving sexual offending and child abuse, in which it "might be less traumatic for victims of crime". But such tinkering ignores more fundamental and important questions about whether the jury system delivers justice.

There have been many commendable changes in court procedure over recent years that have attended to the needs of victims or complainants. Evidence about a woman's sexual history is, quite properly, no longer admissible in rape cases; children can be and often are protected by screens or video systems from having to confront in court those accused of molesting them; the most recent change bans a defendant without counsel from cross-examining a complainant himself. Perhaps further attention should be paid to the rights of victims. If so, changes should be considered and implemented, but not by piecemeal amendments to the jury system.

The Bain retrial was the most recent of many legal proceedings that raised questions about the jury system. This is not to venture into questions about whether the verdict was "right": by definition a jury verdict is always right because it is the jury's verdict - though that in itself might be a proper subject for review.

But we should also consider whether - particularly, though not only, in high-profile cases - a dozen men and women chosen from the public at large, are necessarily qualified to get to the bottom of complex matters. As forensic science becomes increasingly sophisticated, expert evidence becomes more complex: the members of the Bain jury, bombarded with competing and contradictory testimony from world-famous experts must at times have felt that they were drowning in data. How much more sensible might be a system that allowed judges, with the help of qualified assessors that they might co-opt, to weigh the opposing views?

Many other aspects of the jury system warrant scrutiny: the demands on time - the Bain case lasted three months - limit the pool in favour of the retired and those who can afford or obtain time off, which skews the class composition of juries; strong-willed individuals can unduly influence members who might be thoughtful but shy about speaking up; jurors' prejudices that may be crucial to deliberations are hard to discern in the selection process.

And what are we to make of pre-trial hearings - in the Bain case they went to the Supreme Court - in which it is argued that evidence needs to be excluded as unduly prejudicial? The courts' readiness to suppress some evidence plainly implies that they do not trust jury members to weigh the evidence correctly, even with the guidance of a judge. When the system goes to such extreme lengths to compensate for a perceived weakness of one of its component parts, it is worth at least considering whether an overhaul is required.

Trial by jury has its roots in legal tradition reaching back to the Magna Carta. But in the 21st century, we have cut our last formal ties with English procedure, replacing the Privy Council with our own court of last resort. If the Law Commission is to consider changes to the jury system it should consider the jury system itself. To do otherwise is to ignore an issue that will not go away.