Editorial: Dropping jury trials calls for serious debate

Opinion

The right of a defendant to be judged by 12 members of the public is entrenched in the Anglo-American justice system.

It is a fundamental aspect of an adversarial model that, historically, has been distinct from the European inquisitorial approach in which judges actively inquire into the facts with the aim of establishing the truth.

Things have been changing over the past few years, however. Inquisitorial processes have begun to be used in the likes of the Family Court and also featured in the 2011 Criminal Procedure Act's pre-trial case management procedures. Nonetheless, what is proposed in a Law Commission consultation paper on alternative trial systems is still a quantum leap.

The paper suggests ditching juries in favour of trials by a judge and two semi-professional jurors trained in criminal procedure. And, as in Europe, the judge, rather than lawyers, would control proceedings, including the calling of witnesses.

The impetus for such a change has been provided by cases involving sexual offending, where the commission says many victims and defendants find the adversarial system "alienating and disempowering". So much so that the reporting of sex offences is thought to have been constrained by the prospect of aggressive questioning during the trial process.

It is easy, however, to see benefits in the wider application of such a system. Justice is not always best served by an aggressive contest between prosecution and defence lawyers. Often, their persuasive presentations will include naked appeals to the prejudices that members of the public bring to juries.

Judges and semi-professional jurors could be expected to have the experience and expertise to see though such pitches and arrive at more clear-headed verdicts. Importantly, their training would also allow more evidence, such as previous convictions, to be used. At the moment, juries must sometimes arrive at verdicts using only partial information.

The Law Commission's proposal would also eradicate another problem associated with the present system. The many people who are loath to give up time to serve on juries carries its own commentary on the importance they place on the practice. It also means most juries can hardly claim to be representative of society. No longer can many defendants be said to be judged by a cross-section of their peers.

The commission has sought to take the best of the inquisitorial model and marry it to the best of the adversarial approach. Both have their pluses and minuses. Thus, while countries like New Zealand have adopted elements of the inquisitorial approach in recent years, European nations have been adding adversarial elements to their justice system.

The latter, arguably, entails a stricter test of the evidence. There is also less reliance on the wide powers of a judge who may bring his or her own fallibilities and prejudices to proceedings.

Nonetheless, an inquisitorial approach undoubtedly guarantees a greater focus on the needs of the victim. That makes it a superior approach for cases involving sexual offending, where it would surely be fairer, faster and more efficient.

Its increasing use throughout other parts of the justice system also says much about the shortcomings of the adversarial system. Nonetheless there remains something slightly unsatisfactory about its adoption in such a piecemeal fashion and without significant debate.

The Law Commission proposal would remedy that but, at the same time, introduce an utterly fundamental change to the justice system. The public response will indicate just how much people cherish the tradition of being judged by their peers. Or whether that approach is outmoded and ripe for a substantial overhaul.