Law & society: The law’s delays are nothing new. Shakespeare had Hamlet refer to them in 1599. Dickens wrote a book set in the 1830s, Bleak House, about endless litigation. So there is no novelty in the concerns expressed by Minister of Justice Paul Goldsmith about delays in the criminal courts.
One solution he proposes is to reduce the number of jury trials by reducing the type of charges in which trial by jury may be elected.
This, too, is not new. In 1978, Justice David Beattie’s Royal Commission on the Courts suggested that some jury trial matters should be heard in the newly constituted District Court rather than the High Court.
At that stage, there were three categories of charges. The first were those that were triable summarily – by a judge alone. The second were those that were “indictable but triable summarily”, where a defendant could forgo the right to a jury trial and have a trial by judge alone. The final category was purely indictable – very serious charges – which would be dealt with in the jury trial jurisdiction.
This all changed in 2011 with the passage of the Criminal Procedure Act. Four categories of offences were introduced. The right of a defendant to elect to be tried by a jury was available only for category 3 or 4 offences. Category 3 offences had to carry a maximum sentence of two years’ imprisonment or more. This removed many more charges to judge-alone trials; an erosion of the right to a jury trial.
Sometimes, a defendant may be tried by judge alone, even after a jury trial has been elected. The circumstances where such an order may be made are very limited. The case must be long and complicated. It may be beyond the capacity of the jurors to perform their duties properly. Usually, the cases will involve document-heavy evidence, complex issues and a lengthy trial. Complex fraud cases are an example.
Goldsmith sees a solution in reconsidering the threshold where a defendant may elect trial by jury but acknowledges it is an area where the government will have to tread carefully. He is right to be cautious.
Jury trials are part of the fabric of the Anglo-American trial system. They used to be available for civil cases involving damages but are now used only, and rarely, in civil defamation cases.
But the importance of the jury trial is especially relevant in criminal cases where the state seeks to deprive a citizen of liberty. They were first used in criminal matters in the reign of Henry II. In the United States, the right to a jury trial in criminal matters is guaranteed by the Sixth Amendment.
The thinking is that a jury of 12 should be the judges of whether an offence has been committed and a defendant’s liberty be in jeopardy. If 12 people can be convinced beyond a reasonable doubt, there is an increased level of certainty of guilt over the decision of one judge sitting alone.
Jury trials are resource-heavy. Getting a panel of jurors to court is a complex exercise in logistics and the trials proceed at a deliberative pace. But judge-alone trials can be lengthy as well and a judge must give reasons, which may add to the delay.
Defendants often prefer a jury trial. The odds of 12 decision-makers over one are better. Delay can be advantageous for a defendant – it takes longer to schedule a jury trial, witnesses may go missing, memories may be clouded.
But is removing the number of jury trials the answer? Isn’t the minister’s suggestion rather like moving deck chairs on the Titanic and clogging up the lists of judge-alone trials? It seems unlikely that the proposal will do much to ease court delays yet will deprive defendants of a long-standing right to a trial by his or her peers.
David Harvey is a retired district court judge.
