British journalist Sir Simon Jenkins recently wrote an opinion piece for the Guardian in which he proposes getting rid of the jury system entirely, or at least, “drastically curtail[ing]” it. Jenkins argues, “the cost and delay of jury trials are enormous” and “there is no conclusive evidence they are more ‘just’ than systems based on judges in the rest of Europe.” Jenkins has good reason to believe that this is a present possibility. Brian Leveson, a retired judge, has been asked by the UK government to find answers to the compounding delays in the British courts. According to Jenkins, he has two potent allies: “a system that is clearly collapsing and a chancellor desperate to curb public spending.”
Jenkins implies that many UK lawmakers are subject to a kind of irrational romantic traditionalism. Defenders of the jury system, he writes, “are almost exclusively barristers, which unfortunately means a disproportionate number of MPs. They rank with doctors and academics as fierce defenders of their traditional modes of work – more powerful than any trade union.” A fellow British radical reformer, Richard Susskind, in his book, Online Courts and the Future of Justice, has similar complaints against what he calls “irrational rejectionism.” Susskind writes, “I am assailed almost daily by articulate and forceful judges and lawyers who snub online courts without any evidence of their operation in practice nor their purpose in principle. This kind of rhetoric would be accepted neither in the courtroom nor in informed public discourse.”[1]
While respect for tradition is vitally important to the maintenance of institutions, reformers like Susskind and Jenkins make an excellent point. Irrational rejection of radical reforms in a time of need for radical reform can perpetuate and compound the problematic symptoms that are already taking place in an ailing institution – At some point, there will be nothing to lose.
In his book, Susskind identifies the right question: Are there “any features of our current courts systems that are so intrinsically valuable or important that their replacement should be resisted even if a different approach can yield better outcomes.”[2] This depends on the criteria of “better.” If timely justice is achieved by a reform at the expense of overall justice, then yes, the reform ought to be rejected. But if “better” means that the central pillars of justice are upheld more strongly, the reform, at the very least, ought to be considered.
It’s a necessary reminder that the central pillars of justice (i.e. substantive, procedural, open, and timely justice, etc.)[3] are not the instituted practices (i.e. jury trials) themselves or vice versa. Rather, instituted practices, such as jury trials, are meant to facilitate the central pillars of justice. If jury trials no longer function well in this regard, reforms must be made to better uphold those pillars. Therefore, we cannot casually dismiss Jenkins’ argument for abolishing jury trials.
So, is it time to supplant the jury dozen for the lone wig? The right to a jury, Jenkins argues, “is a hangover entitlement” to choose the “judgement by one’s peers over the whim of an unelected manorial lord or other authority.” In other words, the jury system sufficed to curtail potential prejudice and injustice. Today, however, according to Jenkins, “a criminal trial tends to depend on scientific analysis or, in fraud cases, on technicalities of finance. Leaving this to groups of amateur strangers is absurd.” Furthermore, assembling juries is more costly and incurs more delay than assigning a single judge to the case. The case for abolishing juries is made. How will the defence respond?
[1] Richard Susskind, Online Courts and the Future of Justice (Oxford: Oxford University Press, 2019),181.
[2] Ibid., 53.
[3] Ibid., 73
