Gordon Campbell on the Law Commission plan to scrap jury trials
Chances are, scrapping the system of trial by jury is not the top priority for most New Zealanders. Not many of us woke
up this morning and felt dead keen on dumping our centuries-old right to be tried by a jury of our peers, while yearning
to adopt the French system of justice by a judge and a couple of court-appointed experts.
The French are admired for many things, but I haven’t heard many people acclaim their legal system as being so vastly
superior to English law that we should quickly scrap one of the bulwarks of our legal system, in order to be more like
the French.
This change however is precisely what the Law Commission is proposing:
The commission suggests that 12-person juries could be replaced by a panel of one judge and two semi-professional
jurors. It says jurors could receive legal training and be employed on fixed-term contracts. Law Society president
Jonathan Temm says there is no harm in exploring the idea.
"It's perfectly reasonable and practical, and indeed it's prudent to look at other methods of trying to resolve
outcomes. The proposal by the commission that judges be more inquisitorial, be more involved in the process - either
sitting alone or with two professional jurors - is something that's worth considering.”
[Law Commission press release: Law Commission Considers Alternative Trial Processes]
Not co-incidentally, it would also be cheaper to run trials via a judge and a small pool of “semi-professional” jurors –
who of course, would never let their prospects of re-employment sway them to deliver the verdicts unanimously and on time, as sought by the system
paying their wages.
One of the arguments being put forward for making this change is that some witnesses find the current adversarial system
to be “ aggressive and traumatising.” Well, I don’t know about you – but if I were being charged by the state with an
offence, I would want the advocate defending me to be able to question the state’s witnesses quite aggressively. There
is someone present to prevent that interrogation from exceeding the bounds of acceptability and causing the witness
wilful harm. That person is called the judge. That’s one of the roles he’s expected to play.
If the judge is currently failing to give adequate protection to witnesses, it is hard to see how giving the judge more
power to bypass the adversarial system is the right solution. I’m not sure how being questioned by a judge – unimpeded
by any restraint from the bench – is likely to be any more pleasant than being cross-examined by one lawyer, and
defended by another, with the jury reaching the final verdict.
Overall, that seems to me to be a better spread and balance of powers than the system being touted by the Law
Commission, which involves handing almost all of the power to the judge sitting on the bench - with virtually no
restraint on him or her at all, beyond the slim chance of a subsequent judicial review. Thankfully, the Criminal Bar
Association is talking sense on this issue :
Criminal Bar Association vice-president John Anderson is against such a change. "You still need people to ask difficult
questions. There are still going to be cases where false accusations or incorrect accusations and difficult questions
have to be put. It makes little difference whether a judge puts the difficult questions or a defence lawyer.
No difference, except a defence lawyer might feel more motivated to pose those difficult questions. And a jury might
well be trusted to reach a verdict that was not only fair, but more likely to be seen as being fair. Certainly seen to
be more fair than if a judge was allowed to do most of the questioning, carry out the analysis and deliver the verdict,
unimpeded by anything other than the five cents worth of advice from a court-hired pair of semi-professional jurors.
Under the system being proposed, the adversarial system would only kick in after the judge has completed his inquisitorial probing of the witnesses. Frankly, it would be possible to take the Law
Commission’s proposal a bit more seriously if it had emerged in a climate that – for the past three years – had been
free of the systematic series of attacks that have been made on the rights of defendants in criminal trials.
We have seen reduction of trials by twelve jurors to trials with ten, we have seen moves to scrap unanimous verdicts and
replace them with majority verdicts, and we have seen the right to a jury trial for offences carrying penalties of three
months imprisonment reduced to where the penalty now has to be three years or more before the right to a jury trial is
available. We have also seen the introduction of new disclosure requirements that favour the prosecution. All part of
the legacy of former Justice Minister Simon Power.
This latest proposal should be seen in the same slanted light – as an attempt to tilt the balance of justice so that
more prosecutions can be gained. Give more power to a judge (and to a couple of the court’s paid officials standing in
for a jury) and more prosecutions are almost bound to follow. While imperfect, a jury of ordinary citizens is one of the
few elements of the justice system that can’t be captured and controlled by the state.
Out in the real world, the state is freely giving the Police more intrusive powers to mount and conduct its
investigations at one end of the process and – via this proposal and others – is also giving more powers to the judge
and prosecution lawyers to deliver the convictions being sought. It may be cheaper, and is arguably more “efficient” but
it doesn’t have all that much to do with justice.
Why, instead, is the Law Commission not investigating the reasons why there have been so many major cases where the
system has made serious, and life-damaging mistakes – from Arthur Allen Thomas to Ahmed Zaoui to David Doherty? Such
cases have caused far more harm to the victims than the “trauma” allegedly inflicted by cross examination in court, and
have done far more damage to public faith in the justice system. But every time such a miscarriage of justice is
exposed, the solution has been to enhance the prosecutorial power of the state, so that similar mistakes will be harder
to expose in future.
What such cases (both here and overseas) have exposed is the fallibility of “expert” and “forensic” testimony, as fads
and fashions in science come and go. What judges and juries alike do need in the modern courtroom is access to independent advice when the “expert” testimony they are hearing is in
conflict. Increasingly, the complexity of the information at issue is beyond ordinary citizens and judges, with neither having the necessary expertise to decide which expert is the more reliable witness.
The Law Commission doesn’t seem to be proposing how to help juries do their job better. Nor does its current brief seem
to include suggesting ways to reduce the potential for miscarriages of justice. In the ongoing pursuit of efficiency and
cost reduction, it wants to get rid of juries altogether. This proposal has to be rejected.
********