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.

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