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‘Juries Past and Present’ The Annual Blackstone Lecture 2017 by The Rt Hon Dame Heather Hallett DBE
31st May 2017
On 20th May 2017, we had the privilege of welcoming The Rt Hon Dame Heather Hallett DBE, current Vice-President of the Court of Appeal Criminal Division, to deliver the Annual Blackstone Lecture at Pembroke College, Oxford.
The following article summarising her address is written by Pembroke student Matthew Terry (Jurisprudence, 2015).
Dame Heather began the lecture by reflecting on the place of juries in our legal system. She explained that the role of juries is confined to criminal cases, with civil cases not being well-suited to trial by jury. She then discussed the difficulties that juries face when deciding multiple counts, and the controversial issue of whether or not the jury should hear of the defendant’s character. This latter issue was resolved by the Criminal Justice Act 2003, which she argued remedied the previous problem of juries not being allowed to hear of a defendant’s character or judges being obliged to give a good character reference to ‘bad’ defendants.
Dame Heather then moved on to answer the question: are judges wrong to place so much faith in juries? She explained that trial by jury is seen as unfair and time-consuming in some instances, as well as being a luxury that is very expensive. Moreover, despite only operating in 1-2% of criminal cases, she questioned whether or not the £20,000 expenditure for a jury is really justifiable in, for example, a simple case of shoplifting. She then admitted that juries have been known to misbehave. One issue is that jurors have sometimes made approaches to the accused or certain advocates; however, a far more troubling problem is the increasing trend of jurors ignoring directions against using the internet. This has prompted the phrase ‘trial by Google’; with 12% of jurors looking for information on the internet, which she argued has to be a cause for concern. Dame Heather explained that the problem is that it is not possible to ban jurors from using the internet, since this would bring about much expense and inconvenience.
In exploring this question further, Dame Heather expanded on the historical role of the jury. When the King was all-powerful, and the Star Chamber was active, she conceded that the judiciary was generally seen as a branch of the executive. The major milestone came, she argued, with Blackstone’s insistence that the jury should not be dominated by judges; conceiving its role to be that of defender of individual liberty and human rights. Importantly, this role was performed by the public itself, and became the only means by which law could not be used as a tool for oppression.
She concluded that one can accept that the jury’s rule has been overtaken by the separation of powers and growth of democracy without accepting that trial by jury has stopped preventing oppression. Furthermore, she warned that we cannot overlook the jury’s role, especially in light of Brexit. Trial by jury is especially important, she argued, in terms of democratic participation, and in forming the democratic branch of the judiciary; even more so than voting, since a citizen must sit as part of a jury if called, but is not forced to vote. This is further emphasised, she added, by the fact that juries are diverse: the BME community is not underrepresented on juries as with regards to judges. Most significantly, she argues that a fair hearing by lay people increases the confidence people have in the system, with statistics showing that citizens are more likely to vote in elections following participation as jurors.
Finally, Dame Heather considered the merits of the jury as truth-seeker. She argued that whilst critics blame the collapse of some high-profile trials on juries, the fault is actually with the investigators. After all, prosecutions should be intelligible to the public, she urged, as well as stating that she is unsure where the evidence exists that shows that judges are better-placed than juries. Moreover, Blackstone’s theory was that it is better that ten principals escape than one innocent defendant suffer. She further supported this view by advocating that it is easier to attack a decision made solely by a judge than one made by jury; since juries provide an additional layer of legitimacy. Recent empirical studies also show that juries carry out their role effectively. Therefore, she submitted that it would not benefit society to have judge-only decisions, especially with the trend of verdicts becoming increasingly reasoned; the jury play an important role where evidence comes into play.
In her concluding remarks, Dame Heather stated that she does not advocate a return to trial by jury in civil cases, with one reason for this being that consistency is needed in terms of damages. On the other hand, she gave support for the continued role of juries in criminal cases which are sufficiently serious in their effect on society or the individual. She further added that more academic research is needed in this area in order to ensure that the jury process remains a robust, central and democratic part of the judicial system.