Jury on trial

"There appears to be an emerging consensus on Halsbury’s Law Exchange that jury trials are a good thing. This may be so, but the main arguments advanced to support jury trials do not stand serious scrutiny.

The first argument is that because jury trials have been part of our history since (at least) Magna Carta, they are at the core of our system of justice.

The fact that justice involved people like jurors since before the Norman conquest is clearly indisputable. The right is mentioned in Magna Carta. Regrettably, for this argument, the similarities end there.

The function of a jury in medieval England and earlier was very different to a jury today. The purpose of a post-Norman jury, in the relatively undeveloped, uncodified, legal landscape, was twofold. First, it was, in part, to define what the law was, by reference to the norms of the local society and standards of behaviour. Second, it was to establish, by personal knowledge of a defendant, whether the defendant had committed the conduct complained of. So the function of an early jury was mixed. It was partly to determine the law, and partly to establish guilt, based on personal, prior knowledge. That was well suited to a sparsely-populated, atomised network of small agrarian communities, where there were no professional judges and, until the high medieval period, very few accessible lawyers.

In the modern jury system, a group of strangers are asked whether a person did or did not commit certain acts. They do not bring a personal knowledge of the defendant and his character into the court. They are not required to comment on the law—it is expressly not part of their function. Their function is not, and should not be, to decide what the law is—it is simply to answer the question, ‘did the acts in the indictment take place as alleged?’...”

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