27.05.1999

Defend the jury

John Walsh presents a communist view on bourgeois legality

Home Secretary Jack Straw’s latest proposals to deny trial by jury for a whole raft of offences constitutes an anti-democratic assault on a basic right, which must be opposed.

The jury system is a feature of tribal society that has continued into the modern world. Of itself it does not guarantee a true verdict, nor does it ensure that the law acts in the interests of the working class. Its existence does not necessarily prevent unlawful interference by the police or other state agencies. Nor does it mean that prosecutors will not seek to conceal evidence that might at least instil reasonable doubt in the minds of jurors. Political pressure can and does exert an influence on many levels, serving to pervert the system’s operation.

In recent years not only has the right to silence been limited, but moves have been made to give the prosecution the right to decide what evidence is relevant and therefore what is to be made available to the defence.

Nonetheless the CPGB in policy statements and its draft programme, has declared in favour of the jury system, along with the vast majority of the left and all civil rights organisations. On the other hand, Straw has been determined, along with a number of other British governments in the recent past, to limit the jury system. The latest affront is a proposal to allow the magistrates to determine ‘either way’ cases, where at present defendants have the right to choose a jury trial. However, there have been other restrictions on the jury system in recent times, including the removal of the requirement of unanimity and new restrictions on persons deemed qualified to sit on juries. The removal of trial by jury from almost all civil cases almost certainly affected the verdict in the ‘McLibel’ case. At the same time legal aid is often withheld in such cases.

There have always been some offences that have not been tried by jury. The feudal ruling class inflicted trial by ordeal on the poor before 1215, and used trial by battle for many centuries afterwards. The local manorial courts treated justice as a private fief of the lord. Strictly speaking, the House of Lords and the House of Commons constituted “the high court of parliament” and had powers to try their own members. This was not abolished until 1948. (In the case of the Lords this really was trial by their ‘peers’, and thus we have always demanded the same right.)

In reality, trial by jury was a democratic victory gained and secured by the English Revolution of 1648. Until recently there were a variety of restrictions on the jury system. Up to the 1920s women were excluded, and until 1972 people without freehold or leasehold property could not serve. These restrictions did not necessarily apply to other common law countries (although not many blacks served on juries in Alabama!). Of course certain exclusions are justifiable: for example, the mentally deficient, the extremely aged, judges, police officers, and certain other state officials. It must also be open to debate whether some physical handicaps should justifiably lead to exclusion. However, subject to a statutory number of objections on the part of the accused, and to jury qualification, juries should be chosen at random, free from any manipulation.

Why do we support such a position? “The whole machinery of the state, all the apparatus of the system and its varied workings, end simply in bringing 12 good men into a box”- so said Lord Brougham in 1828. While Brougham referred to “good men”, who no doubt defended the existing order, we want to ensure that juries are filled with ‘our people’.

Why have governments since 1972 been continually seeking to change the way the jury system works? The most obvious reason is that it has become less amenable to the dictates of either state or government and is certainly more democratic than in Brougham’s day. This is best illustrated by acquittals where the accused were obviously guilty, if you accept bourgeois law.

Women peaceniks who smash up aircraft destined for Indonesia; the two liberals, Randle and Pottle, who organised the escape of master spy George Blake and then published their story in a book to justify their action; the doctors or next of kin who help people to die and then publicly admit as much. Even worse from the state point of view, the general public has become far more sceptical about police evidence, leading to acquittals or - more importantly in the case of coroners’ juries - the returning of verdicts of unlawful killings by the police.

There is another reason for Straw’s attitude: money. Jury trials have judges, not magistrates. And legal defence costs are also higher, not to mention jury members’ expenses. Although the government has tried to cut legal aid for most civil questions, it has had to recognise that it would be politically unacceptable to do the same for criminal trials. It has also to be noted that juries acquit more often than magistrates.

Though I have been an active communist for more than 40 years, I have never heard of any real discussion of where we want the jury system to go. The following questions should be asked. Do we propose that all crimes should be tried by jury? Even if the answer is ‘yes’, does that include non-criminal offences such as traffic violations? Should civil cases involving custody of children be heard before a jury? Are majority verdicts acceptable, as in Scotland, though there are 15 jurors? Should the jury have a say in the sentencing of people or in the penalties imposed in civil cases?

I have assumed that the standard of proof should be beyond reasonable doubt in criminal cases and the balance of probability in civil actions, but it is very difficult to define ‘reasonable doubt’ accurately. If the reader should question this, try then asking people to give you a percentage of certainty. Most people would say that they wish to get it right 90% of the time. I am extremely distressed by such replies - I ask myself how certain does one have to be before Fred West is locked up.

Be that as it may, it is imperative that communists defend the jury system. Straw is showing so many of the tendencies of an authoritarian reactionary, that even the legal profession is against him. However, it is necessary for the defenders of civil rights to have a positive programme, not just react to bourgeois offensives.