Despising an Ancient Liberty – Daniel Pitt

How much money would you sell your ancient liberties for? Or let’s put it another way: how much money would you wish the government to save in a trade-off for an essential element of freedom and justice in the English-speaking world? The ancient freedom to which I am referring is the common law institution of trial by jury. David Hume, in The History of England, referring to “trial by … jury of twelve freeholders,” believed that this institution is “very ancient in England, and was fixed by the laws of King Alfred.”

So, how much money for this ancient institution? How about for £31 million (or just over $41.6 million). Let’s put that sum of money into context. As Robert Jenrick MP, the Conservative Shadow Secretary of State for Justice, noted, this sum is merely 0.2 percent of the United Kingdom’s Ministry of Justice budget. Despite the minimal savings that are estimated, the Labour administration in the UK is considering restricting this foundational judicial procedure. For instance, crimes from sexually assaulting a child to fraud may be restricted to judge-alone trials.

Adam Smith in his Lectures on Jurisprudence said, “The law of England, always the friend of liberty, deserves praise in no instance more than in the careful provision of impartial juries.” Writing about “procedural safeguards,” such as trial by jury, F. A. Hayek noted in The Constitution of Liberty that in “Anglo-Saxon countries,” these safeguards seem “to most people as the chief foundations of their liberty.” Indeed, the institution of trial by jury is the cornerstone of the criminal justice system and is deeply rooted within the legal tradition and practice in Anglo-American law.

As the scholar Harry Potter noted in his book Law, Liberty and The Constitution, 1166 was a significant moment because Henry II, after counsel and consultation, “promulgated the Assize of Clarendon,” and “this was a landmark in the history of the jury.” Roger Scruton in England: An Elegy notes that the jury with its Saxon and Norman elements “took something like its modern form following Assize of Clarendon.” Indeed, a jury and its impartiality are necessary to our conception of justice. Additionally, the very existence of a jury is central to our idea of the rule of law. Alexis de Tocqueville in Democracy in America wrote:

When the English adopted the institution of the jury, they were a half-barbaric people; they have since become one of the most enlightened nations of the globe, and their attachment to the jury has seemed to increase with their enlightenment.

This attachment does not seem to be shared by this present Labour administration. Of course, Sir Tony Blair, when he was Prime Minister, also endeavored to restrict the right to trial by jury. Indeed, Labour has a negative track record on our constitutional heritage.

So, if you would not throw this liberty away for the money, how about saving a bit of time and freeing up some sitting days? Say, 9,000 Crown Court sitting days a year? Sarah Sackman, a Labour MP and a government minister, expressed in the House of Commons that the “Lord Chancellor commissioned Sir Brian Leveson to undertake a once-in-a-generation review of the criminal courts.” The result of this commission was a report by Brian Leveson called Independent Review of the Criminal Courts. To use a concept that was partly developed by George W. Cary, the report lacks “constitutional morality.” Sir Brian seems to refuse to “abide by the restrictions and imperatives” of the British constitutional tradition. For instance, he claims in the report that there exists no constitutional or indeed “any form of general common law right to trial by judge and jury.” Moreover, he claims that Magna Carta does not provide “a legal basis to claim a right to a jury trial as a constitutional right.” Leveson has said that Magna Carta only refers to trial by “peers” not “jury.” It does appear that he is calculating that his sophistry will be persuasive enough for the government to make economies in the judicial system despite the constitutional immorality.

The report is wide-ranging, but for our purpose here, I shall focus on his recommendations to the Labour administration for changes to trial by jury. His recommendations are:

(1) Defendants should be able to elect not to have a trial by jury;
(In England and Wales, there is a very limited right to this, e.g., where there is a concern about jury tampering, unlike in the US, where being able to choose between jury or bench trial is fairly common.)

(2) There should be judge-alone trials when the trials may be long and complex;

(3) Trial by jury should not be used in serious and complex fraud cases.

As John Randolph of Roanoke had suggested, there is a difference between change and reform. These recommendations are not meant to reform, improve, and strengthen our existing concepts of justice but to change them. One would have thought that the Labour administration would recoil from such recommendations and also distance itself from the report. But no! The Minister of State in the Ministry of Justice at the dispatch box in the House of Commons said that the Government welcomes “the ambitious recommendations that he has put forward.” Why, you may ask? Because, according to the Minister, the Labour Government “must consider any measures that will put our courts on a more stable and sustainable footing.” In other words, to save time and money. Perhaps, the minister did not mean that the government welcomes the curtailing of jury trials, but the report in general? No, this is not the case as Sackman said, “We will carefully consider Sir Brian’s recommendations on jury trials, along with everything else, before providing a formal response to Parliament in the autumn.”

The reasons provided by Leveson, who has a track record of endeavoring to restrict the use of trial by juries, for these recommendations for diluting this core safeguard for our freedom are revealing. Leveson does not believe that the jurors have the capacity to understand the complexity of fraud cases. He makes this plain, writing that cases that are “serious” or “complex” “should be tried by judge alone.” These cases will be “defined by their hidden dishonesty or complexity that is outside the understanding of the general public,” and that Leveson believes it is “difficult for the jury to understand or assess … some of the evidence.” Again, he does think that the general public is not up to the job of justice and believes that the “increasing length of trials” and the “substantial burdens placed on jurors” are too much of a burden on ordinary people.

Turning to Adam Smith again, the Scotsman observed that “the jurymen are your neighbours who are to judge of a fact upon which your life depends.” Leveson desires to remove your neighbors from the judicial process, and the Labour administration “welcomes” it. Russell Kirk wrote in America’s British Culture that “the English people looked upon common law as their law, the product of their historical experience; it was not something imposed upon them from above.” Sir Roger Scruton similarly argues that the “idea of the law of the land” drew “credibility” from two key procedures, and one was trial by jury. If the Labour administration implements Leveson’s recommendations, it will partially remove one of the core pillars of credibility of the law. Removing juries also removes, as Tocqueville expressed it, “a mode of sovereignty of the people.”

This mode of sovereignty of the people is essential as it acts as a democratic check on the power of the state. For instance, Scruton argued that the jury system “ensured that the law remained responsive to the ordinary conscience, since juries would not convict if the penalty seemed to be severe or the crime a mere formality.” Indeed, Adam Smith argued that “people are generally disposed to favour innocence” in criminal cases. Removing juries and replacing them with new judge-alone courts will not ensure any of the benefits that enhance our liberty and justice that juries provide. Having the general public, via jury duty, participate in the administration of justice improves and enhances the reputation of the law and ensures that the general public sees the law as ours and that it is liberty-enhancing and enabling rather than a top-down imposition on our freedom.

Sir Patrick Devlin remarked that “trial by jury is more than an instrument of justice and more than one wheel of the constitution: it is the lamp that shows that freedom lives.” It seems to me that this Labour administration desires to extinguish the lamp that shows freedom lives in far too many areas of British life, including trial by jury.