What is the purpose of the criminal justice system?
Is it about securing as many convictions as possible, with the process little more than a conveyor belt between a defendant being charged and being convicted? Is anything that interrupts the flow towards a finding of guilt an unwelcome disruption?
Or is it that the convictions should be obtained as cheaply as possible, with as little money as possible spent on legal aid defence, or on adequately prepared prosecutions, or on the physical courts with their overworked, demoralised staff and their lack of working technology?
No, the criminal justice system should not primarily be about the convenience of the prosecutors or saving money for ministers. The criminal justice system should be about, well, justice. The clue is in the term “criminal justice system”.
The true purpose of a criminal justice system is that justice is provided—and on a systemic basis. This means justice for the defendants as well as the complainants. Justice done hastily and cheaply is often not justice at all.
It may be that in individual cases a defendant is found guilty of one or many crimes, or that a defendant is found not guilty. As long as justice has been served, the outcomes of individual cases should not matter. Justice should be indifferent to the guilt or innocence of a defendant, as long as the case is properly tried.
The process of criminal justice comprises a sequence of stages. Is there a sufficient reason for an arrest or other police intervention? Is there evidence such that there is a realistic, and thereby not fanciful, prospect of conviction? And if that evidence is contested, will it stand up to being tested so that a court will be sure of a person’s guilt?
It is this third stage which the courts are concerned with. For a charge to be made and for a prosecution to be brought, prosecutors must be satisfied that they have the evidence that can make out a case.
But that can be significantly different from that prosecution evidence being conclusive. Witness evidence may not stand up to cross-examination, there may be defence evidence on which there should be placed more weight, expert evidence may not survive scrutiny, and so on. And, in general terms, it is for the prosecution to prove its case, not the defendant to prove their innocence.
The court stage should tell us the difference between the prosecution’s case and whether we can be certain it is true. In the popular mind, this is the test of reasonable doubt. A person is not convicted on trial because of the say-so of the police and the prosecution, but because that evidence has been tested before an independent and impartial tribunal.
Often defendants plead guilty, and at the first available opportunity, so that they can have the maximum discount on sentence. But there are those who, as they are entitled to do, plead not guilty. And when a defendant pleads not guilty, it is the job of the state to provide the means of the evidence against that defendant being tested.
Why juries matter
In England and Wales serious criminal cases are usually for the Crown Court. This means that when a defendant pleads not guilty to a serious criminal charge they are entitled to trial by a jury. Sometimes there can only be a jury trial, and sometimes it is at the election of the defendant, depending on the offence.
Such jury trials are exceptional. In the system as a whole, offences are dealt with by the magistrates’ courts, usually with either a professional judge or a bench of lay justices of the peace. But in England and Wales we have developed the method of jury trials for serious offences. In effect: prosecution evidence is tested before selected members of the public.
Jury trials are expensive and they slow down the overall criminal justice system. They are also somewhat mysterious, as the law prohibits any outside discussion of—or research into—what is said in the jury room (though there have been spirited attempts to look at what information is or can be made available).
And juries can get things wrong. Most of the most famous miscarriages of justice come from jury trials, though if you look closely at some of the cases the real problem was in what evidence the jury was—and was not—allowed to examine. The law in England and Wales is also protective—perhaps excessively so—about what can be published in the run-up to a jury trial to ensure jury members are not prejudiced.
Juries are not a perfect way of establishing guilt. But with any practical legal process there cannot be a perfect method, only the best method available. And in serious criminal cases there is substantial merit in having juries test prosecution evidence.
One particular advantage is not so much what powers a jury has but the power it prevents others from having. Without a jury stage, evidence in a serious case will get passed from police to prosecution to judges, never leaving the hands of full-time professionals in the criminal justice system. Juries break this chain of process, making it impossible for judges to simply nod along with what the police and prosecutors say.
And juries ensure that prosecutors must be satisfied that their case, when properly presented, will pass muster with 12 members of the public so that there is a realistic prospect of conviction. As such, the assumption of a potential jury trial adds a quality stress test to prosecutions: indeed, paradoxically, it ensures that many defendants plead guilty without a need for a trial, because they realise a jury may not be with them.
Juries should be the last thing to change
There are many ways of configuring a criminal justice system. There are systems where there is no jury element, but there are instead safeguards (and funding) elsewhere in the system against wrongful convictions.
Pointing to these jurisdictions to aver that juries should be abolished here does not add up without wholesale reform. It would just be our existing ramshackle (lack of) system, but without juries.
Others insist that because minor crimes can be dealt with without juries then so can serious crimes. But to convict a person of a serious offence should require that the state be able to convince (members of) the public of the defendant’s guilt. In this way, juries aid public confidence that the state is properly addressing serious crimes.
In England and Wales, removing the jury element for serious offences without better funding for legal aid defences and prosecutors, or for the courts themselves, would be a false economy for a system of justice. Prosecutions would be brought, and would succeed, when they would not have been brought or succeeded before, and at a lesser cost.
For those who simply value more convictions and at a lower price that will be a good outcome. But if we are taking the “justice” element of a criminal justice system seriously, then prosecutions of serious offences need to be tested robustly and so that the public in general (and 12 members of the public in particular) can be sure of a defendant’s guilt.
Simply removing juries without strengthening other parts of the criminal justice system would therefore be a false economy leading to a miscarriage of justice. A criminal justice system is not improved by systemising injustice.
