Saturday, 9 April 2016

I have not yet had my mind changed on jury trials

My last piece on jury trial in dangerous driving cases has sparked some lively debate.  I have enjoyed some interesting discussion with well-informed people some of whom agree some do not, as of course is their unqualified right.
It is not a piece that has gone down well with all my colleagues practising at the criminal bar.  It is perhaps worth my making the following points by way of response.
We all have a right to a fair trial.  I agree that if we are at risk of going to prison for a long stretch we should all have the right to a jury.  However it is possible to have a fair trial without a jury.  In Scotland (for example) the Defendant has no right to insist on a jury in offences triable either way like dangerous driving.  One possible solution may be to leave the Magistrates with the option of determining mode of trial and selecting summary trial where they are satisfied their powers of punishment are sufficient.  International War Crimes are not tried by juries.  Lack of jury does not equate to lack of justice.
There has been a suggestion that as I am not a Criminal Lawyer I have no right to voice my opinion on criminal law and procedure.  I refute that.  I am a personal injury lawyer who often meets the spouses, parents and children of those killed on our roads as well as other victims of bad driving.  I have sufficient perspective to appreciate that dissatisfaction with the current system is close to universal amongst the victims of such crime.  I do not pretend to be sure about what the solutions are but looking at speedy, effective and affordable ways of parting dangerous drivers from their licences seems to me a valid start.  Clearly this is no laughing matter and some of the flippancy I have encountered is deeply inappropriate.  I have never claimed to be a criminal lawyer and in an open democratic society we are all entitled to express our views on crime and the criminal process.  I do not scoff at those who express views relating to the areas of law in which I practice.
Alongside complaining of my lack of experience in criminal law is the complaint that I have recent experience of prosecuting a dangerous driving case which led to an acquittal.   Again I have never hid that and I cheerfully concede that I think that the Magistrates’ Court would have been a more appropriate place to have had a trial in that case.  It would unquestionably have been faster and much cheaper (a relevant factor perhaps since by way of distraction complaint is made about my costs of so doing).  Incidentally I have been unfailingly polite to those who wish to see their own favoured change in the current law on the recoverability of such costs and even argue (unlike me) that their proposed changes should act retrospectively.
There has been innuendo that my private prosecution should never have been brought.  That too I refute.  There are numerous safeguards to prevent private prosecutions where the evidence is not strong, or the public interest not served, from going to a jury.   Criminal lawyers understand this but one or two persist in asserting that the fact that the police did not prosecute implies that I should not have done.  The fact is that acquittals against the strength of the evidence trickle down through the system to affect decisions to charge.
It has been suggested I have no evidence to support my arguments and/or that I have singled out driving for no good reason.  There have been plenty of cases involving motorists and vulnerable road victims where the results have been disquieting and I cover very many of them in my blog.  My article expressly explains that the ‘There but for the grace of God’ empathy applies peculiarly to driving cases.  Since writing the piece I have been contacted by many people engaged in the criminal justice process in just about every way whose experiences confirm there is a problem to be addressed.

I am very open to persuasion that my views are wrong but so far have seen far more heat than light expressed by those content with the status quo.  I think I have dealt with most of their arguments as I understand them.

6 comments:

  1. Hi Martin, a few points in response (long, by necessity, although I've tried to keep it brief!)

    1) Juries are not used in IWC trials chiefly because a) of the length of the trials (usually years) and b) the jurisprudence has a strong civil law element in the first place. So seems like an odd example in support..

    2) "There has been a suggestion that as I am not a Criminal Lawyer I have no right to voice my opinion on criminal law and procedure" - I certainly didn't say that, and I haven't read that. Straw man I think. Of course you're entitled to your view; this isn't a freedom of speech issue ("an open democratic society"...)

    3) "I do not scoff at those who express views relating to the areas of law in which I practice" - I think there is a real danger in even those who are particularly expert in one field commenting on another. Robust responses are to be expected.
    It's true, though, that "scoffing" isn't particularly edifying and if I, for my part, crossed the line then I apologise.

    4) your recent acquittal in the private prosecution would, IMHO, be considered by most people to be relevant to your argument. It goes in the direction of being an interest to be disclosed in the piece. At the very least it seems odd that you wouldn't explicitly mention something recent and within your personal experience..

    5) The main issue I have is the persistent impression that you believe juries are "getting it wrong" in acquitting vs (in your view) "strong evidence".
    Yesterday on Twitter I suggested to you that you seemed to be making that determination based on your personal view of the strength of the evidence. That, IMHO, is highly problematic. I asked you to clarify if that's what you meant, but you haven't (yet) responded...

    ReplyDelete
  2. Hi Sam,
    Sorry I got a lot of Twitter messages and missed a few when working. Unless you are an anonymous blogger the scoffing was not yours. I did cite a few cases in my article and have commented on many more where the acquittals fly in the face off the evidence. Granted I have sat through only my own prosecution but I do know and consult reporters who were present. I know a lot of cyclists and my perceptions are not at all unusual.
    My criminal practitioner friends tell me that juries are far far less likely to convict specifically drivers than Mags are so interesting if that is not also your experience. If so are Mags wrongly convicting large numbers of motorists? I doubt it.

    ReplyDelete
  3. It's the quality of many of the counter-arguments that are helping to convince me that the right to elect jury trial should be restricted in certain circumstances.

    One which particularly grates is the claim that there is no evidence that juries think 'there but for the grace of God go I' in motoring cases. Those who advance this claim and support the jury system support a system which prevents us obtaining this evidence because jury deliberations are secret. They would not do well at trial if they prevented their opponents from accessing evidence.

    Saying that, there have been studies of 'juries' in mock trials for sexual offences. A study for motoring offences is surely needed – if only to make incontrovertible what is already an almost irresistible inference.

    ReplyDelete
  4. Well said Martin. As family of victims myself I know that the system is wholly flawed. I also researched a lot of legal sites including sentencing before the trial and find it unbelievable that the judge went against the 'Definitive Guideline' as set out by the sentencing council, and what I think about the jury I cannot even put into print, as with the vast amount of evidence against the driver, along with his inability to see, they astoundingly found him not guilty of dangerous. One of the jury couldn't even speak hardly any English and kept looking at the person next to him and copying her. I have yet to see one family who have had a loved one taken by a driver who has received justice. Thank you for speaking out for pedestrians and cyclists and their families who are the only ones who when a family member's life is cut short receive the sentence.

    ReplyDelete
    Replies
    1. Thank you. Approval from people in your desperately sad position means a lot to me.

      Delete