Web Analytics Trust People (once an Englishman in Philly): Twelve good men and true

Monday, February 13, 2006

Twelve good men and true

Do you believe it is up to the police to detect and bring criminals to book, that it's then up to the courts job to determine guilt and either hand out a proportionate penalty or stand as a bulwark of protection from unjust state punishment as appropriate (I know it's unfashionable, but, y'know, better that twelve guilty men go free than punish one innocent)? Or rather are these both just parts of the "criminal justice system", a state organ with the function of dealing with crime?

Simon Jenkins has outlived his usefulness in his latest diatribe, this time against trial by jury.

The mistake he makes in asserting that

To pretend that it delivers justice is absurd. This archaic theme park democracy is expensive, a waste of time and adds nothing to fair trial. Abolish it.

is a classic of the media elite. Instead of understanding an issue and adopting a reasoned, rational approach to an issue in general they focus on recent headlines and think that a response to them is a cool and reasoned response to problems society faces. Worse, they think that because what they say may have had an effect on the issue in the headlines it must also have a beneficial effect more widely. This means that we make policy in a frenzy and which caters merely to the more remarkable extremities of our society.

In this instance it's Mr Jenkins' assertion that the prosecution of the other Mr Jenkins caused problems (in the Billie-Jo murder case) and that it took ages to get Abu Hamza to trial because the police were concerned about getting enough evidence for a jury to convict.

Ignoring the question of just how accurate he is in lumping all and any blame for these two trials on the absence of Jenkins' rule he is once more falling into this trap for the media. Just because in these two cases it wasn't ideal does not mean that the hundreds of thousands of trials each year with juries do not make the system better - yes, better - than it would be without them. As the "new left" seem wont to do every week at the moment he tries to engage with our ancient rights on the basis of a bizarre functionalism. Believe it or not though the jury system wasn't set up to offer "efficient ways of dealing with miscreants". It was to give society the confidence to submit itself to being governed by a body with a monopoly of power. It was to reassure people that they would be treated in a just way reflecting the values of the society they lived in.

Mr Jenkins may not like it that he and his cronies cannot impose their vision of what is "reasonable" on the British people, but when it comes to the exercise of state power it is surely correct that you have the option of recourse to your people's common view of how facts are to be interpreted? It is surely right that twelve good men and true are best placed, in terms of substance, to decide on the basis of good old British common sense just what is reasonable doubt.

Barristers championing juries portray them as all-wise embodiments of good old British common sense. Yet they then treat them as idiots who cannot be trusted with the truth. They declare jurors clever enough to hear year-long fraud cases yet not clever enough to decide for themselves the relevance of particular evidence to a case. In a recent trial a jury was asked whether a credit card had been stolen but was not permitted to know that 100 other cards were in the accused’s possession. This is not justice but charades.

Yes, the court has to have some rules of ensuring any bias which results merely from the way the court proceeds is counterbalanced in the jury's eyes. Yes, some of these may be counterproductive at times. Surely better to remove these and make more admissible than to throw the baby out with the bath water? What's more, does he really think that such rules wouldn't become more prevalent and even less comprehensible if it was all done by professional lawyers? Does he think it better that one judge should hear whether or not evidence is admissible, when this means, in a combined arbiter of law and fact, that he has to pretend he hasn't heard what is eventually ruled inadmissible? That is and would be charades.

Despite his many jibes at law, lawyers and the legal profession juries retain the confidence of the British people in fair play and reasonable approach of the law. Perhaps it is this innate connection, which Jenkins can neither fully explain or manage, which motivates his article. And long may it continue. For while it does, it sends a clear message to the Government that we wish to retain an ancient right. An ancient right to say that any power wielded over us must be on our terms rather than those of the "right-thinking" elite who govern, and in governing us purport to know better than us how we should be treated.

To maintain that the fabric of British liberty rests on the tiny minority of cases tried by juries is absurd.

Maybe so, Simon, but its basic principles - such as government by consent not by evidence of efficiency - do so rest.

Rather than confidence in the managerialist's inane pursuit of that evasive "perfect definition" of laws to cover every unimaginable circumstance I would rather defer to the judgement of twelve good men and true. Then again, so what if we start catching more criminals and one silly old fool happens to go down for a week or so when he just happened to be innocent....


At 9:45 pm, Blogger Ken said...

I don't agree with the case in general. But what about complicated financial cases?

At 11:20 am, Blogger Edward said...

I think jury trial should be expanded as an option as much as possible - if there was a pressure in this direction it would lead to simpler laws which would be easier to apply.


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