Trial by Jury Is More Important than “Equality”

On Tuesday the 26th April 2011, Her Majesty's Courts and Tribunals Service announced that the inability to read and write English – and even sometimes to understand it fluently – should not automatically prevent anyone from sitting as jurymen. It was accepted that a Judge may decide if any particular juryman is fit to serve on account of his inability to understand the proceedings. At the same time, a spokesman for the Courts and Tribunals Service has claimed that “people who cannot read English very well but can speak English… would be able to serve on a jury.”

There may, before about the 16th century, have been jurymen outside London who were illiterate. In those days, however, everyone in most districts knew everybody else, and jurors were expected to judge character rather than help sift evidence. After then, however, property qualifications made pretty sure that jurymen could at least read.

There are two problems with people who are not literate in English.

First, foreigner-born citizens who are unable to read English may be persons of good intelligence and high education, but cannot reasonably be regarded as the “peers” of an accused person. Someone who cannot read English is immersed in what may be a very alien culture, and his sense of right and wrong may also be very different. It is plainly unjust that a man’s liberty and reputation should rely on the judgment of people who are, in every sense of the word, foreigners.

Second, native-born illiterates are generally people of low intelligence. Even in times and places where few have the opportunity to learn to read and write, illiterates of good intelligence do not have the flexibility of mind needed to weigh conflicting evidential claims. They may be able to testify to the good or bad character of their neighbours, but cannot be trusted to reach more complex verdicts based on fact. However, modern England is a place where everyone of even mediocre intelligence can read and write to some extent. Those who cannot are, by the nature, unfit for serving on a jury.

In either case, an illiterate cannot be expected to serve on a jury with any competence. Jurymen are required to follow extended arguments by highly literate lawyers. They must be able to take and refer to their own notes of what has been said. In many cases, they must be able to read documents that are given to them.

This announcement by the Courts and Tribunals Service should not be regarded as more unwise “inclusiveness” or as “political correctness gone mad.” Twenty years ago, it might have provoked comments about unintended consequences. Nowadays, it can only be seen as another covert step towards abolishing trial by jury.

We know that the authorities hate the whole jury system. Its advantage is not that juries are inherently more suited to deciding guilt and innocence than a judge sitting alone. This being said, there are few cases of gross incompetence by juries, and juries never sit long enough to become as case hardened as judges and magistrates. The advantage is – and always has been – that, before they can hurt any one of us, the authorities need to find twelve other people like us to agree that we should be hurt. Throughout English history, the jury has been the one most effective shield that individuals have had against oppression by the State. From Bushell’s Case (1670), to the trial of the Seven Bishops (1688), to the treason trials of 1793, to any number of malicious prosecutions in the twentieth century, it has been juries that have checked the authorities.

During my own lifetime, trial by jury has been systematically weakened. In the 1960s, juries were removed from most civil cases, and majority verdicts were introduced in criminal trials. In the 1980s, the right of peremptory challenge was taken away from defendants. In the present century, the rule against double jeopardy has been overturned – so that an acquittal by a jury can be overturned and a person tried again for the same offence. There has been, throughout this time, a slow transfer of crimes from juries to magistrates. Very recently, it has been made possible for any crime whatever to be tried by a judge sitting alone, if the authorities can “prove” that a jury might be intimidated by the friends of a defendant.

Undoubtedly, illiterates of whatever nature have found their way onto juries. This has become more common since the 1960s, with the removal of property qualifications and the collapse of standards in education. It is only now, though, that the authorities have explicitly welcomed the participation of illiterates. Their intention can only be construed as a desire to make trial by jury so random in its findings, and so generally disreputable, that no innocent person will want his case to be tried by jury. It will then become possible to abolish the whole system by public demand.

We then find ourselves living in a country where anyone can be proceeded against by authorities that are already spiteful and oppressive, and without the one safeguard that - admittedly can work only after much loss of time and money - has been carefully removed. Our ancestors rightly despised or pitied the European police state of the nineteenth century. But these mostly had relatively few laws, and few of these utterly shocked reasonable sensibilities. But imagine the managerial police state that modern England has become, plus the criminal procedure of those older police states. Imagine that, and you have a very grim tyranny.

The Libertarian Alliance, of which I am a Director, believes in trial by jury as an immemorial right of all Englishmen. It is only affirmed by Magna Carta (1215, c.39), not granted, and can be traced through the practice of the Anglo-Saxon, till it is lost in the forests of northern Europe. It is also a system that we urge, if adapted to local circumstances, on those peoples less fortunate than ourselves. We believe in trial by jury, therefore, on grounds of ancestral right, and on the grounds of abstract legal and political theory.

Because trial by jury is so important, we denounce all efforts to destroy it. We certainly believe that no one should be allowed to serve on a jury in England unless he can be shown to be literate in English. We believe that every person summoned for jury service should be tested for his ability to read and write English to a reasonable level. It is another argument, but we will also mention our belief that every juryman should be told of his right to acquit in the face of the evidence if he regards any particular law as illegitimate.

No doubt, it would be expensive to test every potential juryman. On the other hand, abolishing the need to translate every public document into 57 or so foreign languages in the name of “inclusiveness” would provide at least some of the necessary funding. So long as the State exists, and so long as it maintains any claim to a monopoly of criminal justice, proper funding of the criminal justice system should be seen as at least the first duty of the State.