Two Jurisdictions, One Mutual Objective
The British justice system has been dubbed a ‘failure’. With 1100 convicted people maintaining their innocence and seeking to have their convictions overturned in Britain each year, such a label can be rightfully ascribed to our system of common law. Comparatively, a civil jurisdiction, prominent in France, is a model for a system which strives to achieve justice, incorporating the rights of all citizens. How can these miscarriages of justice be avoided in the UK? The key to differentiating between the two must be considered by: the use of the jury, the adversarial and inquisitorial nature and current human rights legislation.
It is stressed that juries are one of the most democratic aspects of the UK constitution. Democratic they may be in principle, but in this day and age, juries can be easily influenced by the media and the internet, raising the question as to the fairness of the jury. Also consider the competency of jurors with regards to the miscarriages of justice prominent in our system. Wrongful convictions are no doubt a consequential factor of the power attributed to the jury, a matter that our system seems to overlook.
A report compiled by the UK’s Ministry of Justice revealed involved 797 jurors at three courts who attended the same simulated trial and heard the same judicial directions on the law. Whilst most jurors at Blackfriars (69%) and Winchester (68%) felt they understood the directions, most jurors at Nottingham (51%) found them too difficult to understand.
Their comprehension of the judge’s legal directions was also examined, with over half perceiving the judge’s directions as easy to understand, but only a minority (31%) actually understanding the directions fully in the legal terms used by the judge. Surely, this reinforces the fact that there is not a consistent view amongst jurors at all courts about their ability to understand judicial directions. Are juries really as effective as one thinks they are?
The UK has thousands of wrongful convictions each year
Consider The Vicky Pryce trial. Pryce, wife of Chris Huhne, perverted the courts of justice after accepting driving licence penalty points incurred by Huhne. During her trial, the jury was unable to reach a verdict, discharged following hours of deliberations, a day after they submitted questions indicating that they had not grasped the basics of their task. Prosecutor Andrew Edis had urged the judge to discharge them on the basis that it was ‘ultimately unlikely’ any verdict could be considered a safe and proper one. Due to the jury’s deficits in understanding, Pryce had to face retrial.
Statistically, the UK has thousands of wrongful convictions each year. In France the innocent are rarely even charged due to a series of pre-trial filters, whilst 95% of those who are ultimately charged are convicted, with most civil hearings take less than a day.
The UK’s Criminal Cases Review Commission received 1625 applications in 2013 from prisoners claiming they have been wrongfully convicted, asking the body to investigate their cases. This surge in applications followed the cuts in legal aid.
Much of France strongly opposes the jury system. Decisions by the European Court of Human Rights raises the possibility that jury systems are at risk because jury verdicts do not fulfil the requirements of reasoned decisions. That is, the verdicts do not provide specific legal and evidentiary justifications for the jury’s judgments. This reasoning behind France’s restrictive use of the jury may seem undemocratic but can be a contributing factor to France’s lower wrongful conviction rate than that of the UK.
The study revealed their personal traumas at trials, highlighting the effect of jurors’ emotions on erroneous judgements
Arguments against the jury system also include the inevitable stress often felt by jurors. According to a study, conducted on 68 British jurors, undertaken by the French legal newspaper Faits Et Causes: ‘the task may cause great anxiety and may even, lead to cases of severe stress or a post- traumatic disorder. Some jurors reported experiencing feelings of fear and helplessness.’ The study revealed their personal traumas at trials, highlighting the effect of jurors’ emotions on erroneous judgements.
The adversarial nature of our justice system means that parties define the subject matter of their dispute and determine the information on which the judge may base his decision. This contrasts the French inquisitorial system whereby judges decide what the relevant facts to be proved are and examine witnesses of their own accord. Our system emphasises the use of cross-examination, assuming that it better tests witnesses’ credibility and that the parties are more willing to accept the results when given control. There is the underlying belief that the judge is better informed about the case by parties and that there will be less cost to the public purse. Yet, France’s judge-led, inquisitorial approach to justice is a better way of conducting family and civil cases where litigants are unrepresented, supporting the principle of a fair trial for all. The UK can learn from this, particularly after legal aid cuts, causing a rising number of unrepresented litigants in family and civil cases. In France, independent judges conduct inquiries, accountable to no one, preferable to an investigation conducted by a prosecutor who is not independent. Judges investigate without any hierarchical issue, remaining free of political or financial pressure when ascertaining the truth of the facts.
A dependence on jury verdicts for the sake of democracy must be reconsidered
It is time our system overlooks tradition and accommodates reform. A dependence on jury verdicts for the sake of democracy must be reconsidered. We can help avoid misunderstandings at an early stage by reforming the adversarial reliance on witnesses of our system which does not promote justice for all, particularly in times of austerity. One thing is certain, once the UK wakes up to the flaws of the common law and embraces inquisitorially inspired reforms, it too can pursue the common objective held of an unequivocally just system.