Tony,

I am wondering to what extent the EU wants to abolish trial by jury.

Since it's quite common in *EVERY* European country to try murderers *WITH* a jury, I can't see why the EU would like to abolish something that is standard throughout Europe. Or does this abolition not apply to murder cases ?

er..

Have I just trodden on a tangent or something?

Tony, are you there ?

Conrad, yes i'm here, and my response is in three parts:

1) The Britsh system of criminanl justice

2) Continental systems of criminal justice

3) The proposed E.U. system of justice.

THE BRITISH SYSTEM OF CRIMINAL JUSTICE relies on two key principles, though there are many other good features of our criminal justice system that I could mention:

(a) on more serious cases, you have the *right* to trial by jury i.e. 12 men/women chosen more or less at random, with your advocate having the right to reject some members of the jury and ask them to be substituted.

Among less serious cases are a number of what are called 'either way' offences where you can elect either to be tried by a jury, but risking more seriuus penalties if found guilty, or be tried in a Magistrates Court

(b) the jury shall have an unfettered right to acquit, even if the person is guilty i.e. they can reject what they consider to be bad law, or they can acquit someone if they think their case shouldn't have been brought. This historic right was won in 1674 when an Old Bailey jury refused to find a preacher guilty of preaching without a licence (don't oppressivc governments just love licenses!). They were ordered to the cells by the trial judge and spent two days and nights there on bread and water, but still refused to bring in the required guilty verdict. The judge was the first to blink and ever since then juries have had the right to acquit

(c) a person arrested by the state i.e. the Police shall be released or charged within 24 hours (longer in more serious cases like terrorism and murder but in any case no longer than 7 days). Immediately after being charged he must appear in Court when the prosecution must produce an arguable case if challenged to so do by the defence. This is known as 'habeas corpus', and has been in effect for, I think, the best part of 200 to 300 years.

These three features by no means guarantee perfect justice. But they are the best combination of features to prevent state oppression. Keep these three firmly in place, and there is always a limit on state power.

CONTINENTAL SYSTEMS OF JUSTICE: I readily confess to not being an expert here. However, I am repeatdly told by those who claim to know that most continental jurisdictions have *none* of the above features. In most continental systems, the judicial system is not adversarial, as it is in te U.K., but 'investigative'. An investigating magistrate or judge or Police Officer of high rank conducts an investigation of a suspect and the person can be detained during this investigation. The classic recent case was that of the British plane spotters who were detained without charge or trial for weeks. Similar cases occur all too frequently in Spain and France.

Are you absolutley sure you are right, Conrad, in asserting that *every single European country has jury trial for murder?* I am not sure that you are.

But even if you are right about that, they certainly do not all have jury trial for less serious offences. The norm is for you to be tried by professional judges. That way there is always a potential for corruption or undue influence. Giving the 'right' verdict may get you promotion. I believe it is now creeping into the British system of justice - and of relevance to this BWMA bulletin board, I believe that the decisions given in the Steve Thoburn 'metric martyr' cases were given by judges who were under influence. There are strong indications in the facts surrounding these cases and within the trials themselves that this was so.

If someone has information on the precise extent to which there is trial by jury in continental judicial systems, I should be pleased to hear. I suspect that Scandinavian courts may have jury trials, I just don't know.

THE EUROPEAN UNION SYSTEM OF JUSTICE has been outlined in their book, 'Corpus Juris', published I think in 1999.

Its main features are:

* Aboliton of jury trial

* All cases to be heard by professional judges, under the control of the 'European Public Prosecutor'(EPP) (an EPP has already been established as part of the emerging EUROJUST department of E.U. justice

* Abolition of the 'double jeopardy' rule i.e. the possibility of being tried again and again for the same offence

* Detention without trial - the E.U. have said that this should be initially for a period of up to 6 months, renewable thereafter (on application by the prosecutor or investigator) for *indefinite* 3-month extensions

* A European Union-wide Police force with total immunity from prosecution i.e. being above the law, unlike British policemen. Its headquarters, EUROPOL, were established in the former Nazi SS building in The Hague in 1997 and they already have thousands of staff

SOME ADDITIONAL NOTES:

1. A Bill is just going through Parliament in Britain to authorise the use of foreign nationals as Police Officers in the U.K. - the first time for a millennium that British citizens will be liable to arrest by foreign policemen

2. The Magistrares Courts in the U.K. are already being drastically altered to comply with the E.U. system of criminal justice. In particular, lay Magistrates are big phased out. Many more stipendiary Magistrates, now called District Judges, have been appointed. They are mostly young and ambitious. They can be relied to give the 'right' verdict for the powers-that-be in controversial cases. A classic example was the conviction of Steve Thoburn by a single paid District Judge when, manifestly, a controversial case like that should have beenn tried by three lay Magistrates. A deliberate policy of overwhelming Magistrates with loads of new laws, compulsory re-training courses, tests and paperwork has successfully ensured that over 2,000 of them have retired early in the last three years. Like many things, these happen under our very noses because we are distracted by sport, celebreties, TV, entertainment and other things far more important than the loss of our system of criminal justice

3. The much-vaunted (though not vaunted by me) European Convention on Human Rights (now incorporated into British law by virtue of the Human Rights Act 1998) does not guarantee jury trial, does not guarantee the right to a jury to reach any verdict it wishes, and does not guarantee 'habeas corpus'. The best it can do is create a pathetically feeble right, under Article 6(1), to a 'fair trial within a reasonable period of time'


_____
ENDS

Tony wrote: "Are you absolutley sure you are right, Conrad, in asserting that *every single European country has jury trial for murder?* I am not sure that you are."

Tony, I think I’ve overreached myself. I’ve done some research on jury trials in Europe and apparently the truth is somewhere in the middle.

European Countries without a jury system:
The Netherlands, Luxemburg

European Countries which have a system in which the court comprises lay people and professional judges, who deliberate together both as to the guilt of the accused and the appropriate punishment:
Germany, Austria, Greece, Portugal, Sweden, Finland, Denmark and Norway

European Countries with a jury system:
UK, Ireland, France, Belgium, Italy

Belgium, France and Italy only have jury trials for murder cases.
Either way offences don’t exist in the three above-mentioned countries.

I'm still sitting on the fence over the issue, and I've found an interesting article about whether or not to abolish jury trials.

"If our jury system is such a good idea, why does no one else use it?"

Andrew Geddes - Wednesday March 27, 2002 - The Guardian

We do not know how juries reach their verdicts. Any research on that topic is precluded by the Contempt of Court Act, and juries do not give reasons for their decisions. Occasionally, horror stories emerge as to the way in which the jury has set about its task. In one recent murder trial some members of the jury sought to contact the victim by using a ouija board. In another case where the accused, a Mr Qureshi, had been found guilty of the arson, a female member of the jury alleged that disparaging and racist remarks about the defendant were made by some jurors throughout the trial, that one juror fell asleep in court and another was deaf and could not hear all the evidence.
Sometimes a member of the court staff stumbles on what has been going on. At the end of a recent trial, the judge retired to await the jury's verdict. A harassed jury bailiff then told him that two of the jury had climbed through a window and were sitting on a ledge smoking cigarettes (or similar) and refusing to participate in the jury's deliberations.

We are almost alone in Europe in our use of juries. The French use them, but only for the most serious crimes, where the court is presided over by three judges with nine lay jurors. Very sensibly, they decide guilt and sentence together; previous convictions are known to all; and a simple majority is enough for a verdict, voting being carried out by secret ballot. Holland relies entirely on professional judges. Italy puts its trust in a tribunal of three judges, while Germany, Austria, France, Finland and Sweden prefer to try criminal cases with mixed tribunals consisting of a professional judge and a number of laymen. Even in England and Wales only about 1% of criminal cases culminate in trial by jury.

Is it not at least worth asking why everyone else is marching out of step except for us? Should we not find out how juries are performing? Irrespective of the advantages trial by jury may bring, the institution of the jury - a randomly picked and legally untrained body - must stand or fall on its ability to find the truth.

Many judges who daily preside over trials in the crown court are of the view that wrongful acquittals happen far too frequently. These are, on the whole, not "perverse" acquittals (in the sense that the jury has acquitted because it disapproves of the law or the prosecution in seeking to enforce it); they appear to result from a failure of the jury to apply to the evidence the intellectual rigour necessary for its members to feel sure of the defendant's guilt. There are no appeals against such decisions.

Some judges estimate that the jury gets it wrong in about one in four cases. There are, of course, many trials where there is room for more than one conclusion on the evidence, and where it is understandable that the jury's view differs from that of the trial judge. There are many others, however, where no such indulgence is possible. Of the approximately 20,000 defendants who pleaded not guilty in the crown court in 1999 and were tried, 64% were acquitted. In the magistrates' court, the equivalent figure was 5%.

In his recent Review of the Criminal Courts, Lord Justice Auld expressed deep reservations about the jury system. He recommends that the trial judge or the court of appeal should be able to inquire into any alleged impropriety by a jury and that the law be amended to allow research into how juries reach their verdicts. It is perhaps a measure of his limited confidence in the jury system that he also recommends that jury trial for intermediate offences, where the likely sentence is no more than two years' custody, should be abolished and replaced by trial by a judge and two lay magistrates and that in serious fraud cases the judge should be able to direct that the trial be by judge and two experts; in the case of young defendants (under 18), trial should be by judge and two youth magistrates, and in all indictable cases the defendant should, with the consent of the court, have the option of trial by judge alone.

Consultation on the review came to an end on January 31. Some three weeks before that deadline, the Times reported that the Cabinet had decided to reject the Auld recommendations to remove trial by jury in the cases referred to. Apparently, the united opposition of the Bar and the Law Society was enough to persuade the government to surrender the field even before any serious debate had begun.

Research should now be carried out into how juries reach verdicts. We need to know if the jury is a reasonably efficient fact-finding tribunal. If it is not and cannot adequately be improved, it should be replaced by some other method of trial that is likely to err less frequently. For that we could do worse than study the methods of our continental neighbours."

(Andrew Geddes is a judge on the Midland and Oxford circuit. This is an edited version of an article that first appeared in the Spectator)

"The Guardian"

[shudder]

Apart from that, some well put together arguments - well done you two!

Conrad,

There's a great deal I could say about the Guardian's agenda and how they are pursuing it, but there isn't time. The paper is deeply wedded to the whole
'European Project' so enthusiastically embraced by most of of New Labour.

Any system which is human is inherently imperfect, I would argue.

Indeed the best systems of government and justice in the world recognise that human beings are imperfect and are framed accordingly.

At the end of the day, you have to weigh the advantages of a jury, with all the occasional imperfections outlined in the 'Guardian' article, with the alternative, which essentially is professional judges paid by the state.

I would always accept that there is much we in Britain can learn from other countries, in Europe or elsewhere.

But let the world adopt jury trial and habeas corpus tomorrow and state tyranny would vanish!

The main benefit of a jury is that it is less likely to be influenced. For instance, judges may be thinking of their reputation, or their next promotion. A jury can be more forthright, and chuck something out. Still, it would appear that there should be some sort of safeguards built in.

Conrad, they use professional juries. blah de blah. Learn some law, por favor.

Bryan, please explain - who is "they"?

I never purported to know a lot about the law.

May I conclude from the aggressive tone in your post that you have problems at home ?
Please don't take it out on posters of this forum.

Thank you.

....not "clever" enough.

Try again

Conrad,

Paul Birch, in his own style, has suggested that all juries except in the United Kingdom are 'professional', i.e. there is no lay element in other European countries.

So, in Europe, trial by one's peers occurs only in the U.K. (and the United States, and generally in what one might call the 'Anglosphere' e.g. Australia, Canada, South Africa, New Zealand etc.).

If he is right, that is potentially very significant, as I feel sure you would agree - and it would underline the concerns of many of us about the loss of jury trial in this country.

Is it possible for you please to research Paul Birch's contention that only the U.K. has 'non-professional' juries?

And is it right, from your previous posting, that you accept that *no* European country apart from the U.K. has juries of any kind (i.e. 'professional' or 'non-professional') except in murder cases?

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P.S. One of the (many) weaknesses of the International Criminal Court (I.C.C. - the one that is making heavy weather of trying Slobodan Milosevic at the moment), as Harold Pinter and many many others have noted, is that there is no jury trial - i.e. it is trial by professional judges.

The I.C.C. claims to have jurisdiction over 'crimes against humanity'. I just hope I'm never accused of one of those

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P.P.S. I note that David Blunkett is about to extend the 7 days' maximum period of detention under 'habeas corpus' in terrorist cases to 14 days. Little by little, bit by bit, inch by inch, centim

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<<
So, in Europe, trial by one's peers occurs only in the U.K. (and the United States, and generally in what one might call the 'Anglosphere' e.g. Australia, Canada, South Africa, New Zealand etc.).
>>

Unless trial by jury was re-introduced into South Africa in the 1994 constitution, trial by jury was abolished in South Africa many years ago. It was certainly not in place when I lived there. On the other hand, I some years ago I was speaking to an Australian woman who told me that ehr husband had been on a jury in a murder trial.

"(I.C.C. - the one that is making heavy weather of trying Slobodan Milosevic at the moment)"

Actually that is the United Nations War Crimes Tribunal for the former Yugoslavia.

"P.P.S. I note that David Blunkett is about to extend the 7 days' maximum period of detention under 'habeas corpus' in terrorist cases to 14 days."

I know, I really don't like what David Blunkett has become.

"Little by little, bit by bit, inch by inch, centim

[we are sorry for the loss of sounnd, here is some music]"

LOL

Tony,

I haven't got much time now but I can tell you that Belgium and France have non-professional juries, chosen at random.

In Belgium and France there are juries for murder cases, rape cases, crimes against humanity, terrorism, hold-ups,...

"La cour d'assises (Assize Court) juge les infractions les plus graves, les crimes, comme le meurtre, le viol, les crimes contre l'humanité, le terrorisme, le vol à main armée..."

I didn’t mean for that to be aggressive. I was simply stating that there are vast differences between certain European jury systems and our own. Also, the tone was that juries should only be used in criminal cases- I was expressing, albeit briefly, that I feel that juries are suitable not only for a number of criminal cases, but many civil as well.

As for professional juries, I was referring to Germany.

<<
As for professional juries, I was referring to Germany.
>>


Does this apply to all Lander, or only to some Lander. Also, do you know what qualifications a professional juror must have?