Law of Evidence Presumption of Innocence Essay

Trial by Jury→ Past and Present

• Jury→ not in civil actions (tort)→ in criminal cases.
• Until Criminal Justice Act 2003→ hearsay evidence (statement not given orally→ in writing and NOT under oath→ second hand evidence).
• Until 2003→ jury could not hear of a D’s bad character→ an alternative ‘good’ character had to be portrayed by the lawyers as well.
• R v Shippey→ evidence should be assessed as a whole→ evidence weak and inconsistent→ no case to answer→ shows that juries are not trusted
• Law changed from above→ trust in juries has increased→ e.g. being the maximum age of 75 until which they can serve.
• Juries are left far more to work out the reliability and credibility of relevant and admissible evidence for themselves.
• The jury is seen by some as an unfair and time-consuming process, a ‘luxury’ placing an expensive burden on the state (albeit it operates in only 1% or 2 % of criminal cases).
• The verdicts of a jury are unreasoned→ may seem irrational if not perverse→ OJ Simpson case.
• Problem of complex company law cases→ can the jurors follow?

• Jurors can’t really follow the complexities of city trading.

• But→ in the same logic→ what about expert evidence in a gross negligence manslaughter?

• Even in simple cases→ jurors may appear to have difficulty following clear directions
• Problem of the internet→ 12% of jurors are looking for information on the internet concerning high profile cases→ other cases this was 5%.

• Sequestering the jury→ no longer an option→ too inconvenient/ expensive.

• Where does one find the raison d’etre of the jury trial?

• Found in the Magna Carta + Habeas Corpus Act of 1640→ but these developments were powerless at first as the judge was able to direct the verdict of the jury.
• Breakthrough→ Penn and Mead case→ jury entered the picture as the defender of individual liberty.
• In an age before representative democracy→ only real means for any form of genuine democratic involvement→ as the jury, made of regular people, could technically not give power to the laws of the legislature (if, let’s say, they were made to supress people).
• Independence of the judiciary→ accepted as an essential element of the rule of law nowadays→ established constitutional principle.

• Charles Caverno→ criticizing jury→ time to let it in the past

• As he might have put it, it is electoral accountability and representative democracy that are the bulwark of liberty today. The jury need no longer stand between the public and the State.

• However→ even if the jury doesn’t serve as the guardian of democracy anymore→ it does secure the Rule of Law→ protection of the legal system.
• In terms of democracy→ the members of the public sitting on a jury act as the democratic branch of the judiciary.

• Still an aspect of participatory democracy.
• Jurors are properly representative of society→ continue to be draw from local communities→ diverse.

• Jurors enhance the confidence that minority communities have in the Justice System.

• Thus→ serious criminal prosecution justice should not be seen as being dispensed from on high by what might today be described as an unaccountable elite.
• Importance of inclusive political institutions→ Lord Neuberger→ institutions in which all members of society play a part→ most advanced societies have this.

• An example of shared responsibility for the delivery of justice.
• Jury trial promotes civic values→ studies in the US have shown that jurors are more likely to vote in elections following completion of jury service.
• Jury service helps promote an understanding of how the legal system works and its importance to the country.
• Jury trial thus increases participation in democracy generally through giving a central role to the public in the criminal justice system.
• Juries provide another form of accountability. They ensure that in each criminal trial it is not just the accused that are on trial. They ensure that the criminal process is itself in trial.  
• Some may remember the case of Dr Leonard Arthur a highly respected consultant paediatrician, a kind compassionate doctor who, as he saw it, put the interests of his patients and their parents first. John Pearson was born with Down’s syndrome and abnormalities of his lung, heart and brain. Dr Arthur wrote in the case notes, "Parents do not wish the baby to survive. Nursing care only." He prescribed an opiate based painkiller to be given ‘as required.’ The baby died. Dr Arthur was reported to the authorities by a fellow member of staff, a staunch believer in the right to life. He admitted to the police that the effect of the drug given, apart from being a sedative, was also to stop the child seeking sustenance and that this was his intent. Dr Arthur was charged with murder, but the charge reduced to attempted murder during the trial because of problems with causation.  
• Despite what to the lawyer may have appeared a confession to the charge, the jury acquitted in hours. Their verdict has been construed as a refusal to convict a doctor of murder for 'allowing a severely handicapped baby to die' even if the law was against him. It brought to the public’s close attention the dreadful dilemma of the doctor in this situation and triggered debate on the ethical questions involved  
• That juries can do this has not always been met with approbation. Sir Robin Auld in his review of the criminal courts in 2001, noted that it cannot be right for a jury of twelve to set aside a law properly enacted by Parliament by refusing to apply it→ against parliamentary sovereignty.

• Counter→ juries are an aspect of the checks and balances of democratic design→ sovereignty back to the people (which is the entire reason for why parliamentary sovereignty exists anyways).

• Jury as truth-seeker.

• Jury is now firmly one where it is the recipient of evidence and argument just as the judge is in a civil trial.
• Might a professional judge be better?

• Logic of juries not being able to comprehend cases→ counter→  If the prosecution cannot explain in sufficiently simple terms why they say someone has behaved dishonestly, is a prosecution for a criminal offence punishable with imprisonment justified?

• Recent empirical studies support the idea that juries carry out their role effectively. Studies by Professor Thomas have demonstrated an absence of jury bias or discrimination. They have shown that few juries fail to understand or appreciate the nature of their role and that less than 1% of juries fail to reach a verdict. In other words, where evidence is gathered it strongly supports the viability of jury trial.
• More importantly moving to a system of judge-only reasoned verdicts would eliminate the democratic participation in the criminal justice system. It would mark an estrangement between the public and that system; one which I do not believe would benefit society. We would lose the advantages it brings. The place for a judge-only verdict is as an exception to the general rule justified by the wider need to secure the proper administration of justice.

• PACE S 78→ judge can exclude relevant evidence where it would be adverse to the fairness of the proceedings to admit it

• Only applies to prosecution evidence.
• Judge has the discretion to exclude this evidence.
• In making this determination→ look at all of the circumstances in looking at how the evidence was obtained.

• Common law exclusion of evidence→ where the prejudicial effect would override the probative value.

• Where it would skew the image of the defendant more than it would actually prove whether that defendant is guilty.

• Any other circumstances

• the judge can exclude any kind of evidence he wants to→ but there are also specific rules that can be used to exclude evidence (e.g. confession evidence).

• Weight

• How relevant it is→ up to the jury.
• Relevant evidence can be of little weight (because of other ‘mitigating circumstances’)

• Key issue in Blastland→ the confessions of a guy (not the defendant) were made and then retracted→ M (other guy) also knew of the murder before the defendant went on trial→ evidence was not admissible in court.
• Choo→ we should say that logical relevance is relevant and then the court has to explain why logical relevance doesn’t mean legal relevance.

• Why should the defence be held at a lower legal standard than the prosecution?

• Ties in with the idea of the presumption of innocence.
• If the defence have some evidence which could point to innocence→ even if that is only logical evidence→ should the evidence not be available?

• Jurors making reasons for the decisions?

• Make them think more deeply about their decisions?

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