Sovereign Jury

The jury is sometimes described as the last bastion of our civil liberties, and talk of limiting the right to trial by jury provokes strong feelings. However, the fact that juries deliver the verdict is not uncontentious: people point out, from time to time, that the jury system has serious disadvantages, and it is often suggested that, in some types of case, the decision of 'guilty' or 'not guilty' be transferred to the judge.

The disadvantages of the jury system, as it operates currently, are tied up in its role in delivering a verdict on the case in hand – which is in fact quite separate from what gives it its special status. As I see it, the essential function of jurors is to act as witnesses to the exercise of power. Through their complicity in a trial the jurors confirm the public's acceptance of authority and of the mechanisms of the law, and in principle they have the power to withhold that confirmation by insisting that the court demonstrate the source of its authority.

If the courts acknowledged the jury's sovereignty explicitly, by asking the jury to deliver a verdict not on the matter in question but on the trial itself, then the issue of who should decide 'guilty' or 'not guilty' would become much less contentious. It would be possible for the judge to deliver the verdict on the case which the jury could ratify ... or refuse to ratify if they felt that justice had not been done.

In a healthy society, I wouldn't expect this to have any significant impact on the normal operation of the courts. For the most part, it wouldn't take more than a moment's discussion between members of the jury to establish that they all recognised the court's authority, and from then on they would only be concerned with the conduct of the case and the validity of the laws it centred on.

It would be relatively simple to introduce this in outline, simply by formally acknowledging the jury's power to demand proof of authority and establishing basic procedures to be followed if that should happen. A jury refusing to ratify a judgement would not automatically invalidate it (though they would have the final decision); there would be an opportunity to establish exactly what concerns the jury had and, in a healthy society, I'd expect clarification of court procedures, or of the rationale behind the law in question, to often be enough to satisfy them. I think it's likely that this process would lead to greater efforts to make court proceedings more comprehensible to the general public. And if particular judges or particular laws generated repeated refusals to ratify, that could provide useful feedback on the performance of the judiciary and on public acceptance of specific laws.

As I've suggested elsewhere*, it would be a relatively simple matter to extend this process so that it acted as a recall mechanism, using it to trigger a challenge to the Head of State (or any lesser central authority such as the head of a local authority). If, say, a dozen different juries questioned the courts' authority, all within a short period of time, that might trigger a hearing in front of a constitutional jury, which might in turn trigger a remedial process of some kind; which might range from the impeachment of a minor official at one end to, at the other extreme, a referendum on dismissing the current Head of State.

I believe this is something which should be explicitly included in a new constitution but, in my view, it exists de facto in our existing system – for the simple reason that, if it happened, no court in Britain would be likely to either ignore it or treat it as contempt. If it were acknowledged explicitly, however – if the jury were recognised as sovereign within the court system – that would enhance the separation of powers and could give the courts enough of a mandate for them to be properly independent. It wouldn't have the breadth and depth that Parliament's mandate has, but it would have a topicality which theirs lacks and it would be constantly being renewed each time a new jury is empanelled.

Recognising this as a latent part of our current constitution could provide us with the means to force constitutional reform onto the political agenda. In my view, any juror who believes strongly enough that our current system does not have proper legitimacy (and can get passive support from the other members of the jury) could ask the court to explain the source of their authority and, if a coherent explanation was not forthcoming, could reasonably refuse to participate. Isolated individuals doing it wouldn't get us very far but I think a committed minority, all questioning some specific feature of the system which the majority recognise as incoherent, could have a significant impact.

* Democratically accountable Monarch – https://constitutionuk.com/post/84150

edited on Apr 2, 2015 by Malcolm Ramsay
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