This article contains spoilers about the final episode of The Jury: Murder Trial
Should juries be abolished? Last night’s Channel 4 docudrama of a real trial, The Jury: Murder Trial, opened with the question: “Can we trust our justice system?” The only answer any reasonable viewer could give was no.
This four-part series assembled two separate juries to pass judgment on a real-life case, re-enacted by actors speaking from the transcript of the original trial. The jurors knew already that the defendant had killed his wife. The issue was whether he was provoked beyond the bounds of “self-control”. In other words, was it murder or manslaughter, a life sentence or two to three years in prison? At the end, the two juries reached opposing verdicts. Where lay justice?
I have served on juries three times, including as foreman on a case of attempted murder. In each case the time-wasting and theatricality was absurd. Money and time were pointlessly consumed, and in our murder case I had no doubt justice was not done. Many friends, most of whom had wriggled out of jury service, thought it was “frightfully good” for people like me to meet such “different” people in the jury room. They seemed to regard jury service as merely social therapy for the middle classes.
The television programme was like a pub argument relocated to Love Island. The participants knew they were watching actors and were themselves “acting” as jurors. They duly hyped the emotion. But they did it well. Having volunteered, they were clearly an outspoken bunch. Most jurors in my experience tend to be relatively nervous and tight-lipped.
Jury rooms are dens of claustrophobia where strong personalities, chemistry and emotion inevitably get tangled. Reasoned debate is lost in the fug of who gets on with whom. In this series, what should have been a discussion of anger control under provocation became a battleground in which retributive justice was pitted against human sympathy. The format of the trial forced argument into a technical straitjacket: was it murder or manslaughter, with no nuance in between, and no summing up by the judge was shown.
Jurors inevitably turned to their personal experiences. It was intriguing how sympathy for the husband was expressed by older jurors who had seen similar marital crises. “I, too, remember being stressed out of myself,” said more than one. Younger jurors, one aged 19, were more punitive. But there was little mention of criminal psychology, let alone retribution or rehabilitation. There was just a vague sense of “what does she deserve” and what does he.
For all its heightened drama, what the programme revealed was the central failing of British justice. The courtroom trial is dominated by an unreal Socratic dichotomy of good and evil, represented by costumed barristers. At no point did experts in criminal behaviour sit round and discuss a middle ground, a sensible way forward to help the man, his family and society out of what had been a ghastly tragedy. Everyone had to be simply for him or against him.
The irony is that the only place where such discussion did half take place was in what amounted to an unchaired saloon bar shouting match: “I can’t bear this”; “They’re all screaming at me”; “I don’t know if I’d want to be triied by a jury.” I kept thinking: why is this not moved to open court? It might be of some service to justice if the judge at least got to hear all the arguments before his summing up. The concept of juries remaining blind as to their reasons is medieval.
Jury trials are justice as play acting, as if imitating the film 12 Angry Men. They are presented as a binary argument with only one winner. In my attempted murder case, the judge was so dismissive of the poor performance of the young prosecuting counsel he told us we should consider acquittal.
Nowadays disputes in serious criminal trials tend to turn on digital, chemical or financial evidence, and are vulnerable to identity bias. Goodness knows what juries will make of artificial intelligence cases. Other than in matters of personal judgment, such as hate crime, courts need experts and judges, not amateurs from off the street.
Jury trials are dying out across Europe in favour of the German practice of judges and lay assessors. In Britain, more are being tried by magistrates alone. There is no evidence of a resulting crime wave. Instead, England and Wales already send more people to prison than anywhere in western Europe. One country that famously sends far more people to prison than Britain is one even more attached to juries, the US.
In the US, jury trials have so crowded the court system that it is approaching breakdown. The result is that an estimated 90-95% of all criminal cases now avoid trial and go to plea bargaining. In other words, neither side airs its case in public or before lay magistrates, let alone tests it before a jury. There is simply a private negotiation between lawyers and a judge, often built round a half-hearted but heavily enforced admission of guilt.
The overstretched British court system has shown no similar inclination to go for streamlining. The justice system is so hidebound by tradition it will not even end the bifurcation of solicitors and barristers. This indefensible restrictive practice should have stopped long ago.
Britain’s juries are a quaint medieval hangover, as once were lay constables. They should go. The best foreign practice should be studied and imitated. It took a recent television programme to end the subpostmaster scandal. Perhaps one should now serve to end the nonsense of juries.
• This article was amended on 3 March 2024 because an earlier version incorrectly said that rape, terrorism and fraud trials “rarely have juries”.
Simon Jenkins is a Guardian columnist
