One of the most significant recommendations in a review of the criminal courts in England and Wales, expected to be published this week, is likely to be the scrapping of jury trials for certain offences.
The idea in Sir Brian Leveson’s independent inquiry is that it will help reduce the record backlog in the courts. But for many the right to a jury trial, except for the most minor offences, is synonymous with the right to a fair trial and watering it down would be hugely controversial.
Here the Guardian examines how other countries’ criminal courts work.
US
In the US, the sixth amendment of the constitution states: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state.”
However, the supreme court ruled in 1970 that “petty” offences, carrying a maximum sentence of six months could be tried without a jury. This puts it in line with what used to be the maximum sentence in magistrates courts in England and Wales, although, since 18 November last year, magistrates have been able to hand down prison sentences of up to a year.
In the US, defendants have the right to waive their right to a jury trial, provided this is done voluntarily and intelligently. In England and Wales there is a much more limited right to choose, only available in the case of “either-way” offences. These are criminal charges where the magistrate believes they have sufficient sentencing powers to hear the case but where the defendant can opt for a jury trial.
Perhaps the most notorious jury trial in the US was when jurors deliberated less than four hours before acquitting OJ Simpson of the murders of his ex-wife Nicole Brown Simpson and her friend Ronald Goldman, after an eight-month trial. The Goldman and Brown families later won a civil case against Simpson.
Germany
There have been no jury trials in Germany since 1924, when they were abolished. Most cases are tried by a panel of professional and lay judges. The lay judges must be aged between 25 and 69. Religious ministers, certain politicians and health professionals working in the court system are among those excluded. Municipal councils draw up a list of ordinary members of the public deemed suitable and they are then chosen by a committee to serve a five-year term.
The so-called Schöffen help to make decisions on both law and fact. According to Encyclopedia Britannica: “Although Schöffen are considered an important part of the German legal system, many professional jurists, including lawyers as well as judges, tend to believe that their influence is continuing to wane and that they may eventually be abolished because of their alleged tendency to project personal rather than legalistic opinions.”
India
Jury trials were introduced to India under British rule, the first taking place in 1665. In 1958, reflecting decades of concern, the Law Commission of India called the jury system a “failure” but the real impetus for them being abolished is said to be the infamous Nanavati case the following year. A jury acquitted an Indian navy commander of the murder of his wife’s lover, despite overwhelming evidence only for the Bombay (Mumbai) high court to overturn the not guilty verdict.
The Law Commission report had criticised the use of “unscrupulous professional jurors” and criticised the failure of juries to deliver “independent, impartial and just verdicts”. The Nanavati case amplified concerns about bias, including with respect to religion and caste, and the influence of external pressures and jury trials began to be phased out.
They were not officially abolished until the Code of Criminal Procedure 1973 stated: “After hearing arguments and points of law (if any), the judge shall give a judgment in the case.”
France
Jury trials in France were a legacy of the 1789 revolution. They are limited to the most serious cases, heard by the cour d’assises, where three judges sit beside six jurors. The French have an inquisitorial judicial system as opposed to the adversarial system used in England and Wales, and, where there are jurors, French judges deliberate with them to reach a verdict.
Cases which can be heard by the cour d’assises were controversially limited in 2023 to those carrying the longest sentences. That year it was decreed that all offences carrying a maximum sentence of 15-20 years should be tried by panels of five judges at “département criminal courts”, encompassing nearly all rape trials. Several thousand lawyers, academics and judges warned that abolition of juries was a danger to democracy.
When, in a case that caught the world’s attention, Dominique Pelicot was last year found guilty and sentenced to 20 years in prison for drugging his wife Gisèle Pelicot and inviting dozens of men to rape her over almost a decade of their marriage, it was a panel of five judges who delivered the verdict.
