Why are we asking this now?
This week Britain's first crown court criminal trial to take place without a jury in more than 400 years started at the Royal Courts of Justice. The case, involving four men accused of a £1.75m armed robbery, is being heard by a judge, sitting alone, who will decide upon the men's guilt or otherwise.
Why is the case being held without a jury?
Three previous trials have collapsed. During the first trial, one of the defendants, John Twomey, suffered a heart attack while in Belmarsh prison and was severed from the indictment. His six co-defendants were acquitted. At the second trial the jury was reduced to nine and was unable to reach a decision. At the third attempt the trial was stopped after allegations of jury tampering were heard by the judge. Because of the risk that the jury would be nobbled, the Court of Appeal decided last year decided that the only way to prevent this would be to hold the trial without one.
Is it controversial?
Hugely. The right to a trial by a jury of your peers is a fundamental principle of the British justice system and has been in place since the Magna Carta was signed in 1215. Yesterday's trial prompted a small demonstration outside the High Court where banners were erected with messages reading "No Jury, No Justice", and "Secret Evidence = Secret Injustice" were displayed. Those protesters fear that this is simply a way of going through the motions before eventually convicting the men.
But isn't there a history of trials without juries?
The Court of Star Chamber was used in the 1600s and tried people charged with serious crimes without a jury. The Diplock Courts in Northern Ireland are the most recent examples of regular criminal trials being held without juries. They were introduced in 1972 to overcome the issues of jury tampering and intimidation commonly associated with the Troubles. The courts were intended only to deal with offences committed by Republican or Loyalist paramilitaries but in 2005 they heard the case of Abbas Boutrab, a suspected terrorist who was jailed for six years for downloading information on how to bomb a passenger jet.
The Diplock Courts were abolished in July 2007. The Criminal Justice Act 2003 came into effect at the same time, allowing for trials to be heard without juries where there are fears that jury tampering would take place or where measures to protect jurors were inadequate. The Twomey case is the first trial to make use of the provisions.
What difference does it make?
The protocol is very similar and should even make the process simpler because legal arguments about what the jury can and cannot hear are dispensed with and the process of swearing in a jury is done away with too. It should also shorten the lengthy amounts of time it often takes for juries to reach decisions.
Although, as the barristers and the judge discovered on Tuesday, a trial without a jury presents its own problems. There is the issue of, when deciding what is admissible and not as evidence, the judge will have to read all of the background to the case. If he decides something cannot be used by the prosecution the problem exists that he has already seen it. It could be used to the advantage of a prosecutor who, knowing he will fail, could submit an application for a defendant's previous convictions to be aired in court. The judge will have to consider it and by doing so will therefore become aware of the information anyway. Opponents would suggest that for the judge to put this out of his mind when coming to a verdict is difficult.
Why do we have juries?
The idea is that criminals should be judged by a panel of ordinary men and women who will be able to view the case through untrained eyes rather than the forensic lens of a legal professional. Aside from the fact that it is completely open and so nullifies the threat of any type of establishment conspiracy against particular individuals, one of the many benefits attributed to it is that it allows a certain amount of discretion which the letter of the law does not. The phrase "a jury would never convict" is an oft-used one which suggests that those who are on trial for a crime where they have technically broken the law stand a better chance in front of a jury. The best example of such a case is that of Clive Ponting, who admitted leaking military documents, a criminal offence under the Official Secrets Act, but pleaded not guilty and was acquitted.
What are the flaws in the system?
The obvious flaw that is present in many juries is a lack of understanding. Many trials for offences such as theft are cut and dry and are easily tried by a jury. Part of the problem nowadays is that many trials are very complex and include numerous defendants and charges, some dependant on others. A fear in the legal profession is that, because a jury has to be 100 per cent sure of guilt before convicting, criminals are being acquitted simply because the jury does not understand the case and interprets this as "reasonable doubt", the threshold needed for exoneration.
There is also a question over the standard of juries. With many cases cases lasting for weeks and months, people are reluctant to sit on a jury. And, as it is not compulsory, it can be avoided. People who have holidays booked or business or family commitments which cannot be altered are usually excused. This leaves the possibility that juries are made up of unemployed people or housewives or simply those who cannot think of an excuse to get out of sitting.
Could juryless trials have repercussions elsewhere?
Juryless trials also throw up the side issue of reporting restrictions. If there is no jury to prejudice does the press have carte blanche to write what it wants? Technically the answer is no. A judge can still claim to be prejudiced by press reports although in reality he is unlikely to do so. It would be embarrassing for a judge to effectively admit that he is so weak-minded that, having read a newspaper report, he has been prejudiced against the defendant and cannot now try case fairly. Also, in all probability, the judge will already be aware of any revelations made in the media during a trial.
Will we now see plenty more such cases?
The fact that this case has gone ahead without a jury will not now mean that cases are regularly heard this way. The Criminal Justice Act 2003 allows for this in cases only when the integrity of the jury is threatened. What the Twomey case will do is set a precedent which others may now be readier to repeat. Of course it could be argued that it will now mean that prosecutors, fearful a jury may be more likely to convict, will be keen to raise the issue of jury tampering in the hope that the trial will become juryless.
Should we have juryless trials in Britain?
* In complex trials it is better that a legal professional judges the facts
* They essentially do away with reporting restrictions which hinder the freedom of the press
* Jury tampering could produce perverse results and this is the only way to eliminate it
* Trial by one's peers is what makes British justice the best in the world
* A judge deciding upon all aspects of a case is neither right or fair
* Having a jury allows for discretion that the letter of the law does not