Earlier this year, powers granted under section 10 of the Criminal Justice Act meant that the first Diplock trial, or trial by a single judge, could take place in England. This rejuvenated the old debate about jury trial and stirred up ancient platitudes about the jury’s role in defending the common man from the powers of the state. As anyone who has ever typed ‘jury’ into google will know, it was held as the ‘lamp that shows that freedom lives’ by Lord Devlin and many liberal legal commentators still hold it in similar esteem. It seems that as long as the jury remain in the room, listen passively, and make a decision as to a defendant’s guilt, we can be reasonably happy that our system of administering justice is as fair as it can be. But we should not be complacent. Whist liberal lawyers fetishise the jury as the pinnacle of democratic justice, the government continues to pass legislation to manage exactly what can and can’t be said in the courtroom, whilst simultaneously trying to remove the jury from the courtroom altogether. In an environment so stifled by regulation, what kind of freedom does the lamp illuminate, and what about it is worth defending?

Today, to question the fairness of a trial is usually to question how the evidence was presented. This is because our current system functions under the assumption that the evidence against an accused must go extremely far to demonstrate guilt (formalised in the famous burden of proof ‘beyond reasonable doubt’). Interestingly, there was no such thing as ‘evidence’ in the jury trial before the 16th Century. Prior to this courts were based in small communities and the testimonies of those who lived in the jurisdiction were treated as proofs in and of themselves. Because the local population was absolutely trusted to deliver the best verdict for their community, any objective ‘proof’’ was surplus to requirement. Whilst this system seems arbitrary by today’s standard, royal justices would report that convictions were extremely low with the accused usually walking free on the basis that he held a decent reputation and contributed something to the community. This was a source of great frustration for those in government who believed that the locals were literally getting away with murder.

The low conviction rates led to the introduction of property qualifications, meaning that in order to qualify for jury membership, a candidate had to earn a certain amount in property rents in each year (shockingly, such qualifications remained in place until the 1970s). This meant that jurors had to move around the country far more, as there were simply not enough middle class landowners to make up each regional jury. Those sitting on a jury would no longer have lived in the area and so may have not had any idea about the character of the defendant or what they were accused of. This meant that jurors would have to be supplied with external resources to help prove what had taken place and this introduced the concept of evidence into English criminal law. It is arguable that the concept of evidence was necessitated by the demise of localised courts, and the exclusion of local working people from the courtroom.

The development of evidence gave the state a mechanism to regulate the administration of justice. By 1540, Henry VIII had passed law allowing judges to issue fines and imprisonment for juries who returned verdicts that were ‘untrue..against the king, contrary to good and pregnant evidence’ In 1554 following the acquittal of Nikolas Throckmorton for treason, Judges Thomas Bromiley and Thomas White committed the jury to prison for returning a verdict that was ‘perverse by the evidence’. By 1750 it was an accepted legal convention that judges retained the power to imprison or fine any jury who appeared to have failed to properly understand the evidence and to deliver the proper verdict. The notion of evidence allowed the state to dominate and manage the jury in a way that had not been possible in the community based courts of the 13th and 14th centuries.

In one sense, very little has changed. The state still exhibits a great distrust in the public to make decisions in the administration of justice and continues to express this distrust through its regulation of evidence. This mechanism has led to attempts to drive the jury from the courtroom completely, or alternatively, to retain control over exactly what is and what is not heard. The former has been explicit in the recent debate over fraud trials. The discussion over fraud originates with the establishment of the Roskill committee in 1986 and its brief to investigate and recommend ‘just, expedious and economical disposal’ of ‘criminal proceedings in England and Wales arising from Fraud’. Predictably the committee, made up in the majority of financial experts, found that a jury made up of average citizens could not be expected to absorb the complex evidence that is involved in proving fraud.

This was followed up in 2001 by Lord Auld in his Review of the Criminal Courts, who recommended that in serious fraud trials the nominated trial judge should have the power to direct a trial by himself and two lay members drawn from a panel established by the Lord Chancellor for the purpose, or, if the defendant so requests, by himself alone. This led to a provision in the Criminal Justice Act 2003 that allowed the prosecution to make an application for a fraud trial to be heard by a single judge. If the judge was satisfied that the case was either sufficiently complex or time consuming the application could be allowed.

Even if we accept the conclusion that fraud trials are in some way too complex, there is of course a more straightforward means of dealing with the problem of complexity without restricting the public’s involvement in the trial: simply allow less evidence to be admitted. At he heart of all offences under the Fraud act is the relatively straight forward requirement that the defendant be proved to have behaved ‘dishonestly’. Ask any lawyer or juror who has been involved in trying fraud and they will tell you that a case almost exclusively sinks or swims on the basis of a tiny proportion of the exhibits.

Yet as well as making trials more straightforward, which is a benefit in itself, I would argue that the public can handle complexity. A peculiarity of both the Roskill committee and the Lord Auld review was that neither established that juries in cases involving complex money offences had been returning onerous verdicts. The Roskill committee was based on hypothetical juries no doubt informed by the committee members’ dim views of what the public could handle; later Lord Auld’s report similarly failed to give any mention whatsoever of prior jury performance. Yet the combination of both has established a mechanism for allowing the complete exclusion of a jury from a trial. This shows that the state would sooner assume that the public is too stupid to make these decisions, than trust in its intelligence and objectivity.

Even once the jury has made it into the courtroom, the state retains control over what evidence is heard. The current regime of disclosure means that it is the Crown Prosecution Service (who pursue almost the entirety of prosecutions in England and Wales) who decides what gets seen by defence team. It is then the responsibility of the defence to actively seek out any evidence they want to admit and to apply to have that evidence admitted. Of course, it then falls to a judge to decide whether or not the jury should consider the evidence. Even if the disclosure of evidence is managed so poorly that the defence form the view that a fair trial cannot take place, they then must make an ‘abuse of process’ application to a single judge to stay proceedings. If the judge refuses, then the jury hears the case anyway. Should we be entirely comfortable with the level of control that the prosecution has over disclosure? I would argue that this is an area of the trial by jury system that frequently avoids critique because lawyers are too worried about picking holes in a system that is so highly esteemed. We should defend the principle of trial by jury, whilst not being afraid of subjecting undemocratic elements of its practice to scrutiny.

The current context of the debate shows that trial by jury is under attack on two fronts. Firstly, the practice of jury trials is under fire from those who argue that it is both too expensive and inefficient or that the public cannot be trusted to make informed decisions in the administration of justice. Secondly, the democratic principles of trial by jury are being undermined by the increasing regulation and micro-management of evidence by the state. The majority of legal professionals and commentators compound these attacks by reciting platitudes about the jury rather than forming coherent arguments. We should look to rejuvenate normative debate about the administration of justice, and respond with intellectual clarity when the state looks to take these important decisions out of our hands.

Luke is a trainee barrister at BPP law school. He regularly writes for the IoI online review Culture Wars.