Cheryl Thomas and the Use of Jury Trail

There is a common misconception among law students, academics and sometimes the public that the use of jury trial is dated, unnecessary and imbalanced. Essentially, the most common preconception is that juries are more often than not unrepresentative of the true population, in particular the under-representation of women, black and minority ethnic groups (BMEs) and young people. Moreover that the average jury usually consists of the unemployed or the retired as many people try to avoid jury service at all costs. Juries are said to lack variety and this is believed to lead to injustices.

The leading expert on juries in the United Kingdom and a professor of law at UCL is Cheryl Thomas. She has produced three papers of particular interest to me on this area of the English Legal System;

• Diversity and Fairness in the Jury System (2007) can be found here
• Exposing the myths of Jury Service (2008) CLR 415 (available via westlaw)
• Are juries fair? (2010) can be found here

Cheryl Thomas is a forerunner for the jury and it is about time we had one! Her studies are original as they are either the first or significantly more recent than any other studies on the role, use and selection of juries. They decipher whether or not the preconceptions outlined above are realities or merely myths. Though her research Thomas has concluded that juries are generally sound and offer a good proportional representation of the population with an equal split of men and women and fair representation of ethnic minority groups. She proves that since the developments brought about by the Criminal Justice Act 2003 in which rights to eligibility were drastically changed middle class professionals very rarely excuse themselves from jury duty whilst it is the retired and underemployed that are mildly underrepresented.

Thomas also researched juries' decisions when dealing with cases concerning an BME to discover if there were actually any inherent prejudicial decisions. This assumption proved false, even in areas such as Winchester where the likelihood of having a predominately white british jury greatly increases (see: Are Juries Fair?).

Finally Thomas looks into the general attitudes of the public towards jury service. Whereas it is easy to assume the response of the public would be negative, surprisingly, according to one survey, 76% of the public consider jury service a duty and are willing to comply, a further 54% said they would even enjoy the experience and only 14% claimed they would not want to take part in jury service through lack of trust in the system and the use of the jury in trials.

Above all it is important to remember that jury trials represent only 1% of criminal proceedings. Further more an even smaller percentage of civil cases as the use of juries in civil trials has been zoned out slowly over the last couple of decades over fears of complexity and time delays. The jury is a tiny part of the legal system in the UK, however, it is an essential part. Cheryl Thomas' studies show that popular misconceptions rest on nothing but inherent and irrelevant fear of injustices and anomalous outcomes.

F.L.P

ADR and Employment Disputes

Ever since Lord Woolf's "Access to Justice" report in 1996 and the publishing of the Civil Procedure Rules two year later, the use of Alternative Dispute Resolution (ADR) has been widely encouraged. Lord Woolf's report underlined clear problems with the civil justice system in the UK; principally the huge time delays, the cost and the imbalance between parties. He saw ADR as a positive effort to reduce the amounts of litigation. The recent push in ADR has stemmed primarily from the judiciary. The civil procedure rules allow judges to 'encourage' the use of ADR through sanctions, they may also stop proceedings to give time for parties to attempt some form of ADR.

ADR becomes particularly interesting when considering employment disputes. The client has a choice between submitting his case to two forms of ADR; ACAS (Advisory, Conciliation and Arbitration Scheme) or to an employment Tribunal. Both parties must agree before commencing action. Employers will find obvious advantages in following the ACAS route. Arbitration is completely private whereas tribunals can be reported, businesses will often value privacy as bad press can have financial implications or become generally bad for business. Arbitration may not require lawyers which saves money and because it also takes less time this lessens further expenses.

At a glance ACAS may appear the better option, however when compared with tribunals it seems far more logical for claimants to attempt the later option. An arbitrator is unlikely to be legally qualified, although more and more solicitors are training in ADR it is far more likely an arbitrator will come from a background of human resources. On the other hand, tribunals are a quasi-judicial body and always include at least one legally qualified member. Arbitration follows no strict rules of precedent whereas an employment tribunal will. Moreover where tribunal cases have room to petition to the Employment Appeals Tribunal, Arbitration has no or very little rights to appeal.

It appears strange that in arbitration, where arbitrators are unlikely to have any legal background, there is no predictability with regards to the outcome of a case and no rights to appeal. Surely due to the legal inexperience of an arbitrator rights of appeal should be present! Once more it is unlikely a claimant will be informed of these points when choosing a track as there is no requirement for legal advice even if the decision has a significant influence on a person's legal rights.

Arbitration and other forms of ADR may prove to be a logical alternative to litigation however claimants must consider all options as arbitration may not prove to be the most helpful alternative.

Christmas Break

I had a couple of days breather over christmas but was back with a vengence this afternoon after work. I coupled two detailed plans to essay questions and did a little reading around natural law, though nothing to satisfy a blog post.

Legal Positivism

Legal positivism is a form of philosophy of law or jurisprudence. It looks at the outside appearance of the law rather than looking at its content in order to define it. Positivism can be seen as a response to Natural law, the idea that law is linked with morality and the following of a higher law whether this is embodied by a philosopher king or leader (plato) or though finding the greater good (aristotle) or the acknowledgement of a higher being such as God (judeo-christians). Bentham was quoted to say that natural law was 'nonsence on stilts'. Positivism divorces the law from morality saying that we should look at what the law is and not search for what it ought to be. Morality may influence the law but it is non-essential and law is man-made.

There are two strands of positivism; classical and modern. Philosophers of the classical idea of legal positivism include Bentham, Austin and Kelsen. Modern positivists include Hart and his pupil, Raz.

Naturally the theory behind modern positivism appears to hold sway in society today. Hart, who was deeply influenced by Kelsen's ideas of positivism departed slightly from his theories claiming that classical positivism was too rigid and harsh. Kelsen saw the law as a science. It is logical and just exists rationally. Justice and morality on the other hand are based on preferences and values and are therefore irrational. Law and morality are not linked. Hart felt that Kelsen's theory did not account for society and was an extreme example of positivism, he called it formalism. Instead, Hart acknowledged that there was some kind of obligatory power but also room for philosophy of language. Kelsen's idea that x must follow y when considering sanctions was correct but Hart also acknowledged society's hostility as there is always a reason or justification for law.

Hart also established the the idea between primary and secondary legal rules whereby primary rules govern conduct such as criminal law and secondary rules include procedural methods by which primary rules are enforced. There are three kinds of secondary rules; Rules of Recognition, Rules of Change and Rules of Adjudication.

Hart's modern positivism creates a balance between law and morality and justice without the legal system appeared too rigid to change or delicate and at risk from falling into chaos at the loss of logical structure.

Its all a little bit complicated if you think about it too much all at once!

F.L.P

Herbert Packer: Models of Justice

Whilst writing in the 1960s, Herbert Packer, a professor at Stanford University created a theory based on two polarised models of justice.

The first of these models was the Crime Control model. Its principal focus was protecting the rights of the law abiding citizen through the strict enforcement of law and sanctions. The law must prevent and control crime and system must repress criminal conduct. A failure of law would be the break down of public order causing chaos and lack of control. The implementation of the crime control model is heavily based on investigative and prosecutorial officers. The role of police is central to this idea. More police should be out on the streets preventing crime rather than doing administerial work inside police quarters. There should be harsher laws and harsher sentencing designed with deterrence and retribution in mind. At the center of this model is the presumption of guilt.

At the opposite end of the spectrum is the Due Process model. This is based much more around the presumption of the accussed's innocence and the rights of the defendant. Ultimate failure of the system is resulted from an innocent person being found guilty of a crime. It is based on ideas surrounding Rule of Law and procedural safeguards. The Humans Rights Act 1998 is very much in line with this train of thought as it produces many general rights and justice is not and can not be done if it does not comply with these rights. The fact that the due process model follows a foundational constitutional idea, the Rule of Law means that it must have stronger grounds than the crime control model. Rule of Law is the idea that no one is above the law and arbitrary power can be defined or limited by it. It prevents the system from being so corrupt as to find a defendant guilty of a crime they didn't commit.

Packer acknowledges that both these models are extreme and that anyone who falls completely on one side could be labelled as a fanatic. The perfect legal system is somewhere in between these two models. Though I would argue that the weight sways according to many factors. The media will put pressure on governments to enforce stricter sanctions on certain crimes that warrant particular public anger this is perhaps an area of crime control. An example would be the harsher sentences on knife crime as a result of various instances of stabbing in London in 2008 or general attitudes towards drunk driving have now changed from being a mitigating factor to an aggravating factor when judges or magistrates consider sentences.

The due process model, as mentioned above, is supported by ideas surrounding human rights and in particular the Human Rights Act 1998. An example of a failure in the system with regards to the due process model is the treatment of the Burmingham four.

F.L.P

Project 2:1

Project 2:1 is a little idea of mine to help me achieve my ultimate goal of the moment, a 2.1 in my law degree. This is a little personal experiment designed solely for my own benefit. Grammar and literal talent are not important, simply the communication and review of topics and areas of legal interest.

Everyday I plan to write about something I've learnt or revised in brief. I may post links to other interesting articles or media, I may even review a journal or book, however, principally I will write about a basic area of law which has captured my interest that day.

This is either be a flop or a stroke of genius.

Lets see!

F.L.P