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Four lessons England and Wales can learn from other jurisdictions

16 July 2019

Californian Graduate Diploma in Law student Elijah Granet discusses how he’d innovate our legal system.

 

1. Ditch the dock (like the USA)

The dock is a secure glass cage in which defendants are confined during criminal trials. It is also an inarguably prejudicial feature of English and Welsh courtrooms. The only argument for the dock is that it is somehow needed to keep order by restraining a defendant in a secure environment. Yet other jurisdictions demonstrate clearly and inarguably that courtroom order and safety can be kept without a special defendant's cage, as demonstrated by a comparative report. Even the United States is dockless.

At the very least we could copy Australia which has abolished docks for its magistrates' courts. If America can let alleged murderers and terrorists sit at the bar table without incident, Britain can surely (at minimum) do the same with those accused of speeding. As the criminal barrister Matthew Scott said, it's time to follow America in abolishing "these vile, inconvenient, prejudicial, expensive and above all unnecessary glass cages."

2 Abolish torts (like New Zealand)

Torts are a fault-based system for obtaining damages. Under the current UK system, victims of an accident have to sue (or settle) in order to obtain compensation. New Zealand abolished most areas of tort law in 1974, and "its people seem quite happy with the result". A Crown corporation called the Accident Compensation Corporation does exactly what it says on the tin, and offers fault-free compensation for almost all areas formerly covered by personal injury torts (with a few minor exceptions). It's like an NHS for all variety of accidents. Claiming compensation is relatively painless, especially when compared to having to sue for medical expenses. While it is true that New Zealand is a small country with its own legal culture, a 2019 Cambridge Uni paper makes a convincing case that the Accident Compensation Corporation's success "cannot simply be attributed to the idea that New Zealand is [...] an egalitarian paradise."

Fault in divorce will soon be abolished in the UK. It's time we did the same with personal injury.

3 Take lawyers off juries

The Criminal Justice Act 2003 eliminated the jury exemption for (among others) solicitors and barristers in England and Wales, on the grounds that it was unfair to have a "middle class opt-out" from jury service. This was the worst sort of political point-scoring at the expense of our legal system. Having lawyers on juries is silly at best and dangerous at worst. The entire premise of jury service is that a panel of ordinary people, rather than legal experts like judges, is entrusted to be the ultimate triers of fact and law, precisely because their ordinariness and disconnection from the legal system gives them special objectivity and impartiality. Are these interests really served by having the Lord Chief Justice on a jury?

The system in England and Wales jury could theoretically result in a jury consisting of twelve judges. Such an outcome is highly improbable, but entirely allowed under the current system If a jury of twelve judges works just as well as a jury of twelve laypeople, then the entire theory underlying juries is wrong.

Don't take my word for it. Virtually all other jurisdictions have concluded that legal qualifications render one unfit to serve on a jury. Scotland doesn't allow lawyers on its juries, even if its other criteria for jury service are broadly similar to England and Wales. Same for Northern Ireland. Our peer common law jurisdictions abroad also agree: lawyers aren't on juries in New ZealandIreland, the Canadian provinces (British Columbia, Alberta, Saskatchewan, ManitobaOntarioQuebec, New Brunswick, Prince Edward IslandNova Scotia, Newfoundland), the Australian states (New South WalesQueensland, South Australia, Tasmania, Victoria, Western Australia and federal) or Hong  Kong.

In the American system, counsel almost always strike attorneys from juries. It's even the same in many civil law jurisdictions. In Germany, lay judges (who are not quite juries, but close enough) cannot be lawyers or professional judges.

These leaves us with two logical possibilities. Either every other jurisdiction is silly and this isle (by which I mean just the part of it south of the Tweed) is so brilliant at justice that it alone has special insight or the inclusion of legal professionals on juries was just one of a number of rash, populist, and ignorant legal reforms carried out by both Blair and his successors (of all parties) that has gone on to have horrid consequences on our justice system. I think just about any jury anywhere wouldn't take long to decide unanimously for the latter.

4 Make juries explain their verdicts (like in Spain)

We are lucky in this jurisdiction to have an institution who carefully observes the legal system and makes just such thoughtful and considered recommendations to parliament. No, I'm not talking about the Law Commission, but the Secret Barrister, who makes a convincing case that England and Wales should copy Spain where juries are required to explain their verdicts. Spanish jurors must make a list of everything they think has been proven by the court, as well as everything that hasn't been proven, providing the votes for both. They then need to write up reasons for each conclusion, in which they can be aided by the Spanish equivalent of a court clerk. If the jury fails to explain its conclusion, the verdict is invalid. 

This system has two very clear advantages. First, it forces the jury to carefully think through all of the issues at hand by structuring and guiding their reasoning. It's much easier to have votes on each disputed fact (and be required to justify said facts), than it is to be forced to consider, without guidance, the totality of the evidence.

Second, if the jury does make gross mistakes, reasoned verdicts allow for better judicial review. Professor Stephen C Thaman, writing on a notorious Spanish miscarriage of justice, notes that appellate judges "were able to overturn the unjust judgment by reviewing the inadequacy of the jury's reasons".   

Reasoned verdicts are a very reasonable reform indeed.

Views expressed in our blogs are those of the authors and do not necessarily reflect those of the Law Society.

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Tags: courts

About the author

Elijah Granet is a Graduate Diploma in Law student at City Law School

Visit Elijah's blog

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