Whenever someone is acquitted in a high-profile criminal case, there’s a media clamour to critique the system that allowed the verdict to occur.
We’ve seen this before. Just think Chris Kahui, Murray Foreman, and the Richards/Schollum/Shipton trials.
But when someone goes down for something, we hear barely a peep. Except sometimes, years later, when doubts begin to emerge in public about a particular conviction. Think Scott Watson, Mark Lundy and others.
So it was inevitable following the Bain acquittal that the news media would again fret over whether our justice system’s got it right. The Herald worries about the jury system and whether it’s right to withhold evidence from juries.
Even the normally sensible Listener is questioning why the accused should have a right to remain silent during trial. Although the Listener’s editorial on the issue might have delivered a more convincing argument had it not cited the Police Association and Stephen Franks as authorities.
So let’s look at some important questions and ask ourselves what, if anything, needs to change.
Is our justice system in need of reform?
Of course. Anything that fails, however infrequently, can be improved. Our aim should be a perfect system, where people get what they deserve.
Will adopting the civil law system of having examining magistrates improve our system?
There’s no evidence that anything would improve if we adopted a civil law system. There are probably as many miscarriages of justice in civil law systems as in common law ones.
What about the practice of withholding evidence from juries? Surely the jury should have all of the facts in front of them.
The rules of evidence have developed over hundreds of years, party as a response to numerous injustices. We should be very careful about just changing the rules overnight, otherwise we risk creating new injustices.
Lawyers are trained to look at evidence and make calls based on the reliability and probity of that evidence. It is not a skill that can ever be mastered because, human nature being what it is, mistakes will always be made. But by the time lawyers become judges they ought to be fairly good at picking through what is relevant to a case and what is not.
Juries do not in general have this skill. If something is potentially damning if true, but is actually based on quite flimsy evidence, the risk of injustice to the defendant is great. Take the Bain 111 phone call as an example. Nobody can be certain whether Bain said “I shot the prick” or something else, such as “I can’t breathe”. So the evidence of a confession is weak, but arguably if someone believes Bain confessed on the phone then they will believe he is guilty of murder, and none of the other evidence will matter.
I prefer the status quo, by and large, although there may always be a need to tinker with the rules. But I see no great crisis that requires the rules about what a jury can hear to be revised.
Do we need to abolish the right to silence?
The right to silence has been a foundation of the presumption of innocence for centuries. If someone is innocent until proven guilty, why should that person have to say a thing? I ask again, what great crisis has occurred in our society lately that requires us to roll back these protections?
And forget the fact that in the UK the right to silence has been significant eroded. What does that prove? Merely that the law and order mob are having a good time of it in the UK. Let’s not go there.
Do we need to reform how we select juries?
Some people worry that juries do not represent the overall make-up of society. It’s probably true that juries are over-represented by the retired, students and the unemployed. And most people who want to avoid jury duty will find a way to. But short of fully remunerating jurors for the income they lose, I see no other way to ensure juries are a true cross-section of the community.
Some people have suggested jurors should have to pass an intelligence test. These same people sneeringly state that Bain was obviously guilty, so that anyone who thinks otherwise must be an idiot. If we follow this reasoning then clearly the Bain jury were idiots. How you would ever measure juror intelligence is another question, and the idea is so daft I’ll move on.
Why not abolish the jury system altogether?
In favour of what? Do we now have a judge as the sole decider of fact? It would certainly cut costs. But what of the idea that one should be tried by a jury of his/her peers? Do we abandon that age-old principle now? If so, why? What has changed?
So no changes then?
Not major ones. Things can always be improved. But before we make radical changes, let’s make sure we know what we’re getting.