It is my pleasure to bring to you the first ever edition of compLEX, a GDST-wide, student-run publication dedicated to all things law!
The name ‘compLEX’ is a combination of the words ‘comprehensive’ and ‘lex’ (meaning ‘law’ in Latin), perfectly encapsulating the purpose of this publication as a space for students to explore and expand their academic interests - both by writing articles and reading them.
Over the course of this past year, I have had the privilege of collaborating with various students from across the GDST, without whose contributions and enthusiasm this publication would not have been possible.
This issue shines a spotlight on the role that juries, typically twelve members of the public summoned to decide the outcome of a trial, play in our modern-day legal processes. Our contributors question their efficacy in practice, with thoughtprovoking articles analysing everything from the impact of modern-day biases to whether they are necessary at all.
Assembling this first edition of compLEX has been an incredibly rewarding experience, and I sincerely hope that you enjoy reading it just as much as I enjoyed putting it together!
Aarya
04
GLOBAL ALTERNATIVES TO JURY TRIAL: HOW EFFECTIVE ARE THEY AND TO WHAT EXTENT CAN THEY BE APPLIED IN ENGLAND? - AARYA
11
WHAT ARE THE STRATEGIES USED TO COMBAT THE EFFECT OF SOCIAL MEDIA ON TRIALS? - ISHAA
14
JUDICIAL DISCRETION IN THE CRIMINAL COURTS: OUTRAGEOUS OR ESSENTIAL TO JUSTICE? - LARA
21
WOULD THE LEGAL SYSTEM BENEFIT FROM TERMINATING THE USE OF JURIES IN COURT CASES? - RUOYING
GLOBAL ALTERNATIVES TO JURY TRIAL: TO WHAT EXTENT ARE THEY EFFECTIVE AND CAN THEY BE
APPLIED TO ENGLAND?
A A R Y A
Introduction
From ‘To Kill a Mockingbird’ to ‘12 Angry Men’, the phrase ‘we the jury’ is the stuff of Hollywood. There is indeed something quite romantic about the idea of twelve members of the public chosen at random banding together to decide the outcome of a criminal trial, acting as society’s eyes and ears to ensure that justice is duly served (Government Digital Service, 2021). However, behind the glitz and glam of idealism and popular culture lies an uglier truth; in reality, the jury is an institution beset by problems (Miner, 1946). A sharp rise in criminality since the 1950s (UK Parliament) and the corresponding increase in jury trials (Ministry of Justice, 2024) have exposed a system that is overtaxed and under pressure (Davies, 2024), with many beginning to question whether trial by jury, a process that can take anywhere between a few days to several months (Barrett, 2023), can truly keep up with the demands of a fast-moving modern world almost unrecognisable from the one in which it was first conceived.
Many legal systems have taken this debate into their own hands, implementing measures that circumvent the need for a jury entirely. This article seeks to address two such examples: the practice of absprachen (‘confession bargaining') in Germany and giudizio abbreviato (‘abbreviated judgement') in Italy. I will provide an overview of each process, evaluating them from a comparative perspective and reflecting upon whether such ideas could ever be compatible with the English legal tradition before offering a conclusion.
Absprachen - The Art of Negotiation
The term absprachen, literally meaning ‘negotiating’ but better translated as ‘confession bargaining’, constitutes a German practice
whereby the defence council in a criminal trial may negotiate with the presiding judge by offering to confess in return for a milder sentence than would result if the defendant were to contest the charge (Langbein, 2022). Formally incorporated into Germany’s Code of Criminal Procedure in 2009, absprachen was quickly taken up by German criminal courts, with 41% of criminal proceedings across both local and district courts being resolved through a negotiated judgement in 2011 (Altenhain et al., 2013).
Given that this process greatly simplifies the work of the court and shortens the length of trials, its popularity is unsurprising. However, as critics of the practice have been quick to note, the increased efficiency that it offers comes at a price which many argue is too steep to pay. There are fears that by incentivising confession with the promise of a shorter sentence, courts are supplanting their quest for truth with what is essentially a system of bartering based around convenience (Weigend & Turner, 2014). These apprehensions are certainly not unjustified, especially when held against the two core values of the German criminal justice system.
Firstly, as a country with a civil law legal system, Germany upholds the inquisitorial principle. In practice, this means that German judges are required to independently investigate the material truth in a case through their own fact-finding (Bohlander, 2011). It is precisely for this reason that, rather counterintuitively, a formal declaration of guilt on the part of the defendant on its own is not considered sufficient to declare them guilty. Furthermore, a court’s verdict must comply with schuldprinzip, the idea that there should be a proportional correlation between the offender’s blameworthiness and the sanction imposed upon them (Stanila, 2016).
Bearing the above in mind, it is easy to see from where potential problems arise. Starting with the inquisitorial principle, it is difficult to see how supplementing investigative criminal procedure with a defendant’s confession can be consistent with the court’s obligation to extensively seek out the truth, given that the judge is essentially
taking their word for it. Turning to schuldprinzip, reducing the length of an offender’s sentence solely to reduce caseload pressure means that the punishment will never fully reflect the severity of the crime. There is hence a very convincing argument to be made that absprachen and schuldprinzip are inherently incompatible.
Nevertheless, absprachen has survived appeal, with the German Constitutional Court upholding its legality in 2013 subject to certain criteria being observed (Weigend & Turner, 2014). An unsurprising decision, perhaps, given just how entrenched negotiated judgements have become in the German criminal justice system and the extent to which judges have come to rely upon them.
Giudizio Abbreviato - Trial by File
The process of giudizio abbreviato, or ‘abbreviated judgement’, is one whose origins are rooted in defiance. As is the case in Germany, Italy too is a country with a civil law legal system. However, the Italian Code of Criminal Procedure in 1988 sought to drastically reform this legal tradition by reshaping it in the adversarial image of the common law system, civil law’s antithesis (Luparia & Gialuz, 2019) This had the potential to bring about monumental changes to Italy’s criminal justice system by taking away the investigative power of the judges, as granted to them by the inquisitorial principle, and converting them into impartial referees tasked solely with maintaining order whilst the prosecution and defence compete against one another (UNDC, 2018).
Italian judges did not take kindly to being sidelined in this manner. They were so committed to the idea that court proceedings turned on their person that they chose to rebel rather than accept a secondary role. They thus offered defendants a deal: either take your chances at trial or accept a decision passed by a professional judge informed solely by a single file of evidence. The big selling point? All defendants who stayed faithful to judge-based decisions would be offered a onethird discount on sentences (Lerner, 2023). In 1999, defendants were granted the sole discretion to make this decision and for many this was an offer too good to refuse. Indeed, in 2012 some form of
abbreviated trial was used in 34% of all cases (Luparia & Gialuz, 2019) in Italy.
In many respects however, this practice raises more questions than it resolves. For example, the reason behind the one-third sentence reduction is unclear. Whether it is a perverse ploy to preserve the power of the judge or an earnest attempt at directing defendants away from a flawed trial process remains to be seen. Furthermore, giudizio abbreviato essentially created a loophole in the law whereby defendants can essentially request a shorter sentence. If a murderer knows they are likely to be found guilty, they are much better off choosing an abbreviated trial because they are guaranteed a more lenient punishment.
But perhaps most importantly, giudizio abbreviato is a testament to the many ways in which the judiciary can cancel out the influence of a lay jury.
A Comparative Analysis
Whilst independent analyses of both absprachen and giudizio abbreviato are useful in establishing an understanding of the concepts, contrasting the two processes side-by-side presents an opportunity to draw out nuances and delve deeper into each practice.
Despite occurring in two different countries entirely independently of one another, various similarities can be found between both absprachen and giudizio abbreviato. Firstly, both use reduced sentences as incentive for participation. It follows on logically, then, that both also presuppose an assessment of guilt. The only defendants that really stand to benefit from arrangements such as these are defendants who know that they are likely to be found guilty regardless. This in itself raises a joint concern, the fear that offering reduced sentences provides offenders with a ‘get out of jail free’ card where it is neither warranted nor deserved.
For all their commonalities, there are points upon which absprachen
and giudizio abbreviato deviate. The most striking difference between the two is that the former is reliant upon a defendant’s confession, which largely supplements court proceedings. Giudizio abbreviato, on the other hand, does not abandon the traditional investigative element that has come to characterise civil law countries.
This just goes to reiterate the many ways in which the shared difficulty of coping with judicial backlog can manifest, drawing attention to the more pressing question underlying all that has been discussed thus far: If jury trials are so laborious that courts feel forced to turn to methods of dubious legality, have they become more trouble than they are worth?
The English Dilemma
Turning our attentions closer to home, having observed how countries on the Continent have neatly sidestepped trial by jury, the question remains as to whether it is possible for England to do the same.
The concept of the jury is one that is tightly intertwined with English legal history on account of its role in upholding civic freedoms, a notion whose origins lie in the Magna Carta of 1215 (Lerner, 2023). It is something that has come to be considered quintessentially English, a defining hallmark of this country’s legal system. Disposing of it altogether, therefore, does not seem a likely possibility. Furthermore, as a common law country that employs an adversarial system, judgebased initiatives such as giudizio abbreviato are immediately out of the question. With relation to confession bargaining, the implementation of methods such as this is widely opposed on the grounds that it may pressure people to plead guilty when they are not (Boffey, 2022).
That is not to say that the jury in England is untouchable. On the contrary, concerns of bias, inexperience and improper procedure have eroded public confidence (Thomas, 2022) to such an extent that in 2003 the Criminal Justice Act was passed, setting out various situations in which judge-only trials should be permitted (Criminal
Justice Act 2003, s.43).
As it stands, England’s approach thus far has been to narrow down the instances in which trial by jury is a requirement rather than to find ways around it, setting it apart from absprachen and giudizio abbreviato. Nevertheless, it is evident that the role of the jury in English criminal procedure has declined; its future is anything but certain.
Conclusion
To conclude, both Germany’s absprachen and Italy’s giudizio abbreviato have been objectively successful in relieving the strain placed on their respective criminal justice systems by the administrative complications of trial by jury. However, a deeper examination reveals that both are built upon questionable foundations that undermine the validity of each process respectively. Regarding their applicability in England, the civil law nature of giudizio abbreviato and fears of coercion associated with absprachen rule out the possibility of a simple transfer. Instead, the English legal system seems to favour a less aggressive approach, constricting the number of situations in which a jury trial is necessary.
In attempting to determine the role the jury will occupy in the future, we are presented with a fascinating dilemma. Jury trial must not become a burden on the criminal justice system, but the rights of the individual too must not be sacrificed to speed and to the interests of the state.
References
Altenhain, K , Dietmeier, F and May, M (2013) ‘Die praxis der absprachen in Strafverfahren’, Düsseldorfer Rechtswissenschaftliche Schriften [Preprint] doi:10 5771/9783845247779
Barrett, S (2023) Deliberations in the Jury Room, Lawyers com Available at: https://www.lawyers.com/legal-info/criminal/criminal-law-basics/deliberations-in-the-jury-room.html (Accessed: 02 November 2024)
Boffey, D (2022) Rise of plea-bargaining coerces young defendants into guilty pleas, says report, The Guardian Available at: https://www theguardian com/law/2022/oct/06/rise-of-plea-bargaining-coercesyoung-defendants-into-guilty-pleas-says-report (Accessed: 03 November 2024).
Bohlander, M. (2011) ‘Basic Concepts of German Criminal Procedure - An Introduction’, Durham Law Review, 1.Available at: https://durham-repository.worktribe.com/preview/1541265/8800.pdf (Accessed: 02 November 2024).
Crimes of the century - UK parliament (no date) UK Parliament. Available at: https://www.parliament.uk/business/publications/research/olympic-britain/crime-and-defence/crimes-ofthe-century/ (Accessed: 02 November 2024).
Criminal Justice Act 2003, c. 44. Available at: https://www.legislation.gov.uk/ukpga/2003/44/contents (Accessed: 03 November 2024).
Davies, G.R.N. (2024) Performance tracker 2023: Criminal Courts, Institute for Government. Available at: https://www.instituteforgovernment.org.uk/publication/performance-tracker-2023/criminal-courts (Accessed: 02 November 2024).
Government Digital Service (2021) Jury service. https://www.gov.uk/jury-service.
Langbein, J.H. (2022) ‘The turn to confession bargaining in German criminal procedure: Causes and comparisons with American plea bargaining’, The American Journal of Comparative Law, 70(1), pp. 139–161. doi:10.1093/ajcl/avac025.
Lerner, R.L. (2023) The Jury: A Very Short Introduction. New York, NY: Oxford University Press.
Luparia, L. and Gialuz, M. (2019) ‘Italian Criminal Procedure: Thirty Years After the Great Reform’, Roma Tre Law Review [Preprint]. Available at: https://air.unimi.it/handle/2434/922027 (Accessed: 03 November 2024).
Miner, J.H. (1946) ‘The Jury Problem’, Journal of Criminal Law and Criminology, 37(1). doi:https://heinonline.org/HOL/LandingPage?handle=hein.journals/jclc37&div=6&id=&page=.
Ministry of Justice, 2024. Criminal court statistics quarterly: October to December 2023. [online] GOV.UK. Available at: https://www.gov.uk/government/statistics/criminal-court-statistics-quarterly-october-todecember-2023/criminal-court-statistics-quarterly-october-to-december-2023 (Accessed 6 October 2024).
Stanila, L. (2016) ‘Strict Liability versus Schuldprinzip. Lessons from Common Law’, Law Series Annals WU Timisoara [Preprint]. Available at: https://heinonline.org/HOL/LandingPage? handle=hein.journals/autimis11&div=9&id=&page= (Accessed: 02 November 2024).
Thomas, L. (2022) Do we need juries?, Gresham.ac.uk. Available at: https://www.gresham.ac.uk/sites/default/files/transcript/2022-09-29-1800_THOMAS-T.pdf (Accessed: 03 November 2024).
UNDC (2018) Organized crime module 9 key issues: Adversarial versus Inquisitorial Legal Systems, Organized Crime Module 9 Key Issues: Adversarial versus Inquisitorial Legal Systems. Available at: https://www.unodc.org/e4j/en/organized-crime/module-9/key-issues/adversarial-vs-inquisitorial-legalsystems.html (Accessed: 03 November 2024).
Weigend, T. and Turner, J.I. (2014) ‘The constitutionality of negotiated criminal judgments in Germany’, German Law Journal, 15(1), pp. 81–105. doi:10.1017/s2071832200002844.
WHAT ARE THE STRATEGIES USED TO COMBAT THE EFFECT OF SOCIAL MEDIA ON TRIALS?
I S H A A
Social media has seen a huge rise in recent years, with implications for many areas of life such as education and mental health, however, the proliferation of social media also undoubtedly has an impact on the justice system as it poses a risk to the partiality of jurors. With examples of high profile cases such as Johnny Depp v Amber Heard being affected by the circulation of opinions online, lawyers are beginning to consider strategies which could be implemented in order to stop the opinions of jurors in trials being biassed by unregulated information they see on the Internet, rather than evidence presented to them in court.
According to YouGov research, around 58% of people worldwide agree that they mainly use social media for the news and entertainment. This is potentially dangerous for people’s right to a fair trial as social media isn’t a reliable news source, therefore jurors could come across information they perceive to be factual and correct about a case or the parties involved in it and allow it to affect their judgement in the trial (Fernandes, 2022). In fact, around 45% of adults in the UK believe they encounter fake news every day which means that a strategy which could reduce the effect of social media on trials is introducing greater regulations surrounding fake news on platforms such as TikTok, Instagram, Twitter (now X) and Facebook as well as educating the public about how to spot fake news. This means that jurors would be less reliant on information they see online about a trial and they would instead be more likely to focus only on facts about the case during the trial as they would be aware of the risks of fake news. (“True or False? How Much Is Fake News Influencing Our Lives?”).
Many people are used to documenting every detail of their life on social media which doesn’t comply with being on a trial, where jurors
are told they cannot post details of the case online as it could corrupt the trial. In Californian courts in 2016, a $1500 fine was introduced for jurors who were caught using social media which may help prevent juror misuse of social media during trials by making it off-putting to reveal details about a case etc. (Temme, 2019). This inclination to post about a case was displayed when a juror found himself on a sex abuse case then posted ‘Woooow I wasn't expecting to be in a jury deciding a paedophile's fate, I've always wanted to F*** up a paedophile & now I'm within the law!’ (“Jurors Jailed for Contempt of Court over Internet Use”).
A major risk that social media poses on the partiality of jurors is the temptation to conduct external research. As people are becoming increasingly reliant on social media as a way to learn information, courts will have to adapt to this to make sure that the only information the jurors make their judgement on has been presented in court and not for example a tweet of someone’s unsolicited opinion about the case. Frank J Mastro, a top-rated lawyer, who wrote the journal article “Preventing the ‘Google Mistrial’: The Challenge Posed by Jurors Who Use the Internet and Social Media” suggested that jurors who acquire information outside the trial online may also come across other information that could cause them to draw a conclusion that is different from one they might make just with the evidence they are supposed to assess in the case (Blakemore, 2017). This was demonstrated when a British juror who was on a child sex abuse case, instead of relying on her own judgment, took to Facebook asking her followers; "I don't know which way to go, so I'm holding a poll.” (“Juror Dismissed over Facebook Poll”). Therefore, lawyers could monitor the social media accounts of jurors to ensure that they do not break contempt of court laws and some legal experts even go as far as suggesting that devices should be banned during trials altogether. However, considerations do need to be made with implementing certain strategies. For example, banning devices may be counterproductive as it could put people off from jury service as a whole, which is a cornerstone of a democratic society. More moderate yet effective strategies could include allowing jurors to ask questions
during a trial which could deter them from feeling the need to go online and seek out more information (for example by looking at the claimant or defendant's personal social media accounts) if they feel as if they are provided with sufficient information during the trial. Furthermore, jurors should also be made aware of why the regulations surrounding conducting external research are there in the first place as they would feel more motivated and obliged to follow the rules if they are aware of this (Hoffmeister, 2021).
To conclude, many legal professionals have been discussing and worrying about the future of the trial system with the risk of jurors accessing information (which could be incorrect) online that could bias their judgement as well as whether using social media is too tempting for someone to break contempt of court laws, however, it is evident that many strategies can be put in place or continued to be used which will preserve and protect the right for a fair trial in the age of social media.
References
Blakemore, Erin “Is a Fair Trial Possible in the Age of Social Media?” JSTOR Daily, 12 Oct 2017, daily jstor org/is-a-fair-trial-possible-in-the-age-of-social-media/ Accessed 19 May 2024
Cohen, Mark A “Law in the Age of Social Media ” Forbes, 27 Nov 2016, www.forbes.com/sites/markcohen1/2016/11/27/law-in-the-age-of-social-media/?sh=382cdbd81db8.
Fernandes, Janice. “Global: Has Social Media Become an Important Source for News?” Business yougov com, 5 Aug 2022, business yougov com/content/43362-global-social-media-becomeimportant-source-news
Hoffmeister, Thaddeus “Do Unbiased Jurors Exist in an Age of Social Media?” The Conversation, 15 Oct 2021, theconversation.com/do-unbiased-jurors-exist-in-an-age-of-social-media-169125.
“Juror Dismissed over Facebook Poll ” Pinsent Masons, 26 Nov 2008, www pinsentmasons com/outlaw/news/juror-dismissed-over-facebook-poll
“Jurors Jailed for Contempt of Court over Internet Use.” BBC News, 29 July 2013, www bbc co uk/news/uk-23495785
Temme, Laura “Social Media Use by Juries: Is There Any Way to Stop It?” FindLaw, 27 Aug 2019, www findlaw com/legalblogs/technologist/social-media-use-by-juries-is-there-a ny-way-to-stop-it/.
“True or False? How Much Is Fake News Influencing Our Lives?” www.derby.ac.uk, www derby ac uk/magazine/issue-12/influence-of-fakenews/#:~:text=A%20study%20undertaken%20by%20Loughborough
JUDICIAL DISCRETION IN THE CRIMINAL COURTS:
OUTRAGEOUS OR ESSENTIAL TO JUSTICE?
L A R A
Introduction
Denver Beddows attempted to murder his wife in 2017, brutally battering her with a pan and hammer (Telegraph Reporters, 2017); Lee Tidy attempted to murder a pensioner in 2023, smothering and stabbing him (Barlow, 2023). One of these men was locked up for 23 years; the other, Beddows, was not even sent to jail. Surely, it is common sense to agree with Boris Johnson that judicial discretion (namely, the freedom of judges to interpret the law and apply a sentence as they see fit) unfairly fosters a "cockeyed crook-coddling criminal justice system" (Johnson, 2019) - allowing convicted criminal Beddows to return to that very home where he lifted the hammer?
However, in this essay, I will show that such fears about discretion are largely unfounded. Instead, judicial discretion is actually necessary for the law to operate in an ethical and practical manner. Furthermore, it is carefully regulated by guidelines and organised scrutiny. Consequently, Johnson's argument that discretion creates an "outrageous", unequal justice system which undermines the rule of law is inaccurate and sensationalist - a provocative comment which does not resonate with the widespread realities of the UK legal system.
The Necessity of Judicial Discretion
Every case presented before the court is unique, meaning that the crude application of a blanket rule is insufficient for delivering effective, pragmatic outcomes. Therefore, a judge must use their discretion to tailor their application of the law to the specifics of each scenario. Take the cases of Tidy and Beddows. On paper, these men committed the same crime so, without judicial discretion, should receive the same sentence. However, since the judges were not bound
to a rigid blanket rule, they were able to analyse the subtleties of each case to deliver arguably more productive sentences. For instance, Judge Laing decided to impose a severe, 23 year custodial sentence on Tidy as the circumstances of his crime, including drug abuse and targeting of the elderly, demarcated him as a danger to society (Barlow, 2023). Meanwhile, there were unique ‘mitigating factors’ in the case of Beddows which led the judge to exempt him from a prison sentence. He was a 95-year-old with poor health who attempted to murder his beloved wife as an ‘act of mercy’ to relieve her of a preexisting illness (Telegraph Reporters, 2017). Therefore, he posed no criminal threat to wider society. What would be the point in locking up such a man: elderly, vulnerable, and harmless? Particularly given the exorbitant costs of maintaining a prisoner (~£50,000 annually (Ministry of Justice, 2024)), it would be a pragmatic error to give Beddows the same harsh sentence as high-risk Tidy. This demonstrates how judicial discretion, far from destroying legal rules, actually enables the law to be wielded as a pragmatic tool of justice as judges can make the best decisions based on the unique scenario before them.
Moreover, judge-made law, or ‘precedent’, adds detail to the often vague legislation passed by Parliament – ensuring that the law is interpreted in a nuanced, consistent manner to “eliminate injustice” (O'Connor, 1928). For example, ‘self-defence’ as a legal exception to several charges, including murder, was integrated into our legal system through judge-made law in seminal cases such as Palmer v R (Palmer v R, 1971). Judges realised that it was neither fair nor pragmatic for individuals to be prosecuted for crimes committed in self-defence as they ostensibly posed no risk to society. Therefore, a precedent of exempting these defendants from punishment emerged, eventually culminating in the incorporation of self-defence into legislation (for instance, the Criminal Law Act, 1967). In this way, judicial discretion does not dilute or undermine the law but strengthen it by adding necessary nuance.
There is also an ethical rationale for discretion. For instance, a judge
may exempt an individual with diminished mental capacity from conviction as it would not be ‘fair’ to punish them for a crime they did not know they were committing. To illustrate, "insane" defendants (CPS, 2019) and children under 10 (GOV.UK, 2014) are not considered legally culpable for their crimes due to deficient cognitive abilities. Therefore, judicial discretion, in adapting the law to the requirements of each case, not only ensures the most pragmatic outcomes but also the most “humane” and fair (de Grazia, 1988).
Issues with Judicial Discretion
Judges are only human – intrinsically susceptible to fallibility and bias. Arguably, granting these individuals the license to take such monumental decisions into their own hands is ripe for injustice. For instance, an infamous study determined that judges were harsher in sentencing before a meal than afterwards: the ‘Hungry Judge’ effect (Danziger et al., 2011). Should a defendant be denied justice because their judge was a little peckish? Furthermore, the 2017 Lammy Review found that institutional racism was entrenched in the judiciary, meaning that discretion operated to the disadvantage of non-white defendants To illustrate, judges were 240% more likely to give a BAME (Black, Asian, and Minority Ethnic) drug offender a prison sentence than an equivalent white offender (Lammy, 2017). Hence, judicial discretion, far from accomplishing ethical outcomes, actually functions to oppress minorities in a manner utterly contrary to the “fundamental principle” that “all are equal before the law” (Hale, 2024).
Johnson further argues that discretion is susceptible to abuse since judges, influenced by their agenda of "political correctness", have the license to be "far too soft" on criminals - leading to a lawless, diluted state (Johnson, 2019). For example, under the Road Traffic Offenders Act 1988, judges have the discretion to exempt criminals convicted of motoring offences from losing their driving license if doing so would cause “exceptional hardship”. To illustrate, the solicitor’s firm Johnson Astills advises that criminals who rely on their car to attend “hospital appointments” might be permitted to keep their license, or
parents with children who need driving to “school” (Gaffney, 2022). Since roughly half of all offenders have children (Prison Reform Trust, 2023), surely it would undermine the rule of law to allow these numerous dangerous drivers to continue terrorising the roads? In this way, Johnson contends that the tyrannical freedom of judges to unfetter the guilty and punish the innocent threatens the very existence of criminal law in society.
Judicial Discretion in Practice
Nevertheless, Johnson's argument does not reflect the realities of judicial discretion in practice. In the UK, there are thorough checks and balances to ensure that judges do not undermine the rule of law.
First and foremost, judges are bound to sentence criminals according to official sentencing guidelines, such as the framework for attempted murder shown below (Sentencing Council, 2021), “unless it would be unjust to do so” (Sentencing Council, no date). Whilst judges still have discretion over what level of ‘harm’ and ‘culpability’ the charge falls within, the regulated guidelines ensure consistency and fairness in sentencing. Hence, Johnson's assertion that judicial discretion results in a severe "risk [to] public safety” is an absurd exaggeration (Johnson, 2019).
Furthermore, judges are prevented from acting unjustly due to fear of media backlash. Notably, this public scrutiny is encouraged by the Government with measures to ensure transparent “open justice” (Ministry of Justice, 2022). For instance, in compliance with the European Convention on Human Rights Article 6, the public can attend most court hearings either in person or remotely (Police, Crime, Sentencing and Courts Act, 2022). Additionally, judges must publicly provide reasons for their judgements via sites like BAILII to prevent arbitrary decisions.
Even if these regulations on judicial discretion somehow fail, there are routes of redress to correct any miscarriages of justice. For example, if a party disagrees with the outcome of a case, they can appeal to a higher court. Furthermore, under the Criminal Justice Act 1988, courts can contest a judge's decision on grounds of “undue leniency”. To illustrate, in 2017, Judge Mansell spared domestic abuser Mustafa Bashir from jail partly on the misguided basis that his victim could not be considered “vulnerable” as she was “intelligent” and had “friends”, so Bashir’s cricketing career should be prioritised (Halliday & Hurst, 2017) The courts, recognising that Mansell’s fallibility had marred his decision-making, subsequently amended Bashir’s sentence to 18 months imprisonment (Perraudin, 2017). Therefore, although it would be naïve to suggest that prejudice does not blight judicial discretion, checks and balances on the legal process ensure that the sanctity of the law is upheld regardless.
Conclusion
In conclusion, Johnson's condemnation of discretion as "outrageous" fails to capture the regulated, transparent realities of the UK judiciary. Indeed, judicial discretion is vital to the pragmatic and ethical application of the law with rigorous guidelines working to mitigate inevitable human fallibility – keeping dangerous criminals, like Tidy, behind bars and safeguarding the vulnerable, like Beddows, from needless punishment.
References
Barlow, P (2023) Burglar smothered 89-year-old and stabbed him in neck in brutal late-night attack, The Argus Available at: https://www theargus co uk/news/23912475 henfield-man-jailed attemptedmurder-home-attack/#comments-anchor (Accessed: 02 April 2024)
CPS (2019) Mental health: Suspects and Defendants, The Crown Prosecution Service Available at: https://www cps gov uk/legal-guidance/mental-health-suspects-and-defendants (Accessed: 03 April 2024)
Criminal Justice Act 1988, c.33 s.36. Available at: https://www legislation gov uk/ukpga/1988/33/section/36 (Accessed: 02 April 2024)
Criminal Law Act 1967, c 58 s 3 Available at: https://www legislation gov uk/ukpga/1967/58/section/3 (Accessed: 02 April 2024)
Danziger, S , Levav, J and Avnaim-Pesso, L (2011) ‘Extraneous factors in judicial decisions’, Proceedings of the National Academy of Sciences, 108(17), pp. 6889–6892. doi:10 1073/pnas 1018033108
de Grazia, E (1988) ‘Humane Law and Humanistic Justice’, Cardozo Law Review, 10, pp 25–35 Gaffney, R (2022) What is an application for exceptional hardship?, Johnson Astills Solicitors Available at: https://www.johnsonastills.com/site/blog/motoring-offences-blog/what-is-an application-forexceptionalhardship#:~:text=An%20application%20for%20exceptional%20hardship%20can%20be%20made,s 35 %20of%20The%20Road%20Traffic%20Offenders%20Act%201988 (Accessed: 03 April 2024)
GOV.UK (2014) Age of criminal responsibility, GOV.UK. Available at: https://www.gov.uk/age-of criminalresponsibility (Accessed: 03 April 2024)
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WOULD THE LEGAL SYSTEM BENEFIT FROM TERMINATING THE USE OF JURIES IN COURT CASES?
R U O Y I N G
The legal system would not benefit from terminating the use of juries in court cases but revising the jury system would. There are both positives and negatives of juries. Juries introduce diversity in court cases but there are doubts about the competence of the jury and their understanding of the judge. Perhaps we would be better thinking about reforming juries rather than rejecting them or keeping them with their flaws.
The diversity of the jury is one of its strengths. Diversity gives different viewpoints which allows it to involve different ethnic groups and therefore the results are more fair and higher quality. Without jury diversity, the rights of speaking out the opinions are only given to the majority. This success can be noted in “BAME disproportionality in the Criminal Justice System in England and Wales”, it found out juries were consistent in their decision making, irrespective of the ethnicity of the defendant. While in the magistrates courts, BAME women were on average 24% more likely to be found guilty than white women. Overall, the diversity of the jury offers more arguments and viewpoints of cases as well as creating higher quality judgements.
However, there are valid concerns about the impropriety of the juries such as the media influence on the jurors and the ability of juries to fully understand the complexities of cases. According to one report : One in five of those who remembered media reports of the case found it difficult to put it out of their minds and more than three in ten jurors in high-profile cases remembered pre- trial media coverage of the case. Furthermore, only 31% of jurors fully understood the judge's oral directions. Almost 48% of jurors said they were uncertain what to do if something improper occurred in the jury room. Two-thirds of those jurors called for more information about how to conduct deliberations.
The jurys’ understanding of the court case is therefore a significant challenge to the jury system as if the jury makes decisions with the majority of the jury not fully understanding the case fully. The nonspecialist nature of the court is both a strength and a weakness.
These issues are not surmountable. Juries, despite their faults, offer diversity to the court cases. Thus, it is worth keeping them in the courts. We should revise the system to ensure that the jury is not being influenced by the media and fully understands the case. There are some valuable suggestions for how to reduce the jury’s misunderstanding of the case in “Cases and Materials on the English Legal System” as alternatives for revising the jury system.
In conclusion, terminating the use of jury in the court cases would not benefit the legal system but revising the jury system to guarantee as much as possible to reduce the impropriety of the jury and the impact of media influences on the jurors.
Cases and Materials on the English Legal System: Both parties should prepare for the jury a written summary of the case and matters in dispute and a series of factual questions for the jury based on the facts of the case to ensure that the jury can properly understand the evidence in the case.
References
Thomas, C (2010) Are Juries Fair? [Preprint] Available at: https://www.researchgate.net/publication/266337216 Are Juries Fair (Accessed: 2024).
