HAMLYN - College of Social Sciences and International Studies ...

Criminal Justice
noting that in Scotland the defendant does not have a choice of
court. The matter is decided there by the prosecutor which
seems to give rise to no problem whatsoever.
It is safe to predict that jury trial will continue to be the mode
of trial for contested cases in the Crown Court. The only doubt I
see is over long fraud cases, a subject that has been under
discussion now for some 30 years. One should of course do
whatever can sensibly be done to improve the presentation of
evidence for the jury in complex cases. It may also be that there
are regulatory alternatives to criminal trials in some less serious
cases, as tentatively recommended by the Runciman Commission.
31 If there is a criminal trial, I prefer that it be with a normal
jury. I am not aware of any evidence that an ordinary jury
cannot cope. 32 Moreover, I have yet to see an acceptable proposal
as to what might replace it. 33
In 1988, I opposed the abolition of the right of peremptory
challenge (challenge without giving any reasons) of three potential
jurors per defendant. 34 The Government alleged that the
right was being abused by defence lawyers to eliminate from
the jury anyone who looked educated. The evidence was
entirely anecdotal and a Home Office study showed that use of
peremptory challenges had no measurable impact on the conviction
rate. 35 It seems to me that peremptory challenge was an
acceptable and indeed desirable safety valve, giving the defendant
a feeling of participation in the selection of the particular
peers who are to try him. However it is now gone and I see little
prospect that it will be restored. 36
Certain categories of persons are ineligible for jury service
because of their involvement in the justice business or disqualified
by reason of their previous conviction, or exempt
31 op. cit., n. 13 above, at pp. 115-116.
32 The best statement of the argument is still Mr Walter Merricks' Dissent to the
Roskill Fraud Trials Committee Report (1986).
33 See, for instance, the alternatives canvassed in the Home Office Consultation
Paper Juries in Serious Fraud Trials (February 1998).
34 Criminal Justice Act 1988, s. 118.
35 J. Vennard and D. Riley, "The Use of Peremptory Challenge and Stand By of
Jurors and their Relationship to Final Outcome" [1988] Crim. L.R. 731.
36 In the Crown Court Study, barristers and judges in a large sample of cases were
asked whether they wished to see the right of peremptory challenge restored.
A clear majority of judges (82 per cent) and a bare majority of prosecuting
barristers {56 per cent) said "No". A bare majority of defending barristers (56
per cent) said "Yes" (M. Zander and P. Henderson, The Crown Court Study,
Royal Commission on Criminal Justice (Research Study No. 19,1993), s. 6.2.5.)
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