Lord Justice Moses, in a speech to the Bar Council, has proposed fundamental changes to the way in which criminal trials are conducted. These are put forward on the basis that "no modern government in the foreseeable future is going to abolish trial by jury" but that the current system does not afford juries "the respect" of dealing with them well, is too expensive and leads to too many expensive appeals.
The starting point gives rise to the suspicion that Moses would have preferred abolition of the jury trial and that "the respect" he wants to give juries is actually no such thing. He complains about the judge's lack of power to influence the jury's verdict. He points out that in the 19th century judges felt less circumscribed in their ability to comment on the evidence but that "the modern judge eschews anything which might light the tilt sign on the pinball machine of a criminal trial". He maintains that it is not effective for the judge to require the jury to sit for weeks or even months "with total passivity" listening to the evidence and then to give all the "alien" directions on the law all in one go at the end of the trial.
The suggestion that directions should be given throughout the trial at the point when the evidence in question is given does not seem like such a bad idea, particularly if (as Moses does not propose) there was more transparency about the way in which such issues are resolved and fewer arguments with the jury excluded. However, where the proposals seem to me to be mad, bad and dangerous for democracy and jury trial is where Moses then takes his proposals in relation to requirements on the defence and the way in which juries reach verdicts.
In 1996 the requirement for the defence to serve a defence case statement was introduced, but Moses complains that this did not go far enough and that the defence counsel should be required to say what the defence is at the outset of the trial – and the defence statement should have to be updated and shown to the jury in all trials. This ignores that the presumption of innocence (dismissed by Moses as "no more than superstition") means that the defence must be entitled to take a position of simply requiring the prosecution to prove their case. (This happened recently when the woman accused of attempted murder of the MP Stephen Timms, Roshonara Choudhry, refused to give instructions but her leading counsel took the view that his duty was to put the prosecution to proof.) Although the system with defence case statements works reasonably well, the additional strictures on the defence proposed by Moses could create unfairness in cases where an innocent defendant failed or was incapable of giving instructions.
But the really dangerous proposal is to do away with the judge's summing up and to replace it with questions on factual issues for the jury, similar to the questions put to a jury in a Middleton-style inquest, where a narrative verdict is proposed. This would involve the factual issues being decided upon by the judge after argument in court with counsel and then reduced to a series of questions to be put to the jury, with their answers leading "logically" to a verdict of guilty or not guilty. This would afford the judge a wholly unconstitutional power to interpret the facts and how they relate to the final verdict and would disempower the jury to a very great degree.
It is unconvincing to say that perverse verdicts such as in the Clive Ponting case would still be possible because juries could answer questions perversely. But above all, Moses shows no appreciation of the importance of the ordinary person deciding on the facts. Perhaps he should watch the film 12 Angry Men, which is a brilliant exposition of how juries' discussions on the facts matter. Those of us involved in inquest work know only too well how frustrated juries often feel at only being allowed to answer the questions put to them, but of course the jury in an inquest is not allowed to reach decisions which result in people being sent to prison. It is extremely disturbing that at a time when legal aid cuts and means-testing already threaten the fairness of our criminal justice system that a senior judge should be proposing such a massive attack on the role of the jury and I very much hope he will not prevail.