Who gets to be judged by their peers?

The Ministry of Justice is currently considering proposals to change the right to election of a jury trial. While the paper is titled "Improving Jury Trial Timeliness" there is a lot more at stake than quicker trials. It is crucial to examine these potential changes through the lens of preserving constitutional rights, upholding the presumption of innocence, and maintaining alignment with international best practices.

Jury Trials as part of our Legal Identity

Jury trials have long been regarded as a vital component of New Zealand's legal system. The oldest legislation still in force in New Zealand is cl 29 of Magna Carta:

NO freeman shall be taken or imprisoned, or be disseised of his freehold, or liberties, or free customs, or be outlawed, or exiled, or any other wise destroyed; nor will we not pass upon him, nor condemn him,1 but by lawful judgment of his peers, or by the law of the land. We will sell to no man, we will not deny or defer to any man either justice or right.

While the language is old and there is no absolute provision for a jury trial, it shows how deeply rooted the right to judgement by community rather than judge is. Jury trials serve as a check against arbitrary power and ultimately place the power in the hands of citizens to determine culpability. Justice being delivered by citizens also encapsulates the maxim that justice must not only done but is seen to be done. There can be few more obvious examples of open justice than allowing citizens to directly participate in the judicial process and contribute to the maintenance of law and order in society.

The more modern articulation of the right to a jury trial is found in s 24(e) of the New Zealand Bill of Rights Act 1990 which provides that everyone charged has the right to the benefit of a trial by jury when the penalty for the offence is or includes imprisonment for 2 years or more. The two year rule is in fact only a little over a decade old. It was amended in 2013, by section 4 of the New Zealand Bill of Rights Amendment Act 201 included imprisonment for more than 3 months.

Why Juries?

Juries serve important functions within the criminal justice system over and above high-falutin' constitutional principle:

1. Community representation: Juries bring diverse perspectives and experiences to the courtroom, reflecting the values and standards of the community. Legal standards should reflect community standards. There are hard questions in criminal trials - such as whether an accused in a rape trial had a reasonable belief of consent, or where a defence argument is used whether the force was reasonable.
2. Checks and balances: The jury system acts as a check on judicial and prosecutorial power, ensuring that decisions are not made in isolation by legal professionals alone. While juries do not create or determine the law - they determine the facts and reach a conclusion on that basis, they are however an important way in which the administration of justice is democratised and not left solely in the hands of the elite.
3. Public confidence: By involving ordinary citizens in the administration of justice, jury trials help maintain public trust in the legal system. The court process can be arcane and disenfranchising. One of the side benefits of the jury system is that ordinary citizens are placed at the centre of the process and can form their on views on whether it is fair and robust. Citizens who have served on a jury have different experiences, but almost all report that it increased their confidence in the system.

Given these crucial roles, any proposed changes to the jury trial system must be carefully considered to ensure they do not undermine these fundamental aspects of the justice system.

Presumption of Innocence

Should a person wrongly accused have a right to elect a jury trial even for a lower level offence? Of course if we knew who was guilty and who was innocent in advance we would ensure that the resources of the courts were directed to ensuring there were no wrongful convictions. That is why we have, and the very core of the criminal justice process a presumption of innocence. Ideally criminal procedure should proceed on the basis that the accused was indeed innocent - and the quality of procedure would reflect that.

I am concerned that underlying the suggestion that the right to elect a jury trial should be further restricted is the sense that almost all of the people accused are guilty anyway - and even those found not guilty "probably did it". Undoubtedly most readers won't fund themselves charged with an offence - and that leads to the risk of mis-framing the issue as what fair trial rights are for "them" rather than "us".

Cost-Cutting

Timeliness is a significant problem in the courts. Resolving cases years after charges were laid is bad for everyone - including victims. However looking for solutions which are procedural shortcuts is concerning. Effectiveness is important, but cost cutting should not be the primary driver of reforms to jury trials. The focus should instead be on enhancing the quality and fairness of trials while addressing legitimate concerns about timeliness. A significant impediment to court timeliness is the fact that (unbelievably) court business is still conducted in pretty much the same way it was 100 years ago - a paper file with hand written notes and various official looking stamps on documents. The court has a programme to digitise this - Te Au Reka is a digital case management system aimed at transforming New Zealand's justice administration. Frankly this cannot happen soon enough.

It cannot go without mention that in the short term timeliness may go backwards. Current and planned changes to gang laws, sentencing discounts and "three strike" sentencing all have the express intention of creating more judicial work. It is concerning if the response to the imposition of greater court workload is to consider a watering down of trial rights.

International Alignment

Many common law countries, including the United Kingdom, Australia, and Canada, have grappled with challenges of court workload in modernizing their jury trial processes. New Zealand sits in the middle of the pack in terms of the right to election. At one end, the United States has expansive jury rights (enshrined in its Constitution) and any offence punishable by more than six months imprisonment will give rise to a right to a jury trial as being more than a "petty offence". In contrast s 11(f) of the Canadian Charter of Rights and Freedoms grants a jury trial only to those cases where the maximum punishment for the offence is imprisonment for five years or more.

The United Kingdom and the Commonwealth of Australia take the approach of dividing offences into more serious and less serious categories (tried by indictment or tried summarily - or crimes vs misdemeanors to use an Americanism). This aligns roughly with New Zealand's current approach with our Criminal Procedure Act which defines category three offences as an offence punishable by a term of imprisonment of 2 years or more. Jury trials may be elected only for category three and four offences.

Proposed Changes: its not all bad

It is appropriate to run the ruler over the whole of the jury process to see where improvements can be made, both in terms of timeliness, as well as the wider experience (we know that being a juror is not particularly popular). One proposed change involves streamlining the jury selection process. While efficiency in this area is desirable, care must be taken to preserve the representative nature of juries. Any modifications to the selection process should aim to maintain or enhance diversity and community representation. Another possibility is making it easier to elect which kind of trial a defendant wants later in the piece - to reduce those cases where a defendant elects a trial by jury "to be on the safe side". At the present time the election must be made at the same time as the not guilty plea. These two decisions need not be linked and the information needed to make an election is quite different to than needed to plead. Similarly consideration should be given to lowering the bar to changing an election of trial by jury.

As noted in the Interim Regulatory Impact Statement (RIS) length of sentence is only a rough proxy for seriousness. In many cases an offence can have a large range of seriousness. Assault with a baseball bat and assault with a loaf of bread are both assaults with a weapon. In fact the really important question is what the actual term of imprisonment will be if a conviction were to follow. The RIS also considers a reform of "sentence capped charges" under which - if the prosecution agreed that a sentence of imprisonment of two years or more would not be sought (with the judges agreement) then there is no right to trial by jury. That would enable crimes which were at the low end of offending for offences of that type to be dealt with summarily. This also has drawbacks including putting considerable power in the hands of prosecutors, and significantly limiting the availability of juries for offences (such as assault with a weapon) which while committed at the lower end of the scale are a very significant conviction.

Conclusion

It is important to ask what the problem that is being addressed is. If it is the backlog in the criminal justice system then there may be other much more effective ways of addressing it which do not erode fair trial rights.

If any changes are considered then we need to know exactly what the impacts will be - including for example the number of offences charged where the maximum penalty was over two but less than three years (and where that was the most serious offence charged). My suspicion is that the number is low. Data being used for this consultation is not complete, but suggests that there would be a seven per cent reduction in jury trial elections if the threshold was raised to three years.

Certainly we need to do something about trial times. Delay is bad for almost every participant in the system. However there may be significantly bigger wins by attacking the real issues of court inefficiency - poor case management, stretched legal aid counsel, and a truly arcane paper based system of file management and record keeping.