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What juries should do?

  • June 14th, 2009

I’m amused by elite vituperation against juries since the Bain acquittal.  I’ve expressed my opinion that Bain did it, but to me the jury  did exactly what we have juries for  – they erred in the right direction. 

They cried halt on a legal establishment wasting its time, its respect capital, and our money in a frosty attempt to protect its pride.

Like the Crown prerogative of mercy, juries inject a vital fuzziness into the law. Perverse verdicts are sometimes the only thing that protects the system from its own pomposity or rigidity. I mentioned some 2004 cases to my Select Committee, when trial-by-jury rights were under attack :

Hail to illogical juries, for the sake of mercy. The wisdom of having a fuzzy human fuse in the justice system was shown again with the acquittal of the Nelson father who smothered his brain-damaged baby. A judge alone acquittal would have damaged the perceived integrity of the law.
Thankfully, juries are not computer black boxes. They need not mechanically apply law algorithms to the facts. The occasional "illogical’ refusal to convict gives elasticity that could not be drafted in without damage to the coherence of the law. Where the competing values are strong and directly contradictory the legal boundary may be just too complex. A perverse jury is a more simple saviour for the face of the law.
The same credit must go to jury members who persistently refuse to convict defenders of their properties against intruders. In that case, however, the law can and should be simplified, accepting the consistent message from these acquittals.
But a straightforward change could allow juries to do that job better, and address worries about leaving the guilt or innocence question to juries dumbed down by modern exclusion critieria and selection processes.

Real reform might give the jury a job it’s suited for – to say what the community thinks of the crime by fixing the sentence. Let judges determine guilt or innocence. Let juries apply the sentencing scale. If the jury think the judge got the guilt verdict wrong, they can limit the damage with a negligible sentence.

In practice, lawyers and judges try to steer juries with arcane and patronising rules about what they can hear or see, and what they can’t. Despite protestations that juries are usually sensible and safe, the evidence rules show the law establishment doesn’t really trust them.

Twelve community representatives, guided by the sentencing tariff could do just as well as the judges in deciding whether
an offence should fall at the severe or light end of the punishment scale.

Many people don’t trust judges’ sentencing. It’s plain they are biased toward leniency, and maximum sentences are never used, despite the express instruction to use the full scale in the Sentencing Act 2002. Judges are simply disobeying the law, because they can’t pretend that we’ve had no crimes at the worst end of the seriousness scale.

Real reform would allow victims a right to suggest what should happen to a criminal, to match the rights given to criminals and their families to tell the court what they think should happen. I’d trust juries to weigh that up better than they can weigh up complex evidence.


  • Jim Maclean
  • June 14th, 2009
  • 5:53 pm

Once again a hearty “hear hear”. Stephen has suscinctly put what I have felt for many years on a number of Justice related issues. Interestingly I too think it is more likely than not that David Bain did kill his family but I can well understand that there was insufficient proof for the jury to convict given our present system. I feel less satisfied about the jury decision in the Kahui case and feel that those jury members were “played” successfully. I doubt Chris Kahui would have fared as well with a Judge.
All in all I would much prefer the Inquisitorial system, but I have to acknowlege that no system is perfect and New Zealand generally has people and officials who genuinely are interested in justice.
Without those people both systems will fail and with them both systems will perform about as well as human beings can make them perform. I will just remain frustrated until jury members grow confident enough to realise that they do not “have to” convict someone where they believe the law is wrong or too harsh, and that such cases are often what spurs much needed revison of unfair or ill drafted legislation.


Interesting concept Stephen which I think has some merit. I had never thought of that option before but it certainly seems to make sense.

I found your comment about how judges view juries also sat well with me having just read the Supreme Court’s justifications for suppressing evidence and overturning the Court of Appeal’s allowal of it. There was a distinctive lack of trust in the ability of lay people to be able to deal with complex legal nuances that I found somewhat patronising.


(The judgements I mentioned above were on the disputed 111 call in the Bain case.)

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