Sir William Blackstone, the leading eighteenth century publicist of the common law, saw the jury as "the glory of English law" [1], "a strong … barrier between the liberties of the people and prerogatives of the Crown" [2] and his views were enthusiastically echoed by the British colonists who carried his "Commentaries" with them into the remotest territories. To the colonised, on the other hand, the jury often represented little more than arbitrary authority and racism. The roots of this paradox lie in the concept of the jury promulgated by Blackstone, which was based upon a highly flexible qualificatory standard which favoured European minorities. [3]

This selectivity had a spectacular double benefit for British colonists. First it gave them direct and exclusive control of local criminal justice, enabling them to assert their authority over both native peoples and other European settlers. The Blackstonian concept of jury trial is sustained by repeated contrasts drawn with the cruel and tyrannical practices of other colonial powers, notably "France and Turkey" where, Blackstone insisted, the judges were empowered "... to imprison, dispatch or exile any man that was obnoxious to the government by an instant declaration that such is their will or pleasure". [4] This claim of moral superiority was well expressed in the jury concept and explains the importance of the jury in establishing English colonial hegemony. Even the adoption of the jury by the American and French revolutionaries [5] and the impassioned support of Voltaire, only served to buttress the authority of English colonial law over its competitors.

The jury also offered another advantage which encouraged British colonial settlers to assert their right to its benefits throughout the imperial period. It provided them with the powerful weapon of nullification over imperial legislation and, while palpably demonstrating their Englishness, it also permitted a wide measure of independence from the colonial authorities. In short, the jury was central to the construction of a new colonial identity and political status for settlers.

The right to jury trial could be established in two ways. First, it was a fundamental principle of Blackstonian jurisprudence that colonists arriving in unsettled or plantation territories, carried with them the full jurisdiction of the common law :

The acquisition of the right to jury trial under this principle, as in many of the North American colonies, tended to allow much greater control by local colonists over the composition and functioning of the jury. Alternatively, a colony acquired by annexation or conquest from another power, required legislation to establish the right of jury trial. [8] After their salutary experiences with intractable American juries, colonial officials in Canada, India, Africa and the Pacific were careful to retain Crown control of selections and a high qualificatory standard within the legislation,.

The role of the jury within the British Empire was essentially political and was concerned, above all, with the direct empowerment of European colonial minorities. It was, as DeToqueville observed in 1835, " … one form of … sovereignty." [9] In a colonial world in which settlers enjoyed little constitutional power over imperial legislation, it represented a focus for their political aspirations. This habit of mind led many colonists to value free participation in the jury more highly than the right to vote. According to Jefferson :

Legislative or Judiciary departments, I would say it is better to leave them out of the Legislative. The execution of the laws is more important than the making them." [10]

This view did not find favour with the newly independent peoples of former British territories in India, Africa and the Pacific, who almost universally abrogated jury trial in favour of a system of judge and assessors as soon as they were free to do so. [11] The aim of this paper is to consider the development of the jury in former British colonial territories and to explain why the institution has taken such firm root in North America and Australia, but has been discarded almost completely elsewhere.

In the decades leading up to the American Revolution, high profile criminal trials became more and more a vehicle for political dissent. John Peter Zenger, a newspaper editor was prosecuted in 1735 for criminal libel by the Governor of New York. Defended by Andrew Hamilton, he was acquitted amidst considerable popular excitement. [14] Smugglers prosecuted under the Navigation Acts were routinely acquitted [15] and one Governor complained : “A Customs House Officer has no chance with a jury let his cause be what it will”. [16] In 1765 a Boston Grand Jury refused to return indictments against the leaders of rioters protesting against the Stamp Act and indictments were also refused against those who participated in the destruction of property during the “Boston Tea Party” in 1774. By contrast, the Boston Grand Jury willingly found true bills against British troops involved in the “Boston Massacre” of 1770. [17] The activism of Massachusetts Grand Juries was attributable to their appointment by election rather than nomination by the Sheriffs and the Crown repeatedly sought to bring the procedure into conformity with the practice in the other North Atlantic colonies. Moreover, Olson has argued that the social diversity of American colonial juries permitted by the relatively low property qualification, enabled them to take a much more significant role in articulating public opinion than was possible elsewhere in the empire, and particularly in Canada and the West Indies. [18] He went on to suggest that the radical “new legalism” of the period was a direct result of this openness.

It is therefore not surprising that primacy was given to the right of jury trial in almost all the United States’ founding constitutional documents, both at the Federal and State level. [19] This was a clear indication of the importance of both Grand and Petty juries in the revolutionary struggle and jury trial represented almost the only political right which was enacted universally. [20] Anti-Federalists such as Jefferson regarded the trial jury as an essential means of weakening Federal control over State sovereignty and “ ...the only anchor, ever yet imagined by man by which a government can be held to the principles of its constitution.” [21] Federalists, such as Alexander Hamilton emphasised the role of the jury in legitimising central government :

“The friends and adversaries of the plan of the Convention, if they agree in nothing else, concur at least in the value they set on trial by jury, or if there is any difference between them, it consists in this : the former regard it as a valuable safeguard to liberty, the latter represent it as the very palladium of free government.” [22]

In the early years of the American state this unanimity extended only to white, male, enfranchised, property-owners and Alschuler and Deiss have described the long post-revolutionary struggle for equality in juror selections. [23] Anti-Federalist enthusiasm for jury trial was to bear bitter fruit after the Civil War when equal rights legislation in the former Confederacy was routinely nullified by juries. Moreover, white domination of the panels enabled the Klu Klux Klan and other white separatists to conduct judicial lynching and enjoy immunity for racist murders. [24] Even though the Supreme Court recognised the right of African Americans to sit on juries in 1879 [25], the law remained largely unenforced in some States until the use of racist grounds for juror challenge was finally prohibited in 1986. [26] On the other hand, the first woman to serve on a jury anywhere in the world took her place in a Wyoming Territory panel in 1870, although the word “male” was not expunged from many qualification statutes until the 1930s. [27]

Juries were not introduced in British Canada until considerably later than in America and were granted significantly less independence. Following the Treaty of Paris, a 1763 Proclamation instituted English criminal law in the colony but permitted French civil law to remain in force. Military tribunals were eventually replaced by jury courts [28] under the Quebec Act of 1774. [29] In the aftermath of the American Revolution, the English jury system was introduced in its entirety as part of a resolute effort on behalf of the Loyalists who had fled the United States “ ... to reinforce the idea that British institutions were superior ...”. [30] Property qualifications were much higher than in America and the jury panels were compiled by local Sheriffs who were themselves appointed by the Crown. In contrast to the situation in the American seaboard, Upper Canada was largely agricultural and the vast majority of smallholders, both British and French, were excluded. It was not until later in the nineteenth century that Canadian juries began to assert their independence from the local oligarchies [31] and in 1850 the task of juror selection was transferred from the Sheriff to certain locally elected officials. [32]

The difference between the American and Canadian juries and their political role is very marked. After their experiences with radical Boston juries, British administrators established a new model for selections in Canada which they were to implement elsewhere in the “plantation” colonies. In the already populous new territories in India and Africa, however, even more radical and more rigorously controlled variants of the trial jury were to be developed.

Lord Bentinck’s Bengal Regulation VI of that year is important since it laid the foundation for imperial policy on the criminal trial, not only in India, but also in British Africa and other colonies around the globe. No longer was it necessary for the decision of an East India Company court to be confirmed by Fatwa. [35] The legislation enabled European judges, at their complete discretion, to call on three possible forms of lay assistance. The first was by the formation of a Panchayet (traditional council of five nominated advisers) and the second was by the appointment of two “native” assessors (who were frequently local religious or political leaders) to sit with the judge. The final option was the appointment of a jury of unspecified size or composition. The procedure to be adopted in each case was entirely a matter for the judge, who could disregard a verdict by the jury or other advisers at will. [36] According to one observer :

In 1833 the Court of Directors expressed their approval for “... this discretionary authority for taking advantage of the experience and good sense of natives of respectable character in conducting ... criminal trials before the European tribunals.” [38] and this view was echoed by the Calcutta Review in 1846 :

Several unsuccessful attempts were nevertheless made to establish a more regular form of jury trial, in order to encourage European British subjects to accept the jurisdiction of the District Courts. [40] Finally, in 1861 the Legislative Council established a general system of jury trial in Sessions Courts throughout Bengal but exercisable only with the consent of the State Government, which was to specify the classes of offences which would qualify. [41] This enabled the courts to offer Europeans jury trial in the Calcutta Supreme Court for serious offences, while denying it to Indians. This position was confirmed by the Indian Criminal Procedure Code of 1882. Even in 1923 when Act XII placed all accused persons, of whatever race, on an equal footing, anyone charged with a serious offence which raised a conflict between a European British subject and an Indian British subject, could claim jury trial before a panel comprising a majority of their own race. [42] As Banarjee notes, this arrangement was designed to protect “the indefensible privilege of the European” since its use was, in practice, largely confined to the British. [43]

Unsurprisingly therefore, jury trial was abolished shortly after independence. By 1960 it had been abrogated in 11 Indian states and the remainder would follow, prompted by the strongly expressed views of the Indian Law Commission. [44] The aim of these experiments in authoritarian control of the jury was to create an institution which appeared to involve colonial peoples in the administration of justice and indeed did allow them an advisory role, but reserved the real power of decision-making to the imperial judges and administrators. The largely European colony at Botany Bay presented a very different problem and before moving on to consider the influence of the Indian model in Africa, it will be helpful to examine parallel developments in New South Wales.

From the first arrival of the convict fleets, military law was to prevail. In all criminal cases involving convicts, time-served convicts or free settlers, a military Judge-Advocate was to preside over a court-martial composed of six naval officers [47]. Such officers were naturally obliged to follow the orders of their superiors and to act “ ... according to the rules and disciplines of war”. [48] They could impose sentences of death or corporal punishment, including flogging, while the Judge-Advocate himself acted as both Prosecutor and senior judge. Despite attempts to introduce regular forms of indictment and modes of trial, the interests of the New South Wales military establishment inevitably took precedence in their deliberations. [49]

Unfortunately, the officers of the New South Wales Regiment (known popularly as the “Rum Corps”) could not be said to have adopted a position of neutrality in the settlement. They were actively involved on their own account in the economic life of the penal colony and much of the dispute over jury trial in the early years of the nineteenth century was concerned with their efforts to maintain control in the face of opposition from successive Governors, the judiciary and from the free settlers. [50] Whilst the courts were staffed by military personnel, officers of the Rum Corps remained almost immune from criminal sanction and their illicit economic activities and even their rebellion against the Governorship of William Bligh in 1808-10, could pass unchecked.

Government House, naturally enough, saw jury trial as means of curbing the power of the military. As early as 1803, Governor King had raised the issue [51] and Governors Hunter and Bligh had both expressed themselves in favour, the latter going so far as to address the 1812 Select Committee on Transportation on the subject. [52] After receiving further evidence from the Judge-Advocate of the time, Ellis Bent, strongly supported by the reforming Governor Macquarie [53], the Committee concluded that “ ... all evidence examined on the subject unequivocally condemns the manner in which criminal courts (in New South Wales) are established.”

Ellis Bent was one of the foremost advocates of jury trial in the settlement and conducted a vigorous personal campaign on behalf of the implementation of jury trial between 1809-15, involving voluminous correspondence with the Colonial Office. [54] He repeatedly assured the authorities that there were quite sufficient numbers of free colonists to comprise both grand and petty juries. Bent’s successor, Judge-Advocate Wylde called for a nine-man jury selected by the Governor, to ensure the “full and unshackled operation” of jury trial. [55]

At first, it was difficult to persuade even the free settlers, still heavily outnumbered by convicts and Emancipists, that jury trial would be in their interests. It was only when their numbers grew through successive waves of immigration that it became apparent that the stranglehold of the military over the criminal justice system could be effectively broken by the introduction of jury trial. Since no forms of democratic government were remotely contemplated, the issue of jury trial soon assumed a symbolic importance as the recognition of the civic status of the English community. [56] In order to raise popular awareness, two public meetings were organised in 1819 and a petition, signed by 1250 “gentlemen, clergy, settlers, merchants, land-holders and other free inhabitants” was sent to the Prince Regent. It claimed, somewhat inaccurately :

The reference to ethnicity was important and it was clear that the less affluent white settlers and Emancipists looked upon jury trial as a crucial recognition of their racial superiority. Edward Eager, writing on their behalf, hoped that since New South Wales was “ ... a peculiarly English Colony, wherein is no admixture either of Foreigner or people of colour ... (we) will not be refused that valued priviledge (sic) of Englishmen ...”. [58]

But opposition from the “Exclusivists” - coteries amongst the wealthy free settlers who supported the military elite and their commercial activities- was intense. On their behalf it was argued that there were insufficient numbers of competent jurors [59], that it was unfair to exclude part of the population and, above all, that the colony was riven by faction and that juries would be dominated by the Emancipists. [60] They were supported by the itinerant Colonial Office Commissioner, John Bigge whose 1823 Report on “the Judicial Establishments of New South Wales” [61] represented a manifesto for their cause. The Report has been described as “politically inspired and designed, by mis-statement if necessary, to discredit Governor Macquarie and to censure his administration”. [62] It is interesting that Bigge’s 1823 New South Wales Report adopted a position which was diametrically opposed to that of his Cape Colony Report of 1827 where he strongly advocated the replacement of military tribunals with colonial juries. Drawing on the intemperate and polemical writing of Justice Field, an Exclusivist patron, Bigge concluded that the “... vicious habits” and “feelings of animosity” apparent amongst “certain classes of inhabitants” (i.e. former convicts) would make the imposition of jury trial in New South Wales premature. [63] Emancipated convicts, after all, could not sit as jurors in England and there was no reason to depart from this practice in the settlement.

The interests of the Exclusivists with Lord Bathurst, the Colonial Secretary in London, proved decisive and the findings of the Eden Committee and the wishes of the Emancipist petitioners on this point, were rejected, thereby ensuring the survival of the military tribunals until as late as 1839. However, the New South Wales Act of 1823 [64] authorised the King to grant Charters of Justice for New South Wales and Van Diemens Land and envisaged the reconstitution of the military tribunals as military “juries” of seven officers, subject to the same procedural challenges and swearing in procedure as regular juries. It also proposed the establishment of Quarter Sessions (s.19) without indicating whether this court would sit with or without a jury. Chief Justice Francis Forbes, who had prepared the first draft of the Bill [65] was therefore able to exploit the ambiguities of his own draftmanship in order to rule in the case of R v Magistrates of Sydney [66] that the immediate establishment of jury trials in Quarter Sessions was not expressly forbidden by the Act [67]. Adopting the idiom of Blackstone, he announced that it would be “... against the express language of magna carta ...” to deny free British subjects the right to trial by jury. [68] On the basis of this questionable exercise in statutory interpretation (not supported by the Chief Justice of Van Diemen’s Land) trial by jury [69] was operated temporarily in New South Wales until the loophole was closed definitively by the Australian Courts Act of 1828. [70]

This legislation was nevertheless to represent the turning point in the campaign for jury trial. Not only did it acknowledge the status of New South Wales as a colony rather than a mere penal settlement (thereby removing any lingering objections to the imposition of the common law), but it also envisaged the eventual grant of authority by Order in Council for the establishment of civilian jury trial on the initiative of the Governor, acting on the advice of the Legislative Council. By this time, Richard Bourke, the architect of jury trial in the Cape Colony, had taken up the Governorship but was faced by an implacable Exclusivist majority in the Legislative Council. [71] It was not until 1832, with the colony prospering and attracting large influxes of free immigrants, including lawyers and other professionals, that the Exclusivists were obliged to capitulate.

Although, from this date, jury trial became an authorised mode of procedure in the colony, [72] exclusivists and others who wished, could still opt for trial before the military juries, the “Anti-British anomaly” [73], until their abolition in 1839. [74] The Juries Act [75] contemplated an extremely high property qualification for jurors of £30 per annum income or a personal estate of £300 [76] and legislation of 1847 [77] represented the “ultimate achievement” of permanent jury trial in the colony. [78] Similar jury provisions were extended shortly to the new colony of Western Australia and subsequently to the remaining states of the continent. [79] S. 80 of the Commonwealth Constitution of 1901 [80] provided that all trials on indictment of any offence against the law of the Commonwealth should be by jury.

The colonial military authorities, in collusion with the Exclusivists, had managed to block the introduction of jury trial for almost half a century from the arrival of the first fleet. The fears expressed by them in public were of mutiny and the disaffection of time-served convicts. At stake in the conflict over jury trial however, was control of the essential instruments of authority and the policing of labour relations in the colonial state. For the convicts, Aboriginals and poor settlers, as for the indigenous people of most of British Africa and Asia, summary trial by a military tribunal, judge or magistrate was considered the indispensable means of maintaining colonial authority. When the growing economic strength of the Emancipists enabled them to break up the dominance of the military tribunal, they established a system of trial which still marked a clear line of separation between themselves and the poor whites and Aboriginals. No Aboriginal sat on a jury in Australia until the 1960s and despite the liberalisation of the property qualification in the 1960s and 1970s [81], exclusion continued, justified by claims about Aboriginal lifestyle and the alleged lack of understanding of the English language. The victimisation of Aboriginals by all-white juries [82] has prompted calls for the abolition of juries in cases where whites are charged with offences against Aboriginals. [83]

The position of women in this respect was little better. They were permitted to sit on juries in New South Wales by the Jury (Amendment) Act of 1947 but service was optional and they were required to apply. [84] Only with the extension of the right to participate through Equal Opportunities legislation in the 1970s were such provisions abrogated but still Queensland and Tasmania retained a provision allowing women to be excused jury service on the grounds of their gender. [85] Criticisms of jury trial spread widely across Australia in the early 1980s following the well-publicised Chamberlain, Gallagher and Murphy trials and the allegations of excessively high levels of acquittals voiced by senior police officers. [86] At the same time, the High Court purported to indicate that Article 80 of the Constitution did not prevent the Federal Government from enacting significant derogations from the right to jury trial. [87] In New South Wales in 1994, juries sat in less than 1% of cases, yet changes in the following year reduced the percentage even further. [88] Despite some attempts at retrenchment [89], and the continuing ideological importance of the Australian jury, its jurisdiction continues to “shrink”. [90]

With regard to the first group, Sierra Leone was settled by freed slaves from England in 1787 and Gambia and the Gold Coast joined it in the “West African Settlement” in 1821. In these territories Africans were never barred from sitting on juries on account of their race, although the language and property qualifications were a major restriction. [92] So scarce were qualified jurors that it was common here and in many parts of Africa, to empanel juries of seven. As far as the second group was concerned, the right of jury trial was generally confined expressly to Europeans. In Zanzibar, for example, it was so restricted in 1917 and after 1932, all Europeans committed for trial were to be tried by a jury of 12 Europeans in treason and murder cases. In Kenya, where juries were qualified strictly by European race without any property or literacy requirements, Africans could not be tried by jury after 1906 [93] and there were no special provisions for inter-racial cases. [94] As a result, no European was convicted by a jury until 1959. [95] The trials of Mau-Mau defendants, including that of Jomo Kenyatta, provoked considerable resentment amongst the African majority population. [96] The situation was even worse in Southern Rhodesia where the 1899 Juries Ordinance allowed European juries (qualified by voter registration which was in turn dependant upon property ownership - tribal property being discounted) to try all cases without any restriction as to the race of the accused. [97] In 1909 the Attorney General complained "... juries here … brought in verdicts which, as far as he could see, were based on nothing but racial influence... He would like to abolish the jury system." [98] However, under the Special Juries Ordinance of 1912, cases which had an inter-racial element were to be tried by judge and assessors and by the Criminal Trials (High Court) Act 1927, jury trial for Africans was completely abolished. [99] From this date, two parallel systems of justice existed in Southern Rhodesia - trial by European jury for the Europeans and trial by judge and assessors for the Africans.

This latter mode was the favoured trial procedure for Africans throughout British Africa. [100] It was a deliberate attempt to reproduce the authoritarian trial form established under Bengal Regulation VI of 1832 [101] and, as in India, the role of the assessors (except in Southern Rhodesia and Sierra Leone) was advisory only. There is ample evidence of judges overruling assessors. [102] According to Lord Atkin :

However, Kyando and Peter have argued that the assessors were handpicked by the colonial court authorities and were treated with condescension :

South Africa, like British West Africa, represented one of the few footholds of independent jury trial in the African continent, but by the time of the final abolition of the jury in 1969, at the height of the apartheid years, it had already been reduced to procedural insignificance. In its place, a mixed bench of judge and assessors, still operates in trials of serious criminal offences. Unquestionably, the South African jury, from its first introduction in 1828, operated as an agency of racial and colonial domination. As a result, in the constitutional turmoil surrounding the 1992 South African revolution and the attempts to democratise the criminal justice system, the issue of jury trial is nowhere under discussion.

British South Africa developed, like Australia, as a small military colony, but soon established a strong trading and commercial position, attracting successively larger waves of immigration. Unlike Australia, however, the British colonists faced an existing and established community of European settlers with their own commercial and agrarian interests and judicial system. In the first part of the nineteenth century, jury trial was viewed by the British settlers as an important strategic means of securing their economic and political hegemony over the Dutch. [105] As British authority extended across the region in the later century, so British forms of criminal procedure were imposed universally and were used by both European communities as a means of controlling the non-white population.

Having secured their position in the Cape by the 1820s, the British embarked on the familiar colonial process of a “Review” of criminal justice and subsequent legislation. Commissioners John Bigge and William Colebrooke found that the summary procedures administered by the Governor and members of his military staff [106] engendered feelings of “suspicion” and “isolation” amongst the British settlers and in their Report, delivered on 6th September 1826, the Commissioners proposed a jury of nine, composed of citizens of all races subject to a very moderate property qualification. They concluded - with a singular lack of prescience, bearing in mind subsequent events - :

The Governor, Richard Bourke, who was later influential in the establishment of jury trial in New South Wales, obtained the consent of the Secretary of State for the Colonies in August 1827 and the first Charter of Justice was issued on 24th August 1827. Jury trial was brought into practical operation in 1828 and the 1831 Ordinance 84 laid down that criminal cases would be heard by a panel of nine, selected from males aged between 21 and 60, owning or renting property to a value of £1.17s per annum or having liability for taxes of 30s in CapeTown and 20s outside. [108]

The property qualification was amended in 1813 and 1861 and an experiment with a grand jury lasted only until 1885. In striking contrast to the position which was to develop elsewhere in the region, black jurors were not entirely excluded and sat occasionally in Cape Town and elsewhere. [109] This is not to imply, however, that juries did not operate in an oppressive manner towards the Black African and Asian residents of the Cape, whose participation in the jury lists was, in any event, severely limited by the property qualification.

Following the annexation of Natal in 1844, trial by jury was introduced there as part of a wider programme aimed at establishing the dominance of common law procedures over their Roman-Dutch equivalents. [110] Under Ordinance 14 of 1846, juries were to be composed of white male £10 property owners (rising by 1872 to £100) who were to vote on a six to three majority. Although Black and Asian Africans, who comprised over 90% of the population, were not specifically excluded until 1865, the property qualification again effectively prevented them participating in the jury lists. No non-European was ever to sit on a jury in Natal. [111]

Trial by jury was warmly welcomed by the English settlers as representing an opportunity for them to exercise their collective authority over other, majority sections of the population. According to Spiller :

Defendants from the numerically preponderant Black population were tried in separate native courts unless charged with more serious “universally repugnant” crimes. [113] According to Mr. Justice Conner :

The situation was further complicated by the inability of British and Dutch jurymen to communicate in a common language when empanelled together, but they nevertheless managed to concert their efforts when faced with black defendants, to the extent that jury trial was to become “ ... the most crippling handicap faced by Blacks in a system that generally disadvantaged them.” [115]

In the Transvaal and in the Orange Free State, the Boer settlers had operated various forms of community participation in criminal justice before the advent of the British. In the Transvaal, juries of twelve sat with unqualified judges (Landroost) to decide cases by unanimous verdict and after 1858, such jurors who participated were required to be enfranchised burghers over 30 years old. [116] From 1854, juries in the Orange Free State were to consist of six or nine men who decided cases on the basis of unanimity (ibid., pp. 89-90). [117] Annexation of the Transvaal in 1877 led to a standardisation of jury procedure (with a reduction to nine jurymen) and the introduction of British-trained judges and English law.

By the time of the promulgation of the Union Constitution in 1910, all the four provinces empanelled juries of nine persons for trials of serious offences. Only in the Cape were non-Europeans permitted to sit on juries and only in Natal were majority verdicts of seven to two permitted. This position was reinforced by the Criminal Procedure and Evidence Act 31 of 1917 which established a comprehensive code of criminal procedure for the Union. The problem of different approaches to eligibility was neatly resolved by restricting jury service to registered parliamentary voters, reflecting the different bases of the franchise in the different provinces, while the majority vote procedure of Natal was extended to the whole Union.

Almost from the moment that jury trial was established universally throughout the Union of South Africa, its destruction was set inexorably in progress. During the next half-century it was subjected to repeated attacks until its final abolition in 1969. The reasons for the demise of the jury in South Africa are complex. On the one hand, the jury was an institution closely associated with the dominance of English jurisprudence in the nineteenth century, and as British influence waned [118] so did their law. On the other, the liberal white population were uncomfortable with the flagrant racism of the all-white juries. In 1920, G.T. Morice noted a series of cases in which Whites had been acquitted of appalling crimes against Black people and described the jury as a “grotesque anomaly.” He went on : “It is painful to think that this state of things has been going on for over a century ... With a people more vindictive than the coloured population of South Africa, justice would have been secured by extra-judicial methods.” [119] These views were, needless to say, widely shared in the black and Asian populations. The jury was no more popular with the Union and later the Republic governments. It offered the liberal whites of the Cape province and elsewhere, the opportunity to obstruct government prosecution policy by nullification, particularly as the grip of apartheid was tightened. Whereas the judiciary could be reduced to acquiescence [120], the jury, deliberating in secrecy and without being required to give reasons for their decisions, could not.

Given this consensus of opposition from almost all sections of the community, it is extraordinary that the jury survived for so long. In the event, three legislative measures were used to undermine and finally to destroy it. The first was the creation of an alternative mode of trial which was either made mandatory or, where optional, was hedged around with strong procedural inducements. Section 216 of the 1917 Act offered defendants the choice of jury trial by a single judge, sitting, if he wished, with two “lay” assessors, “... which it is to be hoped,” explained Morice, “is one of the first nails in the coffin of the South African jury.” [121] His prediction was to prove correct and the system of trial by judge alone or by judge and assessors, was gradually to become the normal mode of procedure in relation to serious crime in South Africa.

Legislation of 1935 abolished the requirement that the assessors, where appointed, should be either magistrates or justices. They could now be persons who had “experience in the administration of justice, or skill in any matter which may have to be considered at trial.” [122] In 1959, complete discretion in the use or choice of assessors was granted exclusively to the trial judge by s.145 (2) Criminal Law Further Amendment Act [123] although (before abolition of capital punishment) assessors had to be appointed where a death penalty verdict was anticipated. Assessors, originally intended to fulfill an advisory role only, were now to deliberate and to vote equally with the judge and it is normal for two assessors to be asked to sit to avoid a split in the vote which would otherwise have to be resolved in favour of the professional judge. [124]

In contrast to the German schöffen and their variants around the world, South African assessors have never aspired to representative or even lay, status and there is no specified procedure for appointment, which rests entirely within the discretion of the judge. Their role is purely that of legitimation and assistance to the judge. According to Richings :

In addition, specialists in a particular subject matter may be asked to join the bench in a particular trial. Assessors are usually selected from an extremely narrow list of acceptable persons who sit frequently (giving rise to allegations of a class of “professional assessors” and are frequently well-known to the selecting judge. [126] There are effectively no women or non-white assessors. [127] Nevertheless, writing in 1976, Richings purported to find that the situation met with “general satisfaction” in South Africa and could well be advantageously adopted elsewhere . [128] On the other hand, Van Zyl Smit & Isakow, in their 1985 study, found that the assessors exercised a “relatively limited influence” and that the close relationship between judge and assessors was “inherently undesirable”. [129] Huebner described their affect as “trivial, if not deleterious”. [130]

As a second means of reducing the incidence of jury trial, the list of offences for which the procedure was available was reduced successively from 1914. [131] The third method adopted was the refusal to ease restrictions on the composition of juries to the point where the South African juries became possibly the least representative in the world. In contrast to the position in other common law jurisdictions, no women were ever admitted to the jury panel. [132] Non-Europeans were finally excluded from jury service as a matter of law in 1954. [133]

Although use of the jury fell from 27.9% of cases in 1943 to 2.8% of cases in 1962 and 0.8% of cases in 1969 [134] nevertheless, the National Party government, which had held power since 1948, was still aware of the potential for even racially and gender-selected juries to destabilise prosecutions. In 1962, the Minister of Justice, C.P. Pelser in a display of extraordinary hypocrisy, moved in the House of Assembly that the jury had no longer any useful function to fulfil because of its “unfair composition” and racism. [135] Seven years later the government was ready to eliminate juries entirely by the Abolition of Juries Bill [136] of that year. Despite opposition from the Bar and the Law Society, but with the support of the judiciary and academic lawyers, Pelser’s Bill was passed without difficulty. [137] Abolition coincided with an extremely tense period in South African history, evidenced by the Terrorism Act, 83 of 1967, which permitted indefinite detention of persons suspected of being terrorists or having information about terrorists, without recourse to trial. Milton and others have talked of a prevailing ethos of the period, concerned with the dismantling of due-process safeguards in the face of alleged assaults on the apartheid state. [138]

There is abundant evidence that the racially and gender-selected South African jury in the period 1828-1969 became an instrument of white domination and the repression of both the black and Asian African populations. [139] However, the arguments advanced repeatedly by practising lawyers and academics that the current South African judiciary is a much more reliable and less overtly racist source of justice in a multi-ethnic community than the white jury panel [140] are surely beside the point. As Nelson Mandela, the then President of the Republic, pointed out :

The South African judiciary is still deeply compromised by its association with apartheid [142] and changes of personnel have been slow. Only one black judge and one white woman judge had joined the bench by 1994 and “ ... the overwhelming majority were appointed in the apartheid era and have no enthusiasm for a new legal order.” . [143] The same could inevitably be said for the assessors whom they appoint. According to Huebner, “(t)he white stranglehold on the judiciary since the Republic’s inception has been a powerful engine of discontent.” [144] He goes on to point out that the current bench is not even representative of white society, “ being for many years dominated by Afrikaans-speaking men born in the Orange Free State who had spent time in Pretoria at the Bar or as Civil servants”. [145] In a common-law system on the English model, the replacement of judges is slow and it will take decades before qualified black and Asian lawyers of sufficient seniority are available to replace the existing judiciary.

Calls by the A.N.C. for the rapid “democratisation” of the judiciary have not yet been met with practical proposals. Dugard, van Zyl Smit & Isakow and Huebner [146] have all suggested a mandatory extension of the assessor system to all trials. Whereas Dugard proposed that lay assessors should be selected “on the basis of merit” from amongst graduates [147] van Zyl Smit & Isakow preferred the selection of one lay and one professional assessor [148] and Huebner’s proposal envisaged that all assessors should be legally qualified but that at least one black should serve :

This is probably over-optimistic. “Professional” and even legally-qualified assessors have not shown themselves able to offer radical dissent in other similarly constituted courts and the dominant position of the presiding judge is unlikely to be upset by the vote of one young black assessor whose career prospects depend ultimately on the good opinions of the existing judiciary.

One of the most troubling aspects of the contemporary reform debate is the almost total refusal even to discuss any return to jury trial on a democratic, non-racial basis. This reluctance is evidenced by the universally hostile reaction to a very modest proposal for re-introduction advanced in 1990. [150] Dugard and van Zyl Smit & Isakow, in putting forward their own reform plans for the assessor system, have been at pains to distance themselves from “the polemic surrounding juries”. [151] The predominant attitude displayed in the academic literature is well represented by the title of Ellison Kahn’s serial account of the history of the South African jury, written between 1991-1993 Restore the Jury ? or Reform ? Reform ? Aren’t Things Bad Enough Already ? Whilst the critique of the Union and apartheid juries has been well made, it should not obscure the character of some of the lingering concerns over the possibility of black and Asian South Africans adopting a determining role in criminal law procedure. In 1955, J.A.Chubb, as South African representative to the Commonwealth and Empire Law Conference in London, revealed that :

It is disturbing to find the views of this author preyed in support by contemporary academics for the proposition that juries cannot successfully operate in the multi-racial and heterogeneous society of post-apartheid South Africa. [153]

Huebner, however, is one of the few contemporary authors to engage constructively with the issue of jury trial in South Africa, even if he ultimately dismisses the idea. His rejection is based on three arguments, the first being the “near consensus among legal thinkers” that the system should not be reintroduced. [154] This is an accurate, if somewhat circular argument. However, the bar strongly opposed abolition in 1969 and a generation of lawyers has developed since then with no subsequent experience of jury trials. Huebner’s second argument has considerably more force. He points out that “(t)he history of intertribe, inter-race and inter-group conflict is manifested in South Africa on a dizzying number of planes, and these conflicts, it is feared, would keep the jury from rendering justice”. [155] It is certainly true that in a fractured and racially divided society such as South Africa, all forms of adjudication are open to such objections, including those in which decisions are taken by a paternalistic elite of professional lawyers. However, jury trials have operated successfully in multiethnic communities elsewhere and the problem of linguistic plurality is not insurmountable.

Finally, Huebner objects to the expense of jury trials, noting the need to restructure court facilities, arrange translation and administer the system. Whilst these concerns are doubtless important, their impact is marginal when set against the issue of the legitimacy of the criminal justice system as a whole, so long a source of the most bitter resentment in South Africa. Jury trials, in practice, represent a small proportion of all trials and the initial costs could be defrayed, as in Russia, by overseas support.

The new South African legal order, if it is to achieve legitimacy in the immediate future, must acknowledge the importance of democratic participation in criminal procedure and move the debate away from a sterile critique of the excesses of the pre-1969 juries. South Africa is not alone in the multi-ethnicity of its community and the problem of inter-racial conflict. It is alone, in the common law world, and increasingly elsewhere, in the apparently complete refusal to discuss extensive popular involvement in criminal procedure.

It is arguable that the success of the jury in the transition from colonialism has depended not, as is often contended, on the degree of multi-ethnicity or interracial conflict in the country concerned, but on its political function in the achievement of self-government. In the United States the role of the jury was crucial to the struggle for independence and in Australia the achievement of the right to jury trial marked the transition from penal colony to colonial state. The centrality of the jury to the creation of statehood in these countries, established a very different cultural context for its development than in India or Africa. Here, the historical association of the jury with the political ambitions of an English-speaking minority ensured its demise. As a result, there is a massive resistance, in India, in most countries in Africa but particularly in South Africa, even to undertake a theoretical consideration of its re-introduction. Ironically, the end of Empire coincided with the development of radical new concepts of jury selection based upon democratic universality. [157] These would clearly not have found favour with colonial authorities, so strongly wedded to the Blackstonian model, but they do offer new possibilities for successful popular participation, irrespective of ethnicity, in criminal justice.