Logic would suggest that lay adjudicators should therefore be the norm in the adversarial criminal trial, yet one of the paradoxes of lay adjudication in the common law world is that, while few doubt its intrinsic value and many pay lip service to it as an important aspiration, especially in criminal cases, there have been discernible trends in many countries away from lay involvement. The reality is that with few exceptions many countries have witnessed a creeping professionalisation of criminal justice. My own jurisdiction of Northern Ireland serves as a potent if rather extreme example of this paradox. Over the years lay adjudication in general and jury trial in particular has been assumed by almost all commentators to be the ideal mode of trying criminal cases, yet the use of lay adjudication has been in sharp decline. Lay magistrates ceased to have any significant adjudicatory powers after 1935 (except in juvenile cases) and juries were replaced by professional Diplock courts in 1973 in cases connected with the troubles. [3] On top of this there is a very high rate of guilty pleas almost entirely brokered by professionals. The signatories to the Belfast Agreement established a wide-ranging review of the criminal justice system which must consider measures for improving the responsiveness and accountability of, and lay participation in, the criminal justice system. [4] But it remains to be seen whether the review will seek to arrest the growing professionalisation of criminal justice.

The cost and inconvenience of jury trial has undoubtedly played a part in its decline in a number of jurisdictions. The latest announcement by the British Home Secretary to abolish the right to elect for jury trial in English criminal procedure would seem almost entirely driven by cost considerations. [5] But aside from this imperative, what I want to consider in this paper is whether there may not be positive benefits in the professionalisation of adjudication in particular common law contexts.

Before coming to this, however, another paradox is worth noting. Although the common law criminal trial continues to retain the form of a contest, modern criminal prosecution is essentially about the enforcement of the criminal law of the state with the result that the initial phases of the process are better viewed today as inquisitorial fact-finding processes carried out by professional investigators and prosecutors. Even during the trial it is misleading to characterise the judicial role as entirely umpireal, in keeping with the notion of presiding over a contest. Judges are given activist responsibilities in the criminal arena, with powers to prompt an alteration of the charges if warranted by the evidence, to call witnesses, to promptly raise defence issues which have not been specifically raised by the defence and to halt proceedings. [6] Certainly after the verdict, they adopt a pure policy-implementing role in implementing sentencing policy. These inquisitorial or policy implementing tasks would seem best carried out by professionals; yet here is the paradox, there are features of Anglo-American procedure which assign certain inquisitorial tasks to lay persons. Perhaps the best example of this is the continuing use of the grand jury in the United States. An English example, however, would be the continuing use of juries in inquests. Inquests may not strictly form part of classic criminal procedure but in so far as juries are invested with power to bring in a verdict of unlawful killing, albeit not “on the part of a named person”, [7] it may be said that they are invested with certain criminal responsibilities.

Before examining the continuing use of lay decision makers in inquisitorial functions, we shall begin by examining the difficulties that lay adjudication has given rise to in adversarial criminal trials and the use of the professional alternative.

No comprehensive study has to my knowledge been undertaken as to the particular social, cultural and demographic forces that have contributed to the success or otherwise of the jury system in particular common law countries. In a recent study of jury trial in Ireland we concluded that there were a number of reasons why jury trial has not proved particularly well suited to Irish circumstances with the result that despite the constitutional guarantee of jury trial in the Irish Constitution the institution is by no means as entrenched in Irish legal culture as it is in England and Wales. [9] One persistent problem has been the high acquittal rate of Irish juries as a result of a disinclination to enforce the criminal law. The political troubles and the sectarian segregation of much of Irish society have no doubt provided a major explanation for this. But other reasons also seemed to account for the high acquittal rate. As one senior Queen’s Counsel has reported : [10]

Although it would be presumptuous without detailed examination to claim that these problems are encountered in other common law countries, there is a natural temptation for jurors from one particular background to be disposed to acquit those from the same background and conversely to convict those from a different background. It is accepted in a number of countries that persons from certain backgrounds stand a better chance of acquittal than persons from other backgrounds. [11]

Of course, checks and balances can be put in place to try to prevent prejudice. One can try to give more control to the judge. Although judges are prevented from intruding into jury deliberations, there are many opportunities for judges to influence juries during the course of the trial and jury trials are better viewed as trials by judge and jury with considerable room for flexibility over the division of labour between judge and jury. [12] One can exercise control over the selection of juries and indeed there are almost as many methods of jury selection as there are jury systems around the world. In Ireland the prosecution and defence have been given power to challenge jurors without cause and this has been said to provide an important “safety valve”, enabling both prosecution and defence to correct any perceived religious or political imbalance. [13] Another method that was used particularly in the nineteenth century was to transfer trials to different venues and in the present climate in Northern Ireland it has been argued that fears of sectarian bias might be laid to rest in terrorist cases if these were tried in Belfast by juries selected on a province-wide basis. [14] Although these are examples of how jury systems may have to be prepared to adapt to particular conditions and concerns, they raise fundamental questions about the suitability of this mode of trial in certain conditions. Many of the mechanisms take the jury further away from its original rationale, which was to provide a totally independent and impartial mechanism for settling disputes between the state and the accused.

When tensions run so high that they give rise to the spread of violence, then the danger of intimidation may make law enforcement impossible in certain kinds of cases. This was basically the conclusion that the Diplock Commission reached when in 1972 it recommended that jury trial be suspended for criminal cases associated with the troubles. [15] It was not the first time that that the jury system came under considerable strain in the island. At certain periods throughout the eighteenth and nineteenth centuries when violence and sectarian tensions abounded, intimidation of both jurors and witnesses, antipathy towards British rule, close community ties between jurors and accused and juror sympathy with the accused combined to create considerable difficulties in securing convictions. Continuing violence throughout this century led the Republic of Ireland to establish special jury-less criminal courts on three occasions since 1939, a step which is provided for under the Constitution despite the constitutional guarantees of jury trial. The establishment of the jury-less Diplock courts in the north of Ireland in 1972 hardly set a new precedent for the disposal of criminal cases, however, its continuous use in terrorist cases since then has meant that it has been much more commonly used as a mode of trial than ever before. .

There are nevertheless some reasons to suggest that a professional bench may be better insulated against the risk of prejudice than purely lay triers of fact. First of all, it is commonly claimed that professionals bring a particular legal expertise to bear on the facts over which they have to adjudicate. It may be accepted that professionals are more suited to the task of interpreting and applying legal rules. Judges are appointed to the bench primarily on the basis of their legal knowledge and experience of advocacy. Judges in our Diplock research claimed that they approached cases with a “judicial attitude” by which they meant they could not allow sentiment to get the better of them. [18] They considered themselves bound by legal principle and “hard logic and reason”. Of course, this hard-nosed approach can lead to the common complaint made against professional triers of fact, that they become case-hardened. Others, however, have seen “casehardening” in a more positive sense as constraining undue emotionalism. In his Lionel Cohen lecture delivered in 1992 Lord Lowry the former Lord Chief Justice of Northern Ireland commented on the observation that Northern Irish judges had become relatively hardened to the emotions surrounding terrorist trials in contrast to the atmosphere in he rest of Britain and voiced the opinion that the institution of non-jury trial in the atmosphere of the “troubles” had obviated both acquittals and convictions against the weight of the evidence caused by the jury’s emotional bias. [19] He particularly drew attention to the importance which a professional judge was able to attach to the concept of proof beyond reasonable doubt. Defence counsel voiced considerably more scepticism about the ability of judges to obviate bias but accepted that there were certain kinds of cases and certain issues which they would rather have tried by professional judges. There was a consensus that judges were more disposed to acquit in identification cases because their experience had warned them against the dangers of such evidence. There was also a view, outside the terrorist context that sexual cases would be easier to defend before a judge. In the small sample of 43 Diplock and jury trials we studied we found that there was some evidence to support this view.

Besides judicial training and experience bringing with them a different approach towards the facts, professional judges perform a different role from the lay trier of fact which again may be said to promote less prejudice. A professional judge is accountable for his or her decisions much more than a lay trier of fact. A professional is accountable for decisions to the legal system and ultimately the community. Jurors or lay triers of fact, by contrast, are of the community and therefore less accountable to it. In a comparison of the different approaches adopted by lay and professional magistrates in England, the more lenient decisions of lay magistrates were attributed to the different positions which lay and stipendiary magistrates occupy in the court system and the community. [20] Professionals saw themselves as responsible to and held responsible by the court system. Lay magistrates in contrast viewed themselves as the public, and so had less obligation to attend to public expectations.

Of course, in the context of divided communities the idea of professional accountability to the community raises the question of which community the professional is accountable to and it is precisely because professionals in the South African legal system have been associated with one particular community, that attempts are being made to infuse a greater lay element into judging. Alternatively, however, attempts can be made to put accountability mechanisms into both the process and outcome of professional decision making. As regards process, efforts can be made to foster an adversarial spirit into the trial process. One way of doing this is to encourage a strong Bar which is prepared to represent the interests of clients fearlessly. Experienced counsel may exercise more influence over a judge than a less experienced counsel and conversely judges may be much less inclined to dominate a more experienced counsel. One of the strengths of the Diplock process has been that the interests of both the prosecution and defence were represented by very experienced counsel. In our sample of trials we found that no counsel appeared in a Diplock trial without at least 10 years experience at the Bar and that there was little evidence of imbalance between the prosecution and defence. Of course, further questions may be asked in divided communities about the composition of the Bar and the extent to which the interests of clients from all parts of the community are represented. A strong independent Bar, however, may be expected to uphold an ethos of representing clients fearlessly. Another noticeable feature of the Diplock process has been the extent to which the practitioners in the process were steeped in an adversarial tradition which was kept alive by the continuation of the jury albeit in non-terrorist cases only. At the same time, we have argued that in the non-jury trial an inevitable adversarial deficit is caused by more tightly controlled limits on the boundaries of the case and by the more pervasive influence which hardened professionals are inevitably going to have over the proceedings. This deficit is likely to be become more pronounced in jurisdictions which abandon jury trial altogether.

If the transfer of fact-finding responsibilities from lay triers to professional triers inevitably dilutes the quality of the adversarial struggle between prosecution and defence and casts the trier of fact in a much more dominant position, then it seems natural to require the trier of fact to account more fully for any decision reached against the accused. The Diplock system requires judges to give reasons for convictions and there is an automatic right of appeal to a three judge court of appeal against any conviction. [21] In practice judges have also given reasons for acquittals. The fact that an appeal can be based on a reasoned judgement gives a wider scope for challenge than an appeal against a general jury verdict. Although there was no evidence in our research that the success rate in appeals against Diplock convictions is any higher than against jury convictions, there are grounds for considering that the requirement to give reasons constrains judicial decision making much more than jury decision making. Juries are, of course, directed on the law before they retire to consider their verdict but thereafter they may decide as they wish. The requirement to give a reasoned judgment based on a record of the court’s proceedings imposes much greater discipline. This was evident in a more recent survey of cases involving the extent to which judges draw inferences from silence as they are now able to do in certain circumstances. [22] Despite the statutory freedom given to the tribunal of fact to draw such inferences as appear proper, an examination of a number of transcripts and judgments found that it was rare for judges to use the silence legislation to bring the level of proof up to the standard of proof beyond reasonable doubt. [23]

It would seem that with sufficient training and accountability mechanisms in place the professional trial ought to be capable of delivering an impartial and independent verdict on the competing claims of prosecution and defence and in a divided society this may be a better mechanism for such a delivery than a jury. More problems occur for the professional bench trial when the divisions in a society descend into violence and unlawful activity. The careful balance that must be preserved between the two sides of the contest for an independent and impartial verdict to be reached may then be tilted heavily towards the state. When the courts become the tool for enforcing emergency measures then the danger is that the judicial role is not viewed as independent from the executive. Although the Irish troubles have constantly put a strain on the independent nature of the judicial role in criminal cases, the past thirty years have put a particular burden on the Northern Irish judiciary. [24] Much of the violence has been directed at the institutions of state and the response by the state has been to adopt a policy of “criminalisation” within the legal process rather than to resort to extra-legal measures outside the process. The introduction of Diplock courts was therefore associated with a range of emergency measures taken in order to make it easier to convict terrorist offenders, including greater powers of arrest, search and detention for questioning. Although judges have tried to conduct Diplock trials as closely as possibly to the jury norm, this has inevitably been hampered by a number of measures which have involved a departure from the normal rules and practices of the criminal process. So from the beginning a prominent feature of many Diplock trials was the heavy reliance on confession evidence eased by a lowering of the standard of admissibility of confessions. When in the early 1980s some of the procedures governing questioning in the so-called holding centres where terrorist suspects were detained were tightened up, the prosecuting authorities resorted to a different tactic, the use of accomplices or “supergrasses” as they were called within paramilitary organisations to indict large numbers of terrorist suspects. When this tactic also faltered, the government took a number of further steps including modification of the right of silence. These measures followed a common theme. Each was justified in order to tackle the threat against terrorism; each was then criticised for amounting to a diminution of acceptable legal standards and in each case the success or failure of the measure depended on its reception by the Diplock courts. Judges as the supreme arbiters of law and fact in non-jury courts were in consequence placed in the invidious position of enforcing what were seen as dubious security strategies.

Courts face an unenviable dilemma in such a situation. Either they find themselves convicting defendants on the basis of such strategies, in which case they become associated with them and their independence is thrown in doubt, or if they choose to reassert the purity of the traditional criminal process by ignoring the statutory changes to the traditional rules, they may have to release a number of serious offenders into the community. Neither approach is likely to inspire confidence in the courts. [25]

It would be wrong to exaggerate the extent to which the Northern Irish courts became discredited by such policies. The courts have after all survived the troubles. But the emergency taint has undoubtedly made it difficult to sell a mode of trial that may ironically need to be retained in a post-settlement phase, if only as a fall-back for certain kinds of cases that may be impossible to try fairly by jury. The lesson must be that any attempt to use professional trials as part of a security strategy to subdue political revolt is inevitably going to raise questions about the independence of the judiciary. There is no inherent objection under international human rights law or conflict law to the creation of special emergency courts with special rules or evidence as such. There is a requirement that members of the court be independent and impartial but short of evidence of removal of judges or some blatant interference with independence there is likely to be a presumption under human rights law that judges are independent and impartial. The need to maintain confidence in the independence of the judiciary, however, is vital for the legitimacy of the courts and where the levels of internal disturbance or terrorist activity are such as to pose a “threat to the life of the nation” the state authorities may be better advised to derogate under human rights conventions and resort to extra-judicial detention than to continue to rely on criminal proceedings with fewer procedural safeguards. The courts could then be left with the responsibility of safeguarding against the ill-treatment of persons in detention.

The dangers of pure professionalism may help explain our other paradox, which is why lay persons continue to operate in certain inquisitorial conditions where trained professionals would seem much better placed than lay people to carry out detailed in-depth investigations into fact. Of course, there are historical precedents for using lay persons in such investigations. Jurors were originally convened by royal judges to undertake their own inquiries into criminal activity. Lay justices of the peace were charged with conducting investigations of serious crime as well as adjudicating on minor offences. Grand jury proceedings were originally wide-ranging inquiries into criminal activity. Now, of course, professional police officers and prosecutors are much better placed to investigate crime, yet grand jury proceedings continue in a number of jurisdictions in the United States, albeit that they are convened by professional prosecutors rather than having powers of their own to investigate crime. It is interesting to consider whether the continued use of grand juries is merely a hangover from the past or whether they serve any useful modern criminal justice functions. It is undoubtedly the case that grand juries can be very useful to prosecutors as they can issue subpoenas for the appearance of witnesses and the production of evidence. The proceedings are also conducted in private and witnesses are barred from having anyone with them during questioning. But the question to be asked is whether it is necessary to retain a lay presence in the conduct of such proceedings. After all, a number of countries in the continental tradition give similar powers to prosecutors and examining magistrates without the deployment of laypersons. [26] And in Scotland the procedure of precognition is conducted by professionally qualified procurator fiscals working on their own. [27]

Again if we turn to the inquest procedure in England we find inquests are convened by professionally qualified coroners to inquire into the causes of death and they are given wide ranging powers to subpoena witnesses. In certain cases, however, they are required to sit with juries and again the question to be asked is whether the use of lay juries in this procedure is a hangover from the past or serves a useful modern function. A clue can perhaps be found in the kinds of cases in which coroners are required to sit with juries. A jury must be summoned where the death occurred in prison, where it was caused by an accident, poison or a notifiable disease or where it occurred in circumstances which, if they were to continue or recur, would be prejudicial to the health of safety of the public. The importance of public hearings before a jury in cases of major public concern has therefore been confirmed over the years and indeed was extended in 1982 to include deaths occurring in police custody. [28]

This extension is particularly significant as it suggests that the jury has a role to play in situations where there may be a lack of confidence on the part of the authorities to investigate cases properly. When a criminal charge is brought against an individual in relation to a death, an inquest will be adjourned until the criminal proceedings have been completed, but otherwise the inquest will proceed. Inquests have played an important role in uncovering facts in cases involving deaths caused by police officers and also more recently in deaths motivated by racism where the police have been criticised for failure to take action. The most recent example of this has been the case of Stephen Lawrence, a black teenager killed by a white racist gang in the streets of London.

Inquests therefore allow public scrutiny of cases where no official action has been taken and the use of juries ensures that the scrutiny is undertaken in a completely independent manner. Where the jury brings in a verdict of unlawful killing, this puts added pressure on the police and prosecuting authorities to bring charges, although as the Stephen Lawrence case shows there is no guarantee that this will happen or that the perpetrators will be brought to justice. Although there have been many criticisms of the adequacy of the inquest procedure in England and Wales as a means of establishing the facts, few doubt that it can be a useful mechanism for allaying public concern and as we have seen the lay input has been extended rather than restricted in respect of deaths arising out of police custody.

The value of the procedure can be gauged by the criticism that has taken place when attempts have been made to restrict the powers of the coroner inquest in controversial cases involving official state action. In Northern Ireland the holding of a public inquest into disputed shootings by members of the security forces have always been regarded as problematic and until 1973 emergency legislation allowed the authorities to prohibit the holding of an inquest in particular cases. [29] Although there have been no attempts to remove juries from the procedure, steps were taken in 1963 to restrict the range of verdicts which a jury might return and prohibit the return of a verdict of unlawful killing. The rules were further altered in 1980 to prevent juries from returning any verdict at all. Juries may only make factual findings about the circumstances in which the death occurred and since issues of liability are no longer relevant this can curtail the scope of the inquest considerably. Moreover, the powers of coroners to subpoena key witnesses were also restricted by prohibiting the coroner from compelling to give evidence any person who is suspected of causing the death.

This emasculation of the powers of coroners and juries in Northern Ireland has been heavily criticised by human rights organisations. [30] It has been argued that the procedures may be in breach of Article 2 of the European Convention on Human Rights which the European Court of Human Rights has held requires that there should be some form of official investigation when individuals have been killed as a result of the use of force by agents of the state. [31] Although the Court has not required lay juries to be involved, the use of a lay element in such investigations may help to give confidence in the ultimate outcome.

Where the inquest produces a verdict of unlawful killing by state agents, there remains the difficult task of prosecuting those responsible. Prosecutions against the police for misconduct, especially for murder, torture or the excessive use of force have proved extraordinarily difficult to bring in many jurisdictions. Investigations require resources, commitment and in all of this lay persons do not seem to have a very obvious role to play. The role of the grand jury in the United States in these cases has not to my knowledge been thoroughly examined and is difficult to quantify. A recent publication by the Vera Institute drawing attention to the experience of the Civil Rights Division of the US Department of Justice has claimed that in the past grand juries were very difficult to work with because blacks and women were totally excluded, but that things are now improving. [32] It is doubtful whether the grand jury has played a significant role in improving confidence in these matters. Any successes must be largely due to the prosecutors themselves. Nevertheless, the principle that a lay body should make some determination on whether a case should, or more particularly should not proceed, seems a sound one.

All this suggests that one has to look very carefully at the political and cultural context in which criminal investigations and adjudications take place. The jury has proved to be an unsuitable vehicle for dispensing justice within the context of small polarised communities and political violence. Conversely, professional investigation has proved insufficient in itself to inspire confidence in cases involving alleged police or state misconduct. All this is not to take away from the central advantages of having serious contested trials officiated in some degree by laypersons and having investigations conducted by professional investigators and prosecutors. In today’s climate of organised crime, sophisticated and professional techniques of investigation can only be deployed by professionals. At the same time formal criminal justice systems need to find means of involving laypersons in decision making if they are not to become too remote from the concerns of communities. It is useful in this regard to contrast the growing professionalisation of criminal justice in common law systems with the efforts being made in civil law systems to instil a greater lay involvement into their criminal processes. [33]

At the end of the day each stage of the criminal process has to command confidence in all parts of the community by acting on serious crime while safeguarding the rights of the accused. In many cases this may be achieved by combining strong professional investigation with strong lay elements at the adjudication stage. But in order to safeguard all interests, the victims of state abuse and community division are entitled to expect a criminal justice system to give them as fair a hearing as anyone else and this may require the system to deviate from the normal way of doing things. The trick for any system is to have in place mechanisms for deviation where this is necessary. So rather than having uniform procedures for all kinds of cases, it may be necessary to evolve extraordinary procedures for certain kinds of cases, giving where possible interested parties the means of deploying them. The recent MacPherson report into the Stephen Lawrence case, for example, has proposed that victims and victims’ families should be allowed to become civil parties to criminal proceedings in order to ensure that they are given all relevant information in relation to a case, as happens in a number of other jurisdictions. [34] Another proposal may be to allow prosecution and defence to argue for a right to waive jury trial where it is deemed that the interests of justice will be not be safeguarded by such a mode of trial, as again happens in a number of jurisdictions. [35] It is often said that hard cases make bad law, but any system is undermined if it is unable to provide a process for dealing with the hard cases. In this sense the glitches, the wrinkles and the paradoxes in any system may prove as vital to its long term health as its ability to provide smooth, streamlined procedures.