US-style jury trials could help free up civil courts, says Britain’s top judge
US-style jury trials could help free up civil courts, Britain’s most senior judge has said as she urged the Government to consider setting up a royal commission to scrutinise the criminal justice system.
Baroness Carr, the Lady Chief Justice, suggested that “summary jury trials” – used in the US to resolve civil disputes – “could provide the means to test and learn how to improve civil jury trials”.
Summary trials are increasingly being used in the US in civil disputes where juries are selected and presented with the evidence without lengthy presentations and cross-examination of witnesses. The parties are required to attend and hear the verdict, which could enable them to settle without a further lengthy trial.
The theory is that hearing the judgment will encourage one or other of the parties to settle or satisfy the desire of one or other to have their day in court where the case is heard by an impartial jury.
“This type of scrutiny is one way in which we can try to embed a culture of continuous reflection and learning into our criminal justice process,” said Lady Carr, who questioned whether such scrutiny should go further with a royal commission.
She added that the UK court system had much to learn from independent scrutiny of its processes “not least where juries are concerned”.
Giving the Kalisher lecture at the Central Criminal Court, Lady Carr said a root-and-branch review of the resourcing and operation of the criminal justice system from a victim’s experience to the sentencing of a defendant could make a “real difference” to improving it.
The Conservatives pledged to set up a royal commission in their 2019 manifesto but have failed to do so despite victims facing record court delays, some of the lowest crime detection rates on record and an overcrowding crisis in prisons.
The last royal commission in 1991, headed by Viscount Runciman, led to the creation of the criminal cases review commission and the videoing of police evidence in custody suites, now established parts of criminal justice.
She said a commission could examine resourcing, the conduct of police investigations, restorative justice for victims, reforms from the use of digital technology and even major structural change such as creating a unified criminal court to replace the different tiers of juvenile, magistrates and crown courts.
“There is much to be proud of in our criminal justice system. There is also much that we can and could do to improve it. We should not shy away from scrutiny and proposals to improve what we do,” she said.
“In that way can we ensure that our justice system, and particularly our criminal justice system, is able to fulfil the State’s primary duty: to protect its citizens. If we want to make that ‘real difference’ it is perhaps something to which we might give real consideration.”
Judges must have ‘moral courage’
Lady Carr said reform of the justice system was too often based on anecdote rather than evidence and reform without an evidence base was not worth having.
“If, however, we are to ensure that we nurture our justice systems, and particularly the jewel that is our criminal justice system, we need to go much further,” she said.
“We need more studies. More testing. More scrutiny. We need different approaches. More methodologies. More research and a wider range of researchers testing and challenging our systems.”
Lady Carr also said judges had to have “broad shoulders” and “moral courage” whether over criticism of decisions during Brexit or granting super-injunctions.
“Judges do not simply obtain the moral courage necessary upon appointment. There is no secret sauce in the judicial oath in that respect. Rather, moral courage is something that judges and magistrates develop in their careers before appointment. Where the judiciary is concerned, that is done as lawyers,” she said.
