Jury Trials

December 20th, 2010 at 12:00 pm by David Farrar

Parliament is considering a bill which lifts the threshold for jury trials from offences with a maximum three months jail, to offences with a maximum three years jail.

I’m of mixed mind on this change. Overall I think there is a good case to increase the limit, as the massive delays we have for jury trials need to be reduced. It is unfair on victims and defendents to have these delays.

However the thought of people spending up to three years in prison without a jury trial, doesn’t sit too well with me.

But just because a maximum offence penalty is three years jail, doesn’t mean that is a common sentence. I wondered what the actual penalty range was for each offence. The data wasn’t online, so I asked the .

33293 – David Farrar – Final Response

The Ministry kindly collated and gave me the information which you can see in the document above.

The first table shows what percentage of convictions for an offence that would no longer be covered by a jury trial (ie maximum sentence of six months to three years) actually result in going to prison at all.

I’ve had to cross-match the data in the letter to the frequency of each offence class. Overall the position seems to be that only about 20% of those found guilty of an offence with a maximum penalty of six months to three years get a prison sentence at all.

The second table shows what the maximum sentence ever given out for that category of offence is. Most years around half the offence categories have someone given the maximum three years. So it is possible some defendants could end up being sentenced to three years jail on the basis of a judge only trial.

What we don’t know ifs whether those who were given the maximum sentence were also charged with other more serious crimes, and hence would be having a jury trial anyway.

The third table shows the median sentence for those who did get a prison sentence – which was around 20% of those convicted.

On a weighted average the median sentence looks to be 120 days or four months. Now sentences of under a year are always halved for parole (off memory), so actual time served would be 60 day or two months.

So my conclusion is that if trials go judge-only for offences with a maximum penalty of three years or less, then 80% of those will serve no prison time at all, a further 10% will serve up to 60 days (taking parole) into account and a further 10% could serve between 60 days and up to two years (when parole is near automatic for a three year sentence).

So as I said at the beginning, I’m reasonably comfortablw with moving the limit up from three months – the vast majority of those facing judge alone trials will not go to prison. However the 10% who might end up spending more than 60 days in prison on the basis on a judge alone trial are a concern. A limit of two years might be fairer.

What do readers think the right place to draw the line is – 3 months, 3 years, in between? less than 3 months, more than 3 years?

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49 Responses to “Jury Trials”

  1. PaulL (5,983 comments) says:

    I have very little confidence in a jury. Given the choice, I would go with a judge only trial in almost all circumstances. Having said that, I have very little involvement in the justice system, so my opinion is based mainly on the bunch of morons who are considered my peers and would turn up on a jury. I’m figuring a judge would have to be better.

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  2. GPT1 (2,106 comments) says:

    A better approach would be to define dsq driving and EBA in the aggravated forms as summary despite being 2 years maximum. Common Assault is 1 year and might be worth a change although does rather defeat the purpose of Summary Offences Assault (summary (surprisingly!) and maximum of six months) but otherwise the threshold is about right.

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  3. Graeme Edgeler (3,277 comments) says:

    Allow judge alone trials for almost all offences. But if the prosecution wishes to seek a prison term (or a judge considers a prison term may be a possibility), then the defendant should have the option. No person who has not been given the option of a jury gets sent to prison (or possibly, sent to prison for more than 3 or 6 months).

    [DPF: I quite like this. You should do a submission]

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  4. Pete George (23,345 comments) says:

    It seems a major jump up – would it be better to change it to 18-24 months, see how that goes for 2 or three years, and if it looks ok move it to 3 years? Or change it to three years with an option to pull it back to two, especially once they have reduced the jury trial delays substantially.

    If neither of those options are practical then I think two years is a safer balance.

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  5. Graeme Edgeler (3,277 comments) says:

    No GPT1 – a better approach would be the one the Government is proposing – abolish the summary/indictable distinction.

    I also note that the Law Commission has made recommendations in respect of offences against persons (e.g. assault = max 2 years, no summary charge, no separate male assaults female/assault on a child – suggesting that these should be sentencing matters).

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  6. JayMal (29 comments) says:

    I largely agree with Graeme, I think a simple approach probably would be:

    1. Judge only for any offence with a maximum sentence of 6 months (double what it is now).
    2. For offence with 6m – 6y no prison sentence other than home-d available unless defence has been given the option of a jury trial (which can be refused).
    3. Jury trial for all offences with maximum >6y term.

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  7. davidp (3,558 comments) says:

    All the research on juries shows that they make decisions on all sorts of bogus grounds. Like an inability to understand the evidence, disinterest in the case, accent, looks and deportment, ethnicity, “we don’t know but someone else can sort it out at appeal”, etc. In 200 years time juries will be considered as quaint and unreliable as dunking witches to see if they float, or trial by combat.

    Rather than dicking around at the margins, the government should be looking to get rid of all jury trials and replace them with people trained to evaluate evidence and an understanding of the mathematics behind reasonable doubt. The justice system is too important to leave to random untrained amateurs.

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  8. JayMal (29 comments) says:

    Hmmm… also does anyone know if this would change the rules set by the supreme court of contempt of court. As I understand it currently the maximum time you can serve for contempt is 3 months so as to avoid a breach of the BORA… assuming changing the limit to 3y would also mean BORA is amended and the courts could send you off for a 3y stint…

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  9. Barnsley Bill (982 comments) says:

    This is a tough one David.
    On the one hand we have a judiciary who almost without exception live on a completely different planet to the rest of us and on the other hand we have juries made up almost exclusively of winston first voters. Nobody with a job would willingly do jury service unless of course they work for us and then they probably get paid by us to participate. That just leaves the elderly and the stupid.

    In an ideal world anybody facing the prospect of doing porridge should have the choice of judge or jury

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  10. RRM (9,667 comments) says:

    I’ve only met 2 (High Court) Judges and both were head & shoulders above normal men.

    Solely on the basis of their character I have faith in the quality of the Judiciary and their separation from the state/church/pixies/freemasons, and therefore I would rather be tried by Judge alone than by a random panel of simple people.

    However there needs to always be the option of a jury, as a safeguard against the future when there might be political/religious/pixie/freemason interference or corruption in the Judiciary (or suspicion of same.)

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  11. Redbaiter (13,197 comments) says:

    This is just another example of National’s ideological bankruptcy. Its a money saving measure, nothing more, and they’re cutting back on services that the government should be doing and doing right, so that they can spend money on services the government shouldn’t be doing and that they’re making a damn mess of.

    Leave the Justice system alone. There are a host of cutbacks just begging to be made in other areas. Hopeless. Power needs to go for his utter failure to understand the basics of Western Government. He’s already demonstrated this failing more than once.

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  12. Redbaiter (13,197 comments) says:

    “It seems a major jump up – would it be better to change it to 18-24 months”

    Man, this is just as nauseating as your suggestion to lower the breath alcohol limit to .065. Have you ever taken a stand on anything in your life, or has it always just been one big whining compromise?

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  13. peterwn (3,215 comments) says:

    One year for the time being subject to review later. Also Crown Law (or other prosecutors) to have the ability apply to a judge to forgo a jury trial where a sentence of over one year is unlikely (this could even include some manslaughter cases). The idea of bringing a judge into the picture is to head off any undesirable plea bargaining. There is a parallel at present where a judge can give a sentencing indication to someone considering a guilty plea.

    This would ‘head off’ almost all 1 year term.

    I would also favour a means where an accused can elect not to have trial by jury but have an ‘inquisitorial’ type trial in front of a ‘full’ court (2 or 3 judges/ assessors). I think this would genuinely benefit someone who knows he or she is truly innocent. The lawyers would be expected to identify as much common ground as possible before the hearing and some cases may collapse at that point (the sooner a shonky case implodes the better). The accused would be expected to give evidence and face questioning from the Bench. Such trials would probably be significantly shorter than jury trials. A downside is that an accused found guilty may try and convince an Appeal Court that he/she should have a jury re-trial.

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  14. Bob R (1,357 comments) says:

    ***However the thought of people spending up to three years in prison without a jury trial, doesn’t sit too well with me.***

    I’ve got far more faith in a Judge to properly weigh the evidence and make appropriate inferences, than a random group of 12 people. In fact, it’s more likely to be a non-random group made up of people who can’t get out of jury duty. Accordingly, I’d suggest that they tend to be less capable than the average person.

    ***I would also favour a means where an accused can elect not to have trial by jury but have an ‘inquisitorial’ type trial in front of a ‘full’ court (2 or 3 judges/ assessors). I think this would genuinely benefit someone who knows he or she is truly innocent.***

    This seems a very good idea to me, I think you have a better likelihood of identifying the ‘truth’ this way.

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  15. eszett (2,374 comments) says:

    Funny, red, you didn’t seem to throw up when David suggested a 2 year limit.

    A limit of two years might be fairer

    Compromise is not your thing, is it? Not that compromise is actually a cornerstone of “Western Government”. But what would you know about that?

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  16. Pete George (23,345 comments) says:

    Redbaiter, you’re the one doing all the whining, everyone else here seems to be discussing what the best sort of balance might be. Anything between executing all people who are accused and having no police or judicial system is a compromise, but that concept may be beyond your comprehension.

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  17. georgebolwing (686 comments) says:

    Like democracy, jury trials are the worst form of justice, except for every other option.

    To quote Rumpole, it is better that 1,000 guilty men go free than one innocent person go to prison. That is what juries are for; to find that one case in a thousand where an innocent person would otherwise go to jail.

    I am very reluctant to see any removal of the right to trial by jury where prison is a possibility.

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  18. Redbaiter (13,197 comments) says:

    Well said Mr. Bolwing. Lets fire the philistine Power and give you his job.

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  19. eszett (2,374 comments) says:

    That is what juries are for; to find that one case in a thousand where an innocent person would otherwise go to jail.

    Would be interesting to see some stats on that. I am not convinced that Juries would not tend to send innocent people to jail. Just have a look at the US where a number of long term prisoners have been freed after being sentenced by a jury. Or even put on death row and excecuted.

    Quality of jurors is a big issue. People that you would like to get on your jury usually can’t because it would be such a huge financial strain on them.

    And then you get someone like redbaiter who will pronounce you guilty just because you look like a leftie.

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  20. davidp (3,558 comments) says:

    georgebolwing>To quote Rumpole, it is better that 1,000 guilty men go free than one innocent person go to prison. That is what juries are for; to find that one case in a thousand where an innocent person would otherwise go to jail.

    There are around 8000 people imprisoned in NZ. I’m absolutely certain that at least 8 of those are innocent. Are you proposing that all prisons be immediately shut and the prioners released in to the community?

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  21. Murray (8,842 comments) says:

    Parliament is considering a bill which lifts the threshold for which they give a crap about our current rights.

    Another flexible thing with our constitution free governments. We have no rights other than those they decide to let us have.

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  22. createcoms (16 comments) says:

    Judicial Activism anyone?

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  23. peterwn (3,215 comments) says:

    eszett – I have similar doubts about jurors and prosecutors. The adversarial system induces proscutors to aim for a coviction instead of helping get to the bottom of a matter. Prosecution is far better resourced financially for those on legal aid. It ancestory is very dubious including trial by torment etc. It is not surprising some truly innocent people are convicted.

    For example guy was convicted of rape after a witness (a land agent) told a lie. He had 5 hours only of legal aid. After he went to jail, his rellies went to his workplace and looked at his timesheets which showed he was working at relevant time. It still took the Appeal Court to spring him.

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  24. Lucia Maria (2,239 comments) says:

    Very disturbing.

    National do seem to have their ideology dictated to them by costs, and stuff the long-term consequences.

    Most crime is committed by those who grow up without a committed father, so why not promote (and reward) marriage, fidelity and waiting to have sex. But no, National will not go there. And so we have the continuation of the crumbling of our society, while government after government responds with ever more draconian laws and removals of safeguards because of a growing lawlessness that is being fuelled by relationships gone bad.

    Not that I think any government can solve this problem, but right now government has contributed to this situation thorough through gradually destroying the moral authority of successful families (ie anti-smacking law), rewarding sex without commitment (DPB), and encouraging women to work rather than looking after their young families (state-funded child care, tax benefits for the second earner).

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  25. georgebolwing (686 comments) says:

    davidp: of course not. What I am saying is that I think that any move to remove juries from trials where imprisonment is an option is something to be wary of.

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  26. Redbaiter (13,197 comments) says:

    You’re on to it Lucia. This is just patch up stuff because National haven’t got the damn guts or the damn nous to fix the real problem. An offence made so much worse by means of their willingness to attack our traditional justice system. These National people with their complete lack of principle are worse than the Klark government. At least Klark had an agenda that tied in with the Labour Party’s objectives. National seemingly has no objectives and no agenda. Just utterly hopeless.

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  27. big bruv (13,571 comments) says:

    Lucia

    “rewarding sex without commitment ”

    Kinda think that is a battle you are destined to lose, there is nothing wrong with casual sex just as long as those who participate take the necessary precautions.

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  28. Pete George (23,345 comments) says:

    # Graeme Edgeler at 12:26 pm

    Allow judge alone trials for almost all offences. But if the prosecution wishes to seek a prison term (or a judge considers a prison term may be a possibility), then the defendant should have the option. No person who has not been given the option of a jury gets sent to prison (or possibly, sent to prison for more than 3 or 6 months).

    [DPF: I quite like this. You should do a submission]

    This deserves more attention, sounds a good idea to filter by likely sentence rather than maximum theoretical sentence. To move forward from what we have it would have to have a threshold of >3 months?

    A query on it though – how likely or often does the likely sentence change from beginning to end of trial? It’s possible a fairly benign looking case could change complexion, for example if an accused person admits to the offence being far more serious than the known evidence suggested.

    Does it happen much in real life where a case changes substantially due to new or far stronger evidence becoming apparent during the case?

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  29. Redbaiter (13,197 comments) says:

    “Kinda think that is a battle you are destined to lose, there is nothing wrong with casual sex just as long as those who participate take the necessary precautions.”

    Spoken like the Progressive rat you really are Graeme. No wonder the left have NZ so firmly in their grip when its ideologically bankrupt and politically confused vermin like you who pretend to be the opposition.

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  30. big bruv (13,571 comments) says:

    Red

    Any chance that you and the rest of the religious fundamentalist might come up with some new material in 2011?

    Reading the same tired old crap really is getting boring.

    Mind you…..there is one thing that you do need to tell us, what is that one victory that you have had in your ten year war?

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  31. Redbaiter (13,197 comments) says:

    “Reading the same tired old crap really is getting boring.”

    You’re kidding right? Idiot.

    Here’s a suggestion. Call the cops on that guy with a gun at your head there forcing you (and all the others who make up your “us”) to read it.

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  32. big bruv (13,571 comments) says:

    Here’s a suggestion, come up with the one thing that you have achieved in your ten year war and this can all end.

    The fact that you cannot do so Russell suggests that you are full of shit.

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  33. Redbaiter (13,197 comments) says:

    Another thread totally fucked by Bruv and his pathetic little personal crusade.

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  34. Lucia Maria (2,239 comments) says:

    Big Bruv,

    Kinda think that is a battle you are destined to lose…

    Don’t disagree, it is a losing battle right now. Doesn’t stop me from fighting it, though.

    … there is nothing wrong with casual sex …

    Sex gives man a foretaste of heaven. Don’t just settle for the foretaste, Bruv.

    … just as long as those who participate take the necessary precautions.

    Yes, like turning off your heart.

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  35. Rex Widerstrom (5,330 comments) says:

    Graeme Edgeler suggests:

    Allow judge alone trials for almost all offences. But if the prosecution wishes to seek a prison term (or a judge considers a prison term may be a possibility), then the defendant should have the option. No person who has not been given the option of a jury gets sent to prison (or possibly, sent to prison for more than 3 or 6 months).

    Graeme, I’m with DPF on this. I think that’s a brilliant suggestion. Please put in a submission to that effect.

    I believe no one should be reoved from society without the option of being judged by his peers (if that’s what he wants – I’m with PaulL and wouldn’t trust a jury) and your suggestion achieves that without, I think, bogging down the system unnecessarily.

    If you do put in such a submission perhaps you could let us know, as I for one would then support it with one of my own (but don’t want to initiate it and steal your idea).

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  36. dad4justice (7,988 comments) says:

    “Another thread totally fucked by Bruv and his pathetic little personal crusade.”

    big bruv is obviously suffering from delusions of grandeur. Once again this very disturbed individual attacks. FFS what a strange person you are big blouse. You make me sick and the jury agrees! Take him down said the judge. Get some help creep.

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  37. dad4justice (7,988 comments) says:

    “The fact that you cannot do so Russell suggests that you are full of shit.”

    This is written by a cowardly smear fresh back from a 100 point demerit knock for willing on the death of some poor dude. Seriously folks this sicko needs mental health treatment. Where is Mynameisclap today blouse you twisted unit? Oh fot it said fugley!!
    This creep big bruv needs a serious lessons in manners. The judge and jury agree.

    [DPF: I think this thread has had enough personal abuse.]

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  38. nickb (3,675 comments) says:

    Totally agree with your 1.03 Red.

    First repeal of provocation, trial reforms under the guise of “efficiency”, taking away jury trials, and shortly a reform to Prohibition judging by the latest brainfart to come out of the Law Commission.

    Is no one else enraged how some third rate conveyancer from a small town is dismantling our justice system?

    Even that might be too charitable on him, because it would suggest he has an independent functioning brain of his own. More likely he is just a nodding yes man for MOJ bureaucrats.

    Simon Power, for the good of your country, and for the good of your party’s founding goals, please resign ASAP. Thank you

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  39. Rex Widerstrom (5,330 comments) says:

    nickb asks:

    Is no one else enraged how some third rate conveyancer from a small town is dismantling our justice system?

    Well you can put me down as one who is, nick. While I’m tempted to share your suspicion of MoJ bureaucrats we’ve had some pretty average past Ministers of Justice and we haven’t seen the wholesale stripping away of rights we’re seeing under Power. So either his predecessors had an iron will they kept hidden, or this agenda is Power’s (and, by extension, National’s). Of course MoJ may think all its Christmases have come at once (and I’m pretty sure they do) but that doesn’t mean we can sheet the blame home there. Power is our representative, not the bureaucrats.

    The fact that characters like Collins have justice-related roles and that Garrett got his nonsensical Bill through further reinforces my impression that behind the smiling facade of the Key government lurks a group of influential anti-justice crusaders the like of which NZ has never before seen.

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  40. nickb (3,675 comments) says:

    Good point Rex.

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  41. CharlieBrown (927 comments) says:

    The letter of the law is sometimes an arse, therefore you must have access to a trial by you’re peers in the event that this occurs, as a jury may choose to dismiss the case as outrageous even though the prosecution considers otherwise.

    I can easily see this occurring with the smacking law – where John Key has told police to use discretion IE, ignore the law if you deem it appropriate. It will only take another loony prime minister (or even our current loony prime minister) to instruct police to enforce this more tightly, and someone who a jury will side with will end up convicted of a crime.

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  42. wat dabney (3,724 comments) says:

    So, partially abolish jury trials then.

    I really do think Key is just Helen Clark’s grinning sock-puppet.

    Having the state both accuse you and decide your guilt: what could possibly go wrong?

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  43. ZenTiger (426 comments) says:

    Can’t we just train cops to hand out the sentences at time of catching the criminals? Then we don’t even need judges and court rooms. No back log, and extremely practical. Or am I one step ahead of the game?

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  44. big bruv (13,571 comments) says:

    “lurks a group of influential anti-justice crusaders the like of which NZ has never before seen.”

    God I hope so!

    How terrible it would be if our streets were safer, what a shocking thing it would be to have scum locked away.

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  45. Anthony (785 comments) says:

    Who says jury trials are any fairer – I’d be skeptical of that.

    In the name of fairness and efficiency I’d suggest juries be six people – which is proven to be a better number for decision making.

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  46. Rex Widerstrom (5,330 comments) says:

    Wow big bruv, you must be yearning for the day Aunty Helen becomes President of the Republic of New Zealand and that firm, correctional hand is once again applied to the small of your back. After all, Power is just a politician, like she was, so if a suburban conveyancer from Palmerston North knows better than literally centuries of eminent jurists (and hundreds of previous politicians in Britain, NZ, and other countries that have adopted British justice) then imagine what she must know!!

    I, on the other hand, figure that a whole lot of people more intelligent than me, you, or Power (certainly Power) have considered the benefits and disadvantages of our system of justice for quite some time, and might conceivably have a better idea of what works and what doesn’t than do we.

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  47. ross (1,454 comments) says:

    > Who says jury trials are any fairer – I’d be skeptical of that.

    The research I’ve read suggests that there isn’t a big difference between jury and non-jury trials. In other words, judges – when asked – usually agree with the jury’s decision. You’d like to think, however, that judges will make fewer mistakes than juries. But then you look at a case like Peter Ellis and the system provides little comfort. The judge at Ellis’ trial, Neil Williamson, admitted that the jury made the correct decision, and various judges since have upheld the jury’s verdicts. If you look at the IRA cases in the UK, many judges made mistakes upholding the verdicts of lower courts. In judge only trials, will the appellate courts be any more reluctant to overturn decisions of lower courts because of the implied criticism of those judges who reached the wrong decision?

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  48. big bruv (13,571 comments) says:

    “and disadvantages of our system of justice ”

    Except we do not have a system of justice Rex, we do not have a system that is designed to get to the truth.

    We have a system that is loved by that closed club of exclusive membership (Lawyers and some of the Judiciary) because it suits them and them only, the truth is irrelevant, “who did it” is not the issue, it is a stupid game that allows people like David Bain to walk free and Peter Ellis to remain a convicted criminal.

    Give me a system that means scum are locked up, give me a system that results in real justice and give me a system that let’s the public feel safe about the people in their community.

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  49. robcarr (132 comments) says:

    I don’t think it should be based on sentence length at all. As I have learned throughout my law degree our sentence lengths aren’t at all consistent with whether something is a serious crime or not. As was shown from your response the average sentence may vary considerably from its possible maximum. The government should simply place any crimes it feels are not serious and do not need a jury trial into the Summary Offences Act rather than the Crimes Act and they will thus not need a jury trial. At present we have a convention that penalties longer than 6 months aren’t put in there but no reason it cannot go up to a year or two years. If there are issues of some crimes having a high maximum but usually people committing a very low rate version of it the crime should be split in two with one high penalty and one low penalty offence. I think a 3 year maximum for no jury trial is far too high personally but really any prison time served without a jury if you wanted one is pretty harsh as it is the initial experience of settling into prison which is the worst factor of it not so much the length once you get into a routine.

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