Wednesday, May 06, 2009:
Jury: Defence against bad laws
Greg Barns is right about one point: If you were charged with a crime and were innocent, you would want your fate decided by an appropriately trained professional (or several) who must give reasons.
But Barns omits another point: If you were hauled into court for doing something that should be legal but isn't, you would want your fate decided by people who don't have to explain that they are acquitting you because they perceive, as you do, that the law is an ass.
Some people will say that the frustration of duly enacted laws by unelected jurors is contrary to democracy. Poppycοck.
For one thing, the people don't get to vote on specific laws unless they become jurors. As mere electors they only get to vote for candidates, each of whom comes with a package of views and loyalties which may not even be known at the time of the election.
For another, in every democratic organization, from the smallest club to the greatest nation-state, it is accepted that a more extreme decision requires a stronger mandate; for example, changing the constitution of the club probably requires more than an ordinary motion. And in a State that claims to be free, there are few decisions more extreme than to enact a law whereby persons who commit certain acts shall lose their freedom. If such a law, in order to be enforced in a particular case, must be approved not only by the legislature and the executive but also by whichever twelve citizens make up the jury, then that is just another example of a more extreme decision requiring a stronger mandate.
And don't get me started on the role of money in the making of laws, including laws that criminalize behaviour simply because it reduces monopoly profits. That's plutocracy or kleptocracy, not democracy.
If trial by jury is not always best, the solution is not to abolish it, but to give the defendant a choice between two or more forms of trial.
[Letter submitted to Crikey, May 6; published (reformatted, with no title) May 7; posted here (with new links) October 24.]
