The tradition of trial by jury goes right back to Viking times. In medieval Danish towns in England, a custom existed for 12 respectable men to investigate crimes or disputes. In the 12th century, King Henry II of England set up a system that used 12 free men to resolve land disputes. Soon after, in 1215, King John signed the Magna Carta. Article 39 stated: "No free man shall be captured, and or imprisoned … but by the lawful judgment of his peers, and or by the law of the land."
From its formal inception in the Magna Carta, the right to trial by jury was intended to protect citizens from the arbitrary use of power by their rulers. The right to trial by jury migrated to Ireland with the common law, which had completely supplanted the native Brehon Law by the early 1600s.
However, juries can be capricious, as Robert Frost cynically commented: “A jury consists of twelve persons chosen to decide who has the better lawyer.”
On retrial of an Irish farmer who shot dead an intruder, a jury found him not guilty of the manslaughter of. However, it is clear from his initial trail that a judge sitting alone may well have found him guilty. Indeed, the trial judge essentially directed that in the first case the jury had to find Mr Nally guilty of murder or guilty of manslaughter on the basis of the evidence.
The court of appeal held that the judge should have allowed the jury find him not guilty, whatever the evidence. For better or worse, juries bring the wisdom and thinking of ordinary people to bear on complex legal matters. In all societies, elites often have different values to the man on the street. Juries give the man on the street a powerful voice in the administration of justice.
In multi-ethnic societies, this can give rise to concerns about prejudice. For example in the famous 1992 Rodney King trial, white California police officers were initially acquitted of using excessive force against a black man by a mostly white jury with no black jurors. Upon retrial, a jury with black jurors convicted the policemen.
In multi-ethnic colonial India, the authorities gave people a right to be tried by a majority of their own race, to prevent racial prejudice clouding a jury’s judgment. However, after independence, Malaysia, India and Pakistan all abolished trial by jury, with one Pakistani judge deriding jury trials as "amateur justice".
However, in much of the English-speaking world, the jury system has stood the test of time - almost 1,000 years. In 19th century Ireland, especially during the land agitations, Irish juries were notorious for not convicting agitators. Such politically-motivated jury acquittals led to quips like that of a frustrated judge, who told a defendant: “You have been acquitted by a Limerick jury, and you may now leave the dock without any other stain upon your character!”
Irish juries were so sympathetic to land agitators that the Crown sought to circumvent the jury system by making more extensive use of Resident Magistrates. Sentences were lighter, but more convictions were secured.
In 21st century Ireland it remains a central component of the criminal justice system in common law countries around the world. The Irish constitution provides that, “no person shall be tried on any criminal charge without a jury”. However, there are three exceptions set out in Article 38.5: These include to summary trial for minor offences, trials by special courts and military tribunals. Similar provisions prevail in the UK, and in other common law countries.
The Irish special criminal courts, set up to convict terrorists and organised criminals, comprised three judges and no juries as juries were thought likely to be subject to intimidation by such groups.
Juries are randomly selected from the populace. However, there are often exemptions: In Ireland anyone who is involved with the administration of justice is exempt from jury duty, as are those who are too ill, or who have been convicted of serious crimes. In addition, self-employed people, professionals and civil servants are often exempted from jury duty.
Concerns have arisen that exemptions are so wide that juries often no longer represent a defendant’s peers, as a true cross-section of society. Jurors often find the experience fascinating, and something they will never forget. They are being asked to decide the guilt or innocence of a fellow citizen, and the facts are not always easy to ascertain. Juries have been with us for many centuries, and it seems the somber and ancient duty of judging one of our fellow citizens in a court of law is likely to remain a key part of the criminal justice systems in common law nations across the world.