It speaks volumes for our standards of criminal justice that it is taking so long to dispense with the principle that jury verdicts should be unanimous. It took six years of research on jury trials before the Law Commission recommended that majority verdicts of 11-1 should be permitted. The commission's report came in 2001 and in August that year Justice Minister Phil Goff announced legislation was imminent. Last week he made the same announcement. He says he will introduce a bill this year.
Already the arguments he faced in 2001 are being heard again, from some defence lawyers, the Criminal Bar Association, even the Green Party. All object that the proposal compromises the need for criminal convictions to be beyond reasonable doubt. It is possible, they believe, that just one juror in 12 may see reasonable grounds to be unconvinced by a prosecution case, and in those circumstances, they say, a retrial is due.
It is conceivable that a solitary juror may find rational grounds to dispute the prosecution's case, but it seems extremely unlikely that the juror would fail to persuade at least some other members of the panel of the logic that previously eluded them. It seems much more likely that when a single juror holds out against 11 it is for reasons that have no rational basis and may not even bear scrutiny. Beyond that, majority verdicts are proposed partly to diminish the risk that juries may be "nobbled" by intimidation or bribery of a solitary member. Where intimidation is likely, cases may be before a judge alone.
The obligatory secrecy of the jury room makes it hard to know how many trials are confounded by a single "rogue" juror who might be suborned by outside pressure or be simply a contrarian personality. The research for the Law Commission found that the proportion of trials ending in "hung" juries increased from 4 per cent to 9 per cent in just six years to 1999. That rate of increase, more than 50 per cent in so short a period, suggests something has gone awry.
Either juries are less safe from threats and corruption or there are more contrarians about than there used to be. Either way, defence lawyers might say, there are more direct ways to tackle those problems than to do away with the unanimity principle. Furthermore, the finding that less than 10 per cent of juries fail to produce a verdict hardly suggests a system in disrepair.
Those points can be conceded and still the adoption of majority decisions seems sound. Rational doubt is a higher test than many appreciate; a single hold-out juror who cannot persuade another to his view is most unlikely to satisfy the test. Rational doubt by definition must be able to be reasoned; it is not supposed to be based on mere suspicion, hunch or some imagined alternative explanation of events. There must be a reasonable and significant weakness in the evidence presented.
All of that is carefully explained
to every jury that hears a criminal trial. But the definition remains subtle
and may not be well understood by all, including the headstrong individual
who might prefer his gut instinct to the weight of forensic logic. It seems
only sensible to alter the law to reduce that risk. The proposal is the least
alteration that might be made.
In future, if the legislation follows the Law Commission's prescription, judges receiving a verdict will then ask all juries, "Is this the verdict of at least 11 of you." The court would thus never know whether the verdict was unanimous or whether doubt remained in one mind. That is something the accused has a right to know. But that quibble aside, the change is welcome. Let's hope this time it happens.