In my day job, I'm interested in studying law empirically. One of the classic claims made by scholars adopting this sort of socio-legal approach is that often as not, the law on the books represents a poor guide for how the law actually works in practice.
This discrepancy takes many different forms. The section of an enactment which legislators thought would apply only exceptionally, occasionally becomes the rule in practice. Environmental regulations are applied in the field - often literally - by officers enjoying substantial discretion over how infractions will be treated, and those encounters often produce a rather different regulatory regime in reality, than the neatly ordered official version admits. The Housing Act places positive obligations on local authorities to house the homeless. In practice, the bureaucratic units making these decisions depart from and elaborate the legal standards for assessing these duties in a range of interesting (and sometimes concerning) ways.
So too with our criminal justice system. Oscar Pistorius' murder trial in South Africa, and yesterday's queer conclusion to the Vicky Pryce trial in England, has stirred up the issue of trial by jury again. Defenders of the idea often tend towards grandiloquence. "The lamp that shows that freedom lives", a "cornerstone of our judicial system", or an "inalienable civil liberty" to be defended to the last ditch. It is one thing to argue that trial by jury in particularly serious cases represents an important safeguard, worth preserving. It is quite another to imply, as some commentators often seem at risk of implying, that anything but trial by jury would be a judicial scandal, a betrayal of the grand old history of British jurisprudence, undermining the justice system as is.
Why? Because trials by jury already represents a negligible, fading segment of our criminal justice system's work. The institution may be the most visible manifestation of criminal justice, and dominate legal dramas, but trial by judges alone is far, far more common. And guilty pleas even more so. To flesh this out a bit, the Crown Office has helpfully thrown together its case-processing data for the last five years, 2007 - 2012. They use the now-outmoded term of "District Courts", so I've used it too, but these now refer to Justice of the Peace Courts, whose Justices are generally not legally qualified and usually determine cases in threes. In these figures the Crown Office has aggregated the figures for legally-qualified Stipendiary Magistrates who sit alone (which only operate in Glasgow) along with those for summary sheriff cases, without juries.
The statistics distinguish between pleas ("cases which were disposed of at court without any evidence being led") and those which were tried ("cases where some or all of the evidence was led"). On the basis of these figures, we can identify precisely how many juries were actually empanelled in the last half-decade in Scotland. Let's take the most recent year for which we have data, 2011 - 2012. As you can see, of the 8,070 cases where any evidence was lead in court, only 16% involved juries, either in the Sheriff or High Courts, 84% without. Most cases were tried by sheriffs sitting alone, with the remaining almost-quarter soaked up by the District Courts. No juries here either.
Nor was 2011/12 an outlier year. Across the half decade, just 16% of all proceedings which have reached trial and not been pleaded out from the outset involved juries in Scotland. Focussing on trials, however, also tends to give you a distorted impression about how criminal justice in this country actually works. The picture wouldn't be complete without factoring the phenomenon of pleas, which suspend the necessity of going to trial, witnesses being examined and cross-examined, and either judicial or jury deliberations on verdict. The sheer scale of pleas in Scottish criminal justice, which has this in common with many other jurisdictions, including England and the United States, is best depicted by contrasting the number of cases which go to trial and those which are pled out without any evidence being lead, and without a whisper of jury involvement.
Whatever your views on its virtues and virtues, the institution's advantages and disadvantages, the idea that trial by jury represents a practical "cornerstone" of our judicial system is fantastical. Most folk facing trial in Scotland will meet the grim phizog of a sheriff, or JP. Most people who are convicted, fined, given community payback orders, or thrown in the slammer won't see hide nor hair of fifteen of their peers. In the overwhelming majority of criminal cases, guilt or innocence is not at issue. I don't have the English and Welsh figures to hand, but I'd wager that the rates of jury trial there aren't substantially higher than in Scotland. None of which is to contend, of course, that cases currently dealt with by juries - murder, charges of rape, serious assaults - ought to be taken from them.
It does suggest, however, that drawing sharp distinctions between the South African system of trial by judge alone and ours is - in practice - rather silly. If the system of trial by jury is the "lamp that shows that freedom lives", it affords pretty dim illumination about how criminal justice in this country works most of the time.