Judges and Ministers versus The People

There is a complete failure on all sides to recognise that both Judges and Ministers and MPs have been busy encroaching on the proper rights of the People.

So far as Judges are concerned, the representatives of the People that they have been encroaching upon over the last 50 years in various “reforms” to legal practice (in particular Civil Litigation), is on the rights of the People assembled as a Jury.

Just as still in most cases in America that appear before the courts, the Juries decide what the outcome will be whether it is a criminal or a civil matter, so also from “time immemorial,” until recently, have Juries decided on cases in England.

In times past, Juries would typically be the sort of people who would have had the vote in the days of the property qualification. To some extent, that approach lasted up until the late 1960s when only rate payers could be called up for Jury Service.

But it is worth remembering that it was juries which exercised a very important brake on the growth of State power and of misbehaviour by politicians and State employees and the judiciary itself. They also exercised a brake on how over complicated the law could become.

Before the Second World War most civil cases were dealt with by a Judge and Jury, with the Judge deciding legal points and the Jury deciding all the findings of fact and often deciding the damages to be awarded as well. This meant that the law couldn’t get beyond the point of complexity that a Jury could sensibly understand what was at stake. It also meant that Judges and, for that matter Barristers, had to be much better at explaining their arguments, otherwise the Jury would not necessarily understand what was being spoken about.

Criticism (by Lawyers) is that Juries are unpredictable and that they tend to decide which of the parties to a case they like and that they focus on that rather than on dry legal points.

It is however a myth to imagine that Judges are very much more predictable than Juries. Judges are rather more inclined to think that they know what is going on, but that means that they are quite likely to leap to conclusions, rather than to listen carefully to what comes before them. Also, in particular, Judges over complicate the decision-making process. Once upon a time there might only have been two or three points of principle to consider. Now there might be a dozen or more in a typical case. So, it is very difficult to predict, even for a lawyer in any complicated case, which of the points of principle the Judge will decide is decisive. Therefore, it is often just as hard to predict the outcome of a case before a Judge, as it would have been with a Jury.

The Law has been becoming ever more difficult to understand. The original idea of the Rule of Law (which is that citizens can know where they stand, viz a viz State and each other) gets ever more lost sight of in a fog of complexity and bureaucratic rule making. Add to that mix a toxic brew of political interference and faddist “reforms” and a legislature that thinks it is okay to produce in excess of 20,000 pages of new legislation every year! No wonder nobody now knows what the Law is, without spending time looking it up! Often quite a lot of time!

The other point that is lost with the decline of the position of the Jury is keeping the Law in line with common sense.

Looking outside of England it is worth noting that Law is often not the friend of Liberty. A perhaps extreme, but nevertheless true example of that is that most things that Hitler did as Führer were legal! Whether he could have got an English jury to have upheld his actions is worth a moments reflection.

Most of the more questionable offences which buttress multi-culturalism are magistrates only offences – that is not an accident! If you are up before a District Judge there will be no application of common sense, or of justice, just of State Law!

Rather than tinkering with a legal rule here or there I would say what we really need is a massive reinjection of Juries into legal practice, but with the proviso that those eligible to sit on juries needs some serious pruning.

Robin Tilbrooke