It is a pleasure to have been asked to give this year’s Blackstone lecture. Lord Devlin at the outset of his Hamlyn Lectures in 1956 observed: that trial by jury was a subject on which it was not possible to ‘say anything very novel or very profound’. If not a subject suitable for original comment, why did I choose it?
First, because it links to Blackstone himself. He was a fierce supporter of trial by jury. It was for him the ‘sacred bulwark of the nation’, securing our liberty. He was not alone in his view.
For Lord Camden it was ‘the foundation of our free constitution’. For Lord Eldon the ‘greatest blessing which the British Constitution had secured to the subject’. For Lord Devlin, ‘the lamp that shows that freedom lives.’ For Lord Judge, ‘a safeguard against oppression and dictatorship’.
For Lord Denning it was also “the bulwark of our liberties”. In Ward v James a civil appeal, he stated that “whenever a man is on trial for serious crime, or when in a civil case a man’s honour or integrity is at stake, or when one or other party must be deliberately lying, then trial by jury has no equal.”
Yet, he went on to conclude that in personal injury cases trial by jury had given place to trial by judge alone, because, I quote: “trial by a judge alone is more acceptable to the great majority of people. …judges alone, and not juries, in the great majority of cases, decide whether there is negligence or not. They set the standard of care to be expected of the reasonable man.” In the criminal courts, it is the jury who set the standards of the reasonable man and woman and decide issues of negligence. They decide far more complex issues than simple dishonesty. Is the distinction between criminal and civil trials one of principle or pragmatism?