John Jackson, Sean Doran. Judge Without Jury: Diplock Trials in the Adversary System. Oxford: Clarendon Press, 1995. xxii + 322 pp. $69.00, cloth, ISBN 978-0-19-825889-6.
Reviewed by Virginia E. Hench
Published on H-Law (April, 1997)
Perhaps Lewis Carroll anticipated the cre‐ abolishing the right to jury trial in serious crimi‐ ation of the Diplock Courts in the North of Ireland nal cases is valuable as far as it goes, and it is one when he wrote his "Mouse's Tale": Fury said to a of the frst to attempt an empirical analysis of this mouse, That he met in the house, "Let us both go peculiar system. Unfortunately, the authors' han‐ to law: I will prosecute YOU. --Come, I'll take no dling of the material often disappoints. denial; We must have a trial: For really this morn‐ The Diplock courts, created in 1973 to try seri‐ ing I've nothing to do." Said the mouse to the cur, ous criminal cases alleged to be connected with "Such a trial, dear Sir, With no jury or judge, the Irish Troubles, operate with a single judge and would be wasting our breath." "I'll be judge, I'll be no jury. Since the Diplock Courts were created jury," Said cunning old Fury: "I'll try the whole nearly a quarter-century ago, approximately one cause, and condemn you to death."[1] in three serious criminal cases in Ulster has been Cunning old Fury himself might have de‐ tried without beneft of jury, with a conviction signed the Diplock Courts, in which to sit as prose‐ rate greatly exceeding that of "ordinary" (non- cutor, judge, and jury. Certainly Carroll's satirical Diplock) criminal courts in the same province. doggerel starkly foreshadowed the lack of proce‐ The vast majority of Diplock court convictions re‐ dural safeguards available to a defendant accused sult from confessions (the right to remain silent of a serious crime in the courts of Ulster, the sub‐ has also been abolished) and from extensive use ject of Sean Doran and John Jackson's Judge With‐ of uncorroborated testimony by government in‐ out Jury. formants, or "supergrasses." The juryless "emergency" Diplock courts of Professors Jackson and Doran, both of Queens Northern Ireland have received scant scholarly University, Belfast, Northern Ireland, carried out attention, and for that reason, Professors Jackson their study by observing twenty-six Diplock and and Doran's Judge Without Jury is a useful addi‐ seventeen jury trials of serious criminal cases in tion to the literature. This look at the efect of the Belfast Crown Court during one twelve-month H-Net Reviews period. Critics had feared that Diplock judges the Act authorized "preventive" incarceration would become "case hardened," or biased against without probable cause, abolished the right to si‐ the accused. To determine whether that was oc‐ lence, relaxed standards for admission of coerced curring, the authors chose to count and classify confessions, and permitted reliance on the uncor‐ instances of "judicial intervention," i. e., instances roborated testimony of so-called "supergrasses" in which judges interrupted the proceedings to (snitches), and anonymous witnesses who were question witnesses and defendants. Jackson and allowed to testify from behind screens and whose Doran chose to study this aspect of the Diplock identities were unknown. system because they deemed it to be the best indi‐ The Act also abolished the right to trial by cator of whether Diplock courts had in fact shifted jury for what are known as "scheduled" ofenses, from an adversarial approach to a more inquest- listed in Schedule One of the Act. These include oriented approach. As they note elsewhere: such crimes as bombing which are normally con‐ We therefore monitored the number of wit‐ sidered terroristic in nature, along with many se‐ nesses questioned in the trials in our sample, as rious criminal ofenses (such as murder) that do well as the number of questions judges asked as a not necessarily relate to terrorism. The attorney proportion of the time the witness was in the wit‐ general has the authority to allow a jury trial if he ness box. We also studied the variations in ques‐ believes there is no terrorist involvement, but a tioning of the various kinds of witness, prosecu‐ defendant accused of a scheduled ofense has no tion and defense (accused, victims, experts, and right to insist on a jury trial. others). A further issue was whether questioning As one might expect, Professors Jackson and occurred during the examination-in-chief or Doran found that "inquisitorial" questioning (in cross-examination or whether it occurred after the form of cross-examination by the judge) oc‐ counsel had fnished examining the witness.[2] curred almost exclusively in Diplock trials and Judge Without Jury is largely a compilation of not in the "ordinary" criminal trials. They also the results of this statistical study, and the presen‐ found that Diplock judges were far more likely to tation, at times, becomes a recitation of numbers question defendants, defense witnesses, and de‐ with scant discussion of the implications of the fense experts than were judges in jury trials. Un‐ statistical fndings. fortunately, the authors do not consider in any Like the Diplock Courts themselves, Judge real depth the potential implications of this ap‐ Without Jury cannot be understood apart from parent shift in emphasis. Also unanswered is the the history of Ireland's "Troubles." On March 24, question of fairness. 1972, Great Britain dissolved the Ulster govern‐ One could argue, of course, that having two ment, established direct rule over the North, and parallel systems for defendants charged with es‐ appointed a series of "blue ribbon" commissions sentially similar crimes, based on suspected politi‐ to propose changes in the Northern Irish justice cal afliation, is not necessarily unfair so long as system. Lord Diplock's commission expressed con‐ the requirements of Article 6 of the European cerns about possible juror bias and witness intim‐ Convention are honored. The United Kingdom, af‐ idation in the climate of terrorism, and proposed ter all, does not operate under the Fourteenth radical "temporary" changes in criminal proce‐ Amendment's equal protection clause. While the dure, including juryless trials, later enacted in the right to jury trial is considered an important safe‐ Northern Ireland [Emergency Provisions Act 1973, guard in the common law, dating back at least to ch. 53 (England)]. In addition to abolishing the 1215 and the Magna Carta, it is not an internation‐ right to jury trial in many serious criminal cases, al human right. This issue deserves a thorough
2 H-Net Reviews analysis. As the European Court has recognized, same ground, and while it goes into greater detail, the mere fact that a procedure appears to comply it does not go into much greater depth nor does it with the specifc minimum standards enshrined give more than passing consideration to the impli‐ in Article 6 does not necessarily mean that the cations of the broader picture. procedure satisfes the standards of a fair trial. Jackson and Doran conclude that the Diplock Unfortunately, Judge Without Jury bypasses this courts are a realistic solution given Northern Ire‐ issue with scarcely a mention. Likewise, the au‐ land's long-standing and intractable Troubles, ar‐ thors largely bypass consideration of the implica‐ guing that despite the absence of a jury, the tions of certain other aspects of Diplock trials, in‐ Diplock system attempts to provide defendants cluding coerced confessions, "supergrass" testimo‐ with a fair and impartial forum by providing ad‐ ny, and anonymous witnesses. The authors' fence- ditional procedural safeguards, such as the re‐ straddling approach to the suitability of the sin‐ quirement for written opinions, and the provision gle-judge format to the adversarial process makes of appeals as of right, to compensate for the ab‐ Judge Without Jury less valuable than it might sence of the jury. At the same time, they point out otherwise have been. that at least on the basis of judicial questioning, Judge Without Jury would also have beneft‐ judges are more inclined to be interventionist in ted from a more searching look at the history of Diplock trials. This of course raises the question the Crown's failed use of police-state "emergency" whether this trend is a matter for concern, but tactics in other contexts such as the 1952 Kenya Judge Without Jury largely leaves such questions emergency following the Mau Mau independence unanswered. uprising and the 1945 emergency powers invoked Other authors have tackled these subjects by the British High Commissioner in Palestine. A with greater forthrightness. For example, Kevin comparison of the situations that led to these sus‐ Boyle noted in 1982 that: pensions of civil rights with the situation in Ulster [T]he elimination of the jury ... led to ... an in‐ and an analysis of the long term efects would crease in the extent to which the judges them‐ also have improved the analysis. selves sought to take a direct role in the elucida‐ Professors Doran and Jackson, along with tion of the truth by questioning witnesses and Professor Michael L. Seigel, have published many counsel. The overall efect was ... to emphasize the of these observations and conclusions in their ar‐ extent to which the trial process had become a ticle "Rethinking Adversariness in Nonjury Crimi‐ "closed-shop" in the hands of a small group of pro‐ nal Trials," 23 Am. J. Crim. L. 1 (1995) and in John fessional lawyers.[3] D. Jackson & Sean Doran "Conventional Trials In Judge Without Jury tends to validate Boyle's Unconventional Times: The Diplock Court Experi‐ view, without adding a great deal to Boyle's obser‐ ence," 4 Crim. L. F. 503 (1995), John D. Jackson & vations. Sean Doran, "Diplock and the Presumption against Jury Trial," 1992 Crim. L. Rev. 755, and Judge Without Jury is crammed with statistics John D. Jackson, "Curtailing the Right of Silence: concerning the frequency, timing, and other fea‐ Lessons from Northern Ireland," 1991 Crim. L. tures of judicial intervention, but gives short Rev. 404. They have also presented a talk on these shrift to the implications raised by the presence of issues at the Society for the Reform of Criminal an inquisitorial judge in an otherwise adversarial Law Conference on "Reform of Evidence Law" in system. For example, the authors noted that de‐ Vancouver, British Columbia, Canada, on August fendants and defense witnesses, especially ex‐ 3-7, 1992. Judge Without Jury goes over much the perts, were the most likely to be questioned in Diplock trials. (The judges questioned only ffty-
3 H-Net Reviews six percent of all prosecution witnesses, com‐ torious "Supergrass" trial in which some two hun‐ pared with 84 percent of defense witnesses.) In dred persons were accused and convicted in a jury trials, by contrast, judges were most likely to mass trial largely on the unsupported word of question victim-witnesses. Perhaps it is unfair to government "supergrass" (snitch) Christopher criticize Judge Without Jury for failing to meet Black is only briefy mentioned as part of the goals that the authors did not seek to achieve. Diplock court's "blackest phase," but is not sub‐ Jackson and Doran made it clear that they wanted jected to signifcant analysis. Presiding over the to study the incidence and substance of judicial Diplock Court that tried the "Black Supergrass" questioning. However, with the fundamental fair‐ case was Basil Kelly, a former Unionist Protestant ness of the traditional adversary system at stake, member of Parliament and former attorney gen‐ Judge Without Jury would have been a great deal eral for the British administration of Northern more valuable had the implications of judicial Ireland, yet the implications of denial of jury trial questioning been given as much attention as their in such a court are largely unexplored. frequency. In a September 13, 1995, article on page It is, of course, important to study the me‐ twelve of The Independent's Finance and Law sec‐ chanics of the decision-making process, but it is tion, headlined "Diplock courts: a model for not clear that this kind of mechanical counting of British justice? Northern Ireland's system of trial occurrences does much to generate a useful look by judge is widely hated," Professors Doran and at a troubling and controversial system. The au‐ Jackson pose the question: thors present their research with some degree of In the changing political climate, modifca‐ objectivity, and their study is perhaps the most tions to the legal process which were efected in thorough overview of this peculiar jurispruden‐ response to the Troubles are being stripped of tial artifact to date. In this sense, Judge Without their original justifcation. As political violence Jury is a useful addition to the literature, but it loses its grip, much rethinking needs to be done falls short of full value as the statistics at times on the entire legal strategy which was developed overwhelm any attempt at analysis. The major to counter its threat. If features of the legal faws in this work are its tendency to repetition process are in line for dismantling in the event of and the authors' seeming inability to take a posi‐ lasting peace, then surely the system of non-jury tion on this highly controversial matter. A table of trial in the form of the Diplock courts must be at cases would have been helpful; the skimpy two- the front of the queue? page index makes it unnecessarily difcult to re‐ In Judge Without Jury, as in their other writ‐ fer to particular issues or to fnd references to ings on this subject, Doran and Jackson equivo‐ particular cases. cate. One can glean from Judge Without Jury that Even more troubling is the omission of some there is a serious danger that the Diplock system of the cases which most demonstrate the problem‐ of criminal justice is weighted against the ac‐ atic nature of Lord Diplock's solution to the "Irish cused, but this larger issue is lost in the minutiae question." Instead of historical and legal analysis, of counting instances of judicial questioning. The Doran and Jackson ofer dry statistics and equivo‐ authors have taken an important, though tenta‐ cal observations. One searches the index in vain tive, beginning step which illustrates the need for for mention of the trials of Bobby Sands, the Birm‐ further systematic study of justice in the Diplock ingham Six, Martin Meehan, and other important courts, but Judge Without Jury ultimately does not cases whose omission renders the presentation fulfll that need. somewhat bloodless and abstract. Indeed, the no‐ Notes:
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[1]. Lewis Carroll, Alice in Wonderland, ch. 3. [2]. John D. Jackson & Sean Doran "Conven‐ tional Trials In Unconventional Times: The Diplock Court Experience," 4 Crim. L. F. (1995), p. 514. [3]. Kevin Boyle, "Human Rights and the Northern Ireland Emergency", in John A. An‐ drews, editor, Human Rights in Criminal Proce‐ dure, Norwell, MA: Kluwer Academic Publishers, 1982, pp. 144, 160. Copyright (c) 1997 by H-Net, all rights re‐ served. This work may be copied for non-proft educational use if proper credit is given to the au‐ thor and the list. For other permission, please con‐ tact [email protected].
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Citation: Virginia E. Hench. Review of Jackson, John; Doran, Sean. Judge Without Jury: Diplock Trials in the Adversary System. H-Law, H-Net Reviews. April, 1997.
URL: https://www.h-net.org/reviews/showrev.php?id=959
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