Tinkering with our legal traditions

Historically, justice has been served by the double jeopardy principle even though there will always be rare examples where it may have worked in a defendant’s favour. We don’t condone that, but criminal lawyers say we should not rush into reforms unless they are carefully thought out.

The same cautions should also apply to recent calls to give jurors powers to make sentencing recommendations to trial judges.

The idea of giving jurors greater say in sentencing arose last year when NSW Supreme Court Chief Justice James Spigelman advocated the idea as a way to restore public confidence in the judiciary system, following complaints about lenient sentences.

The NSW State Government is now studying a report it commissioned into a reform of the NSW legal system. If adopted it would give juries power to consult with judges over appropriate sentences, give direction to the courts, and be responsible for determining verdicts.

While Queensland Attorney-General Linda Lavarch has said it is too early to speculate on the idea being used here, Opposition Leader Lawrence Springborg said he favoured the move.

In my view the plan is highly risky and cuts to the core of a basic tenet of justice - judges should be the ones who impose sentences alone.

Penalties and sentences are laid down in government legislation and only judges are qualified to interpret the complexities of this law. It is unfair to judges if jurors have input into those decisions. Nor is it fair to jurors.

Juries play an important role in the justice system but jurors are not legal experts. They are there solely to decide if a person is guilty beyond reasonable doubt. It would not serve the best interests of justice if sentencing was in any way influenced by people whose knowledge of the justice system was limited to watching crime shows on TV.

Jury service can be stressful to jurors. Involving jurors beyond their present role would only add more stress to their duties. Inevitably, having jurors influence a judge’s sentencing decision would also lead to more appeals.

It is worrying that vote-catching issues such as jury powers and eliminating the traditional double jeopardy rule are being pushed as political strategies.

Our justice system is based on hundreds of years of practice, but it is still vulnerable when you get politicians crusading on a “get tough on crime” bandwagon.

Juries have a specific role to play in trials, that of determining guilt or innocence. Judges and magistrates have to interpret complex legislation in deciding on a sentence, and they should not be pressured by people who are not experienced in interpreting the sentencing laws.

Giving jurors such powers would also play havoc with jury deliberations. You could expect juries to be strongly divided if jurors were also expected to help decide a sentence. Rather than improve justice, this idea would hobble it and be guaranteed to generate more appeals against sentence.

Giving juries a say in sentencing is not the way to go. Judges alone must determine the sentence. Similarly the double jeopardy principle has been with us for a very long time and in general it works well. Neither of these traditions needs change.