Jackson and Sean Doran.
Judge Without Jury: Diplock Trials in the Adversary System.
Oxford Monographs on Criminal Law and Justice. Oxford: Clarendon Press,
1995. xxii + 322 pp. Bibliographical references and index. $69.00 (cloth),
ISBN 0-19-825889-5 .
Virginia E. Hench , William S. Richardson School of Law, University of
I'll Be Judge, I'll Be Jury
Perhaps Lewis Carroll anticipated the creation of the Diplock Courts in the
North of Ireland when he wrote his "Mouse's Tale":
Fury said to a
mouse, That he
met in the
both go to
law: I will
must have a
mouse to the
Cunning old Fury himself might have designed the Diplock Courts, in which to
sit as prosecutor, judge, and jury. Certainly Carroll's satirical doggerel
starkly foreshadowed the lack of procedural safeguards available to a
defendant accused of a serious crime in the courts of Ulster, the subject of
Sean Doran and John Jackson's Judge Without Jury.
juryless "emergency" Diplock courts of Northern Ireland have received scant
scholarly attention, and for that reason, Professors Jackson and Doran's
Judge Without Jury is a useful addition to the literature. This look at
the effect of abolishing the right to jury trial in serious criminal cases
is valuable as far as it goes, and it is one of the first to attempt an
empirical analysis of this peculiar system. Unfortunately, the authors'
handling of the material often disappoints.
Diplock courts, created in 1973 to try serious criminal cases alleged to be
connected with the Irish Troubles, operate with a single judge and no jury.
Since the Diplock Courts were created nearly a quarter-century ago,
approximately one in three serious criminal cases in Ulster has been tried
without benefit of jury, with a conviction rate greatly exceeding that of
"ordinary" (non-Diplock) criminal courts in the same province. The vast
majority of Diplock court convictions result from confessions (the right to
remain silent has also been abolished) and from extensive use of
uncorroborated testimony by government informants, or "supergrasses."
Professors Jackson and Doran, both of Queens University, Belfast, Northern
Ireland, carried out their study by observing twenty-six Diplock and
seventeen jury trials of serious criminal cases in the Belfast Crown Court
during one twelve-month period. Critics had feared that Diplock judges would
become "case-hardened," or biased against the accused. To determine whether
that was occurring, the authors chose to count and classify instances of
"judicial intervention"--that is, instances in which judges interrupted the
proceedings to question witnesses and defendants. Jackson and Doran chose to
study this aspect of the Diplock system because they deemed it to be the
best indicator of whether Diplock courts had in fact shifted from an
adversarial approach to a more inquest-oriented approach. As they note
therefore monitored the number of witnesses questioned in the trials in our
sample, as well as the number of questions judges asked as a proportion of
the time the witness was in the witness box. We also studied the variations
in questioning of the various kinds of witness, prosecution and defense
(accused, victims, experts, and others). A further issue was whether
questioning occurred during the examination-in-chief or cross-examination or
whether it occurred after counsel had finished examining the witness.
Judge Without Jury
is largely a compilation of the results of this statistical study, and the
presentation, at times, becomes a recitation of numbers with scant
discussion of the implications of the statistical findings.
the Diplock Courts themselves, Judge Without Jury cannot be
understood apart from the history of Ireland's "Troubles." On March 24,
1972, Great Britain dissolved the Ulster government, established direct rule
over the North, and appointed a series of "blue ribbon" commissions to
propose changes in the Northern Irish judicial system. Lord Diplock's
commission expressed concerns about possible juror bias and witness
intimidation in the climate of terrorism, and proposed radical "temporary"
changes in criminal procedure, including juryless trials, later enacted in
the Northern Ireland [Emergency Provisions Act 1973, Ch. 53 (England)].
In addition to abolishing the right to jury trial in many serious criminal
cases, the Act authorized "preventive" incarceration without probable cause,
abolished the right to silence, relaxed standards for admission of coerced
confessions, and permitted reliance on the uncorroborated testimony of
so-called "supergrasses" (snitches), and anonymous witnesses who were
allowed to testify from behind screens and whose identities were unknown.
Act also abolished the right to trial by jury for what are known as
"scheduled" offenses, listed in Schedule One of the Act. These include such
crimes as bombing which are normally considered terrorist in nature, along
with many serious criminal offenses (such as murder) that do not necessarily
relate to terrorism. The attorney general has the authority to allow a jury
trial if he believes there is no terrorist involvement, but a defendant
accused of a scheduled offense has no right to insist on a jury trial.
might expect, Professors Jackson and Doran found that "inquisitorial"
questioning (in the form of cross-examination by the judge) occurred almost
exclusively in Diplock trials and not in the "ordinary" criminal trials.
They also found that Diplock judges were far more likely to question
defendants, defense witnesses, and defense experts than were judges in jury
trials. Unfortunately, the authors do not consider in any real depth the
potential implications of this apparent shift in emphasis. Also unanswered
is the question of fairness.
could argue, of course, that having two parallel systems for defendants
charged with essentially similar crimes, based on suspected political
affiliation, is not necessarily unfair so long as the requirements of
Article 6 of the European Convention are honored. The United Kingdom, after
all, does not operate under the Fourteenth Amendment's equal protection
clause. While the right to jury trial is considered an important safeguard
in the common law, dating back at least to 1215 and the Magna Carta, it is
not an international human right. This issue deserves a thorough analysis.
As the European Court has recognized, the mere fact that a procedure appears
to comply with the specific minimum standards enshrined in Article 6 does
not necessarily mean that the procedure satisfies the standards of a fair
trial. Unfortunately, Judge Without Jury bypasses this issue with
scarcely a mention. Likewise, the authors largely bypass consideration of
the implications of certain other aspects of Diplock trials, including
coerced confessions, "supergrass" testimony, and anonymous witnesses. The
authors' fence-straddling approach to the suitability of the single-judge
format to the adversarial process makes Judge Without Jury less
valuable than it might otherwise have been.
Judge Without Jury
would also have benefitted from a more searching look at the history of the
Crown's failed use of police-state "emergency" tactics in other contexts
such as the 1952 Kenya emergency following the Mau Mau independence uprising
and the 1945 emergency powers invoked by the British High Commissioner in
Palestine. A comparison of the situations that led to these suspensions of
civil rights with the situation in Ulster
and an analysis of the long term effects would also have improved the
Professors Doran and Jackson,
along with Professor Michael L. Seigel, have published many of these
observations and conclusions elsewhere.
They have also
presented a talk on these issues at the Society for the Reform of Criminal
Law Conference on "Reform of Evidence Law" in Vancouver, British Columbia, Canada,
on August 3-7, 1992. Judge Without Jury goes over much the same
ground, and while it goes into greater detail, it does not go into much
greater depth nor does it give more than passing consideration to the
implications of the broader picture.
Jackson and Doran conclude that the Diplock courts are a realistic solution
given Northern Ireland's long-standing and intractable Troubles, arguing
that despite the absence of a jury, the Diplock system attempts to provide
defendants with a fair and impartial forum by providing additional
procedural safeguards, such as the requirement for written opinions, and the
provision of appeals as of right, to compensate for the absence of the jury.
At the same time, they point out that at least on the basis of judicial
questioning, judges are more inclined to be interventionist in Diplock
trials. This of course raises the question whether this trend is a matter
for concern, but Judge Without Jury largely leaves such questions
authors have tackled these subjects with greater forthrightness. For
example, Kevin Boyle noted in 1982 that:
elimination of the jury ... led to ... an increase in the extent to which
the judges themselves sought to take a direct role in the elucidation of the
truth by questioning witnesses and counsel. The overall effect was ... to
emphasize the extent to which the trial process had become a "closed-shop"
in the hands of a small group of professional lawyers.
Judge Without Jury
tends to validate Boyle's view, without adding a great deal to Boyle's
Judge Without Jury
is crammed with statistics concerning the frequency, timing, and other
features of judicial intervention, but gives short shrift to the
implications raised by the presence of an inquisitorial judge in an
otherwise adversarial system. For example, the authors noted that defendants
and defense witnesses, especially experts, were the most likely to be
questioned in Diplock trials. (The judges questioned only 56 percent of all
prosecution witnesses, compared with 84 percent of defense witnesses.) In
jury trials, by contrast, judges were most likely to question
victim-witnesses. Perhaps it is unfair to criticize Judge Without Jury
for failing to meet goals that the authors did not seek to achieve. Jackson
and Doran made it clear that they wanted to study the incidence and
substance of judicial questioning. However, with the fundamental fairness of
the traditional adversary system at stake, Judge Without Jury would
have been a great deal more valuable had the implications of judicial
questioning been given as much attention as their frequency.
of course, important to study the mechanics of the decision-making process,
but it is not clear that this kind of mechanical counting of occurrences
does much to generate a useful look at a troubling and controversial system.
The authors present their research with some degree of objectivity, and
their study is perhaps the most thorough overview of this peculiar
jurisprudential artifact to date. In this sense, Judge Without Jury
is a useful addition to the literature, but it falls short of full value as
the statistics at times overwhelm any attempt at analysis. The major flaws
in this work are its tendency to repetition and the authors' seeming
inability to take a position on this highly controversial matter. A table of
cases would have been helpful; the skimpy two-page index makes it
unnecessarily difficult to refer to particular issues or to find references
to particular cases.
more troubling is the omission of some of the cases which most demonstrate
the problematic nature of Lord Diplock's solution to the "Irish question."
Instead of historical and legal analysis, Doran and Jackson offer dry
statistics and equivocal observations. One searches the index in vain for
mention of the trials of Bobby Sands, the Birmingham Six, Martin Meehan, and
other important cases whose omission renders the presentation somewhat
bloodless and abstract. Indeed, the notorious "Supergrass" trial in which
some two hundred persons were accused and convicted in a mass trial largely
on the unsupported word of government "supergrass" (snitch) Christopher
Black is only briefly mentioned as part of the Diplock court's "blackest
phase," but is not subjected to significant analysis. Presiding over the
Diplock Court that tried the "Black Supergrass" case was Basil Kelly, a
former Unionist Protestant member of Parliament and former attorney general
for the British administration of Northern Ireland, yet the implications of
denial of jury trial in such a court are largely unexplored.
September 13, 1995, article on page 12 of The Independent's Finance
and Law section, headlined "Diplock Courts: A Model for British Justice?
Northern Ireland's System of Trial by Judge Is Widely Hated," Professors
Doran and Jackson pose the question:
changing political climate, modifications to the legal process which were
effected in response to the Troubles are being stripped of their original
justification. As political violence loses its grip, much rethinking needs
to be done on the entire legal strategy which was developed to counter its
threat. If features of the legal process are in line for dismantling in the
event of lasting peace, then surely the system of non-jury trial in the form
of the Diplock courts must be at the front of the queue?
Judge Without Jury, as in their other writings on this subject, Doran
and Jackson equivocate. One can glean from Judge Without Jury that
there is a serious danger that the Diplock system of criminal justice is
weighed against the accused, but this larger issue is lost in the minutiae
of counting instances of judicial questioning. The authors have taken an
important, though tentative, beginning step which illustrates the need for
further systematic study of justice in the Diplock courts, but Judge
Without Jury ultimately does not fulfill that need.
in Wonderland, Ch.
. John D.
Jackson & Sean Doran "Conventional Trials In Unconventional Times: The
Diplock Court Experience," 4 Crim. L. F. (1995), p. 514.
article "Rethinking Adversariness in Nonjury Criminal Trials," 23 Am. J.
Crim. L. 1 (1995); and in John D. Jackson & Sean Doran, "Conventional
Trials In Unconventional Times: The Diplock Court Experience," 4 Crim. L.
F. 503 (1995); John D. Jackson & Sean Doran, "Diplock and the
Presumption against Jury Trial," 1992 Crim. L. Rev. 755; and John D.
Jackson, "Curtailing the Right of Silence: Lessons from Northern Ireland,"
1991 Crim. L. Rev. 404.
Boyle, "Human Rights and the Northern Ireland Emergency", in John A.
Andrews, editor, Human Rights in Criminal Procedure, Norwell, MA: Kluwer Academic
Publishers, 1982, pp. 144, 160.
Call Number: KDE550 .J313 1995
Criminal procedure -- Northern Ireland
Jury -- Northern Ireland
Citation: Virginia E. Hench . "Review of John Jackson and Sean Doran, Judge
Without Jury: Diplock Trials in the Adversary System," H-Law, H-Net Reviews,
May, 1997. URL:
“This book provides a systematic comparison of the
process of trial by judge alone, as in the ‘Diplock’ courts in Ireland, with
that of trial by jury… The authors conclude that…it is possible to construct
a just trial without a jury as long as the degree of adversarial protection
accorded to the defendant is preserved.”
Keith P. McCullough, review of Judge Without Jury:
Diplock Trials in the Adversary System, by John Jackson and Sean Doran,
Journal of Criminal Justice 24 (1996): 567-569.