Juries? It's time they went the way of the ducking stool

British judges and barristers
British lawyers and judges. 'Barristers love juries because it beats office work and they get to dress up.' Photograph: Toby Melville/Reuters

Can we declare the emperor naked at last? Is it possible that the exasperation of Mr Justice Sweeney with the Vicky Pryce jury might take us where home secretaries, human dignity, common sense and the 21st century have together not dared to tread?

Some aspects of the British way of life are immune to reason. If you want a cheap cheer on Any Questions?, refer reverentially to the Queen, the NHS, our brave boys at the front or trial by jury. The audience goes berserk. No criticism of these institutions is allowed.

Trial by jury is a hangover from days when England was ruled by manorial courts and vestrymen, by impressed constables, "pricked militias" and compulsory dog-catching was the order of the day. Juries were an advance on lynching and trial by combat, ordeal and torture, but only just. Mark Twain thought them "the most ingenious and infallible agency for defeating justice that human wisdom could have devised" – although he failed to mention the revenue they bring lawyers.

I have been a juror three times and a foreman once. The expense, the casual time-wasting and procedural nonsense might have some purpose if it offered swift and certain justice. In reality, we were judges round a boxing ring, trying to work out which barrister had scored most points off the other, with regular interruptions from the referee. Mostly juries get it right, we are told, but then, mostly, so do magistrates and judges.

In fact, in none of my three cases was justice done. Stupid sums of money were spent confusing or humiliating witnesses, money that should have gone on caring for victims or rehabilitating criminals. I have studied trials in Sweden and Germany and in other countries where justice is nowadays a professional and technical science (and far fewer people go to prison). It was like seeing modern Europe from the standpoint of Shakespearean England.

On Wednesday, Mr Justice Sweeney had to dismiss his jury after what he called its "fundamental deficit in understanding", to wit its asking him lots of deep questions. It asked about the nature of "reasonable doubt", the concept of "burden of proof" and how to define "marital coercion". That jury room would have made a good philosophy seminar.

The judge gave patient and admirable answers, but they were not enough for the jury to decide. Then came the question, "Can a juror come to a verdict based on a reason not presented to the court, and which has no facts or evidence to support it?" Everyone knows juries do that all the time, but the judge could not say that. He had to say no, and that probably blew it.

The last case I "tried" was an attempted murder. The accused was guilty as sin, but the prosecution made a hash of things. The barrister failed to point out facts that were glaringly obvious, then pointed out ones that the judge kept telling us to ignore, mostly for reasons that baffled us. He told us, in terms, to acquit.

One juror had just arrived on a plane from Nigeria. She was magnificently attired, apparently thinking a "summons to the crown court" was something from the Queen. The lady's English was limited, her knowledge of British justice non-existent and her faith in God profound. She was convinced he was guilty, but a couple of taxi drivers wanted to get back to work. When we let the rogue go, she wailed that we had let a killer loose. She was quite right.

Barristers love juries because it beats office work and they get to dress up. For most working people, jury service is a crashing waste of time, although it gives the middle classes a warm feeling of community with the workers, good for dinner party talk. Juries distort facts with performance. They are the apotheosis of competing spin.

Ninety-eight per cent of court cases are now tried by magistrates or judges on their own or with assessors. Of those where the defendant opts for jury trial, 90% are thought to be guilty but hope a good lawyer can get them off. Some 40% of these succeed.

The famed integrity of the court and jury rooms are collapsing before the internet. Cheryl Thomas of University College London's law department finds barristers Googling jurors to discover their weaknesses, and jurors Googling the accused and witnesses to learn background to their cases. Every now and then, one of them is sent to prison for "contempt".

A majority of criminal cases now depend heavily on technical knowledge of DNA evidence or of financial law. Conscientious jurors are bound to research such matters. That is why court houses are full of people gazing at their little screens.

If lawyers do not like this, they had better get used to it. To think they can keep jurors ignorantly dependent on what lawyers tell them in court is archaic. Either jurors are, as lawyers like to claim, the embodiment of wisdom and judgment, in which case they can tell good evidence from bad, or they are dumb, in which case they should not be in court at all. The jury lobby cannot have it both ways, just to sustain a tidy little earner.

The Huhne case is outrageous. It is about points-switching, "a perversion of the course of justice" committed, according to the AA, by 300,000 motorists. People do it all the time. Chris Huhne may have mishandled his switch, but that he should go to prison for doing so is crazy. The wheels of justice have already claimed their pound of bleeding flesh. They have destroyed his career and humiliated his family in public. Have the courts nothing better to do with their apparently limitless resources than stage a soap opera in high places?

There may be a case for putting an occasional civil liberty case to a "citizens' jury", as some countries do with planning or spending decisions. But for ordinary citizens to be pressed into services to supply an audience for a legal parlour game is not sensible. Juries should go the way of ducking stools and vestry duty. If Huhne's misfortune blasts a hole in this archaic ritual, they will at least have performed a public service.

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