Notes on Juries



History of the Jury System

Juries have been used in the legal system for over 1000 years. Originally they were used for providing local knowledge and information and acted more as witnesses than decision – makers. By the middle of the 15th Century, juries had become independent assessors and assumed their modern role as deciders of fact.


Independence of the Jury

Bushell’s Case (1670) – jurors refused to convict Quaker activists of unlawful assembly. The trial judge would not accept the ‘not guilty’ verdict and ordered the jurors to resume their deliberations without food or drink. When the jurors persisted in their refusal to convict, the court fined them and committed them to prison until the fines were paid. On appeal, the Court of Common Pleas ordered the release of the jurors holding that jurors could not be punished for their verdict

- This established that the jury were the sole arbiters of fact and the judge could not challenge their decision.

R v McKenna (1960) – in this case the judge at the trial had threatened the jury if they did not return with a verdict within 10 minutes they would be locked up all night. The jury returned with a verdict of guilty but the defendant’s conviction was quashed on appeal because of the judge’s interference. 


Modern Day Use of Juries

Only a small percentage of cases are tried by Jury today.

Juries are used in the following courts: 

Court

Type of Case

Role

Number of Jury

Crown Court

Serious Criminal Cases: e.g. murder, manslaughter, rape

Decide the verdict - Guilty or Not Guilty

12

High Court

Defamation, False Imprisonment, Malicious prosecution and any case alleging fraud

Decide Liability. If fined for the claimant also decide amount of damages.

12

County Court

Defamation, False Imprisonment, Malicious prosecution and any case alleging fraud

Decide Liability. If fined for the claimant also decide amount of damages.

8

Coroners' Court

Deaths: In Prison, In police custody, Through an industrial accident, where health and safety of public is involved

Decide Cause of death

 7 to 11

 
















Juries in criminal cases:

The most important use of juries today is the Crown Court where they decide whether the defendant is guilty or not guilty. Jury trials account for less than 1% of all criminal trials. This is because 97% of criminal trials are dealt with in the Magistrates’ Court and of the cases that go to the Crown Court about 2 out of every 3 defendants plead guilty.

 Juries in civil cases: juries in civil cases are now only used in very limited circumstances but where they are used they have a dual role. They decide whether the claimant has proved his case or not, then, if they decide that the claimant has won the case, the jury also go on to decide the amount of damages that the defendant should pay to the claimant. A jury can be refused if the judge feels the case involves complicated documents or accounts or scientific evidence and is therefore thought to be unsuitable for jury trial.

 

Juries in the Coroners’ Courts: in these courts a jury of between 7 and 11 members may be used to enquire into deaths. Since 1977 a coroner is no longer obliged to summon a jury to decide cases involving road accidents or suspected homicide. He has the discretion as to whether a jury should be used in such cases.


Jury Qualification      

Before the Morris Committee report in 1972 on Jury service you needed a property qualification to be a juror this meant being the owner or tenant of a dwelling. This meant that women and young people were less likely to own or rent property and were prevented from serving on a jury. The qualifications for jury service were widened in the Criminal Justice Act 1972 and were based on the right to vote.

The present qualifications are set out in the Juries Act 1974 so that to qualify for jury service a person must be:

  • Aged between 18 and 70
  • Registered to vote – as a parliamentary or local government elector
  • Resident in the UK, Channel Islands or the Isle of Man for at least 5 years since their Thirteenth birthday 

They must not be:

  • A mentally disordered person, or
  • Disqualified from jury service

Disqualification

Disqualified permanently from jury service are those who at any time have been sentenced to:

  • Imprisonment for life, detention for life or custody for life
  • Detention during Her Majesty’s pleasure or during the pleasure of the Secretary of State
  • To imprisonment for public protection or detention for public protection
  • An extended sentence
  • A term of imprisonment of 5 years or more or a term of detention of 5 years or more.  

Those in the following categories are disqualified for 10 years:

  • At any time in the last 10 years served a sentence of imprisonment
  • At any time in the last 10 years had a suspended sentence passed on them
  • At any time in the last 10 years had a community order or other community sentence passed on them.

Anyone who is currently on bail in criminal proceeding is disqualified from sitting as a juror. If a disqualified person fails to disclose that fact and turns up for jury service, they may be fined up to £5000.

Also disqualified are deaf people due to the fact that a translator would be needed and a 13th person is not allowed in the Jurors room while they make a decision as this is a contempt of court

Excusals

Prior to April 2004 people in certain essential occupations such as doctors and pharmacists had a right to be excused from jury service if they did not want to do it. The Criminal Justice Act 2003 abolished this category. Other people who had the right to excusal were lawyers, judges, police officers etc. They are no longer able to refuse to do jury service but they can apply for discretionary excusal.

Discretionary Excusals

Anyone who has problems which make it very difficult for them to do jury service may ask to be excused or for their period of service to be put back to a later date. The court has discretion to grant such an excusal but will only do so if there is a sufficiently good reason. Such reasons include being too ill to attend or suffering from a disability that makes it impossible for the person to sit as a juror, or being a mother with a small baby. If a person is not excused from jury service they must attend on the date set or they may be fined up to £1000 for non attendance.

At each Crown Court there is an official who is responsible for summonsing enough jurors to try the cases that will be heard in each 2 week period. This official will arrange for names to be selected at random from the electoral registers. This is done through a computer selection at a central office. It is necessary to summon more than 12 jurors as most courts have more than one court room and it will not be known how many of those summonsed are disqualified – or will be excused. In bigger courts up to 150 summonses may be sent out each fortnight

Selecting a jury     

Once the list of potential jurors is known both the prosecution and the defence have the right to see that list. In some cases it may be decided that this pool of potential jurors should be ‘vetted’ – checked for suitability by routine police checks or by a wider check of the juror’s background. Vetting should only be used in exceptional cases involving national security or terrorist cases and vetting can only be carried out with the Attorney-General’s express permission.

Selection at Court

The jurors are usually divided into groups of 15 and allocated to a court. At the start of the trial the court clerk will select 12 out of these 15 at random. If there are not enough jurors to hear all cases scheduled for that day at the court there is a special power to select anyone who is qualified to be a juror from people passing by in the streets or from local offices or businesses. This is called ‘Praying a talesman’. It is very rare but was used at Middlesex Crown Court in January 1992 when about half the jury panel failed to turn up after the New Year’s holiday and there were not sufficient jurors to try the case.

Challenging

Once the court clerk has selected the panel of 12 jurors these jurors come in the jury box to be sworn as jurors. Before the jury is sworn in both the prosecution and defence have certain rights to challenge one or more of the jurors. There are two challenges which can be made and in addition the prosecution have a special right of ‘stand by’

These are – To the array, for cause and prosecution to stand by jurors.

To the array – This right to challenge is given by section 5 of the Juries Act 1974 and it is a challenge to the whole jury on the basis that it has been chosen in an unrepresentative or biased.

Fraser (1987) this was used because the defendant was of an ethnic minority and all the jurors were white. The judge in this case agreed to empanel another jury.

For Cause – involves challenging the right of an individual juror to sit on the jury. To be successful the challenge must point out a valid reason why the juror should not serve on the jury. An obvious reason would be that a juror is disqualified but a challenge for cause can also be made if the juror knows or is related to a witness or defendant.

In R v Wilson and R v Sprason (1995) the wife of a prison officer was summoned for jury service. She had asked to be excused attendance on the ground but this request had not been granted. She served on the jury which convicted the two defendants of robbery. Both defendants had been on remand at Exeter prison where her husband worked. The Court of Appeal said that justice must not only be done, it must be seen to be done and the presence of Mrs Roberts on the jury prevented that so that the convictions had to be quashed.   

Prosecution right to stand by jurors – it allows the juror who has been stood by to be put to the end of the list of potential jurors, so that they will not be used on the jury unless there are not enough jurors. The prosecution does not have to give a reason for ‘standing by’ but the Attorney Generals guidelines issued in 1988 make it clear that this power should be used sparingly.


Criticisms of the selection of juries

           Use of the electoral register does not always give a representative sample of the population. It excludes some people such as the homeless who cannot register to vote. Also not everyone who is eligible registers to vote this is especially true of the young and ethnic minorities. In 1990 the ‘poll tax’ meant people didn’t register to vote because it was too expensive.

-          Multi-racial juries – there is no guarantee that there will be any ethnic minority jurors on a particular case and as decided in R v Ford (1989) there is no power for the judge to empanel a multi-racial jury. Ethnic minorities were severely under-represented on juries.

-          Disqualified jurors - although some checks are carried out many disqualified people fail to disclose this fact and sit on juries.

-          Excusals – if there are too many discretionary excusals it may lead to an unrepresentative jury.

-          Prosecution’s right of ‘stand by’ – the prosecution’s right of stand by was kept even when the defence’s peremptory challenge was withdrawn. This might be seen as giving the prosecution an advantage in ‘rigging’ the jury, particularly when combined with ‘vetting’.


The Jury’s role in criminal cases

  • The judge decides points of law and the jury decides the facts.
  • At the end of the prosecution case the judge has the power to direct the jury to acquit the defendant if he decides that in law the prosecution’s evidence has not made out a case against the defendant. This is called a directed acquittal and occurs in about 10% of cases.
  • If the trial continues the judge will sum up the case at the end, to the jury and direct them on any law involved. The jury retire to a private room and make the decision on the guilt or innocence of the accused in secret.
  • Initially the jury must try to come to a unanimous verdict (they all agree).
  • The judge must accept the jury verdict even if he or she does not agree with it – this long established principle goes back to Bushell’s Case (1670). The jury do not give any reasons for their decision.
  • If after at least 2 hours they cannot reach a unanimous verdict the judge can call them back to the courtroom and direct them that he now accepts a majority verdict. Where there is a full jury of 12 the verdict can be 10-2 or 11-1 for either guilty or not guilty. If there are 11 jurors the verdict can be 10-1, if there are 10 jurors it can be 9-1. If there are only 9 jurors the verdict must be unanimous. A jury cannot go below nine.
  • Where the jury convict a defendant on a majority verdict, the foreman of the jury must announce the numbers both agreeing and disagreeing with the verdict in open court.

Section 8 of the Contempt of Court Act 1981 makes disclosure of anything that happened in the jury room a contempt of court which is a criminal offence. This section was brought in because newspapers were paying jurors large sums of money for ‘their story’.


Advantages of Jury Trial

+ Public confidence - the jury is considered as one of the fundamentals of a democratic society. The right to be tried by one’s peers is a bastion of liberty against the state and has been supported by eminent judges. Lord Devlin said juries are ‘the lamp that shows that freedom lives’. People have confidence in the impartiality and fairness of jury trial.

 

+ Jury Equity – as juries are not legal experts, are not bound to follow the precedent of past cases or even Acts of Parliament, and do not have to give reasons for their verdict it is possible for them to decide cases on their idea of ‘fairness’. This is referred to as jury equity

 

+ Open system of justice – the use of a jury is viewed as making the legal system more open. Justice is seen to be done as members of the public are involved in a key role and the whole process is public. It also helps to keep the law clearer as points have to be explained to the jury.

 

+ Secrecy of the jury room – the jury are free from pressure in their discussion and are protected from outside influences when deciding on the verdict.

 

+ Impartiality – a jury should be impartial as they are not connected to anyone in the case. The process of random selection should result in a cross-section of society and this should also lead to an impartial jury as they will have different prejudices and so should cancel out each others’ biases.

 

+ A jury is not case hardened since they only sit for 2 weeks and are unlikely to try more than three or four cases in that time.


Disadvantages of jury trial

- Perverse decisions – the jury can ignore an unjust law however this type of decision can be seen as perverse and one which was not justified. Juries have refused to convict in other clear-cut cases such as R v Randle and Pottle (1991) where the defendants were charged with helping the spy George Blake to escape from prison. Their prosecution did not occur until 25 years after the escape, when they wrote about what they had done and the jury acquitted them, possibly as a protest over the time lapse between the offence and the prosecution.

- Secrecy – no reasons have to be given for the verdict, so there is no way of knowing if the jury did understand the case and come to the decision for the right reasons

- Racial bias – although jurors have no direct interest in a case, and despite the fact that there are 12 of them, they may still have prejudices which can affect the verdict. Some jurors may be biased against the police

- Media Influence – media coverage may influence jurors. This is especially true in high-profile cases where there has been a lot of publicity about police investigations into a case. Prosecution agencies are aware of problems that media coverage can cause. This was noticeable in 2006 when 5 prostitutes were murdered in Ipswich prior to anyone being charged there was already a lot of media coverage. Once a man was charged with the murders a member of the CPS made a public announcement to the press reminding them that they must be careful in any further coverage of the case.

- Lack of understanding – jurors may not understand the case which they are trying

- Fraud trials have complex accounts being given in evidence and can create special problems for jurors. Even jurors who can easily cope with other evidence may have difficulty understanding a fraud case. These cases are also often very long so that the jurors have to be able to be away from their own work for months and this can place great strain on jurors and are often boring.

- High acquittal rates – juries are criticised because they acquit too many defendants. 60% of those that plead not guilty at the Crown Court are acquitted.

- Jurors may be against the whole system of jury service as it is fairly unpopular.

- Jury service can be a strain especially where jurors have to listen to horrific evidence. Jurors in the Rosemary West case were offered counselling after the trial to help them cope with the evidence they had had to see and hear.

- Jury ‘nobbling’ does occur and in some cases jurors have had to be provided with police protection.

- The use of juries makes trials slow and expensive. Each point has to be explained carefully to the jury and the whole procedure of the case takes longer.


Problems with using juries in civil cases

- Amount of damages – juries in civil cases decide both the liability of the parties in the case and also the amount of damages which will be awarded. The awards vary greatly as each jury has its ideas and does not follow past cases. The amount therefore is totally unpredictable which makes it difficult for lawyers to advice on settlements.

- Unreasoned decision – the jury does not have to give a reason either for its decision or for the amount it awards.

- Bias – In some defamation cases the claimants and/or the defendants may be public figures so that jurors will know and possibly hold views about them. Alternatively there is the fact that the defendant in a defamation case is often a newspaper and jurors may be biased against the press or may feel that ‘they can afford to pay’

- Cost – civil cases are expensive and the use of a jury adds to this as the case is likely to last longer.


Alternatives to trial by jury

1. Trial by single judge:

  • The method of trial in the majority of civil cases which is generally regarded as producing a fairer and more predictable result.
  • Used in Northern Ireland – known as the Diplock Courts and were brought in on the recommendation of Lord Diplock to replace jury trial because of the special problems of threats and jury nobbling that existed between the different sectarian parties.
  • However there appears less public confidence in the use of judges to decide all serious criminal cases because judges may become case hardened and prosecution-minded.

2. A panel of judges

  • Some continental countries try cases using a panel of three or five judges sitting together. This allows for a balance of views instead of the verdict of one person
  • However it still leaves the problems of judges becoming case-hardened and prosecution minded and coming from an elite background.
  • There are not sufficient judges and our system of legal training and appointment would need a radical overhaul to implement this proposal.
  • It would also be expensive

3. A judge plus lay assessors

  • Under this system the judge and two lay assessors would make the decision together.
  • This is used in Scandinavian countries and provides the legal expertise and the lay participation in the legal system by ordinary members of the public
  • The lay people could be drawn from the general public in the same way as selecting juries or a special panel of assessors could be drawn up as in tribunal cases.

4. A mini-jury

  • If the jury is to remain then it might be possible to have a smaller number of jurors.
  • In many continental countries the jury has only 9 members.
  • Alternatively a jury of 6 could be used for less serious criminal cases that at the moment have a full jury trial as occurs in some American States.

Special thanks to Jamie Bartlam for theses excellent notes on the jury system. Also recognition to D. H. Publications for the production design.

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