Court proceedings.

Court proceedings are the most public manifestation of the criminal justice process, the arena in which justice is very literally “seen to be done”. This is especially true of the trial, generally assumed to be the stage in the process where the defendant has his or her day in court and the opportunity to assert innocence. The trial is a vial part of the adversarial system, and as we have seen the right to trial by one’s peers, represented by the jury system, and as we have seen the right to trial by one’s peers, represented by the jury system, is seen as a fundamental protection for the defendant against the power of the state.

A Crown court trial has some of the appearance of a theatrical performance with costumes, ceremony, dramatic settings and seating for audience. These dramatic qualities are also evident in the cross-examination of witness to see who will play their part well, and the speeches of counsel to win the sympathy of the jury. They play out their roles in line with the adversarial principles of the trial. The prosecution and the defence counsel present their arguments before a judge whose role is to ensure a fair trial, and the jury, who must decide on the guilt, or not, of the defendant. The real life drama of the trial lies in its public examination of and formal adjudication upon matters of human weakness and wickedness.

At a more prosaic level, the trial seeks to establish the guilt, or otherwise, of the accused. Whether a trial takes place in the magistrates’ court or the Crown court, the key issues are the same and relate to the principle of the presumption of innocence and the application of the adversarial approach to justice.

In the Crown court, the body charged with determining guilt or not is the jury. Defended by some as the bastion of democracy, castigated by others as unwieldy anachronism that allows miscarriages of justice to take place, the jury has been part of the criminal justice system in one form or another since the twelfth century. Juries are currently composed of 12 men and women drawn from the register of electors for the area in which the trial is to take place. The qualification for jury service is now laid down in the Juries Act 1974. To be eligible for jury service a person must be:

between 18 and 70
ordinarily resident in the UK for at least 5 years since the age of 13
not ineligible
not disqualified

Members of the judiciary and legal profession, the

clergy and the mentally disordered are ineligible. Disqualified categories of persons include anyone who has received a custodial sentence of more than 5 years or a life sentence, those who have been sentenced to probation within the last 5 years, or to community service or imprisonment within the last 10 years. Added to this list of those debarred from jury service under the Criminal Justice And Public Order Act 1994 (CJPOA 1994) are those on police or court bail. Other categories have the right to be excused jury service if they so wish, including the medical profession, armed forces, MPs and those over 65.

Each Crown court Centre summons more jurors than they need for the start of each trial. This group of people form the jury panel from which 12 are selected. Selection is done in the court of trial by the random selection of names. The 12 selected will then try the case unless any of them are challenged by prosecution or defence, or asked to “stand by” for the prosecution. This may be done if a juror is known to someone involved in the case or appears unable to understand the proceedings by virtue of mental disability or language difficulties. Jurors who may be biased can challenge also, but as there is no normal power of jury vetting, by either side, it is unlikely that prejudices would be known. There is no power to create specifically a racial or gender balance, or indeed imbalance, on a jury other than by the random selection process itself. There is a limited power of jury checking in cases involving national security, terrorism, or where there is reason to believe that disqualified persons are present on the panel.

Once jurors have been called and not challenged, they take the jury oath and a place in the jury box. The complete jury is then charged with returning a verdict on the charge or charges in the indictment. A jury of course only requires when the defendant pleads not guilty, so a plea is taken before the empanelling of the jury. Once the jury is sworn in, the trial can begin. The randomness of the jury selection process is often fiercely defended as its greatest strength. In principle, this ensures that no one grouping of opinion can dominate the ...

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In the criminal trial, the function of the jury is to determine the fact – whether the defendant is guilty of the charge on the basis of evidence. The jury will be told by the judge that it is their duty to seek to arrive at a unanimous verdict. Majority verdicts have been possible since 1967, but are only acceptable when the jury have been deliberating for a long period and have been directed by the judge that a majority verdict is acceptable. The judge will stress however, that though prepared to accept a majority view, the jurors should still strive to achieve unanimity. When a majority verdict of quality is accepted, the foreman is asked to announce the number comprising the majority and to announce the number comprising the majority and minority. When the verdict is not guilty, no information is sought about the distribution of views among the jury.

In England and Wales if at least 10 of the jury are unable to agree and there seems no prospect of agreement the judge will discharge the jury from giving a verdict. If the defendant has been convicted on other matters, the charge may be allowed to lie on the file or the prosecution may decide not to proceed. Normally, however, the defendant will be retired at a later date by a different jury. The judge may or may not be the same.

Proceedings within the jury room are privileged. Jurors are forbidden to discuss the case or their deliberation with anyone else, for fear of distorting the trial process. If they do, they may be charged as being in contempt of court. The Royal Commission on Criminal Justice 1993 has, however, recommended that the Contempt of Court Act 1981 be amended so that properly authorised research can be carried out into the way juries reach their verdicts. The secrecy of jury deliberations also has the result that alleged irregularities in the jury’s discussions cannot be a ground for appeal. Misconduct by the jury or a jury member outside the confines of the jury room can, however, be a ground for appeal. If the problem is discovered during trial, it can be a reason for the judge to discharge the juror or the whole jury.

The use of juries has been a subject of conflicting views among lawyers, politicians and the public at large. The arguments in favour of the jury involve fundamental principles developed over the centuries. The right to a trial by jury involves the concept of being tried by one’s peers. It is therefore essential to this principle that jury members be chosen from a random selection of a population. In this way, lay members of the public are involved in justice. Fears of oppressive laws and governments also underlie the argument that juries can effect the law itself. In so-called ‘equity’ verdicts juries have acquitted on the grounds that they do not think the law is right even where the accused has quite clearly committed the act. This was apparently the situation in 1986 when Clive Ponting was prosecuted under the Official Secrets Act and acquitted by the jury despite a clear directive by the judge that he had no defence. Jurors may not wish to see the defendant receive a harsher punishment than they feel is deserved – juries during the 1950’s, for example, often acquitted by the jury despite a clear directive by the judge that he had no defence. Jurors may not wish to see the defendant receive a harsher punishment than they feel is deserved – juries during the 1950’s for example, often acquitted drivers accused of manslaughter. Because of this, a new offence of causing death by reckless or dangerous driving was introduced in 1956. On the other hand, juries are costly largely because they slow down the process of justice.

In a complex society, ensuring trial by random sample of one’s peers can also raise difficult issues. Should minority groups, for example, be able to ensure that a sample of their group is on the jury? Seeking, as some have argued, a racially balanced jury, necessarily militates against randomness. It is often suggested that juries, especially in cases involving racial incident, should be racially balanced, or that trial of rape or other sexual offences should be equally composed of men and women, or even has a predominance of women. It is difficult to reconcile these views with the principles of due process – that all defendants should be tried in the same way – or with the existence of the jury at all. To seek a specially composed jury for certain cases suggests that the ordinary random jury is not able to perform its task in the required way. If that is the case, then surely the whole jury system should be reformed, and not merely in certain cases. Another problem is that some crimes have become more complex – especially frauds, where trials are lengthy and the ability of the jury to follow often complex financial evidence have been questioned. Yet frauds inevitably involve complex issues and judges themselves are not financially qualified. There is a danger that the jury has become a scapegoat for other failings in the prosecution of serious frauds.

Other arguments are extremely difficult to assess, particularly in relation to whether or not juries are likely to be swayed by eloquent arguments and produce ‘perverse’ verdicts. As no research on real life juries has been permitted it is difficult to produce firm evidence. The only research possible has been with either mock or shadow juries. The former consisted of a jury randomly chosen from the public who watched the films of trial. Shadow juries watch the trial as a real jury and proceed to act as a jury. In general, these studies found that juries did proceed in a rational manner, rarely disagreed over verdicts and that shadow juries tended to agree with the real jury. (McCabe 1988). It can readily be objected that these juries were not dealing with real life cases and were knowingly participating in a research activity – both of which might affect their discussion.

Another method is to question participants in the trial about how they viewed the verdict. Here, a slightly different picture emerges. Baldwin and McConville (1979) found that out of 114 acquittals, judges expressed satisfaction in 70 and dissatisfaction in 41 cases. In many of the latter there appeared to be some reasonable explanation of the result, such as a weakness in the prosecution cases. It is normally the trial judge who criticises the jury for being perverse and yet one of the main arguments for the jury is that they are there to counterbalance the judge. Thus, there can never be a perverse acquittal? Lord Devlin argued that “perversity is just a lawyer’s word for a jury which applies its own standards instead of those recommended by lawyers” (Blackstone Lecture 1978 cited in Harman and Griffith 1979)

The approach to jury composition in England and Wales is in stark contrast with that in the U.S, where jury selection and challenging potential jurors is a recognised and extensive part of the pre-trial process, especially in cases with emotive issues, as was seen in the trials of O.J Simpson and Louise Woodward.

The trial of nanny Louise Woodward in 1997 in Massachusetts for the murder of Matthew Eappen a baby in her care occasioned much debate about the value of juries. The U.S system has significant differences in such matters as jury selection, access to jurors, the roles of participants and culture of the courts, which is illustrated by the amount of access to the courtroom of the media during a trial. Nevertheless, much of the press discussion focused on factor that, though possibly extraneous to the court decision, might have affected the juror’s minds, and are equally applicable in British courts.

But if juries are meant to reflect the lay person’s view in the all-formal proceedings in courts. The recent case involving Tony Martin, a home owner who had shot and killed two burglars who had broken into his home. Mr.Martin was convicted because his claim of self-defence was quashed by the jury. However, his conviction had resulted in a widespread outcry of injustice. Many members of the public and important governmental figures had their shares of misgivings in the decision. The most famous opposition came from the Conservative leader, Mr.William Hague who said that Mr.Martin was only “defending his home against burglars” and went on to say “I understand the outcry and share it”. Mr.David Aaronovitch of “The Independent” in his article in the Friday Review titled “What Hague Just Cannot Bring Himself to Say” had a very good question to ask; He says that we all sometimes wish to surf the popular wave. But, he says, with 99.9 per cent of the population believing that Martin was wrongly convicted, and if Tony martin were to be not guilty of murder, then would it actually be possible - under English Law - to murder a burglar? Or a poacher? Or a trespasser? Or anyone else, about whom a householder could say, "I was scared and I didn't actually mean to kill"?

However, fifteen years ago, in a celebrated case, a jury learnt how nervous a householder in a secluded mansion in Kent had heard noises in his garden. When he went to see what was going on, he came face to face with an intruder - a man who had no right to be there. There was a struggle and the intruder was killed. But the jury, considering the evidence accepted his account of how he had been frightened for his life - despite the fact that he had been armed and the intruder had not - and acquitted him on the grounds of self-defence.

The mansion in question was a big mock-Tudor affair set in 20 acres of land near West Kingsdown. The intruder was a highly respected undercover detective called John Fordham and he was there because the police suspected that the mansion's owner had been involved in the Brinks-Mat bullion robbery. The owner stabbed John Fordham to death. His name was Kenneth Noye. The jury let him go.

Kenneth Noye was recently imprisoned, convicted of murder after being found guilty of killing a man in a road rage incident on the M25 motorway.

The uncertainty of the jury in their way of thinking would most ultimately result in the uncertainty of laws as well.

Some have advocated the abolition of the jury; replacing the jury with lay accessors or allowing the judge to decide not only on the law, but also on guilt and innocence. Others fear the power which would be placed in the Royal Commission on Criminal Justice (Lord Runciman 1993) did not recommend the abolition of juries but recommended that the law be amended in order that the matter could be fully assessed.