Don’t disturb the Jury!
S8 prevents any investigation into events which might have occurred within the jury’s retiring room. In the absence of effective research into the reasoning process behind jury verdicts, it is difficult to gauge with any certainty the extent to which the average juror is capable of understanding and applying sometimes complex legal principles.
The principle that jurors can never be impugned for their verdict has existed for hundreds of years. In Bushell’s Case 1670 a jury had been fined for returning a verdict deemed to be contrary to the evidence. Bushell refused to pay and was committed to prison. He applied for habeas corpus and it was held by the Chief Justice Vaughan that both the fine and the committal were unlawful. Jurors bring to their consideration of the evidence their own unique judgement and knowledge, and consequently a judge can never be in a position to conclude that their verdict was against the evidence.
Tension between Judge’s Legal direction and Juror’s Lay Decision
In Ponting 1985, the trial judge directed the jury that the defendant’s defence had no legal foundation, yet the jury went on to acquit the defendant. In other widely reported cases, jurors have acquitted defendants who, according to strict legal principles have no defence, seemingly for non-legal reasons. Stephen Owen was acquitted when he shot at the lorry driver who had killed his child, presumably because of jury sympathy. In September 2000, a number of Green peace activities who had damaged a field of genetically modified wheat were acquitted by a jury despite a direction from the trial judge in the following terms: “It is not about whether GM crops are a good thing for the environment or a bad thing. It is for you to listen to the evidence and reach honest conclusions as to the facts.” The jury appears to have ignored that clear direction.
Is Jury always correct?
In one case, the Court of Appeal was able to intervene to quash a clearly unacceptable jury verdict, reached following a conversation with the deceased victim by means of an ouija board. In Young 1995 the Court of Appeal was able to intervene because the offensive part of the jury’s deliberation had taken place at a hotel rather than in the jury retiring room.
In Tharakan 1995 it was held that it was important for discussions to take place only in the presence of all 12 jurors, and on that basis the appeal was allowed.
Should the Judge intervene the Jury?
S8 Contempt of Court Act 1981 restricts the investigations that can be conducted by judges into alleged misconduct within the jury retiring room, but if judges were allowed to investigate the manner in which a verdict was reached, different problems would be created. Jurors who reluctantly went along with the views of the majority would have the opportunity to belatedly reopen the case by alleging impropriety, and convicted defendants or their lawyers might be tempted to pressurize jurors in an attempt to identify possible improprieties on which to base an appeal.
Is the Jury professional enough to maintain Justice?
The issue of jury bias was considered by the European Court of Human Rights in the case of Sander v United Kingdom 2001. The applicant had been convicted by a jury which, he argued, had demonstrated racial bias. His application was based upon breach of Article 6 European Court of Human Rights, the right to a fair trial. During the course of the trial a sealed letter was sent to the judge by a juror expressing concern that 2 fellow jurors had been overheard telling racist jokes. The applicant and his co-accused were both Asian. The trial judge invited the jurors to examine their consciences overnight. The following morning he received 2 letters, one of which was signed by all members of the jury strenuously refuting any suggestion of racial bias, and the second from one member of the jury apologizing for earlier comments which might well have been overheard, and declaring that he was not racially biased. The judge decided not to discharge the jury, which eventually convicted the applicant and acquitted his co-accused. It was held by the European Court of Human Rights that the trial judge had not taken sufficient steps to remove doubts as to the jury’s impartiality.
An appeal against conviction based on Article 6 European Court of Human Rights was dismissed by the Court of Appeal in Smith (Lance Percival) 2003. The grounds of appeal were that the evidence of the black defendant conflicted with that of the white witness, and that all the jurors were white. It was held that since the offence arose from the common event of violence outside a nightclub, the jury was capable of trying the issues fairly and impartially.
Considerable reservations exist as to the ability of juries to deal with prosecutions involving complicated allegations of fraud. “Special juries” made up of persons experienced in dealing with commercial or financial matters were abolished by s18 Juries Act 1949. In more recent times, the emphasis has been on providing for pre-trial hearings before a judge to identify the contentious issues in complicated cases, in equipping courts with new technology to make the visual display of documents on video screens a possibility, and permitting the use of glossaries and the reception of complex or technical evidence in a simplified form.
How to overcome the shortcoming
The Frauds Trial Committee in 1986 recommended that juries be replaced in serious fraud cases by a fraud trial tribunal comprising a judge sitting with 2 lay assessors. The Committee concluded that long fraud trials are so complex that it is unreasonable to expect lay jurors to cope with such evidence. Lord Auld concurred with those views and CJA 2003 includes provision allowing for trial by judge alone in complex fraud trials.
Once CJA 2003 comes into force, trial by judge alone will be allowed in 3 situations:
- 4. where the defendants requests trial by judge alone, subject to the consent of the court;
- 5. where the case involves complex or lengthy financial or commercial arrangements;
- 6. where there is a serious risk of jury tampering.
These planned restrictions of trial by jury have met with some opposition. The Fawcett Society is concerned about the possibility of a single judge handling rape cases without a jury on the ground that most judges are male and white and not, therefore, representative of society. The JUSTICE organization claims that abolition of trial by jury in serious fraud cases will lead to a two-tier system, and that will have the effect of undermining public confidence.
Despite the provisions of CJA 2003 we are unlikely, in reality, to see trials by judge alone in cases where there is a potential for jury tampering. The Government has agreed not to implement this part of the legislation for the time being, pending consultation on a range of alternative proposals for specialist juries and panels of judges. This measure will not now be implemented without further debate and a vote in both Houses of Parliament.
What is Justice of Peace?
Magistrates, also known as Justice of the Peace, are appointed on behalf of the Queen by the Lord Chancellor to various “commission areas” which approximately correspond to counties. The only qualification for appointment laid down by statute is that the person resides in or within 15 miles of the commission area for which he is appointed.
Magistrates are not paid but may receive expenses and compensation for loss of earnings. This has led to the obvious criticism that certain types of individuals, who can ill afford time away from their businesses, may be under-represented on the bench.
Who can be Lay Magistrate?
There is no requirement for lay magistrates to have any legal qualifications. Despite the non-legal background of lay Magistrates, various kinds of trainings are provided in order to supplement this shortcoming.
On being accepted onto the bench, however, magistrates undertake a training process, under the auspices of the JSB. Magistrates are required to attend training courses, with a special emphasis being placed on Equal Treatment Training. The way in which the training programme seeks to overcome conceptions as to the politically narrow nature of the magistracy is evident in the content of the extensive training materials produced for the magistrates.
Historically, the training of magistrates was organized locally by Magistrates’ Courts Committees and justices’ clerks, and the quality and extent of training was variable. Since 1998, newly appointed magistrates have been required to undergo more formal training, which was developed by the Judicial Studies Board and requires competence in understanding and applying basic law and procedure, thinking and acting judicially, and working effectively as a team member. Each magistrate is assigned a mentor and his performance is assessed by a trained appraiser. Training includes sentencing role-play and participation in visits to prisons and young offender institutions. Further training is required every 3 years, and those magistrates who wish to take part in Youth Court or Family Court proceedings must undergo specialist training. Attendance on special training courses relating to major new legislation such as the Human Rights Act 1998 and the Youth Justice and Criminal Evidence Act 1999 is also required.
Research jointly commissioned by the Lord Chancellor’s Department and the Home Office into the work of lay magistrates and District Judges were published in early 2001 and has produced some interesting findings. The lay magistracy is gender balanced and ethnically representative of the population at a national level, although magistrates are drawn overwhelmingly from professional and managerial classes, and a high proportion (twofifths) have retired from full-time employment.
Are the Magistrates doing a good job?
Overall the research concludes that both lay magistrates and District Judges fulfil a useful role within the criminal justice system and should be retained. At the same time, there is no reason why the balance of contributions of each type of magistrate could not be altered without prejudicing the integrity of a system which is based upon strong tradition.
The Auld Review of Criminal Courts 2001 proposed that magistrates should decide where the defendant is to be tried. As a compromise the Criminal Justice Bill 2002 increased magistrates’ sentencing power so that fewer cases need go to the Crown Court.
Magistrates’ Proposed Future
In January 2001, a report entitled Community Justice by Professor Andrew Sanders for the Institute for Public Policy Research called for the replacement of panels of lay justices by panels composed of District Judges, the former stipendiary magistrates, assisted by 2 lay magistrates. According to Professor Sanders: “These proposals would increase public confidence, and they would enhance the contribution ordinary members of the public make to our justice system.”
The value of Justice of Peace’s Lay Decision
The Magistrates’ Association took a rather different view and saw the proposals as an attack on what was already an extremely representative system of justice. According to the chairman, Harry Mawdsley, the proposed scheme would cost around £30 million annually in salaries alone, but apart from costs:
Lay magistrates provide community justice: they are ordinary people who live and work in the local community and who have an intimate knowledge of that community.
