2. Bl. Com., vol. 3, pp. 349-450
Under the Anglo-Saxons3, the inhabitants were divided into the freemen and un-freemen. The great fundamental finding in Anglo-Saxon period was that, in those primitive Anglo-Saxon courts, whole company of freemen were judges. In Anglo-Saxon periods, there was the inquisition by 12 senior thanes (note: a thane was always a man of importance in the Kingdom), who were sworn in the county courts. The 12 thanes were in the nature of a jury of presentment, like the grand jury, and the absolute guilt or innocence of those accused by them had to be determined in subsequent proceedings by compurgation or ordeal.
After the establishment of the early form of jury system in Anglo-Saxon times, the jury has continuously adapted and evolved, and its functions have changed fundamentally over the years. There was remarkable development of jury system after the Norman Conquest in 1066. Henry II was remarkable in his role of development of jury. He had developed the practice of putting a group of local individuals under oath to tell the truth. Henry II had also permitted new writs to be issued for both civil and criminal trials4.
Establishment of Criminal Jury
The jury in criminal cases had firmly been established when Pope Innocent III withdrew the support of the Roman Catholic Church from trial by ordeal of fire and water in 1215. New method of deciding criminal trials was to be developed. British justices therefore adapted a method that was used to determine real estate taxes at the time of William the Conqueror – 12 knights in each county were summoned before an inquest of the King’s justices to give local tax information. After King John signed the Magna Carta in the same year, people were given rights to be tried by 12 free and lawful men of the neighborhood rather than tried by arbitrary judgment of the King5.
Although trial by ordeal of fire and water had been banned, the criminal jurors at the time still faced physical ordeals in carrying out their duties. They were bullied by the judge who locked them up without food or heat until they returned a guilty verdict, and the Star Chamber was known to punish jurors who refused to convict, by seizing their land and possessions.
- see Robert Von Moschzisker, Trial by Jury 1995, para 28 – 38.
-
e.g. the Writ of Novel Disseisin, 1st established in 1166.
- The right of a freeman to the ‘legal judgment of his peers’ is mentioned in Clause 39 of Magna Carta (1215).
Therefore, in 14th century, few supports could be gained from the judges and the jury needed to be self-fed for the information of the case from the trial. As guilty verdicts were always found, the need for trial by jury was unpopular and the publics are reluctant to accept the jury service at that time.
Bushell’s Case6 in 1670 was a significant turning point to the situation, which established the independence of the jury from the judge. In this case, 12 jurors acquitted the Quakers William Penn and William Mead of seditious assembly. Therefore, they were locked up for two nights without food, water, fire, tobacco or chamber-pot. The judge again failed to force them to retract their acquittal verdict and sentenced the jurors to prison until they had paid a fine. Four of the jurors, led by Bushell, refused to pay and challenged their incarceration by a writ of habeas corpus7. The Lord Chief Justice released them and made the landmark decision that a jury had the right to give a verdict according to conscience, and could not be penalized for taking a view of the facts which was at odds with that of the judge. Since then, the jury had complete power over the verdict and was not required to give any explanation or justification8.
Following Bushell’s Case, jury continued to acquit the defendant from their right to exercise judgment according to conscience, even where the law and evidence clearly showed the defendant’s guilt. In late 18th and early 19th century, jury persistently undervalued stolen property in theft cases because they wished the defendant to escape hanging.
Prior to the mid-19th century, jury trial was the only form of trial in the common law courts. Until the early 20th century, trial by jury continued to predominate for civil as well as criminal cases.
- 124 Eng. Rep. 1006 (C.P. 1670).
- Ibid., at 1012.
- The judge may halt a case and direct the jury to acquit where it becomes apparent after the case has started that the prosecution case is inadequate. Judge-directed acquittals are not generally considered to be jury verdicts. See J. Baldwin, ‘Understanding Judge Ordered and Judge Directed Acquittals in the Crown Court’ [1997] Crim. L. Rev. 318.
ROLE AND DEVELOPMENT OF JURY
As a common cognition, the function of the jury is to decide on the matters of fact, and that matters of law are the province of the judge. It may be the ideal case, but most of the time, the verdict decided is based on a consideration of a mixture of facts and law. In fact, the role of early jury is different from that nowadays.
In the Normans period, jurors acted as sources of information on local affairs, i.e. gathering information for the Domesday Book but they gradually came to be used as adjudicators in both civil and criminal disputes in later stage.
Lord Devlin in 1956 expressed the role of jury as a guardian of liberty and democracy:
“Each jury is a little parliament. The jury sense is the parliamentary sense. I cannot see the one dying and the end the other surviving. The fiest object of any tyrant in Whitehall would be to make Parliament utterly subservient to his will; and the next to overthrow or diminish trial by jury, for no tyrant could afford to leave a subject’s freedom in the hands of twelve of his countrymen. So that trial by jury is more than an instrument of justice and more than one wheel of the Constitution: it is the lamp that shows that freedom lives.”9
Nowadays, the oath taken by jurors state that they “will faithfully try the defendant and give a true verdict according to the evidence”. Therefore, a juror being sworn refuses to come to a decision is a contempt of court. In 1997, two women jurors were sentenced to 30 days in prison by Judge Anura Cooray for contempt of court since they had failed to deliver a verdict. The decision to imprison was justify because ordering a re-trial would cost great expense. Judge Cooray ruled that jurors must recognize that they have a responsibility to fulfil their duties in accordance with their oath.
As mentioned above, jurors are the arbiters of fact. However, the facts the jurors have to contend with can be horrific. The contexts of the fact could be pornography, of either a sexual or violent kind, and the jurors would yet receive any counseling when their jury service in that case comes to an end. For example, in a case tried at Leicester Crown Court in relation to two illegal immigrants who, had raised hundreds of thousands of pounds for Al Qa’ida and other radical Islamic organizations, were convicted of various offences under the Terrorism Act 2000 but the jury had been dismissed10.
-
Sir Patrick Devlin, Trial by Jury (1956) 164.
- S Bird, “Jurors too scared to take on case” (2003) The Times, 2 April 2003.
The Jury’s Function in Trials
Judges have the power to direct juries to give acquittal verdict to the accused should there be insufficient evidence in the case. In other words, it is impossible for the jury to find defendants guilty in spite of either absence or insufficiency of the evidence. However, there is no corresponding judicial power to instruct juries to return guilty verdict. In DPP v Stonehouse11, the judge had no hurdle for the judge to sum up in a way making it evident to the jury that there is only one decision that can reasonably be made. A guilty verdict would therefore be perverse.
In R v McKenna12, judge directed the jurors that, after two and a quarter hours deliberating on the issue, if they did not come up with a verdict in the following 10 minutes, they would be locked up for the night. Not surprisingly, the jury returned a guilty verdict. In the words of Cassels J:
“It is a cardinal principle of our criminal law that in considering their verdict, concerning, as it does, the liberty of the subject, a jury shall deliberate in complete freedom, uninfluenced by any promise, unintimidated by any threat. They stand between the Crown and the subject, and they are still one of the main defences of personal liberty. To say to such a tribunal in the course of its deliberations that it must reach a conclusion… is a disservice to the cause of justice…”
As mentioned above, it is the fact that the jury or an individual juror, do not have to justify, explain or even give reasons to the judge for their decisions. Section 8 of the Contempt of Court Act 1981 stipulates that it would be a contempt of court to try to elicit such information from a juror in either a criminal or a civil law case. Attorney General v Associated Newspapers13 illustrated the protection of section 8 of the Contempt of Court Act 1981. In this case, the House of Lords held that it was a contempt of court for a newspaper to publish disclosures by jurors of the events took place in the jury room while they were considering their verdict unless the publication amounted to no more than a re-publication of facts already known.
- [1978] AC 55; [1977] 3 WLR 143.
- [1960] 2 WLR 306.
- [1994] 2 WLR 277
Further, it is the duty of the judges to advise the jury as to the proper understanding and application of the law in consideration. Jury may seek advice from the judge even when it is considering the verdict. In R v Townsend14, it was held that such response from the judge must be given in open court, so as to obviate any allegation of misconduct.
Summing the foregoing factors, jury is in a very strong position to take decisions that are “unjustifiable” in accordance with the law because they do not have to justify or explain the decisions. Thus, jury is able to deliver what can only be described as perverse decisions.
There is a remarkable case of R v Clive Ponting15. Although the judge made clear beyond doubt that the defendant was guilty under the Official Secrets Act 1911, the jury gave an acquittal verdict to Clive Ponting according to conscience. Also, in a similar case of Pat Pottle and Michael Randall, who had openly admitted their part in the escape of the spy George Blake, the jury reached a not guilty verdict in open defiance of the law.
Appeals from decisions of the jury
In criminal law, it is absolute that there can be no appeal against a jury’s decision of acquittal.
Notwithstanding the rule of no appeal against acquittal, the possibility of referring that case from the Attorney General to the Court of Appeal, for seeking advice on the point of law raised, does exist. Section 36 of the Criminal Justice Act 1972 provides such a procedure16.
In civil law cases, the possibility of the jury’s verdict being overturned on appeal does exist, but only in circumstances where the original verdict was perverse17.
- [1982] 1 All ER 509.
- R v Ponting (Clive) [1985] Crim LR 318.
- see Attorney General’s Reference (No 1) (1998) for an example of this procedure.
- N.B. A reasonableness test to the juror.
Majority Verdicts
It is a verdict of a jury reached by a majority. The verdict need not be unanimous if there are no fewer than 11 jurors and 10 of them agree on the verdict or if there are 10 jurors and 9 of them agree on the verdict18. Majority verdict can be taken in both criminal and civil cases.
According to section 17(3) of the Juries Act 1974, the foreman of the jury must state in open court the number of jurors who respectively agreed to and dissented from the majority verdict. There are several cases relating to this issue:
-
In R v Barry19, CA, the conviction of the defendant being overturned because the jury failed to declare the details of the voting split as stipulated in s.17(3).
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In R v Pigg20, the House of Lords held that it was unnecessary to state the number who voted against where the foreman stated the number in favour of the verdict. It was a matter of simple arithmetic.
-
In R v Mendy21, however, the foreman announced the guilty verdict with ambiguous details of the voting split that it was “by the majority of us all”. Thus, the Court of Appeal held that in such a situation, the defendant had to be given the benefit of any doubt and he was therefore discharged.
-
The Court of Appeal adopted a different approach in R v Millward22, in which it accepted the majority verdict of 10 for guilty and two against delivered in the following day of the trial.
Details of the voting to be declared are not required in a majority decision of not guilty.
- Criminal Justice Act 1967.
- [1975] 1 WLR 1190.
- [1983] 1 WLR 6.
- [1992] Crim LR 313.
- [1999] Crim LR 164
Discharge of Jurors or the Jury
If there occur certain irregularities during the trial, the trial judge may discharge the whole jury and summon a different to try the case again. The situation that the defendant’s previous convictions revealed inadvertently during the trial may trigger such decision. Such a disclosure would be prejudicial to the defendant. The trial judge may discharge individual jurors if they are incapable of continuing to act through illness “or for any other reason”23. However, a minimum number of nine jurors must be maintained.
THE DECLINE OF THE JURY TRIAL
There is no doubt that the institution of jury system is an antiquity and there is implicit democratizing effect on the operation of the common law system. Neither, unfortunately, can there be any grounds for denying the diminishment in the role of jury.
Since the mid-20th century, the operation of the jury system has been reduced continuously by many direct attempts. The operating costs, restrictions from legislations and the mechanism of jury system may be the major reasons for the decline in the use of jury.
The Jury in Criminal Trials
Legislations restricted the use of jury in criminal trials. Criminal Act restricts the rights to choose trial by jury in cases of public order offences while the Criminal Justice Act 1988 boosts the trend of summary offences (including but not limited to common assault and battery). Thus, the vast majority of criminal cases are now tried in the magistrates’ courts. From the numerical aspects, the magistrates’ courts deal with 95% of criminal cases nowadays while juries determine the outcome of less than 1% of the total of criminal cases24 (see all the cases that are decided in the Crown Court, 60% of the defendants plead guilty on all counts and therefore have no need of jury trial). Therefore, in both absolute and proportional terms, the jury reduced its significance in taking part in the determination of criminal cases.
- See s.16 of the Juries Act 1974.
- See All the cases that are decided in the Crown Court, 60% of the defendants plead guilty on all counts and therefore have no need of jury trial
Further, according to the Criminal Law Act 1977, criminal offences are grouped into three categories, namely (i) “summary offences”, which are the least serious and are triable only in the magistrates’ courts; (ii) “either way” offences may be tried either in the Crown Court or the magistrates’ courts25; and (iii) “indictable only” are triable only in the Crown Court. As mentioned above, more than 90% of criminal offences are categorized to summary offences and therefore the use of jury trial is limited.
It is also noted that the right to jury trial has been abolished in Northern Ireland since 1973. In response to the problem of the intimidation of jury members, the Report of the Commission to Consider Legal Procedures to Deal with Terrorist Activities in Northern Ireland, headed by Lord Diplock, recommended that cases be decided without juries in particular situations26.
The Jury in Civil Procedures
Prior to 1854, all cases that came before the common law courts were decided by a judge and jury but the frequency of civil jury trials in England steadily declined from the mid-19th century, when judges were given the right to refuse trial by jury. Ward v James27 considered to have been the deathblow to civil juries in personal injury litigation. The Court of Appeal held that such litigation should be heard by a single judge unless there were special considerations. Today, less than 1% of civil trials are jury trials28. According to the County Court Act 1984, civil juries are mostly used in defamation (libel and slander) cases only. However, even in these areas, the continued use of the jury is threatened.
The right to be trial by jury in the forecited areas is not absolute and can be denied by a judge where the case involves “any prolonged examination of documents or accounts or any scientific or local investigation which cannot conveniently be made with a jury”29.
- Magistrates Court Act 1980, s.17.
-
See Slapper & Kelly, The English Legal System, 7th ed., at 525.
- [1966] 1 All QB 273.
-
See C. Elliott and F. Quinn, English Legal System, 2nd ed. 1998, at 138.
-
See the Supreme Court Act 1981, s.69(i). See also Beta Construction Ltd v Channel Four TV Co Ltd [1990] 1 WLR 1042, the court ruled for an indication of the factors should be taken into consideration for the judge to decide whether a case should be decided by a jury or not.
Jury tampering30
It covers a range of circumstances in which the jury’s independence is or may appear to be compromised. Not only could a situation come about because of actual harm or threats of harm to jury members, but also arising from intimidation or bribery of jury members.
Sections 44 and 46 of the Criminal Justice Act 2003 provide for a trial on indictment in the Crown Court to be conducted without a jury where the jury has been discharged because of jury tampering. The court may grant an application under s.44 should it be satisfied with the evidence of a real and present danger that jury tampering would take place. The danger of jury tampering should also be substantial regardless there are steps for prevention. S.44(6) sets out examples of what might constitute evidence of a real and present danger of jury tampering, which include: a case where (i) the trial is a retrial and the jury in the previous trial was discharged because jury tampering had taken place; (ii) jury tampering has taken place in previous criminal proceedings involving the defendant or any of the defendants; (iii) there has been intimidation, or attempted intimidation, of any person who is likely to be a witness in the trial.
Section 46 deals with trials already underway, where jury tampering has or appears to have taken place. In these circumstances, if the judge decides to discharge the jury is satisfied that tampering has occurred, he may order that the trial should continue without a jury if he is satisfied that this would be fair to the defendant. Besides, the judge may order that the retrial should take place without a jury if the judge considers it necessary in the interests of justice to terminate the trial due to tampering.
ASSUMPTIONS ON THE JURY
It is generally accepted that the jury of “12 good men and true” lies at the heart of the common law system. The implicit assumption is that the presence of 12 ordinary lay persons, which are randomly introduced into the trial procedure to be the facts arbiters of the case, strengthens the legitimacy of the legal system. In other words, it is an injection of community values (i.e. lay persons randomly selected) into the formal legal proceeding to promote fair and just trial.
-
See Slapper & Kelly, The English Legal System, 7th ed., at 525.
By introducing such a democratic humanizing element into the abstract impersonal trial process, the exclusive power of the legal professionals, who would otherwise command the legal stage and control the legal procedure without reference to the opinion of the lay majority, would gradually be reduced and the legitimacy of the legal system could be reinforced. According to EP Thompson,
“The English common law rests upon a bargain between the law and the people. The jury box is where the people come into the court; the judge watches them and the jury watches back. A jury is the place where the bargain is struck. A jury attends in judgment not only upon the accused but also upon the justice and humanity of the law.”
Secondly, there is an overriding rule of maintaining confidentiality of jury deliberations, which is supported by the straight liability of contempt of court. Words or acts that scandalized the court or the judge could be a conviction of contempt, even if the scandalizing words or acts occurred outside the courtroom.
In R v Young31, the Court of Appeal ordered the re-trial of the accused was convicted of double murder on the grounds that four of the jurors had attempted to contact the alleged victims using a Ouija board in what was described as a “drunken experiment”. In this case, the second convicted murderer appealed against his conviction on the grounds of irregularities in the manner in which the jury performed its functions, including the jurors clubbed together and spent £150 on drink when they were sent to a hotel after failing to reach a verdict, some of them discussed the case against the express instructions of the judge, and the jury foreman failed to act and to be replaced because of her drunkenness.
There was another remarkable case in December 2000. The trial of the case had been stopped after 10 weeks on the grounds that a female juror was conducting what were referred to as “improper relations” with a male member of the jury protection force that had been allocated to look after the jury during the trial. The estimated cost of the aborted trial was £1.5 million, but it emerged that this was the second time the case had had to be stopped on account of inappropriate behaviour on the part of jury members.
- [1995] 2 WLR 430.
CRITICISMS OF JURY SYSTEM
The ideal thought is that the assumption of such an injection of community value could strengthen the legitimacy in the legal system. Few people have taken this traditional view. There are criticisms against the jury system over the centuries. The major criticisms are that (i) representative power; (ii) fundamentally unfair; (iii) failure to understand the law; and (iv) discrimination.
- Representation power
According to Penny Darbyshire32, she stated that the jury has attracted the most praise and the least theoretical analysis of any component of the criminal justice system. Darbyshire pointed out that juries are far from being either a random or a representative section of the general population. “An anti-democratic, irrational and haphazard legislator, whose erratic and secret decisions run counter to the rule of law” is the phrase she characterized the jury. With regards to the assumption of community value in the jury system, Darbyshire concedes that neither the 20th century laid justices nor the jury are the representative of the community as a whole. She also pointed out that jury equity, by which is meant the way in which the jury ignores the law in pursuit of justice, is a double-edged sword which may also convict the innocent33.
Further, many scholars doubt the value of the jury trial because most of the criminal offences are tried in magistrates’ court. According to Darbyshire’s view, “the jury trial is primarily ideological” and that “its symbolic significance is magnified beyond its practical significance by the media, as well as academics, thus unwittingly misleading the public”. Comparing between juries and the summary procedure of the magistrates’ courts, Darbyshire expressed that the jury does not perform any better than the magistrates’ courts and therefore it is immaterial that the magistrates deal with the bulk of cases.
- Fundamentally unfair
Critics always question the fairness of the jury selection since it is only affordable for the wealthy ones although it is the idea to select jury “at random from a fair cross-section of the community”.
- See Article in the Criminal Law Review [1991] Crim LR 740 against the jury system.
-
c.f. Clive Ponting case (supra note 15) with the series of miscarriages of justice relating to suspected terrorists in which juroes were also involved.
- Failure to understand the law
Since the jurors are randomly selected from various discipline of the community, most of them are unfamiliar with the law and its logic. Therefore, they usually need to spend considerable amount of time during deliberations to understand the law before applying into the case. Failure to understand the law and the legal instruction given by the judge, an unreasonable or even ridiculous verdict may be resulted. According to research by Runciman Commission, however, only less than 10% of jurors admitted that they faced difficulties in understanding the law.
- Discrimination
Some jurors may be biased, for example, biased against the police or racially prejudiced. Again, this will cause jury disqualification and unfair verdicts. (See R v Gregory)
CONCLUSION
Despite the fact that trial by jury has been diminishing in the recent years, the jury still lies at the heart of the common law system. It injects community values to the legal process and it provides an opportunity for public to directly involve into the judiciary of the country. Besides, the trial by jury is vigorously defended as an ancient right and a guardian of liberty and democracy. This ancient mechanism strengthens legitimacy of the common law system over the century, and its institution received many criticisms as well.
Having conducted the research on this paper, I deemed that it is time to consider its prospects for the future in order to retain its vulnerable role in the common law system. Reform of jury is certainly one of the major focuses of England. As seen from Criminal Justice Act 2003, there are significant changes in the role and place of juries in the criminal system, but it did so without addressing the contentious issue of either way offences. Lots of reviews and discussions have been conducted over these few years. I am sure the evolution of the jury system will continue.
BIBLIOGRAPHY
Textbooks/Journal Articles
- Article in the Criminal Law Review [1991] Crim LR 740.
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C. Elliot and F. Quinn, English Legal System, 2nd ed. 1998.
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Frank W. Miller et al., Cases and Materials on Criminal Justice Administration, 3rd ed. 1986.
-
J. Baldwin, ‘Understanding Judge Ordered and Judge Directed Acquittals in the Crown Court’ [1997] Crim. L. Rev. 536.
-
Jacqueline Martin, The English Legal System, 4th ed.
- Lord Chancellor's Department, “Reducing the trials of jury service”, 31 August 2000.
- Robert Verkaik, “Judge dismisses jury over fears of racial prejudice”, 16 October 2000.
-
Robert Von Moschzisker, Trial by Jury, 1995.
- S Bird, “Jurors too scared to take on case” (2003) The Times, 2 April 2003.
-
S. H. Bailey and M. J. Gunn, Smith & Bailey on the Modern English Legal System, 3rd ed. 1996.
- Sally Lloyd-Bostock and Cheryl Thomas, “The Continuing Decline of the English Jury”.
-
Slapper & Kelly, The English Legal System, 7th ed.
Cases
- Attorney General v Associated Newspapers [1994] 2 WLR 277
- Bushell’s Case 124 Eng. Rep. 1006 (C.P. 1670)
- DPP v Stonehouse [1978] AC 55; [1977] 3 WLR 143
- R v Barry [1975] 1 WLR 1190
- R v McKenna [1960] 2 WLR 306
- R v Mendy [1992] Crim LR 313
- R v Millward [1999] Crim LR 164
- R v Pigg [1983] 1 WLR 6
- R v Ponting (Clive) [1985] Crim LR 318
- R v Townsend [1982] 1 All ER 509
- R v Young [1995] 2 WLR 430
- Ward v James [1966] 1 All QB 273
Legislation
- Contempt of Court Act 1981
- County Court Act 1984
- Criminal Justice Act 1967, 1972, 1988, 2003
- Criminal Law Act 1977
- Juries Act 1974
- Magistrates Court Act 1980
- Official Secrets Act 1911
- Supreme Court Act 1981
- Terrorism Act 2000