A typical jury today is likely to be much younger, have a closer ratio of men to women and have more working-class members than one 10 years ago. Some lawyers take the view that the lower age limit should be 25 years.
INTELLIGENCE
Juries are also criticised on the basis that their level of comprehension of cases, and perhaps their level of intelligence, are too low. The Frauds Trial Committee, chaired by Lord Roskill, recommended that juries should be abolished in complex fraud trials to be replaced by a panel of accountants and tax experts, but this was not taken up by the then government. In 1998, the present government in its 1998 consultation paper suggested abolishing juries in fraud trials replacing them with a specially trained judge and 2 lay people with expertise in commercial matters or a panel of judges but such proposals have not yet been implemented.
The jury for a particular case is chosen by random ballot in open court and the 12 are sworn in.
The juror must promise, “I will faithfully try the several issues joined between our sovereign lady the Queen and the prisoner at the Bar, and give a true verdict according to the evidence”.
In 1997, a judge sentenced two women jurors to 30 days in prison for contempt of court for their failure to deliver a verdict. One of the women claimed that the case, involving an allegation of fraud, had been too complicated to understand and the other said she could not ethically judge anyone.
The judge said “I had to order a re-trial at very great expense. Jurors must recognise that they have a responsibility to fulfil their duties in accordance with their oath”.
Following a public outcry their sentence was overturned and the two women spent only one night in jail.
RACIAL BALANCE
The Commission for Racial Equality argue that consideration needs to be given to the racial balance in particular cases, i.e. the judge should have power to ensure that a percentage of the jury should come from the same ethnic minority of the defendant or victim. The Review of the Criminal Courts (2001) endorsed this proposal but it has not been implemented.
The problems caused by lack of racial representation on juries can be seen in the Rodney King case in America, where a policeman was found not guilty of assaulting a black motorist despite a video tape of the incident showing brutal conduct. The case was tried in an area with a very high white population, while the incident occurred in an area with a high black population.
However the decision in R v FORD [1989] that there is no principle that a jury should be racially balanced still holds.
THE VERDICT
The jury then sits to hear the trial. The judge, at the end of his summing-up, emphasises that the jury must try to reach a unanimous verdict. If they find they cannot reach a 12-0 or 11-1, the judge may accept a majority verdict. How long a judge will wait before telling them about the majority verdict depends on the complexity of the case, but it must not be less than 2 hours. The foreman of the jury must state in open court the numbers of the jurors agreeing and disagreeing with the verdict. Majority verdicts were introduced to stop jury nobbling (i.e. one juror being bribed or threatened to return a not guilty verdict).
In October 1994, the Court of Appeal ordered the re-trial of a man convicted of double murder on the grounds that four of the jurors had attempted to contact the murder victims using an Ouija board as a “drunken experiment”.
NO REASONS GIVEN FOR VERDICT
Juries do not have to justify, explain or give reasons for their decision. Under the Contempt of Court Act 1981, it is contempt of court to try to obtain information from a juror about the verdict. These factors place the jury in a very strong position to take decisions that are “unjustifiable” in accordance with the law. Juries have, therefore, sometimes delivered perverse decisions.
In R v CLIVE PONTING [1985], the defendant was a civil servant, was prosecuted after passing confidential information to a journalist which showed that the government of the time had lied. The judge made clear beyond doubt that the defendant was guilty under the Official Secrets Act 1911, but the jury still returned a not-guilty verdict.
In R v KRONLID [1996], 4 protestors were charged with criminal damage amounting to £1.5M regarding an attack on Hawk Jet aeroplanes which were about to be sent to Indonesia. They did not deny causing the damages but defended their actions by stating that as the planes were to be used by Indonesia against the people of East Timor, they were preventing the crime of genocide. The jury returned a not-guilty verdict.
Not all cases are overtly political. In R v OWEN [1992] the defendant’s son had been knocked down and killed by a lorry driver who had never taken a driving test and had a long criminal record for drink driving and violence. The lorry driver was convicted and sentenced to 18 months in prison and was released after 1 year. At no time did he display any remorse for what he had done. On release from prison he resumed driving unlawfully. The defendant took a shotgun and injured the lorry driver.
He was charged with attempted murder but despite the strength of evidence the jury acquitted him.
JUDGES DIRECTIONS
Judges have the power to direct juries to acquit the accused where there is insufficient evidence to convict them which acts as a safeguard against juries finding defendants guilty in spite of insufficient evidence. Conversely a judge cannot instruct juries to convict but a judge can sum up in such a way as to make it clear to the jury that there is only one decision they can reasonably make and that it would be perverse to reach any other verdict but guilty.
But a judge cannot pressurise a jury to reach a guilty verdict and if he does, the conviction can be overturned. In R v McKenna [1960], the judge told the jury, after they’d spent two and a quarter hours considering their decision, that, if they didn’t come up with the verdict in ten minutes he’d have them locked up for the night. They returned a verdict of guilty which was later quashed for interference with the jury.
Under Criminal Appeal Act 1968 s.1 in extreme circumstances can overrule a jury’s guilty verdict.
CHALLENGING THE JURY
Until 1989, the defendant had the right of peremptory challenge, i.e. the defendant could reject 3 potential jurors without giving reasons. This right applied to each defendant. The use of peremptory challenge was criticised because when there was a multi-defendant trial the type of jury could be materially affected. It was, therefore, said to be an assault on the principle of randomness of juries.
In the famous Cyprus Spy Trial case in 1986, in which there were 8 servicemen defendants who between them challenged 24 jurors to obtain a handpicked jury where the average age of the jurors was under 24 years (i.e. an anti-establishment jury). The servicemen were all acquitted.
The 1988 Criminal Justice Act abolished the right of peremptory challenge but the prosecutions equivalent right remain – called “stand by for the Crown” but it is rarely used and is subject to strict guidelines issued by the Attorney General.
Each side do have unlimited rights to challenge for cause – i.e. to reject a juror for a reason e.g. knows the accused. (Contrast with USA).
JURY VETTING
Jury vetting is the process in which the Crown checks the background of potential jurors to assess their suitability to decide particular cases. This procedure is clearly contrary to the principle of random selection. It is justified on the basis that jurors will not divulge secrets heard in sensitive trials or those jurors with strong political views should not try and influence other jurors in political trials. The 1978 ABC Trial brought to light prosecution practice of vetting potential jurors to find those that might be “undesirable” or “disloyal”. In this case two journalists and a soldier were accused of collecting secret information in breach of the Official Secrets Act. During the trial it became known that the jury had been vetted to check their “loyalty”, under guidelines laid down by the Attorney General and a new trial was ordered. It was admitted that these guidelines had been in use since 1974. The practice of vetting is now only allowed in cases of sensitive nature, e.g. “national security” and “terrorist” cases. In such cases, checks of police special branch records may be made on authorisation of DPP, and if as a result there is a “strong reason” for believing the potential juror to be a “security risk”, or open to bias or improper suggestions, counsel for the prosecution can exercise the right of standby without the need to discuss the reason.
Vetting is also done by an initial check into police criminal records and Special Branch records. Also in R v MASON [1980], the Court of Appeal approved the checking of criminal records to establish whether potential jurors have been convicted of a criminal offence in the past and were, therefore, not eligible to serve.
The limits of vetting was stressed in: -
R v OBELLIM & OTHERS [1996]
The case concerned a criminal trial in which the judge had received a written question from the jury which displayed a lot of knowledge about police powers and led him to suspect that one of the jurors might have such previous convictions that should have disqualified him. The judge ordered a security check on the jury without telling the defence counsel who only discovered it had been done when one of the jury complained after the verdict had been given. The defendant convicted, appealed on the grounds that the check might have prejudiced the jury.
Court of Appeal Held: - agreed and quashed the conviction stating that it was questionable whether the check should have been ordered at all on such grounds.
Lord Denning in his book ‘What’s next in Law’ 1982, suggested vetting the background and education of all potential jurors, even drawing up a list of persons “recommended” for jury service.
THE SECRECY OF THE JURY
Once they retire to consider their verdict, jurors are not allowed to communicate with anyone other than the judge until after the verdict is delivered.
Under the Contempt of Court Act 1981 they are forbidden from revealing anything that was said or done during their deliberations.
DOES THE JURY GET IT RIGHT?
The crucial question is whether or not they get it right. It is not easy to tell. People who are wrongly acquitted are hardly likely to advertise the jury’s mistake. The police believe that juries often do acquit the guilty.
Nor can we assess how often juries wrongly convict from the number of successful appeals against their verdicts. Because juries never give reasons or their decisions, it is often very difficult to find something wrong with the trial itself, e.g. an irregularity in the proceedings, or the judges misleading summing-up. It is impossible to go behind a jury’s verdict and it is not enough an appellant just to claim that the jury were wrong. It is quite possible, perhaps probable, that juries have mistakenly convicted people where no appeal was possible because no specific ground for appeal could be found.
Two lecturers at Birmingham University, Dr John Baldwin and Dr Michael McConville, have researched into juries and in 1977 they conducted a survey to try to assess how many wrongful verdicts juries reached. They looked at 370 trials in Birmingham and spoke to the trial judge, prosecution and defence counsel, and often the police officer in charge of the case. They compared the views of the participants with the actual verdicts reached. For the most part they tallied, but in a surprisingly large number – 56 of the 370 – the trial judge and at least one other party disagreed with the jury’s conclusion. Even making certain allowances, that survey suggests that if the Birmingham figures are applied throughout the country, hundreds of people are being wrongly convicted by juries every year.
ADVANTAGES & DISADVANTAGES
Defenders of the jury system say that the judge would become too casehardened and would be unable to take a fresh look at every case before him.
More importantly, many feel that juries have a value above that of the verdicts they deliver. They are the direct link between the ordinary person and the administration of justice. The jury system provides a vital element of community participation in the workings of our society. It is a necessary reassurance that justice is not meted out by a remote elite but is something in which every city in a democratic society can play a part.
Lord Denning described jury service as giving “ordinary folk their finest lesson in citizenship”.
Juries are important too as a barometer of public feeling on the state of the law. They can and do express their displeasure about a particular law or a particular prosecution by refusing to convict, as they did when Clive Ponting was prosecuted under the Official Secrets Act for leaking information about the background to the Falklands War. During the latter days of the death penalty juries were often reluctant to convict of murder even when the facts supported the charge.
It seems that, for the foreseeable future, the jury system is firmly entrenched. It may be the subject of further calls for reform, especially of the age qualification and perhaps the need for some sort of language or comprehension test. It may be tinkered with, but it is a reasonably safe bet that it will be there, more or less as we know it today, in the next century.
Above are some of the advantages, disadvantages and issues in relation to the jury system. There are many more. Look at:
-
Jury nobbling, peremptory challenge (now abolished) stand-by for the Crown. R v Goodwin (Times 4.9.83). Criminal Justice & Public Order Act 1994 – s.51 – offence to intimidate or threaten to harm a juror. Criminal Procedure and Investigation Act 1996 s.54 – where someone is acquitted of an offence and someone is convicted of interfering with jurors or witnesses in that case the person can be retried.
- Factors that erode the principle of the jury being a representative cross-section of society.
-
Juries in civil cases, the decline of their use and criticisms. Ward v Jones [1966] Sutcliffe v Pressday Ltd [1989].
- Majority verdicts - its advantages and disadvantages.
- What alternatives to the jury system have been suggested and what are their advantages and disadvantages?
- Other advantages and disadvantages of the jury system.
ALTERNATIVE TO THE JURY
- Trial by a single professional judge
Not a good alternative. Main advantage of jury system is that it prevents the defendant’s guilt being decided by one man. Not only is it wrong in principle that a defendant’s guilt should be a matter for a single opinion reached without discussion, but it is also necessary for a system using professional judges to incorporate some protection against a judge whose abilities are seriously affected by age, ill-health or prejudice. Also the benefits of public participation in the legal system would be lost.
But N.B. DIPLOCK COURT IN NI
- Trial by a bench of professional judges
Objections (1) Expense of employing and paying all the extra judges that would be needed. (This is countered by the fact that a professional court would work much faster and that the jury service is, in any event, very expensive to run). (2) Loss of public participation.
3. Trial by a jury of professional jurors
This was advocated by Lord Denning. Problem would be re case hardening etc. as seen with magistrates.
- Difficulty in finding suitably qualified lawyers to staff an expanding judicial service. “High quality can only be maintained if it is kept small”.
- Is it right to entrust the question of criminal liability to lawyers alone. Most countries, including England, have been reluctant not to include a lay element in the criminal justice process, seeing many advantages – e.g. free from responsibilities to the state, unfettered by any narrow, legalistic approach, unaffected by lengthy experience of the police and criminals, and drawn from wider social backgrounds than professional lawyers.
Only possible alternative: - A composite tribunal of lawyers and laymen
Many countries have successfully adopted this course. Denmark, Norway and Sweden have - Judge and 2 or 3 laymen. Judge generally takes the leading part in reaching the final decision - in some cases he will be uncertain and find the views of the others useful - he must justify his opinion to the laymen who have the powers to out vote him. There is a direct interplay of lay and legal views on the issues. N.B. Already a reality in appeals from magistrates courts to Crown Court - Judge sits with 2-4 lay magistrates.
Advantage:
A composite tribunal of lay and legal members offers opportunity for flexibility in the constitution of courts to take account of the varying nature of different cases in a way which would make it the modern equivalent of the special jury.
Disadvantage of Composite Tribunal
Judge would have too large a say in most cases
Recommendations of Sir Robin Auld
Sir Robin Auld undertook a major review of the criminal courts and produced his report in 2001.
As well as favouring a reduction in the role of the jury he made a range of specific recommendations to improve the performance of the jury, which included helping the jury by the prosecution and defence preparing a written summary on the case and the issues to be decided; to reach their verdict by answering a set of questions asked by the judge after his summing up; introduce reserve jurors, make membership of jury more representative of the population; to be compulsory for all sane, the mentally ill and those disqualified; including increased ethnic minorities.
- None of these recommendations have been adopted.
THE JURY SYSTEM
DISADVANTAGES/ADVANTAGES
DISADVANTAGES
- Jurors are easily influenced by experienced Counsel (Barristers) and decide a case not on the facts but on the way no argument is presented in Court.
Barristers use rhetoric to suggest the same idea and this constant repetition may influence the jury more than what a witness says in the witness box.
- Random selection means the jury is incompetent in intellectual terms. Jurors may find it difficult to understand and follow the complexities of some cases, e.g. complicated revenue or fraud cases.
- It has been argued that young jurors have insufficient experience in life to be jury members.
- Due to suspended sentence and other sentencing policy those who have been convicted of quite serious crimes can be jury members.
- Jurors can become bored quite early and lose interest in the case.
- Long trials cause inconvenience and financial loss to jurors.
- Many disqualified for reason of their criminal record serve on the jury.
-
Jurors are easily biased against or for the defendant, i.e. may be prone to leniency or local prejudice.
- Jury vetting (i.e. checking up on the jury before trial).
- Jurors can be nobbled (i.e. bribed or intimidated to get a verdict).
- Majority verdicts.
- The influence of the judge may be too great.
- Costs.
- Excessive Damages in Civil cases.
ADVANTAGES
- The verdict of juries is more acceptable to the public and there is public confidence in the system. The jury system reflects the involvement of ordinary people in the administration of justice.
- Juries are independent of the prosecution and defence “The just face of the Law” and if there is a danger of bias the trial can be moved to a different location.
e.g.
- The judge is there to ensure a fair trial and he can instruct the jury to forget what they have seen or read outside the courtroom. If the jury has been influenced and has been biased, there can be a challenged to the “array” and the judge can dismiss the whole jury.
- The common sense of jury verdicts can correct harsh law and eventually influence the changing of the law. Ability to judge according to conscience.
- During the trial there is clarification of the law as the judge must explain terminology and nature of offences to the jury.
- Other countries have copied the jury system. Per Lord Denning “It has been the bulwark of our liberties too long for any of us to seek to alter it. Whenever a man is on trial for serious crime ……, or when one or other party must be deliberately lying then trial by jury has no equal court”.
- Majority verdicts.
