Legal Method and System.

Legal Method and System

‘Public confidence in the legitimacy of jury verdicts is a foundation of the criminal justice system. And there must be a general rule making inadmissible jury deliberations. But it is difficult to see how it would promote public confidence in the criminal justice system for the public to be informed that our appellate courts observe a self denying rule never to admit evidence of the deliberations of a jury even if such evidence strongly suggested that the jury was not impartial. In cases where there is cogent evidence demonstrating a real risk that the jury was not impartial and that the general confidence in jury verdicts was in the particular case ill reposed, what possible public interest can there be in maintaining a dubious conviction?’

-Lord Steyn, dissenting judgment in R v Mirza; R v Connor and Rollock [2004] UKHL 2, [2004] 1 Ac 1118, [2004] 2 Cr App Rep 112 (House of Lords)

In reference to the above statement, describe and assess the confidentiality principle, and evaluate if there is a continuous justification for the principle to stand. Suggest options for reform.

Trial procedure by jury is an ancient institution in English legal system. The jury is made up by ’12 good men and true’ which means the jury system randomly introduced 12 ordinary laymen to participate in the administration of the legal system. This is not only strengthens the legitimacy of the legal system but also reduces the exclusive power of the legal professional judiciary. It was stated by EP Thompson that:

‘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.’

It is often says that the members of a jury are essentially judges of fact, but however, the jury’s verdict is actually a consideration of a mixture of fact and law. According to Penny Darbyshire, the jury system is the most praised and least theoretical analysis in the criminal justice system. She even characterise the jury as ‘an antidemocratic, irrational and haphazard legislator, whose erratic and secret decisions run counter to the rule of law’. She did criticised that the way the jury disregard the law in pursuing justice can sometime convict the innocent. For example, in the R v Clive Ponting 1985 case, juries were suspected involving in the miscarriages of justice relating to suspected terrorist. Underlying her conclusions, is the concept that ‘the jury is primarily ideological. As we know, in the selection of jury, many factors need to be taken into account. According to the section 1 of the Juries Act 1974, any person aged between 18 and 70, who registered as a parliamentary or local government elector, who is not mentally disordered and who has been ordinarily resident in the United Kingdom, the Channel Islands or the Isle of man for at least five years, is qualified for jury service.

Generally, in the judicial process, the function of the members of a jury is to decide on matters of fact, and the matters of law are decided by the judge, but often, the decision of the jury is actually mixed fact and law. In criminal proceedings in the Crown court, evidence from both sides and directions on the law given by the judge will first listen by jury. Then the jury will decide whether the person accused is guilty or not guilty based on their understanding of the law as explained to them by the judge. If judgment is given for the claimant, the 12 good people not only decide whether the person accused is guilty or not but also determine how much the damages should be. Although the judge is permissible to direct juries to acquit a defendant for legal reasons, but the judge has no judicial power under any circumstances to instruct a conviction. This classic example of such a case is R v Wang1. The judges must not overtly pressure juries to reach guilty verdict. The jury must always be allowed to consider its verdict free from any pressure such as threats, violence and bribery. Finding of any such pressure will causes the overturning of any conviction obtained. For example, in the case R v. Mckenna2, the judge told the jury who had spent two and a quarters hour deliberating the issue that if they fail to come up with a verdict

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[2005] 1 WLR 661, HL
[1960] 2 WLR 306

within the following 10 minutes, they will be lock up for the night. Then the jury did returned a verdict but was a verdict of guilty. Due to this, the conviction had to be quashed on appeal for clear interference with the jury. Cassels J in this case suggest that:

This is a preview of the whole essay

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[2005] 1 WLR 661, HL
[1960] 2 WLR 306

‘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 complte 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…’

When a jury is considering a verdict, they can always seek for assistants and advises from the judge, and judges do can direct the jury for a better understanding and proper application of the law which it is taking into consideration. The only condition for this is that all the respond from the judge must be given in open court as to prevent any accusation of misconduct. In addition, in a criminal case, there is no right for appeal against a jury’s verdict of not guilty at the Crown court. In other words, juries do not have to clarify, justify or explain their verdict to anyone even judges. The Contempt of Court Act 1981 prohibits jury member from revealing any discussion of their deliberation to anyone. Lord Falconer advised that:

‘You have to keep the deliberations of the jurors secret. They have to be confident that they can deliberate without it ever being published.’

Furthermore, it is an offence under section 8 of Contempt of Court Act 1981 if

anyone tries to solicit any statement or information from a jury member in criminal or civil law case. In the case Attorney General v Associated Newspaper3 where the mail on Sunday published an article about the opinions and arguments made during deliberations of some members of the jury. The particular information was not obtained directly from the jurors but from the transcripts of interviews with them conducted by persons who had advertised in another newspaper offering a reward to jurors who contacted a box number. The Attorney General brought proceedings for contempt under section 8(1) against the publishers, its editor and one of its journalists. The House of Lord held that the defendants were found to be in contempt of court for published jury deliberations. The House of Lord also decided that the word ‘disclose’ do not only applied to disclosure by jurors but also disclosure by any others who has acquired the information directly or indirectly.

In the oath swear by all jurors stated that they ‘will faithfully try the defendant and give a true verdict according to the evidence’. But does every juror will perform their jury duty with assiduity and esteem that it deserves? Criticisms to the jury have been leveled in the past. It was claimed by Michael Mansfiled QC that the jury ‘is the most democratic element of our judicial system’ and is the one that can ‘pose the biggest threat to the authorities’. There are few instances which brought the jury system into disrepute. For instances, in the case R v Young4 it was found that four members of the jury had attempted to contact the deceased victim in a murder trial by

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[1994] 2 WLR 277
[1995] QB 324

using a Ouija board while staying overnight in a hotel. The conviction was quashed as the four jurors claimed that the deceased had informed them that the defendant was guilty of his murder. Another more significant case is where a trial had been stopped on the ground that a female juror was found having an improper relationship with a man of the jury protection force whose duty was to look after the jury during trial. They were found texting each other with mobiles phone during breaks in trial. Moreover, this is not the first time the case had been stopped for the inappropriate and irresponsible behavior of the jury member as for the first trial, they were already found playing cards when they suppose to discuss on the case. In fact, all members of jury are told before a trial starts that it is a contempt of court under section 8(1) of the Contempt of Court Act 1981 if they disclose any statement, arguments or opinions made during their deliberation, this offence can result in a fine or even a prison sentence. In truth, it is hard to read the mind if the juries, only juries themselves know how they reach their verdict. This is well illustrated by the case HM Attorney v Scother5., where a juror wrote an anonymous letter to the mother of the defendant after the conviction saying that:

‘I would like you to seriously consider, as I’m sure you are already, talking to your counsel about appealing the convictions on the grounds of an unsafe conviction, miscarriage of justice or whatever...Many changed their vote late on simply because they want to get out of the courtroom and go home…They just decide on prejudice and hearsay. I hope these are ground in law to show that the verdict was unsafe. Don’t know if it can be shown that the Judge misdirected the jury...Good luck’.

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[2004] 1 WLR 1867 H

This issue was raised to the Court of Appeal and Scother was charged with contempt of court under section 8 of the Contempt of Court Act 1981. Following this case, the House of Lords begins to upheld the principle of the jury secrecy. As stated by the jury secrecy rule, the court is prohibited from receiving any evidence from a juror after the verdict has been given. This aimed in protecting the jury from pressure to explain or justify their opinions and ensuring finality of verdict. Unfortunately, criticisms against the rule were raised, especially in the light of Human Rights Act 1998. It is argue that the rule will curtail the ability of the court to consider on appeal allegations of impropriety of the jury and it is not compatible with the right to a fair trial under article 6 of the European Convention on Human Rights. Another example of the possible criticisms to be leveled was in R v Mirza6. The fact of the case is that a Pakistan man who had resident in the United Kingdom for 13 years was convicted on six counts of indecent assault. During the trial, he used an interpreter and the judge did directed the jury that no adverse interference should be drawn from Mirza’s use of an interpreter. However, after the end of the case, a letter was sent from one of the jurors suggested that the jury had convicted the Mirza guilty when they failed to consider the evidence properly as they believe that the used of the interpreter was a devious ploy, to the defence counsel. Quickly after R v Mirza, the Practice Direction (Crown Court: Guidance to Jurors)7 added a new section to Practice Direction (Criminal Proceedings: Consolidation), Part IV which suggested that the judge should warn the jurors that it is their duty to his attention

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[2002] Crim LR 921, CA
[2004] 1 WLR 665
Part IV [2002] 1 WLR 2870

promptly any concern about the behavior of the fellow jurors and it is also important for him to make the point that it is impossible to put the matters right unless this is done while the case is continuing. This was then applied in R v Smith9 in which the House of Lord had to consider what steps should be taken by trial judge in dealing with allegations of impropriety made by a juror. In this case, the allegations communicated in a letter to the judge were about the ignoring of the judge’s direction on the law by some members of the jury, engaging of jury members in speculation and bargaining over the verdict to be reached. In dealing with the allegations the judge then give further direction to the jury after consulting counsel and the jury eventually convicted the defendants on majority verdicts. On appeal. The defendant argued that the judge should have questioned the members of jury about the criticisms made in the juror’s letter but however, the House of Lords seized that it is not an appropriate way and refuse to state that when it is permissible for the judge to question the jury. The only two actions remains open to the judge were to discharge the jury or to give further directions to the jury in stressing the need of impartiality.

In my opinion, jury service is known as an important civic duty as it decides a defendant’s fate or it can be said that the fate of the defendant fall in the hands of the members of jury. Jury system is always the most democratic system in the English legal system. Hence it is essential to reform the jury system as there are many criticisms against the jury which can bring the jury system into disrepute. To reform the jury system, firstly, it is a must to reduce the personal bias among the members of _____________________________________________________________________

[2005] 1 WLR 704, HL

jury. To achieve this, it was suggested that the jury should make up with different races but not only all white jury. A racially balanced jury can well increase the public confidence towards the criminal justice system. There was a case where the European Court of Human Rights was held by a majority of 4:3 that the right of British Asian to an impartial tribunal trial had been violated on the ground that the conviction was influenced by alleged racism within the jury. A juror sent a note to the judge which saying that:

‘I have decided I cannot remain silent any longer. For some time during the trial I have been concerned that fellow jurors are not taking their duties seriously. At least two have been making openly racist remarks and jokes and I fear I going to convict the defendant not on the evidence but because they are Asian. My concern is the defendant will not therefore receive a fair verdict. Please could you advise me what I can do on this situation.’

However the judge decided not to discharge the jury and the applicant was found guilty. The applicant then appeal that there was bias on the part of the jury but then it was dismissed by the Court of Appeal. The European Court of Human Rights held that this decision is contrary to the Art 6(1) of the European Convention of Human Rights on the ground that the allegations are capable in degrade the impartiality of the court. Secondly, in order to increase public confidence it is essential to improve the impartiality of the jury system. Jury vetting, a process where the Crown check the backgrounds of the jurors should be taken. This process aims in assess jurors’ ability and suitability in giving decision in particular cases. Although this process is contrary to the random selection of people, but it is necessary in preventing jurors from divulging any secrets made open to them in a trial. On the other hand, Professor John Spencer do proposes solutions in controlling the jury room to provide a remedy in

cases of jury impropriety. He suggested that all the discussions undergo in the jury room should be record or a professional magistrate or judge should sit together with the jury in the jury room so that there will be proof of any allegation impropriety arise. In addition, to increase the efficiency of the jury system the judge should be given the power to direct the jury in stressing the importance of impartiality and indeed the power to discharge the jurors when necessary. Sir Robin Auld LJ in his extensive Review of the Criminal Courts (2001) recommended that juries should be asked to explain or clarify their verdict and the judges should be permitted to examine alleged improprieties in the jury room. He also stated that the ethnic minorities representation on relevant juries should be included. Apart from that, he did restrict the right to jury trial by judge or even jury

As a conclusion, it is no doubt that the jury system lies in the heart of the English criminal justice system. Public support is certainly essential in the jury system. Public confidence to the jury system was associated with the fairness, impartiality and ability of the members of jury in considering evidence in difference prospective. In my narrow opinion, I suggest that in order to enhance the impartiality and uphold the justice, a reform should be introduced in the jury system. However, before any reform, sufficient consideration should be taken in account to ensure that the reform will be really useful and effective but not just an empty shell with attractive appearance.

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Bibliography

Book

Slapper & Kelly, ‘The English 8th edition Legal System’ (Cavendish Publisher)

Articles

Pamela R. Ferguson, ‘The criminal jury in England and Scotland: the confidentiality principle and the investigation of impropriety’, International Journal of Evidence and Proof, 1 July 2006.
Cameron Timmis, ‘JURIES: trial by error?’, Law Society Gazatte, 28 September 2006.
Geoffrey Bindman, ‘It’s good to talk’, New Law Journal, 16 June 2006.
R. Gwynedd Parry, ‘Jury Service for All? Analysing Lawyers as Jurors’, Journal of Criminal Law, 1 April 2006.
Gillian Daly, ‘Case Note: Jury secrecy: R v Mirza; R v Connor’, International Journal of Evidence and Proff, July 2004.

Online Sources