the jury

The jury is a sworn body of persons convened to render a rational, impartial verdict and a finding of fact on a legal question officially submitted to them, or to set a penalty or judgment in a jury trial of a court of law. The word "jury" originates in Latin, from "juris"-law and also derived from the French jurer, which means "to swear an oath."

The English jury has its roots in two institutions that date from before the Norman Conquest in 1066. The inquest, as a means of settling a fact, had developed in Scandanavia and the Carolingian Empire while Anglo-Saxon law had used a "jury of accusation" to establish the strength of the allegation against a criminal suspect. In the latter case, the jury was not a trier of fact. If the accusation was seen as posing a case to answer, guilt or innocence were established by oath, often in the form of compurgation, or trial by ordeal. During the eleventh and twelfth centuries, juries were sworn to decide property disputes but it was the Roman Catholic Church's 1215 withdrawal of support for trial by ordeal that necessitated the development of the jury in its modern form.

In most criminal justice systems and some civil cases which need a jury, panels are initially allotted at random from the adult population of the district served by the court concerned. In criminal cases, the jury is used in the Crown Court and there is no jury in the magistrates’ court, which try about 98 per cent of criminals’ cases. The jury is thus used in only the 2 per cent of criminal trials which takes part in the Crown Court. A person who is serving on a jury is known as a juror, and the head juror is called the foreman or presiding juror. The foreman is often chosen before the trial begins. The role of the foreman is to ask questions on behalf of the jury, facilitate jury discussions, and read the verdict of the jury.

Lies at the heart of the British legal system, it is generally accepted that the jury of ‘12 good men and true’. The implicit assumption is that the presence of 12 ordinary lay persons, randomly introduced into the trail procedure to be the arbiters of the facts of the case, strengthens the legitimacy of the legal system. It supposedly achieves this end by introducing a democratic humanizing element into the abstract impersonal trial process, thereby reducing 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.

According to s. 1 of the Juries Act 1974, as substituted by Criminal Justice Act 2003, a person is qualified for a jury service in the Crown Court, the High Court, and the county court if he fulfills 4 criteria. First of all he is aged between 18 and 70 and registered as a parliamentary or local. Besides that, he has been ordinarily resident in the United Kingdom, the Channel Island or the Isle of Man for at least five years since age of 13. Furthermore, he is not a mentally disordered person and lastly he is not disqualified for jury service. Among those ineligible for jury service until the Juris Act 1974 was amended by the Criminal Justice Act 2003 were persons involved in the administration of justice. Now, individuals such as judges, justices of the peace, solicitors, barristers, and police officers, are eligible.

It is generally accepted that the function of the jury is to decide on matters of fact, and that matters of law are the province of the judge. These "peers of the accused" are responsible for listening to a dispute, evaluating the evidence presented, deciding on the facts, and making a decision in accordance with the rules of law and their jury instructions. Typically, the jury only judges guilt or a verdict of not guilty, but the actual penalty is set by the judge. An interesting innovation was introduced in Russia in the judicial reform of Alexander II: unlike in modern jury trials, jurors decided not only whether the defendant was guilty or not guilty, but they had the third choice: "Guilty, but not to be punished", since Alexander II believed that justice without morality is wrong.

In Jury Deliberations and Verdict, after the judge has finished instructing the jury, the jury retires to the jury room to begin deliberations. At this time the alternate jurors are dismissed, although some jurisdictions allow the alternate jurors to participate in deliberations. The court bailiff brings the exhibits and written instructions to the jury room and safeguards the jury's privacy during deliberations.

It is largely up to the jury to decide how to organize itself and conduct the deliberations. The judge usually only instructs the jurors to select a foreperson to preside over the deliberations and to sign the verdict forms that reflect their decisions. Jurors sometimes have questions during their deliberations. Usually, they write their questions and give them to the bailiff, who takes them to the judge. The judge confers with the attorneys and sends a written response to the jury. A jury might deliberate anywhere from a few minutes to several days. In the case of R v. ...

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Usually the jury must reach a unanimous verdict, although majority verdicts are sometimes allowed in civil cases such as the case of R v. Walhein and R v. Watson. If the jury tells the judge it cannot reach a verdict, the judge usually gives the jury some further instructions and returns it to the jury room for further deliberations. If the jury still cannot reach a verdict, however, the jury is deadlocked, and a mistrial is declared. The case must then be retried. Usually, however, the jury reaches a verdict. When the jury reaches a verdict and signs the verdict forms, it notifies the judge that it has reached a decision. The attorneys, if they are not in the courtroom, are called, and everyone returns to the courtroom. The judge asks the foreperson if the jury has reached a verdict. The foreperson responds "yes," and the verdict forms are read aloud, usually by the court clerk. In most jurisdictions the parties may poll the jury by asking each individual juror if he or she agrees with the verdict. Obviously, in a court trial without an advisory jury, there is no jury deliberation or verdict.

The confidentiality of jury deliberations in British criminal trials is maintained by common law rules, as well as by statute. All along, the common law has prohibited juries from disclosing the deliberations that take place in the jury room. No member of the jury is supposed to talk about the discussions after the verdict has been delivered. What goes on in the jury room stays in the room. As a result, relatively little is known about how juries actually behave. The confidentiality principle was designed to keep everything in the jury room a secret. The jurors themselves are not allowed to talk about their discussions in the jury room even after their trial.

There are four reasons given for enforcing such a rule. First of all, it was said that secrecy promotes the kind of honest and straight-forward debate that is essential in decision making at this level, without fear of protest from the public and hatred. Secondly, there is a need to ensure that finality of the verdict upon announcement carries the finality and authority of a legal pronouncement. If decisions of the jury can be questioned then there will be way too many cases to handle. Finalizing the jury’s decision keeps this problem at bay. Thirdly, the jurors have to be protected from harassment, criticism and reprisals. Lastly, if there is no secrecy, then the jury system will be undermined by public discussion of jury deliberations. No information is to be leaked to the public and media as this will only intimidate the jurors from speaking their minds and giving their honest thoughts and hence influence the efficiency of the jury, so they say. As what Lord Falconer told BBC Radio 4's Today programme: "You've got to keep the deliberations of the jurors secret, they have got to be confident that they can deliberate with it never being published and only in the rarest possible occasions even being investigated in any way." Under the consultation, if a jury was influenced, for example by racial bias, then a court should investigate, Lord Falconer said. .

However, the confidentiality principle states that the discussions of the jurors in the jury room are to be kept a secret and not known to the public will end up to be an offence for any member of a jury to disclose any information to any other party; even when there has been a miscarriage of justice. As long as there was deliberation, no matter what was discussed or how the jury arrived at the verdict, the confidentiality principle applies and failure to do so would result in s. 8 of the Contempt of Court Act 1981.

As absurd as it may be, the rule was nonetheless applied in the cases of R v. Mirza and R v. Connor and Rollock. These cases are great examples of injustice being done all in the name of “jury secrecy”. A juror in both the respective cases, after the conviction of the defendants, said that there was improper conduct by the jury during their discussion. The Court of Appeal could not do anything as any investigation into the deliberations in a jury room is prohibited under the common law and s. 8 of the Contempt of Court Act 1981.

In Mirza, the jury, before their meeting in the room, had already have personal bias towards him as he used an interpreter during trial but refused one during a police interview earlier on. They thought that the use of an interpreter had been a “devious ploy”. While in the case of Connor and Rollock, the jury decided to convict both the defendants to save time instead of deciding based on evidence which one of them was actually guilty. These clearly show that confidentiality principle gives “room” to the jury to misbehave.

In Article 6 of the European Convention on Human Rights which states that every individual has the right to a fair trial is obviously conflicting with s. 8 of the Contempt of Courts Act 1981. There is no fair trial under s. 8 of the 1981 Act, which amounts to infringement of human rights. Prevention of investigation into cases which were decided with impropriety clearly deprives individuals of their rights under article 6.

Lord Steyn expressed that it would be bizarre for injustice to be ignored just to protect the general efficiency of the jury system. Any reasonable man would see that injustice should not be tolerated merely to keep the name of the jury system clean. Many argue that Article 6 is compatible with the common law because there are safeguards in place against bias juries, one of them being the random selection of jurors. That is the reason why Article 6 of the ECHR is definitely not compatible with the common law and in my point of view, human rights should be prioritized and that the common law should be more flexible. However, there were exceptions to the rules enforced in s. 8 of the Contempt of Court Act 1981 and the common law.

In addition, one of the most significant cases was R v. Young. In this particular case, the jury had used the Ouija board to aid them in reaching the verdict. The supernatural spirits “decided” that the defendant was guilty and sure enough, the jury followed the decision and convicted the defendant. As public might think that the act of the jury does not make sense but yet the jury would still get away due to the common law and the Contempt of Court Act 1981. Lord Hope of Craighead, in the case of Mirza said that there has to be discussions and deliberations in order for both the laws stated above to be applied. The use of the Ouija board by the jury was not in any way a discussion and so there was no need to shield its members from intervention by the law or any form of investigation.

Various options for reform are considered in order to strengthen the jury system and control jury impropriety within the jury room. The first option will be discussions of the jury to be revealed. The issue of security of the jury might come in here. In upholding justice, it is vital to find out the rationale behind the judgment of the jury and the best way of doing it without compromising the safety of its members would be to cover the identity of the jurors but let their words be known. This way, the legal system would definitely be more efficient and effective.

Professor John Spencer who is a jury expert at Cambridge University suggested that discussions in the jury room be recorded to avoid any wrongdoing. He also recommended that a judge be placed in the room together with the jurors to monitor them. This will helps to analyze the performance of the jury in order to avoid misbehaviour jury.

Besides Professor John Spencer, there were several judges who disagreed with s. 8 of the Contempt of Court Act 1981. One of them was Lord Justice Auld. In The Auld Review of Criminal Courts 2001 he opted for an amendment to s. 8 of the Act to allow investigations into any case involving jury impropriety. Following the trouble in R v. Mirza, the government introduced a consultation paper, Jury Research and Impropriety, to look into the options for allowing investigation into the misbehaviour of jury but to no avail as the consultation preferred to follow the standing rule. In criminal cases, despite the jury being of much assistance in cases concerning indictment, Section 43-50 of the Criminal Justice Act 2003 makes it clear that certain cases which are presently tried by judge and jury at the Crown Court should be instead tried by a judge sitting alone. Auld LJ proposed that in “serious or complex fraud” cases, the trial judge should have the authority to trial the case by himself alongside two lay members drawn from a panel of experts. Cases of “jury tampering” should also be tried by a judge sitting alone. This is mainly due to the concern that the panel of jury is unable to understand and follow the proceedings in the types of cases mentioned above. Jurors are not law experts and in certain circumstances, the law applied in the cases might just be a level above their understanding. It is therefore more reliable to have a judge to handle them.

Furthermore, some proposed reforms, such as those advocating that jurors be permitted to take notes and to submit questions for witnesses during the trial, are modest designed changes to assist jurors in reaching well-considered judgments, to improve the comfort of the conscripted citizens who serve as jurors, and generally to optimize jury performance and juror satisfaction. There are also other proposed reforms, such as the reduction or elimination of peremptory challenges and the call for greater use of no unanimous verdicts, have serious potential costs. If measures as stated above are taken, I am sure there will be a fair and just legal system.

In a nut shell, the confidentiality principle is one which has proven to be controversial and contentious. There are a lots of argument between reforms or abolish the jury. However, I personally think that the jury system should stay. Besides that I do think that we need to seriously reconsider the use of "experts" in front of juries. A District Court jury, Malcolm Knox decided to write a book, Secrets of the Jury Room. He said he agreed with the calls for an overhaul of the jury system. "Not to abolish unanimous verdicts or to decrease jury sizes or, heaven forbid, reduce the use of juries, but to supply ordinary people with a clear guide to the criminal jury trial, to make the thing fairer and to let the community profit from the experience of those who undertake this pivotal civic duty."

A leading British judge, Lord Justice Auld, has already said the British Court of Appeal should be allowed to investigate jury misbehaviour, whether it occurred during deliberations or not. However, in Mirza case, the law lords said it was such a fundamental departure from existing law that Parliament and not judges should be the ones to make the change. Lord Steyn said this would mean there would be no review even if jury members tossed a coin to arrive at a verdict or some urged a conviction because the accused was a black immigrant. “It is to the effect that in the interests of maintaining the efficiency of the jury system the risk of occasional miscarriages of justice may acceptably be tolerated. In other words, one must accept some dubious verdicts as to the cost for protecting the jury system."

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BIBLIOGRAPHY

Books

Terence Ingman, The English Legal Process (11th edition)
Slapper and Kelly, The English Legal System (8th edition)

Articles

Geoffrey Bindman, ‘It’s good to talk’, New Law Journal, 16 June 2006.
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 Gazette, 28 September 2006
Gillian Daly, ‘Case Note: Jury Secrecy: R V Mirza; R V Connor’, International Journal of Evidence and Proof, July 2004.
R. Gwynedd Parry, ‘Jury Service For All? Analyzing Lawyers as Jurors’, Journal of Criminal Law, 1 April 2006.

Internet Resources

“Secrecy in a Jury Room”, 13 April 2008,

http://www.guardian.co.uk/world/2004/jan/27/law.theguardian

“The Jury” , 13 April 2008,

http://en.wikipedia.org/wiki/Jury

Judgment in Connor and Rollock , 10 April 2008,

http://www.publications.parliament.uk/pa/ld200304/ldjudgmt/jd040122/conn-1.htm

e) Jury Reforms in Wisconsin, 15 April 2008,

http://wicourts.gov/about/pubs/circuit/docs/juryreform.pdf

f) The Jury’s Duty, 18 April 2008,

http://www.smh.com.au/articles/2004/03/31/1080544554974.html?from=storyrhs

“The Jury” , 13 April 2008, < http://en.wikipedia.org/wiki/Jury>

The Norman Conquest of England began in 1066 AD with the invasion of the Kingdom of England by William the Conqueror (Duke of Normandy), and his success at the Battle of Hastings resulted in Norman control of England. The Norman Conquest was a pivotal event in English history for several reasons. This conquest linked England more closely with continental Europe through the introduction of a Norman aristocracy, thereby lessening Scandinavian influence. It created one of the most powerful monarchies in Europe and engendered a sophisticated governmental system. The conquest changed the English language and culture and set the stage for a rivalry with France that would continue intermittently for the next millennium.

Anglo-Saxon law is a body of legal rules and customs that existed in England before the Norman Conquest, and which, along with the Scandinavian laws and the continental German laws, are influenced in some degree upon earlier Germanic legal thought.

Baker (2002) p.72-73

The Crown Court of England and Wales is, together with the High Court of Justice and the Court of Appeal, one of the constituent parts of the Supreme Court of Judicature in England and Wales. It is the higher court of first instance in criminal cases, and is equal in stature to the High Court, which hears civil cases as well as criminal appeals from the Magistrates' Courts.

In England and Wales, any of the inferior courts with primarily criminal jurisdiction covering a wide range of offences, from minor traffic violations and public-health nuisances to somewhat more serious crimes, such as petty theft or assault. Magistrates' courts with similar jurisdictions, including jurisdiction over small civil claims, may be found in certain large U.S. municipalities.

Slpper, K and Kelly, D, The English Legal System, (8th ed., 2006), Routledge. Cavendish.

It amends the law relating to police powers, bail, and disclosure, allocation of criminal offences, prosecution appeals, double jeopardy, hearsay, bad character evidence, sentencing and release on licence. It also permits offences to be tried by a judge sitting alone without a jury in cases where there is a danger of jury-tampering. It also expands the circumstances in which defendants can be tried twice for the same offence (double jeopardy), when "new and compelling evidence" is introduced.

Alexander II was the Emperor of the Russian Empire from 3 March 1855 until his assassination in 1881. He was also the Grand Duke of Finland and King of Poland until 1867 when it was annexed into the Russian Empire.

(1991) 95 Cr App Rep 384, CA

(1952) 36 Cr App R 167

[1988] QB 690

Sixthformlaw.info.com

The British Broadcasting Corporation, which is usually known simply as the BBC, is the world's largest broadcasting corporation.

Geoffrey Bindman, ‘It’s good to talk’, New Law Journal, 16 June 2006.

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.

In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgement shall be pronounced publicly by the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

[1995] QB 324, [1995] 2 WLR 430, [1995]2 Cr App Rep 379, [1995] 6 LS Gaz R 38, CA

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.

MA (Cambridge), LL.B. (Cambridge), QC (honoris causa)Professor of Law; Co-director of CELS

Cameron Timmis, ‘JURIES: Trial by error?’, Law Society Gazette, 28 September 2006

Terence Ingman, The English Legal Process (11th edition)

The Jury’s Duty, <http://www.smh.com.au/articles/2004/03/31/1080544554974.html?from=storyrhs>