Once the list of potential jurors is known, both the prosecution and the defence have the right to see that list. Vetting by routine police checks are made on prospective jurors to eliminate those disqualified. At the court jurors are usually divided into groups of 15 and allocated to a court. The court clerk selects 12 out of the 15 at random. If there are not enough jurors to hear all the cases scheduled for that day at the court, there is a special power to select anyone who is qualified to be juror from people passing by in the street or from local offices or businesses. A jury is then empanelled (sworn in). The prosecution may challenge the jury by special right of ‘stand in’ these are of:
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To the array – of sec 5 of the Juries Act 1974 to challenge to the whole jury on the basis that it has been chosen in an unrepresentative or biased way. e.g. In 1987 R v Fraser the defendant was of an ethnic minority background, but all the jurors were white.
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For cause – challenged the right of an individual juror to sit on the jury( If the juror knows or is related to a witness or defendant)
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Prosecution right to stand by jurors – It allows the juror who has been stood by to be put to the end of the list of potential jurors, so that they will not be used on the jury unless there are not enough other jurors.
The jury is required to sit quietly throughout the trial and to listen carefully to the speeches of counsel, to the presentation of the evidence and to the cross examination of witnesses, making notes if necessary. At the end of the prosecution case, the judge has the power to direct the jury to acquit the defendant if he decides that, in law, the prosecution’s evidence has not made a case against the defendant. (They must follow this instruction) This is called directed acquittal and occurs in about 10% of cases. The jurors are often given documents, photographs, or other pieces of evidence to examine and in some cases e.g. the Soham case they went to the scene of the crime. They may also ask questions. Jurors listen attentively to the judge’s summing up and directions addresses to them. The judge will sum up and direct the jury upon the relevant law. The judge decides questions of law, and the jury decides issues of fact, and the judge must tell the jury what facts are necessary to a particular conviction and must take the jury through the evidence, pointing to the importance of various pieces of evidence and even giving some indication of the plausibility of various explanations of the same facts. The judge explains the need of the jury to reach a unanimous verdict if possible. The jury will then retire to then jury room having elected one of their number as foreman, and try to reach a verdict on the case which has been presented to them. If they cannot reach a unanimous verdict the jurors may be recalled by the judge after at least 2 hours having elapsed. He will then explain a majority verdict of 11 to 1 and 10 to 2 would be acceptable. (Under the Criminal Justice Act 1967 majority verdicts were introduced) Once a verdict has been arrived at, the jury will re-enter the court and the foreman will state their decision.
Only 6 – 7 % of jury decisions are by majority verdict. Juries cannot fall below 9 in number. At each |Crown Court, there is an official who is responsible for summoning enough jurors to try each case that will be heard in a 2 week period. Where a trial may be exceptionally long, or difficult potential jurors are asked if they will be able to serve to complete the trial (e.g. as in the Soham case (2003)). The problem in civil cases, especially libel cases are that they can be very long. R v Wright in 1995 lasted 17 months.
If the jury fails entirely to agree, a verdict is not entered at all and retrial is ordered.(If 2 consecutive juries fail to agree, the defendant is discharged). If the jury decide upon a verdict of not guilty, the defendant is discharged. If the jury find the defendant guilty, then the defence may make a peas in mitigation (giving reasons why the sentence should not be severe as it might be), then the judge must pass sentence.
Judges must respect the independence of the jury. In the case R v Mc Kenna (1960) the judge at the trial had threatened the jury that if they did not return a verdict within the next ten minutes, they would be locked up for the night. The jury then returned a verdict of guilty, but the defendant conviction was quashed on appeal because of the judge’s interference. The judge must also accept the jury verdict, even if he/she does not agree with it. This goes back to the Bushell case 1670, where the jury were the sole judges of fact and cannot be penalised for taking a view of the facts opposed to the judge. Juries sometimes make extraordinary decisions e.g. Clive Ponting 1985, involving charges on the sinking of the ‘Belgrano’ during the Falklands war. The judge directed the jury to commit, but they ignored him and acquitted the case.
(b) How effective is Trial by jury? Consider any alternatives and suggest improvements.
.The use of a jury is viewed as making the legal system more open. Justice is seen to be done as members of the public are involved in a key role and the whole process is public.
There are many advantages of a jury trial. Jurors are anonamous and no, one juror can be blamed for the decision. They are not hardened as judgers and magistrates may be by seeing case after case of a similar kind, and they are not too ready to believe the police. Trial by one’s fellow citizens in serious criminal cases is an important constitutional right and jurors see the accused in a fresh way, without knowing about the law and this makes for a fairer trial.
On the other hand jury trials are seen to be expensive and time consuming as each point has to be explained carefully to the jury. On defence of the jurors, they only hear admissible evidence relevant to a particular defendant and not all the facts relevant to the crime, with the result that verdicts may sometimes be based on an incomplete or even inaccurate picture of the events. Jurors may also argue that they receive little or no guidance to the nature of their duties. The jury may not understand complex issues, particularly in fraud cases and they may be prey to ‘jury nobbling’ by criminals, and be susceptible to influence verdicts for bribes or blackmail. Lord Denning in 1988, stated following the trial in Leeds Crown Court that ‘you may get girls or lads of 18 serving on a jury who may be an easy prey to bribery or intimidation’. And that they are not mature enough to arrive at a proper verdict. Some people may argue that too many people are qualified to sit as jurors regardless of their literacy or experience and may be intimidated and bewildered to ask questions. They are incapable of understanding and assessing complicated evidence and that they are too easily fooled by clever lawyers. There is some criticism that jurors are too willing to acquit defendants of doing offences and work place thefts and as jury service is compulsory some jurors may be against the whole system and want to make a quick decision and others may need counselling in difficult or horrendous cases e.g. Rosemary West trial 1996. In civil cases, juries have been criticised for awarding large sums of compensation in libel cases as they have difficulty assessing the level of damages and frequently award inappropriate amounts of money to successful plaintiffs.
Do defendants like trial by jury? Professor Zander and Paul Henderson found 31 defendants choose to plead guilty in order not to go through a trial by jury, to gain a less severe sentence, because they were advised to, or because of intense police questioning. Also clients were often dealt with clerk rather than solicitors and many often met their counsel on the morning of the trial which was not satisfactory.
Due to criticisms certain changes have been made which weakens the status of the trial by jury. Driving offences previously heard in a jury trial have been made triable only by magistrates. Professor Michael Zander supported this in 1997 on the grounds of inefficiency – due to many cases being changed to guilty plea at the last moment. The Roskill committee recommended in 1986 that jury trials should not be allowed in cases of complex fraud.
Thinking about alternatives on the jury system; it should be abolished and replaced by sole professional judges, or possibly by a panel of judges, or by a tribunal composed of one judge and 2 lay persons as in Scandinavian countries. (especially in fraud cases with assessors who had expertise in accounts and business management) . In New Zealand, defendants can choose not to be tried by a jury, but instead by a judge sitting on his own. In N. Ireland trial is by a single judge due to special problems of threats and jury nobbling that existed between sectarian parties. In some countries, cases are heard by a panel of 3 or 5 judges sitting together. This allows for a balance of views, instead of a verdict by a single person. There are not enough judges in our English system to implement this and it would be expensive.
Suggestions for improvement could be a system that operates in Scotland. They have a ‘judicial examination ‘which covers continuous judicial control of pre-trial preparation compared with the English system which emphasises the trial as the critical period of determining guilt or innocence.
The Runciman commission suggested that the Contempt of Court Act 1981 should be amended to allow research into the working of juries. On the other hand people may be less willing to serve on juries if they knew that their discussions could be made public.
Bibliography
‘A’ Level Law 3rd edition A.M Dugdale, Mp Furmston, SP Jones. CH Sherrin 1996 Butterworths
Law a modern introduction 4th edition Paul Denham
Law for GCSE 4th Edition Peter Shears 1999 Longman
The English Legal System 2nd edition J Martin 2000 Hodder And Stouton
GCSE Law 4th edition Vivienne Harpwood and Peter Alldridge 1995 Blackstone press limited Law (2nd edition) 2003 Hodder and Stoughton J. Martin
