What do you regard as the current issue of greatest concern in respect of either the Criminal justice system or the Civil Legal system of England and Wales? What arguments would you put to the government to persuade it to address your concern?

The issue of the right to trial by jury remains a controversial one. In England and Wales, although there is no right to trial by jury, set down in law, people charged with indictable offences, through no choice of their own are subjected to it, whether they are of white, black or Asian origin, as it is seen to be a general convention of British history. This creates a problem, as many people perceive the jury as not being wholly representative of society.

There have been a number of comments made about jury trial, maybe the most famous of all being, that in 1956 Sir Patrick Devlin spoke of the jury as the “lamp that shows freedom lives”. Following the commentary already mentioned above and the cases that I will now bring to light, many people may now disagree with Mr. Devlin’s statement.

Arguments I would put forward to the government

1) The amount of case law.

The government’s attempts to try and combat racism in juries in the past have had little effect and done nothing to abolish racism in jury trials, as the case of Sander, as the vast amount of cases where racism has been an element prove. I would like, to bring attention to the particular case of Gregory, in which the applicant who was black, was convicted of robbery at the Crown Court. During the trial the judge was passed a note stating “jury showing racial overtones”. The judge, as in Sander, rather than dismissing the jury, again simply said he was not willing to discharge anyone and that the jurors should put all thoughts of biased out of their heads. An inquiry following this case submitted that the government felt that juries represented the collective judgement and sense of community and that there had been no proof of actual bias. The guilty verdict stood. I have only illustrated a fraction of the case law surrounding racism in jury trials but it has to be said that the amount of case law itself surrounding this area should be enough for the government to recognise that something has to be done. How can a country have belief in a justice system that allows defendants to go to prison purely because of their skin colour?

Further cases which are of great importance and highlight the issue of racism in our jury system include that of R v Qureshi. In this case, three days after Mr. Qureshi was found guilty a juror in the trial came forward and informed the courts that some members of the jury had been biased and decided that Qureshi was guilty from the outset.  His application to the court of Appeal was denied on the grounds that in order to investigate this complaint the courts would have to look into the workings of the juries deliberations. This would be unlawful. It has to be asked now whether such a rule is acceptable, especially when it conceals possible injustice. 

The abolishment of the Contempt of Court Act 1981-Section 8

The common law secrecy rule, it is thought, came to light in 1785 with the case of Vaise v Delaral. In this case Lord Mansfield refused to hear evidence that a jury had decided their verdict, based on the outcome of a coin toss. This common law rule, was enacted into British law by the Contempt of Court Act Section 8, which clearly states, it is an contempt of court to “obtain, disclose or solicit and particulars of statements made, opinions expressed, arguments advanced or votes cast by members of a jury in the course of their deliberations in any legal proceedings”.  Lord Steyn commented in the House of Lords recently, that there should be a means of redress for this rule, in cases where there is an allegation of jury impropriety.

This redress is set to come in the force of a consultation paper to be published next year, issued by the Lord Chancellor. This is meant to look at the methods of investigating the guilty verdicts reached by jurors on the grounds of racial prejudice. Although this is a fantastic step in the right direction I feel it needs to be done faster. A change in the law is going to take years from when the original consultation is published, and in the mean time, innocent black defendants are being sent to prison. I would urge the government to put this issue and indeed this consultation paper, to the top of their priority list and make the Criminal Justice System a fairer one quickly.

The rectification of the process of Random Selection

The assumption by many is that by introducing members of the public into our court system, in a randomly selected manner, in the form of a jury, helps ensure the public’s confidence in the system. But what if this method leads to injustices, especially in cases where a black defendant is being tried by an all white jury?

The principle of random selection is created by juror’s names being picked randomly from the electoral register. This in itself causes problems from the outset as people from ethnic minorities are severely underrepresented on this register. Recent Home Office Research indicates about 24% of black, 15% of Indian sub continent and 24% of other ethnic minorities are not registered on this electoral list, and therefore can not be called for jury service. This process of random selection has been highly criticised with comments voiced such as “ not only does randomness not equal representativeness, but it can result in juries, in individual cases being grossly unrepresentative” this is an area the government needs to tackle, if they want to ensure public confidence in the system.

Dr. Darbyshire posed a question in her research stating that “for over 5 centuries until 1870, members of minorities such as Jews and Germans had the right to be tried by a jury comprised of half foreigners. It was called the jury “De mediate linguae”. This right was abolished on the ground that “no foreigner, need fear for a fair trial in England.” Can we in England and Wales believe this to be true now?”  At the present time I fear not.

It has already been proven that white defendants rate a black defendant more culpable, as two studies of 256 white undergraduate students and 196 black undergraduates show. These studies show that when evidence is not strong enough to convict, a white juror will give a white defendant the benefit of doubt but not a black defendant. In a country, ever growing with people from ethnic backgrounds, it is important the government addresses this concern immediately and finds a way in which the random selection principle is fair to both whites and people of ethnic origin.

Recent proposals for reform expressed, include that in exceptional cases involving a defendant from an ethnic background, which will therefore have a “racial dimension”, the judge, if persuaded that an all white jury, may cause injustice, can direct the selection of a jury, consisting of up to three people from ethnic minorities. Lord Justice Auld seemed to agree with these proposals, and indeed they did seem like a way to ensure fairness in trials where the jury had been randomly selected. However, the government refused to adopt these suggestions, as they felt it “offended the principle of random selection from a cross section of the population as a whole.” David Blunkett commented that “the engineering of juries to create more balance is a very difficult area” surely it is worth some degree of difficulty to ensure that ethnic minority defendants have a fair trial?

It is quite clear that “our randomly selected juries are clearly at risk of one or more of their number bringing prejudice to their task”, so why are the government refusing to accept it? This argument I feel features strongly in my plight to ensure the government addresses my concerns.

The Recognition of the Human Rights Act 1998

The Human Rights Act 1998 entered into effect in England and Wales on the 2nd October 2000. Article 6 (1) states that anybody with “any criminal charge against him, is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”. This requirement is currently posing problems in the context of jury trial within England and Wales as Article 6 (1) can only be breached if there is either evidence of subjective or objective bias and this area of the law is cloaked by the common law secrecy rule.Judges therefore find it hard to examine allegations of bias as they are not permitted to know what goes on when the jury retire for their deliberations. Recently the House of Lords, by a majority of four to one, found that this secrecy rule was indeed compatible to Article 6 (1). I feel this hard to come to terms with, as how can something that encourages racial biased be seen to be compatible with an article that states everyone is entitled to a fair hearing?

Article 14 sets out that the rights laid down in the convention “shall be secured without discrimination on any ground such as race.” This article is clearly being breached if jurors are deciding their verdicts based purely on the colour of the defendants skin.

Although there are some recent cases, showing that Article 6 (1) is being implemented in the Human Rights court, with the court stating, in the case of Sander that, “there had been a breach of Article 6 (1) as the allegations made were sufficient as to cause the applicant or a legitimate observer doubts as to the impartiality of the jury,” the courts have been reluctant to enforce Article 14 it seems.  I feel that even the slight breakthrough of a breach of Article 6 (1) being recognised, has been a long time coming, and the mere fact that Mr. Sander had to wait five years to appeal his case in the Human Rights court highlights the argument that the government needs to address the Human Rights Act in more depth and get these cases into the courts quicker, if they want to combat the issue of racism within the jury system.

Conclusion

The cases and random selection process highlighted in my essay, all seem to be a far cry away from what the Human Rights Act 1998 entitles these people to- a fair trial, but yet seem to be totally justifiable in the British courts. Something needs to change and quickly, otherwise not only will the cost and time of trials increase, but our prisons will be overrun with innocent people, whose only crime is to be genetically different to their white jurors. This is a subject that needs to be addressed and addressed now. Whether Martin Luther King’s dream comes true is up to society today, but we can’t do it alone. The issue of racism needs to be addressed by parliament and the abolition of racism within our juries would be an ideal place to start.

Word Count:- 2466

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