The Jury in the English Legal System

Objectives

Understand juror qualifications and selection.
Appreciate jurors' roles in civil and criminal trials.
Understand the Criminal Justice Act 2003's reforms to trial by jury.
Critically assess the advantages and disadvantages of juries in the English Legal System.

What is a Jury?

Jurare (Latin): to swear or take an oath.
A group of citizens (peers) legally selected and sworn to inquire into any matter of fact and to give their verdict according to the evidence.

Historical Development of Jury Trial

Dates back to the Norman conquest, used in the English Legal System for over 1,000 years.
Magna Carta (1215): Included the recognition of a person’s right to trial by “the lawful judgment of his peers.”
Juries became the usual means of trying criminal cases.
Originally, juries provided local knowledge and information, acting more as witnesses than decision-makers.
Late 15th century: Juries became independent assessors and assumed their modern role as deciders of fact.

Juries Act 1974

The main statute governing the present-day jury.
The role of the English jury is almost entirely limited to the more serious criminal cases, but juries occasionally sit in civil trials as well.

What is a Jury Trial?

A process where 12 individuals, randomly selected, are put in the court environment to determine the facts of the case and decide, unanimously or by a majority of 10, whether the accused is guilty or not guilty of the alleged crimes.
The jury is supposed to reflect the views of the ‘common man.’

The Role of the Jury in the Trial

Distinction between the tribunal of law and the tribunal of fact:
- The judge = the tribunal of law.
  - Questions of law refer to the legal principles of a case (e.g., interpretation of a statute).
- The jury = the tribunal of fact
  - Questions of fact relate to the circumstances of the particular case in question.

Law & Facts

A court is concerned with law & facts.
A judge who sits alone in court considers both law & facts.
A judge who sits with a jury:
- Judge: Law
- Jury: Facts

Distinction Between Law and Fact

For a theft to be established, the prosecution must prove five elements:
- Appropriation
- Property
- Belonging to another
- The intention to permanently deprive
- That the action was done dishonestly.
This is a matter of law for the judge, as it would be to give the jury directions on the meaning of a statute.

Matters of Fact

The jury decides that the specific offender committed the crime as alleged based on the evidence presented by the prosecution.
It can be a very subtle distinction between the two, although in many cases it is very clear where the dividing line is.

Modern-Day Use of Juries

Crown Court:
- All trials tried by jury.
- Panel of 12.
- Decide if Defendant is guilty or not guilty.
High Court:
- Panel of 12.
- Rarely used, only for defamation (now Defamation Act 2013 – no jury trial); false imprisonment & malicious prosecution.
- Decide liability and amount of damages.
County Court:
- Panel of 8.
- Rarely used.
- Only available for false imprisonment and malicious prosecution.
- Decide liability and amount of damages.

Main Types of Cases Involving a Jury

Crown Court
- Serious criminal cases (e.g., murder, manslaughter, rape).
- Role of Jury: Decide whether the Accused is guilty or not guilty
- Number on Jury: 12
High Court/County Court
- Defamation, False Imprisonment, Malicious Prosecution.
- Role of Jury: Decide liability and quantum of the damages
- Number on Jury: 12 (High Ct), 8 (County Ct)
Coroner's Court
- Deaths that occur in prison, police custody, in an accident etc.
- Role of Jury: Decide the cause of death.
- Number on Jury: 7-11

Reasons for a Jury Trial

Provide a check and balance on state power.
Ensure an individual is being tested based on reasonable standards (of the public and not those of the legal profession).

Eligibility of Jurors

Must be mentally stable and not disqualified.
Resident in the UK for at least 5 years.
Eligibility criteria include those between the ages of 18 and 75 (revised by Criminal Justice and Courts Act 2015, Section 68).

Jury Selection

Every year, about 450,000 people are selected at random from the electoral roll for jury service.
A computer selects those on the roll who are aged between 18 and 75.
Because of its random nature, some people are never called, while others can be selected more than once.
A person has about a one in six chance of being summoned for jury service in their lifetime.
The jury selection process, also known as voir dire, involves questioning potential jurors to identify biases or reasons they might not be impartial.
This process aims to select a fair and impartial jury for a trial.
Lawyers and the judge participate in voir dire to assess a juror's suitability.
Jurors can be excused for cause (specific reasons) or through peremptory challenges (without stating a reason).

Random Selection

“Our philosophy is that the jury should be selected at random – from a panel of persons who are nominated at random. We believe that 12 persons selected at random are likely to be a cross-section of the people as a whole – and thus represent the view of the common man… The parties must take them as they come…” - R v Sheffield Crown Court, ex parte Brownlow [1980] QB 530, CA, Lord Denning MR.

Criticism of Random Selection

There has been some criticism of the random selection of jurors based on the electoral roll.
Many people are not registered to vote.
The Auld Report in 2001 recommended that eligibility for jury service should be based on the entitlement to vote, rather than on entry on the register.
He recommended that other records could be used to supplement the electoral register, such as Driver Vehicle and Licensing Agency (DVLA) database records.

Jury Summons

Those selected for jury service will receive a summons through the post advising them that they have been chosen and informing them where they must go and when.
They must reply to the jury summons within 7 days.
Failure to complete jury service when summoned is a criminal offence and can be punished with a fine of up to £$1,000$$.

Deferral of Jury Duty

Jury service can be deferred under certain circumstances, such as a hospital appointment or a family wedding.
If deferred, the person must undertake jury service at another date within 12 months of the original summons.
They must state on which days during the next year they will be unavailable, as by law, deferral can only be granted once.
Decisions on whether someone may defer or be excused from jury service are made by the Jury Central Summoning Bureau.

Excusal and Ineligibility

Some people, such as members of the armed forces, are excused and will not be required to complete jury service.
Those who are mentally ill are ineligible for jury service.
People with certain criminal convictions.
This includes those who have served, or are serving, prison sentences or community orders of varying degrees of seriousness and those on bail in criminal proceedings.

Disqualification of Juror

Mentally disordered (Criminal Justice Act 2003 Schedule 1).
Imprisoned for life.
Serving a term of imprisonment of 5 years or more.
- Note: All these are disqualified for life (Permanently).
At any time in the last 10 years:
- A custodial sentence less than 5 years.
- Serving a community service order.
- Is on bail.
- Note: These disqualified for 10 years.

Jury Numbers and Selection

When a jury is required, a court official will choose a number of jurors — usually 15 — from those called for duty.
Although only 12 are needed for the trial itself, more people are taken into the court in case a juror is unable to sit, for example if he or she knows the defendant or anyone involved in the case.

Jury Trials (Duration)

Jurors are usually expected to sit for 10 working days, and since the average trial lasts about a day and a half, it is highly likely that a juror will sit on more than one trial.
Sometimes, a juror will be required to sit for more than 10 working days if the trial is expected to last longer.

Role of Juror

Jurors are lay people and as such do not require any legal knowledge.
The judge will assist them with any points of law, and the lawyers will be aiming to make their case as clear as possible so that the jury can understand.
Juries are used mainly in criminal trials, but occasionally they are also used in civil matters.

Criminal Role

The role of the jury is to decide on the facts by consideration of the evidence.
Juries are only used in about 1% of criminal cases because magistrates deal with the majority of criminal offenses.
The use of juries is reserved for the more serious cases such as murder, rape, and grievous bodily harm.
Trials take place in the Crown Court, with a jury of 12.
Since most jurors do not have legal experience, the judge guides them on the relevant law.

What Crimes are Tried by Jury?

Either way offenses: theft
Indictable only offenses: murder, manslaughter, rape

Verdict

Jurors reach a verdict of ‘guilty’ or ‘not guilty.’
They must aim to reach a unanimous verdict initially, but under the Juries Act 1974, majority verdicts will be accepted after 2 hours of deliberation.
For a majority verdict, at least 10 of the jurors must agree.
If the jury has fallen to 10, for example through illness, then 9 must agree.
If the defendant is found guilty, the judge passes sentence.

Civil Role

Rarely, jurors may be asked to sit on a civil matter in cases of defamation (since DA 2013 no jury trial), fraud, false imprisonment, or malicious prosecution.
Such trials will be in the High Court or County Court.
Additionally, jurors may be required to sit in a Coroner’s Court.

Advantages of Jury Trial

There is public involvement in the legal system, which makes the system more open.
The defendant is tried by their peers.
There is public confidence in the use of juries.
They are ‘the lamp that shows that freedom lives’ (Lord Devlin) – represents liberty against the state.
The use of 12 jurors should cancel out any individual bias.
The jury is independent. This allows the members to come to a ‘just’ verdict as opposed to a ‘legal’ verdict.

The Jury as a ‘Bastion of Liberty’

The idea here is that the jury can exercise its power to acquit a Defendant in defiance of the law, to show its disapproval of that particular law.
Examples:
- R v Ponting [1985] Crim LR 318, Central Criminal Court
- R v Kronlid & Others (1996) The Times 31 July, Liverpool Crown Court
- R v Lord Melchett & Others (2000)
- R v Gibson (2000)
- R v Shayler (2002) The Guardian and the The Times, 5 November, Central Criminal Court

Disadvantages of Jury Trial

The jury’s decision is reached in secret. The reasons for the decision are not known.
In some cases, the jury has used unreliable means of coming to a decision, e.g., in R v Young (1991), where a ouija board was used to contact the dead victims.
Jurors may be racially biased, as in Sander v United Kingdom (2000) where the European Court of Human Rights ruled that a jury should have been discharged.
The HOLs has ruled that discussions in the jury room must remain secret and disclosure, even where it showed a problem, could not be allowed to affect a verdict once the verdict had been given (R v Connor; R v Mirza (2004)).
Jurors may not be able to understand complicated cases. There is provision in the Criminal Justice Act 2003 for complex fraud cases to be tried by a judge alone, but this provision will only become law if both Houses of Parliament approve any regulations made for it.
Media coverage may influence a jury’s verdict, especially in high-profile cases.
The compulsory nature of jury service is unpopular.
Acquittal rates in the Crown Court are criticised for being too high. However, a large number of acquittals are directed by the judge. The jury acquits in about 36% of cases.
The use of a jury makes a case longer and more expensive.
Jurors can be ‘nobbled’ (influenced). In R v Twomey (2009), the CA made the first order that a trial should be held by a judge alone, after earlier trials had collapsed because of attempts to ‘nobble’ the jury.

Other Disadvantages

The danger of jury nobbling.
Note s.46 Criminal Justice Act 2003 – judge can decide case alone if necessary. R v Hussain & Others (2017).
Jury can decide without having to give reasons.
Possible breach of Art 6 of the European Convention on Human Rights.
Excessive award of damages.
Psychological distress to jury members.

Criticism of Jury Trial

Lack of Legal Expertise: Jurors are laypeople and may struggle to understand complex evidence or legal directions, especially in fraud or technical cases.
Secrecy and Lack of Accountability: Jury deliberations are conducted in private and cannot be scrutinized, which can lead to concerns about reasoning and potential bias.
Bias and Prejudice: Research and case studies (e.g., R v Twomey) suggest that racial, class-based, or media-driven biases can affect jurors, especially in high-profile trials.
Cost and Efficiency: Jury trials are expensive and time-consuming compared to magistrates' court proceedings.
Inconsistency: There is a risk of unpredictable verdicts due to differences in individual juror interpretation, leading to perceived inconsistency in justice.

Why the Need for Reform of Jury Trial

Complexity and Efficiency:

Complex Cases: Juries can struggle to understand complex legal concepts and evidence, particularly in fraud cases. This can lead to miscarriages of justice or lengthy trials.
Time and Cost: Jury trials are notoriously expensive and time-consuming, contributing to backlogs in the court system.
Delays: The need to assemble a jury and the possibility of hung juries (when jurors cannot agree on a verdict) further contribute to delays.

Potential for Bias:

Jury Tampering: There is a risk of jurors being influenced or intimidated, especially in high-profile cases.

Reform

Social Media and Internet Use: Jurors using social media or the internet to research cases or discuss them can lead to contempt of court and undermine the trial's fairness.
Individual Bias: Jurors may be influenced by their personal experiences, opinions, or biases, potentially leading to unfair verdicts.
Lack of Diversity: The current jury selection process may not result in a jury that truly reflects the diversity of the community, leading to concerns about fairness and representation.

Public Confidence and Accountability:

Secrecy of the Jury Room: The secrecy of jury deliberations can be seen as undemocratic and lacking transparency.
Unaccountability: The lack of accountability for jury decisions, while intended to protect jurors, can also raise concerns about the fairness and legitimacy of the process.

Jury Perverse Verdicts

A perverse verdict is a jury's decision in a trial that is either against the weight of the evidence presented or directly contradicts the judge's instructions on the law. Essentially, it's a verdict that a reasonable person would find difficult to understand given the evidence and legal guidance.
Examples:
- R v Kronlid (1996): Protesters damaged Hawk fighter planes to prevent their use in alleged genocide in East Timor; the jury acquitted them.
- R v Ponting (1985): The judge directed the jury that the accused's actions were proven under the Official Secrets Act 1911; yet, the jury delivered a not guilty verdict.
- R v Tisdall (1984): A civil servant leaked government secrets, and the jury convicted her, sentencing her to 6 months’ imprisonment.

Possible Reforms

Removing the use of juries in complicated fraud trials (R v Rayment (2005) - Jubilee Line trial collapse).
Abolishing the use of juries altogether (S. 44 Criminal Justice Act 2003, R v Twomey (2009); Twomey v UK (ECtHR, 2013)).
Providing more detailed guidelines on how to decide.
Requiring the jury to give reasons for their verdicts.
Enabling the Court of Appeal to overturn obviously perverse verdicts.

Reform to Eligibility for Jury Service

The Criminal Justice Act 2003 abolished certain categories of people who had previously been either disqualified or entitled to automatic release from jury service:
- Those involved in the administration of justice, judges, barristers, solicitors, and the police.
- The Clergy.
- Doctors.

Why Would a Defendant Want to Be Tried Without a Jury?

Nature of the crime.
Pre-trial publicity.
Better knowledge of the law.
Less susceptible to overestimating expert evidence.

Adverse Pre-Trial Publicity

There are major problems with jury trial if the case in question has received prolonged and intensive media scrutiny.
It is in these cases that the Defendant may opt to be tried by a judge sitting alone.
For cases which may be cited as examples see:
- R v Rosemary West [1996] 2 Cr App R 374
- R v Tracey Andrews [1999] Crim LR 156; [1998] All ER (D) 454 (October)
- R v Michael Stone [2001] Crim LR 465; [2001] All ER (D) 162 (February)
- R v Barry George [2002] All ER (D) 441 (July)

Exclusion of the Jury from Certain Cases

The Criminal Justice Act 2003 allowed juries to be excluded from certain types of cases. These are:
- Serious fraud trials.
- Trials where jury tampering has occurred.
Instead of trial by judge and jury, the judge will sit on his own.
- See: s.43 CJA 2003

S.43 CJA 2003

This is the section which governs serious fraud trials.
It provides that the judge must be satisfied that ‘the complexity of the trial or the length of it (or both) is likely to make the trial so burdensome to the members of the jury … that the interests of justice require that serious consideration should be given to the question of whether the trial should be conducted without a jury’

Other Proposals for Use in Serious Fraud Cases

There have been various other recommendations for a substitute of trial by jury in serious fraud cases. These included:

Specially-screened jurors or ‘an entirely separate pool of jurors to be summoned exclusively to sit on serious fraud trials’;
A judge sitting with 2 lay members from a panel;
A judge sitting on his own.

S.44 OF CJA 2003

This is the section governing jury tampering.
The section provides that the judge has to be satisfied that two conditions are met:
- There is ‘evidence of real and present danger that jury tampering could take place’;
- The ‘likelihood that it would take place’ is ‘so substantial as to make it necessary in the interests of justice for the trial to be conducted without a jury’

Judge-only courts were used in Northern Ireland from 1973 onwards, known as Diplock Courts

Summary

The role of the jury in the English legal system is the subject of contentious debate.
The role of the jury is to decide matters of fact.
Judges can instruct juries to acquit but not to convict.
Selection of juries is random in theory.
S 8 of the Contempt of Court Act 1981 makes it an offense to obtain, disclose, or solicit any particulars of statements made in the course of the jury’s deliberation.

Critical Evaluation Prompt

"Critically evaluate the role and effectiveness of the jury system in the English legal system. In your answer, consider the historical development, current functions, key criticisms, and recent reforms or proposals for change."