English Legal System

Trial by Jury

Eligibility for Jury service

Selection of the Jury

Reforms to the Jury by the Criminal Justice Act 2003

Aims

• The aims of this lecture are:

1. To introduce the concept of trial by jury;2. To look at the concepts of a “randomly-

selected” and “unbiased” jury;3. To examine the reforms of trial by jury made by

the Criminal Justice Act 2003;4. To look at the concept of jury waiver;5. To examine proposals for further reform of the

jury.

Outcomes

• By the end of this lecture you should be able to:

1. Describe how jurors are selected for jury service and the deficiencies of the current system;

2. Explain what it meant by a randomly-selected jury and how this differs from an unbiased jury;

3. Explain the rationale behind the reforms to trial by jury introduced by the Criminal Justice Act 2003;

4. Critically assess the right to a multi-racial jury in certain types of cases.

Why study trial by jury?

• Popular perception of the legal system

• Ancient right conferred in the oldest constitutional statute, the Magna Carta 1215

• Important democratic principle of involving the laity in one of the branches of government

• System of full-scale trial

• The Darbyshire argument as to whether it has in fact been demoted by the advance of the magistrates’ courts

What crimes are tried by jury?

• Either way offences, e.g. theft

• Indictable only offences, murder, manslaughter, rape

• The distinction between these categories will be dealt with elsewhere in the lectures on criminal litigation

Who are the jurors?

• Judicial pronouncements have constantly emphasised that the jury is supposed to reflect the views of the ‘common man’

• Jurors are selected at random, rather than being unbiased

• English versus American concept of jury

Who are the jurors?

• Eligibility under the Juries Act 1974:

1. 18-70 years old;

2. Registered to vote;

3. Ordinarily resident in the United Kingdom for 5 years from the age of 13.

Random selection

• R v Sheffield Crown Court, ex parte Brownlow [1980] QB 530, CA. Lord Denning MR:

• “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…’

Criticism of random selection

• There has been some criticism of the random selection of jurors on the basis of 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 DVLA records

Is there a right to a multi-racial jury

• R v Ford [1989] QB 868, Court of Appeal, Lord Lane CJ:

“It appears to have been suggested in some of the cases that there is a ‘principle’ that a jury should be racially balanced…In our judgment such a principle cannot be correct, for it would depend on the underlying premise that jurors of a particular racial origin or holding particular religious beliefs are incapable of giving an impartial verdict”

Research Exercise on Multi-Racial Juries

• Locate and read the case of R v Smith (Lance Percival) [2003] 1 WLR 2229, [2003] Crim LR 633, Court of Appeal

• What was decided in this case?

• How does this differ from previous judicial statements in this area?

Problems arising from the racial prejudice of jurors

• In the cases of Quershi (2002) and Mirza (2004) allegations of improper conduct on the part of jurors including, but not limited to, racism were raise

• The allegations were only raised after the trials had been concluded

• It was held in the former case that s.8 of the Contempt of Court Act prevented the Court of Appeal from enquiring into a jury’s deliberations

• In the more recent case the House of Lords said that s.8 did not apply to the Appeal Courts, but that the common law rule of the confidentiality of jury deliberations had the same effect

Sander v United Kingdom

• This was a case taken to the European Court of Human Rights arguing that the Defendant’s right to a fair trial had been breached under Article 6 of the Convention

• Racist jokes had been brought to the attention of the judge before the trial had finished

• The judge had the option to discharge the jury and order a retrial

Floodgates

• If the right to a multi-racial jury were allowed, what effect would this have on other groups?

• People might claim that the jury ought to be altered to reflect their religion, sexual orientation, disability, gender etc…

• There is a case from Canada where the male defendant’s conviction of sexual assault was quashed by the Supreme Court because it had been given by an all-female jury

• However, the case can be distinguished from the situation in England and Wales because the all-female jury was created by the

prosecution’s use of challenges and peremptory challenges

Challenges

• Abolition of the peremptory challenge

• Challenge for cause/stand by for the Crown

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

1. Those involved in the administration of justice, judges, barristers, solicitors and the police;

2. The Clergy;3. Doctors.

Before moving on to the next slide, can you think of any reasons why the groups listed above were ineligible or entitled to be excused from jury service?

The role of the jury in the trial

• The distinction between the tribunal of law and the tribunal of fact

The judge = the tribunal of law

The jury = the tribunal of fact

Distinction between law and fact

• This will become clearer the more law that you study, especially criminal law

• Essentially offences are split up into different component parts which must be proved by the prosecution

• Example – the definition of theft

The appropriation of property belonging to another with the intention to permanently deprive done dishonesty

Distinction between law and fact

• In order for a theft to be established, the prosecution has to prove those five elements:

1. Appropriation;2. Property;3. Belonging to another;4. The intention to permanently deprive;5. 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

• This is where the jury decide that the specific offender committed the crime as alleged on the basis of the evidence that has been presented to them by the prosecution

• It can be a a very subtle distinction between the two, although in many cases it is very clear where the dividing line is

Jury Reform

• The jury always attracts a lot of interest from the government of the day regarding its reform. Some of the most recent proposals have been:

1. Jury waiver;2. Restriction of D’s right to elect trial by jury;3. Alterations to the racial balance in a jury;4. Reforms to the eligibility requirements (partly

discussed above).

Jury waiver

• Recommended in the Auld report of 2001

• Would entitle the D charged with an indictable only offence to elect not to be tried by jury, but by a judge sitting on his or her own

• Common system in other common law jurisdictions, e.g. Canada, Australia

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

Note: this reform was not adopted by the government

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 recent cases which may be cited as examples see

R v Rosemary West [1996] 2 Cr App R 374R 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:

1. Serious fraud trials;2. Trials where jury tampering has occurred.

Instead of trial by judge and jury, the judge will sit on his own

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:

1. Specially-screened jurors or ‘an entirely separate pool of jurors to be summoned exclusively to sit on serious fraud trials’;

2. A judge sitting with 2 lay members from a panel;

3. A judge sitting on his own.

s.44 of CJA 2003• This is the section governing jury tampering

• The section provides the that judge has to be satisfied that two conditions are met:

1. There is ‘evidence of real and present danger that jury tampering could take place’;

2. 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

Advantages of Jury Trial

• The advantages of jury trial may be summarised as follows:

1. Public participation in the criminal justice system;2. Juries are the best judges of fact;3. Clear separation of responsibility – for example the

voir dire;4. Encourages openness and intelligibility;5. The Jury is a ‘Bastion of Liberty’.

We are going to look at the last one in more depth

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

R v Ponting [1985] Crim LR 318, Central Criminal CourtR v Kronlid & Others (1996) The Times 31 July,

Liverpool Crown CourtR 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 main disadvantages of jury trial:

1. Cost and delay;

2. The risk of perverse verdicts;

3. Secrecy.

For a critique of jury trial see Penny Darbyshire on the English Legal System

Summary of Lecture

• You should now be able to:

1. State what is meant by a randomly-selected as opposed to an unbiased jury;

2. Describe how the courts have approached the question of whether there is a right to a multi-racial jury;

3. State what reforms have been made to eligibility for jury service;

4. Describe the advantages/disadvantages of trial by jury.

Further reading on the Jury

• For the mechanics of jury trial in this country see Ingman, T., ‘The English Legal Process’ (Oxford: Oxford University Press, 2004, 10th edition)

• See also Slapper & Kelly for an overview of the history of jury trial, how the jury was originally used in the investigation of crime, rather than the determination of guilt or innocence

• See also Darbyshire’s article and the cases mentioned in the lecture