To what extent should juries be upheld in the UK judicial system?

7/26/2019 To what extent should juries be upheld in the UK judicial system?

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Page 1 of 24Charlie Wright VCR

To what extent should a jury system be upheld in the UK?

Across the world, the trial by jury has been integral in maintaining what the judicial system

perceives to be the right to fair trial, a doctrine heavily implanted legal documents spanning

centuries. Whether it be the UKs Magna Carta, the European Convention on Human Rights or,

globally, the International Covenant on Civil and Political Rights, the right to fair trial has been

maintained as a centrepiece for judicial integrity. Within the right to fair trial itself lies a dispute

however, which has clearly distinguished two separate sides whether a jury, the system relied on

for centuries, actually provides this fair trial. Described as Thomas Jefferson as the everlasting

birth right of the people of this land [the USA], the jury has perpetually existed, across the globe, in

tandem with the belief that public involvement in the judicial system continues to provide justice.

Alongside this, many assert that the process of random public selection incorporated with the jury

allows the executive and judicial systems to be scrutinized. This was supported by Jefferson in his

belief that the jury is in fact the only anchor yet imagined by man, by which a government can be

held to the principles of its constitution1. It could be argued, however, that it is this public

involvement in complicated judicial proceedings which flaws the jury system. Numerous high-profile

cases, such as (R v Young [1995] QB 324, CA) and (R v Tharakan [1995] 2 Cr App. R368, CA),

have palpably exhibited the inadequate knowledge of jurors in finding legal verdicts. From this, one

may point to the process introduced by Lord Diplocks 1972 reports, in which the trial by jury

would be suspended in favour of a single judge, as a more reliable system than the UKs current

jury system. Whilst including the possible alternatives and their benefits, this dissertation will

provide a coherent focus on whether the jury system remains the most advantageous legal process

available to the UK.

Firstly, it is important to analyse what upholding a jury system in the UK implies, and how this may

fluctuate. The jury system is principally present within the Crown Court, where 12 legible members

1Superior Court of Delaware: President Judges Message to Jurors (2015) Accessible at:

http://courts.delaware.gov/superior/jury/jury_message.stm(Last Accessed: 29 Jan. 2015)
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of the public are called to formulate a verdict through the amalgamation of mixed fact and law2

which subsequently directs the judge in reaching a decision on the future of one or more

individuals. The significance of the jury system within the entire scope of the criminal justice system

of the UK is often distorted. It may provide an avenue for the everyday layman to become involved

in the public scrutiny of the judiciary, but of the 1.74 million defendants who appear in magistrates

courts per year, a mere 1.7 per cent are subsequently sent to trial at Crown Courts3. Furthermore,

with approximately 40 per cent of trials at Crown Court, a decision for acquittal is reached between

the judge and legal representatives of both parties (defence and prosecution) prior to the jury being

needed. Ergo, this dissertation will, using evidence given, develop an opinion as to whether the jury

should be retained within the UK Crown Court, in those 60 per cent of Crown Court criminal trials

and the occasional civil cases they are required to attend. Moreover, possible ameliorations will be

included and explored.

One prevalent criticism of the jury is the notion that jurors, as laymen of the public, are

predominantly unknowing of the intricacies and complications often involved within the UKs judicial

system. Ingman notes this as two fundamental issues; jurors may be too easily influenced by what

counsel says to them, and they [the jurors] may be incapable of following the evidence4

. The

former, as Ingman asserts, comes at the expense of the real issues in the case, whilst the latter is

typically conspicuous within trials of libel or commercial fraud. From this, many may assert that

juries should be barred from these particular trials, and remain elsewhere in the judicial system. As

a matter of fact, the Committee on Fraud Trials, chaired by Lord Roskill in 1986 provided an

alternative concept, with a tribunal consisting of a judge sitting with two laymen with business, City,

or accounting skills5. This idea, however, was jilted in favour of the introduction of preparatory

hearings, as included in the Criminal Justice Act 1987. Consequently, it could be asserted that

2 Ingman, T. (2010) The English Legal Process (OUP Oxford) p232

3Spiked:Twelve angry men are better than one judge (2010) Accessible at:http://www.spiked-

online.com/newsite/article/7943#.VKwmY74QKxM(Last Accessed: 10 Dec. 2014)

4 Ingman, T. Op cit (2010) p260
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necessary action has taken place in making notably complicated fraud or libel trials more easily

accessible for the general public and in this sense, the argument that juries do not have the

necessary understanding is effectively invalidated.

However, in his 2001 Review of the Criminal Courts, Lord Auld again proffered Lord Roskills

original concept, whilst replacing the two experienced laymen with two panel members fit for

purpose, and preferred by the Lord Chancellor. Eventually, the government approved of Lord

Roskills renovated model via Lord Aulds review in the Criminal Justice Act 2003, allowing the

prosecution to apply for a single judge to assume control of a specific fraud trial6. Additionally,

section 9 of the Criminal Procedure and Investigations Act 1996, which came into effect in January

1999, allowed similar preparatory hearings for non-fraud cases which entailed such complexity or

likely length. The subjectivity was extended further by the Criminal Justice Act 2003, to such

complexity, likely length or seriousness. Consequently, a wide scope of complex trials are now

covered by the option to preparatory hearings, though the option remains available to the judge and

prosecution only. One may argue that the lack of an option given to the defence continuously

allows the possibility for juror ignorance to remain a problem within the UKs judicial proceedings,

though it is expected that the judge act impartially to provide this should the defence need so.

Ergo, the jury, through the implementation of preparatory hearings, is now generally able to

understand the complications involved with both fraud and non-fraud cases, and from this has no

reason to be abolished.

Many argue that both Lord Roskill and Lord Aulds respective notions which provided a solution to a

lack of juror understanding lacked substance themselves - producing very little evidence as to how

juries were inadequate in knowledge. In fact, Luke Gittor, Legal Editor of online magazine Spiked,

claims that neither [Lord Roskill or Lord Aulds reports] established that juries in cases involving


6 Criminal Justice Act 2003: Explanatory Notes (2003 c.44) Accessible at:

http://www.legislation.gov.uk/ukpga/2003/44/notes(Last Accessed: 10 Dec 2014)
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complex money offences had been returning onerous verdicts. Although Gittor lacks the legal

authority of either aforementioned Law Lord, the value of his comment can be shown through the

case of (R v Tharakan [1995] 2 Cr App. R 368, CA). Although heavily cited as a case which

demonstrates juror incompetence at understanding legal processions, the fault mainly lies at the

hands of the judge, of whom it was proven did not set out unequivocal instructions to the jury in

question - a principle role of the judge. Consequently, it may be asserted that the fault often lay not

in the laymen but the legal professions to whom the jury and general public look for direction and

advice. Thus, whilst juries should be retained, the legal requirement for direction should be

extended across all cases.

Many may then claim that the libel cases which dominated headlines throughout the late 20th

century in the UK undeniably evidenced the incompetent side of the jury system. This was of great

national interest, particularly with the case of (Sutcliffe v Pressdram Ltd [1990] 1 All ER 269, CA)

where the Court of Appeal was seen to considerably adjust the decision previously made by a jury

to award Sonia Sutcliffe a total of 600,000. The new figure, decided upon by the Court of Appeal,

amounted at one-tenth of the original sum (60,000), demonstrating just how far-fetched the jurys

decision against satirical magazine Private Eye was seen to have been. Other exorbitant libel

awards included the record 500,000 received by Jeffrey Archer acting against The Star

newspaper in 1987, and the 300,000 awarded to Koo Stark, who had acted against the publishers

of The Sunday People7the following year. The prejudice plainly shown by a number of juries

taking part in high-profile cases was encapsulated in the case of (Aldington v Watts and Tolstoy

(No.2) (1990) The Independent, 20 July, CA), where both defendants, as members of the media,

were driven into bankruptcy and as a consequence, unable to appeal to ostensibly unfair verdict

previously given. Following this, the European Court of Human Rights condemned the jurys award

as disproportionate, claiming the case proved a violation to Count Tolstoys (one of the defendants)

right to freedom of expression under art8. Not only did this display the devastating effect of




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seemingly inequitable jury verdicts, but concurrently accentuated the judicial systems problem with

what many saw as media-despising juries. This preference of juries to people to whom they

perceive as similar to themselves is an attribute from which many base their argument contra-

juries.

This sympathy to similarity was particularly prevalent not only in cases involving the media, but

also with accused motorists and those concerned with national security or armed forces. The

military forces of the UK (the Army, the Royal Air Force and the Royal Navy) have resolved this

presupposed problem with the 2006 establishment of a permanent Court Martial, replacing the ad-

hoc system available prior to the Armed Forces Act of 20069. Consequently, humanistic

complications prevalent in the involvement of everyday laymen are abnegated in preference for a

number of military-trained personnel who are heavily involved in legal proceedings. From these

claims, one may assert that the sympathy to similarity which juries have exhibited in the past

concludes either in the costly use of the Court of Appeal or a disproportionate award being

finalised. These situations may be seen to have adverse affects on the budgetary situation of the

judicial system and the legitimate standing of the system and one could affirm that they thus

warrant the abolishment of the jury system. However, it could be argued that they represent a

minute amount of cases and through extending the use of a single judge from solely fraud trials, as

stated by the Criminal Justice Act 2003, the jury system may continue to be upheld though to a

lesser extent.

Many jury-skeptics claim that the problem of morality lingers within the other UK courts. This can

be shown through the acquittals of Jeremy Thorpe in 1979, Clive Ponting in 1985 and of Patrick

Pottle and Michael Randle in 199110. The verdicts of the aforementioned defendants were

subsequently described as perverse following their trials, with many legal professionals and

9 Armed Forces Act 2006 (c.52) Accessible at:

http://www.legislation.gov.uk/ukpga/2006/52/pdfs/ukpgaen_20060052_en.pdf(Last Accessed: 11

Dec 2014)

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commentators pointing to the jury sympathy of any unsatisfactory law or unfair treatment of the

defendant(s)11. As, in these cases, the actions of the respective juries may have led to situations in

which unsatisfactory law was palpable, the use of an alternative system whereupon this could

have been avoided may be more suitable to the UK. Although, similarly to the previous issue of

libel cases, the aforementioned cases stand alone in a plethora of otherwise successful acquittals,

many argue that a functional legal system should have no such cases in which unsatisfactory law

can be deducted - in essence, a system without the use of juries.

One case which unequivocally shows jurors preference to morality rather than legal obligation is

the trial of Michael Randle and Patrick Pottle in (Randle & Pottle, R v (1991) Alliott J). Within the

trial, all members of the jury were informed by the prosecution of the public admittance to guilt

made by the defendants in their publication The Blake Escape: How We Freed George Blake, and

Why; inexplicably demonstrating that legally, both defendants should be convicted. Moreover, the

directions of the judge pointed to the fact that the defendants presented no legal defence in the

courtroom; a sign of clear guilt. In an attempt to morally persuade the jury, Pottle made the claim

that the case was not simply a case of guilt or innocence but rather a case of right and wrong,

before asserting that the principles upheld by the jury are in fact epitomised by their ability to look

at the whole case rather than the legal mumbo-jumbo12.

Pottles speech was particularly symbolic in his quoting of Bertrand Russell in saying remember

your humanity; forget the rest, doubtlessly trying to morally guide the jury. Pottle almost distorted

Russells words, with the rest ostensibly representing the legal mumbo-jumbo he had previously

mentioned; alluding to the idea that moral values should take precedence over legal obligation.

From this, two disparate judgements can be made. Firstly, many claim that Pottle was correct, and

the jury is a mechanism for concurrently providing a moral ground as well as making legal


12 The Guardian Obituaries: Pat Pottle (2000) Accessible at:

http://www.theguardian.com/news/2000/oct/03/guardianobituaries.richardnortontaylor(Last

Accessed: 11 Dec 2014)
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decisions. Doubters of the jury system will point to the second opinion, in which Pottle was wrong

to misconstrue the value of the jury as an arbiter for moral rationality within the courtroom where

legal mumbo-jumbo is essentially the invulnerable core of the UKs legal system. Additionally, the

acquittal of Pottle and Randle demonstrates that jurors are susceptible to debasing legal

accountability in preference for moral conscience. Although many may claim that this gives the

court a sense of societal involvement and is inherently beneficial, others argue that the court

should remain immune to morality and seek to be solely legal. Thus, perception on whether law is

based on moral reasoning becomes influential in deciding whether a jury should be upheld; if law is

humanistically obliging, then the jury becomes useful in maintaining moral societal interest and

should therefore be retained. However, if law has evolved into a separate entity on its own, used

solely to maintain societal structure, then the jury should be abolished in an attempt to protect the

legal framework from moral ideas which may misconstrue its aims; as occurred in the trial of Pottle

and Randle.

The contrasting views supporting either the retention or abolition of a jury system can be aptly

divided through ideological base of law itself; and in particular, the ideas of natural law. John Finnis

asserted in his suggestion that within the nine basic requirements of practical reasonableness,

necessary pillars in a functioning legal system, following ones conscience is elementary13. Thus,

Pottles request for the jury to remember [their] humanity is somewhat congruent with Finnis

humanistic conception of Thomas Aquinas original ideals and theory of natural law. Although

natural law has had a considerable influence on the development of British law and the UKs legal

system, the common law upheld in the court of the UK has become disconnected from much of

natural laws original ideals.

Within his report of Calvins case in 1608, Edward Coke declared that the law of nature is part of

the law of England, and that it [natural law] is immutable. Lord Mansfield, shown particularly in

(Somerset v Stewart (1772) 98 ER 499) is commonly said to have upheld principle of natural law14

as, although not illegal by the standings of common law, slavery was innately immoral and should

13 Wacks, R. (2014) Philosophy of Law, Second Edition (OUP Oxford) p18


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thus be unconditionally outlawed. Mansfield was ultimately successful, and in this case, it can be

shown that natural law is imprinted within the UKs legal system. Consequently, as the jury

continues to provides morality (as shown by (Randle & Pottle, R v (1991) Alliott J)) fundamental in

the upholding of natural law, it should in itself be retained.

However, a number of other legal theorists such as Hans Kelsen describe morality as an impurity

in law; this works harmoniously with his proposed system in which a certain conduct (X)

corresponds to a sanction (Y) that, in an objective fashion, should be applied by an official to the

offender15.This fundamentally opposes Pottles plea in which the idea of a jury system is to

essentially provide subjectivity in the courtroom. Kelsen explains that all decisions are built on a

basic norm, which exists only in the juristic consciousness - thus, incomprehensible to all but the

legal scientists, judge, or lawyer16. In this case, as everyday laymen, the jury would become

ineffectual by their incompetent understanding, and should therefore be abolished. Ayn Rand

states that all laws must be objective (and objectively justifiable)17, and with this statement, the

need for a jury system vanishes.

One may claim that the modern differences between manslaughter and murder (highlighted in

Section 52 of the Coroners and Justice Act 2009) as well as other offences such as self defence

raise difficulties of objectivity, and within these difficulties the subjective nature of each case arises.

Thereupon, in order to retain the possibility of subjectively analysing factors, the jury must be

retained; applying 12 individual and different subjective viewpoints to each case presented. It could

14Book Review:Lord Mansfield, by Norman Poser (2013) Accessible at:

http://www.wsj.com/articles/SB10001424127887323846504579071351161774662(Last Accessed:

11 Dec 2014)

15 Wacks, R. Op cit (2014) p41

16 Wacks, R. Op cit (2014 p41

17 Ayn Rand (1992) The Virtue of Selfishness; 50th edition (Dutton / Signet) p110
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be argued that the law provides an objective legal structure which, in the interest of the state,

should be adhered to; much like Kelsens Pure Theory of Law. This can be shown through (Owino

(1996) 2 Cr App Rep 128), in which the Court of Appeal distinctively presented the difference

between the subjective belief of the defendant and the actual objective element of the law; with the

latter taking absolute precedence18. More recently, however, sections 76(3) and (4) of the Criminal

Justice and Immigration Act 2008 presented the dual objective/subjective aspect of the defence.

This, alongside the specimen direction of the Judicial Studies Board concerning self defence which

clarified the need to ask whether the defendant honestly believed it was necessary to use force,

accentuates the continual presence of subjectivity in the UKs legal system. Ergo, as a mechanism

for retaining subjectivity, however rare, the jury system should continue to be upheld.

Within this argument, the extent to which juries should be upheld is key, as many propone the

retention of a jury system in certain situations whilst concurrently abandoning it in others; in this

case, the determining factor would be the subjective or objective nature of a case in relation to the

crime committed. This may be shown through the mental or physical incapability or characteristics

of the accused, principally when involving MNaghtens Rules of insanity ((1843) 10 Cl & F 200),

with which the mental state of an individual is decided upon. One may argue that the mental

characteristics provided by a defendant in any case should be subjectively analysed by a group of

impartial individuals (a jury). Subsequently, a decision should be made both concerning the guilt of

the accused and the severity of the sentence given.

Furthermore, in an attempt to eliminate any inconsistency within the legal system, all psychiatric

evidence is given must be considered by the jury assigned. One may support this notion with the

evidence of (Martin (Anthony Edward), R v [2002] CA), where the psychiatric condition of a farmer

accused of murder was dismissed by the Court of Appeal, although with the condition his

perception of danger was considerably heightened. An inconsistently subsequently arose in (Shaw

[2001] 1 WLR 1519), where the defendants perception of existing danger was taken into

18 Law Relating To Self Defence. British Self Defence Governing Body (Last update: 22 Dec 2014)

Accessible at:http://www.bsdgb.co.uk/index.php?Information:Law_Relating_to_Self_Defence(Last

Accessed: 6 Jan 2015)
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consideration by the Privy Council19. From this, it may be asserted that juries are essential in cases

where the psychiatric condition of the accused comes into question; using the laws objective

nature alongside their subjective moral views in order to provide a decision which functions with

both Kelsens legal positivism and the natural law which preceded it.

There are a number of legal humanists who perceive the law to be structured around the moral

values of society but also dont believe in the necessity of a jury system to uphold morality. In fact,

Richard Dworkin stated that although law is integrated with morality it is the lawyers and judges

who have become the working political philosophers of a democratic state20. Furthermore, the

responsibility of judges is to interpret the legal framework presented with each case, rather than

Kelsens assertion that law should be remain pure from human scrutiny. However, rather than

using a jury to present a morally-encompassing decision, Dworkin states that finding the one right

answer is the duty of the judge. This one right answer would then be determined not only by the

judges moral perception, but also by its suitability with the constitutional and institutional history of

the society in which the decision must be enforced. Using Dworkins assertions, H.L.A. Hart claims

that it is the judges personal opinion, alongside his or her intuition and discretion which provides

the decision. The judge is then, according to Dworkins theory, an arbiter not solely for legal

knowledge and judicial direction but also for morality within the courtroom. One may then attest for

the implementation of an independently acting judge who may provide ability in both the moral and

legal principles needed (according to Dworkin and other natural law theorists) in the courtroom,

rather than a jury.

The hybrid Roman-Dutch legal system of South Africa is one key example of a system which

utilises the independently acting judge. As a matter of fact, the system derives from a combination

19 Baskind, E. Op cit (Last update: 22 Dec 2014) Accessible at:

http://www.bsdgb.co.uk/index.php?Information:Law_Relating_to_Self_Defence(Last Accessed: 06

Jan 2015)

20 Wacks, R. Op cit (2014) p49
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of indigenous African, Dutch and British law; the latter being used for its ideas on common law21.

However, rather than the Supreme Court of the UK, which remains a separate and distinctive entity

from the European Court of Human Rights, the entire legal system of South Africa is subject to the

Constitutional Court; responsible for protecting everyones human rights22. This links closely to

Dworkins theory, of which Raymond Wacks associates with the defence of individual rights and

liberty. Many claim that with the implementation of such a system, the efficiency of UK Crown

Court trials would ameliorate; eliminating the possible need for preparatory hearings and

contemporaneously decreasing the possibility for court malpractices, which as discussed earlier,

often lies at the fault of the jury.

Much like the Judicial Appointments Commission (JAC) of the UK, South Africas Judicial Service

Commission (JSC) is responsible for appointing members of the judiciary, including the judges. In

the case of the South African High Court, whilst performing the roles given to a Crown Court judge

in the UK such as the issuance of the sentence and the management of the trial23, the judges are

simultaneously responsible for the encompassment of many more tasks. These tasks include what

is often the role of the jury in countries such as the UK and USA; gathering the evidence given and

delivering a verdict that, according to Dworkin, is composed of both morality and law. Moreover, if

requested, reasoning must be given; a privilege absent from the UKs judicial system. In fact, a

reason for the given verdict is absent from the European Convention on Human Rights, as explicitly

digressed in (Taxquet v Belgium (2012) 54 EHRR 26) where the European Court of Human Rights

declared that the Convention [ECHR] does not require jurors to give reasons for their decision. A

21 Roman-Dutch law. Encyclopdia Britannica Online (2015) Accessible at:

http://www.britannica.com/EBchecked/topic/507733/Roman-Dutch-law(Last Accessed: 06 Jan

2015)

22 Constitutional Court of South Africa (2014) Accessible at:

http://www.constitutionalcourt.org.za/site/home.htm(Last Accessed: 13 Dec 2015)

23 The role of judges. Directgov (2011)http://webarchive.nationalarchives.gov.uk/

+/www.direct.gov.uk/en/CrimeJusticeAndTheLaw/Thejudicialsystem/DG_181788(Last Accessed:

13 Dec 2014)
http://www.britannica.com/EBchecked/topic/507733/Roman-Dutch-lawhttp://www.constitutionalcourt.org.za/site/home.htmhttp://webarchive.nationalarchives.gov.uk/+/www.direct.gov.uk/en/CrimeJusticeAndTheLaw/Thejudicialsystem/DG_181788http://webarchive.nationalarchives.gov.uk/+/www.direct.gov.uk/en/CrimeJusticeAndTheLaw/Thejudicialsystem/DG_181788http://www.britannica.com/EBchecked/topic/507733/Roman-Dutch-lawhttp://www.constitutionalcourt.org.za/site/home.htmhttp://webarchive.nationalarchives.gov.uk/+/www.direct.gov.uk/en/CrimeJusticeAndTheLaw/Thejudicialsystem/DG_181788http://webarchive.nationalarchives.gov.uk/+/www.direct.gov.uk/en/CrimeJusticeAndTheLaw/Thejudicialsystem/DG_181788


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number of legal analysts have stated that with obligatory explanations, the number of appellants

and subsequently the number of appeals heard would significantly decrease; swiftly improving the

procession of cases and saving a considerable amount of financial resources.

Although this process of obligatory reasoning for each verdict may also be implemented whilst

retaining a jury system within the UK, there are several other factors that lead to reluctance in

financially upholding juries in the future; including the cost of using laymen and the compensation

that arises from this. This was of great interest in late 2010 when Louise Casey, the Commissioner

for Victims of Crime, suggested that over 70,000 Crown Court cases could be heard in

magistrates courts, and would subsequently save the UK Ministry of Justice a figure close to

30m24.The figure becomes undeniably startling when placed alongside the number of cases in

which the defendant pleads not guilty and so a trial by jury actually ensues; 17,851 and 17,865

cases in 2010 and 2011 respectively25.Thus, the use of everyday legal professionals in the form of

independently acting judges with whom the jury system would be replaced palpably benefits the

UK Ministry of Justice financially. On top of this, W.R. Cornish summarises the practical

advantages of an independently acting judge in three principle points: keeping court timetables

flexible, cutting down the length of trials and avoiding inconveniences and delays.

Within the UK, the use of Diplock courts in Northern Ireland may also be used as an example of a

system using an independent judge. In fact, from the systems introduction within the region of

Ulster in 1973 to its effective abolishment in 2007, approximately one in three serious criminal

cases were tried without the benefit of jury26. The Diplock courts were primarily utilised as a

method of safeguarding the potential jurors who, prior to 1973, were often embroiled in or affected

by the cases of terrorism set before them. However, one may point to the Guardians investigational

24Cut jury trials, says victims champion Louise Casey. BBC News. (2010) Accessible at:

http://www.bbc.co.uk/news/uk-11680382(Last Accessed: 13 Dec 2014)

25 Ministry of Justice, Freedom of Information Request:Approximately how many trials by jury are

there each year and how many cases are brought before the magistrates courts each year?

(2012) Reference: 78142
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video27, in which an RUC interrogator admits to conforming with the widespread use assault in

order to acquire a confession, albeit possibly illegitimate. This occurred due to the certain

conviction of a defendant in the Diplock court if a confession had been acquired; the absence of

everyday laymen had effectively led to a system of irrefutable guilt. In order to ensure the safety

of the public and preserve public interest in the actions of the judiciary, it can be asserted that

juries are unassailably necessary.

One may argue that from the introduction of independently acting judges arises a problem much

like the sympathy to similarity argument in disbanding the jury system. As J.A.G. Griffith states,

the judge, by virtue of his office, is mainly concerned to uphold and maintain the status quo28.

Griffith goes on to claim that judges consequently find conflict with any groups who seek change

and from this, without the representation of several individuals from a number of varying

backgrounds, the possibility of inherent bias arises with an independent judge.

This was explored in the report Industrial Conflict: Judicial Attitudes, in which seventy cases (fifty

civil and twenty criminal) arising out of industrial conflict, spanning between 1871 and 1966, were

analysed in order to determine whether judges have biases against the trade unions. Within the

report, which amalgamated cases in both Civil Courts and Criminal Courts, the proceedings found

in the High Court and the court of first instance in the Criminal Courts provided the largest

differences; both with significantly more cases determined against workers than in favour. In the

High Court, there were sixteen cases determined in favour of workers compared to the twenty-nine

26 Virginia E. Hench. Review of Jackson, John; Doran, Sean, Judge Without Jury: Diplock Trials in

the Adversary System. H-Law, H-Net Reviews. (1997) Accessible at:http://www.h-

net.org/reviews/showrev.php?id=959(Last Accessed: 13 Dec 2014)

27 Inside Castlereagh:We got confessions by Torture. The Guardian. (2010) Accessible at:

http://www.theguardian.com/uk/2010/oct/11/inside-castlereagh-confessions-torture(Last Accessed:

13 Dec 2014)

28 Zander, M. (2004) The Law-Making Process (Law in Context); Sixth Edition (Cambridge

University Press) p355
http://www.h-net.org/reviews/showrev.php?id=959http://www.h-net.org/reviews/showrev.php?id=959http://www.theguardian.com/uk/2010/oct/11/inside-castlereagh-confessions-torturehttp://www.h-net.org/reviews/showrev.php?id=959http://www.h-net.org/reviews/showrev.php?id=959http://www.theguardian.com/uk/2010/oct/11/inside-castlereagh-confessions-torture


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cases determined against29, demonstrating that an ostensible judicial preference against what

Griffith sees as a group who seeks change could be seen. Although many argue that the

amelioration of industrial conditions, notably within the UK, has led to a decrease in groups who

seek change, contemporary activists remain prevalent and with this, the possibility for judicial

partiality if acting without a jury system remains.

Many who argue against the introduction of an independently acting judge or a bench of

professional judges (as seen in the Divisional Court of the Queens Bench Division)30cite the

current problem of judicial misconduct as a cause for concern. In fact, in 2011-2012 alone, over 75

judges were disciplined for misconduct; including crimes as serious as blackmail and

manslaughter31. According to Ingman, English judges are, for the most part, above corruption and,

on the whole, impeccably behaved32. However, by possibly placing all power within the UK Crown

Court unto the judiciary, through the introduction of independently acting judges, the possibility for

judicial misconduct may be seen to synchronously increase. Through the Courts Act of 1971,

Circuit judges may be rebuked following their actions, but with a possible increase in judicial

misconduct, this may lead to an environment of instability and discrepancy.

This is not the case for High Court judges, however, as was shown in (Howell v Lee-Millais [2007]

EWCA 720, CA) where although guilty of wholly inappropriate behaviour and subject to a

29 OHiggins, P. & Partington, M. (1969) The Modern Law Review; Volume 32, Issue 1,Industrial

Conflict: Judicial Attitudes (The Modern Law Review Limited) p56


31 More than 75 judges disciplined for misconduct. The Guardian. (2012) Accessible at:

http://www.telegraph.co.uk/news/uknews/law-and-order/9399122/More-than-75-judges-disciplined-

for-misconduct.html(Last Accessed: 14 Dec 2014)

http://www.telegraph.co.uk/news/uknews/law-and-order/9399122/More-than-75-judges-disciplined-for-misconduct.htmlhttp://www.telegraph.co.uk/news/uknews/law-and-order/9399122/More-than-75-judges-disciplined-for-misconduct.htmlhttp://www.telegraph.co.uk/news/uknews/law-and-order/9399122/More-than-75-judges-disciplined-for-misconduct.htmlhttp://www.telegraph.co.uk/news/uknews/law-and-order/9399122/More-than-75-judges-disciplined-for-misconduct.html


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reprimand from the Lord Chief Justice, the judge refused to either step aside or resign33. The

startling nature of several instances of judicial misconduct directly questions the power placed unto

the hands of circuit judges with the removal of a jury system in the UK Crown Court. This includes

the occasion of 2002 where a circuit judge was reprimanded for having fallen asleep during the

closing stages of a rape trial34. This example, alongside a number of others creates an ambiguity in

bestowing such jurisdiction to an independently acting judge and as a consequence favours the

continual upholding of a jury system.

In order to improve the judicial system both financially and practically whilst nullifying the chance of

any judicial partiality, many propose an alternative to both the independently acting judge and the

jury in the form of an assembly of magistrates. This may take place either through the introduction

of new magistrates, who would then act alongside a judge as a substitute to the jury, or the

extension of powers and subsequently, cases, that current magistrates are given. At present, the

sentences a magistrates court may administer are limited at up to 6 months in prison per offence,

a fine of 5000 and/or a community sentence35. Therefore, should an indictable offence of either

murder, rape or robbery be encountered, it must be passed to the Crown Court where the

defendant will often plead guilty, or in the minority of other cases, face a jury. Whilst annulling the

financial needs of the jury system (as magistrates are unpaid), they often have an improved

comprehension of the law and its proceedings to the everyday layman. This, alongside the

provided courses of instruction (Courts Act 2003, s. 19)36may result in a reduction of mistakes



35 Criminal Courts. Magistrates courts. Sentences a magistrates court can give (Last updated:

12 Nov 2014) Accessible at:https://www.gov.uk/courts/magistrates-courts(Last Accessed: 6 Jan

2015)

36 Courts Act 2003 c.39. Part 2. Supplementary provisions about the bench. Section 19. (2003

c.39) Accessible at:http://www.legislation.gov.uk/ukpga/2003/39/section/19(Last Accessed: 6 Jan

2015)
https://www.gov.uk/courts/magistrates-courtshttp://www.legislation.gov.uk/ukpga/2003/39/section/19https://www.gov.uk/courts/magistrates-courtshttp://www.legislation.gov.uk/ukpga/2003/39/section/19


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made in the courtroom whilst decisions made may become more legally-informed should they

replace all jury proceedings.

The problem of judicial misconduct does not solely concern the actions of judges, as the

magistracy were concerned a considerable amount of the 1,615 complaints made in 2011-1237.

Noticeable disquieting instances included magistrate Robert Dell, who was found guilty of

blackmail and subsequently jailed for seven years38,and Bernadette MacDonald-Raggett, who was

found to have behaved in an offensive manner towards another magistrate39. Unlike judges,

however, the conferral of increased authority to magistrates may be seen to eliminate any

conceivable antipathy shown towards legal professionals in power; as laymen would effectively be

making the decisions and enforcing them. Whilst the tendency for juries to express sympathy to

similarity (such as the acquittals of Jeremy Thorpe and Clive Ponting in 1979 and 1985

respectively) would be diminished, magistrates would be entrusted with the pressure of remaining

impartial in all cases, no matter the moral attachments. From this, much like the introduction of an

independently acting judge, the possibility for increased misconduct arises as magistrates are

entrusted with greater jurisdiction, and for many, the possible consequences outweigh the benefits

of financial betterment and decisions possibly carrying more legal knowledge.

Additionally, many denounce the fundamental argument of jury sympathy to similarity and/or

discrimination to difference in claims that the public are as able to remain objective to the

37 More than 75 judges disciplined for misconduct. The Guardian. (2012) Accessible at:


for-misconduct.html(Last Accessed: 6 Jan 2015)

38 Statement from the Office for Judicial Complaints: Mr Robert Dell. (2011) Accessible at:

http://judicialconduct.judiciary.gov.uk/documents/Magistrate_Mr_Robert_Dell_-

_OJC_Investigation_Statement_-_4011.pdf(Last Accessed: 6 Jan 2015)

39 Statement from the Office for Judicial Complaints: Mrs Bernadette MacDonald (2011)

Accessible at:

http://judicialconduct.judiciary.gov.uk/documents/Magistrate_Mrs_Bernadette_MacDonald-

_Raggett_-_OJC_Investigation_Statement_-_3111(2).pdf(Last Accessed: 6 Jan 2015)
http://www.telegraph.co.uk/news/uknews/law-and-order/9399122/More-than-75-judges-disciplined-for-misconduct.htmlhttp://www.telegraph.co.uk/news/uknews/law-and-order/9399122/More-than-75-judges-disciplined-for-misconduct.htmlhttp://judicialconduct.judiciary.gov.uk/documents/Magistrate_Mr_Robert_Dell_-_OJC_Investigation_Statement_-_4011.pdfhttp://judicialconduct.judiciary.gov.uk/documents/Magistrate_Mr_Robert_Dell_-_OJC_Investigation_Statement_-_4011.pdfhttp://judicialconduct.judiciary.gov.uk/documents/Magistrate_Mrs_Bernadette_MacDonald-_Raggett_-_OJC_Investigation_Statement_-_3111(2).pdfhttp://judicialconduct.judiciary.gov.uk/documents/Magistrate_Mrs_Bernadette_MacDonald-_Raggett_-_OJC_Investigation_Statement_-_3111(2).pdfhttp://www.telegraph.co.uk/news/uknews/law-and-order/9399122/More-than-75-judges-disciplined-for-misconduct.htmlhttp://www.telegraph.co.uk/news/uknews/law-and-order/9399122/More-than-75-judges-disciplined-for-misconduct.htmlhttp://judicialconduct.judiciary.gov.uk/documents/Magistrate_Mr_Robert_Dell_-_OJC_Investigation_Statement_-_4011.pdfhttp://judicialconduct.judiciary.gov.uk/documents/Magistrate_Mr_Robert_Dell_-_OJC_Investigation_Statement_-_4011.pdfhttp://judicialconduct.judiciary.gov.uk/documents/Magistrate_Mrs_Bernadette_MacDonald-_Raggett_-_OJC_Investigation_Statement_-_3111(2).pdfhttp://judicialconduct.judiciary.gov.uk/documents/Magistrate_Mrs_Bernadette_MacDonald-_Raggett_-_OJC_Investigation_Statement_-_3111(2).pdf


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decision-making process as any legal professional; as has been repeatedly affirmed by a number

of reports. One such report includes Cheryl Thomas Are juries fair?40report, which found that

verdicts of all-White juries did not discriminate against BME defendants41.Furthermore, the report

also provided essential information concerning the possibility of increased judicial guidance, stating

that if provided with a written summary of the judges oral directions, there is an undeniable

improvement in jurors comprehension of the law. This palpably points towards the suggestion that

an increase in legal guidance would ameliorate the functionality of the jury, and from this the jury

would remain the most legitimate and preferable option in the chosen courts or cases.

However, Cheryl Thomas earlier report on Diversity and Fairness in the Jury System

substantiates the claims made by those who believe the jury may be too lenient towards people of

a specific or similar nature. Anyhow, rather than class or occupational preference, it was found that

there is probability within the legal system of race leniency, in which BME (Black or Minority

Ethnic) defendants become the subject of leniency given by the jury. This is due to the widespread

belief that the criminal justice system treats them [BME defendants] more harshly than white

defendants42;leading to a nature in which Thomas describes the White juror as being sensitive to

the plight of a Black victim43

. In fact, it is often believed that this preference shown towards BME

defendants is predominantly displayed by jurors of other races. Thomas report also found that this

leniency was specifically targeted at the Black defendant in particular44. This can be shown within

40 Thomas, C. (2010) Are juries fair? Ministry of Justice Research Series 1/10 (Ministry of Justice)

p)ii


42 Ingman, p248

43 Thomas, C. with Balmer, N. (2007) Diversity and Fairness in the Jury System. Ministry of

Justice Research Series 2/07 (Ministry of Justice) p202

44 Thomas, C. with Balmer, N. Op cit (2007) p180


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the Jury Excusal and Deferral45reports findings in that only 76% of black voters were electorally

registered; a figure shared by other ethnic minorities. On top of this, Thomas found that many BME

or White jurors demonstrated some leniency to defendants to their own racial group46. Many may

claim that this displays the non-discriminatory attitude of juries, regardless of juror ethnicity, but the

preference for leniency may pose a problem in itself.

Those who may argue against a jury system place the blame unto the possibility of a prevalent

moralistic jury-attitude, in which humanistic decisions are preferred to the legal guidelines

provided. Ergo, for a legitimate decision (one that may be legally upheld if scrutinised in

accordance to all provided legal guidelines) to be reached, the moral factor often exhibited in jurors

decisions must be abrogated. In order for this to be accomplished, many claim that a jury must be

replaced by a system in which the decision-makers understand the complications in becoming

morally involved and so remain absolutely objective by law. However, according to both Pottle and

Dworkin, this morality is key in all legal systems, including within the UK. From this, it is simply the

legal structure that must be adhered to whilst moral values naturally lie at the crux of all decisions

made within the courtroom.

One may claim that although the jury should be upheld, the handling of the jury system by the state

itself should be reformed. This is highlighted particularly in the concerns about jury vetting,

through which the security services (MI5) or the police (special branch) become implicated in the

selection of jurors in a certain case. Not only does it go against the rule that a jury should be

drawn randomly, but the guidelines are written in such a manner that the state would essentially be

able to rig a jury if they so wished47. Furthermore, whilst Article 6 of the ECHR, in essence, states

that both parties should be operating at roughly the same strength, the defence are often without

45 Airs, J. and Shaw, A. (1999)Jury Excusal and Deferral Home Office RDSD Report No.102

(Home Office)

46 Thomas, C. with Balmer, N. Op cit (2007) p179

47 Gillespie, A. (2007) The English Legal System (OUP Oxford) p354


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the resources to vet possible jurors. Ergo, the states ability to administer control over a system that

should be drawn randomly should be reconstituted whilst a jury system remains in place; either

providing the defence with similar opportunities or revoking the process absolutely.

In conclusion, whilst there are a number of practical and financial problems concerning the jury

system, it can be asserted that improvements may be implemented which offer overt benefits in

comparison to the alternative systems which would require the UKs judicial system to rigorously

change. The principle criticism many place unto the jury system concerns the publics

understanding of a complex legal framework, particularly when involvement certain cases such as

libel or fraud. Ingmans assertion that the jury may be too easily influenced may be epitomised

through a jury decision to award Sonia Sutcliffe a substantial 600,000 in 1990 - though in the

extraordinary case, the Court of Appeal was able to readjust the sum and revise any legal

aberrations. Additionally, the introduction of preparatory hearings in 1987 has undoubtedly

improved juror knowledge in certain, complex cases. Many propone a system utilising an

independently acting judge in preference to the jury system, which may infuse sympathy within

their decision towards people similar to themselves. However, the Industrial Conflict: Judicial

Attitudes report demonstrated that judges, keen in upholding the status quo, may also make

decisions which unfairly concern the background of an individual in question. Moreover, the

possibility of judicial misconduct augmenting through the bestowment of increased jurisdiction unto

the hands of independent judges coupled alongside the violent past of Northern Irelands Diplock

courts causes vast concern. Cheryl Thomas reports demonstrate that whilst the jury system may

be at times overly-sympathetic, it remains impartial. On top of this, the jury system does not need

to be abolished in order to enhance the justice system, both financially and practically; shown by

the possibility for obligatory verdict reasoning and the reduction of cases presented to the Crown

Court, as Louise Casey suggests. Thus, whilst the jury system may be utilised in fewer cases, the

ability for everyday laymen to question the judiciary is of the utmost importance in maintaining a

system where ordinary individuals can be given supreme protection () against the state and the


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threat of a totalitarian government repelled48. By this relationship, the UK government may cement

its position as, in Abraham Lincolns words, a government of the people, by the people, [and] for

the people49.

Evaluation

Looking back at my aims, I have been able to establish whether they were essentially achieved

through the process of writing this dissertation. My knowledge has undoubtedly expanded a

considerable amount, often going beyond the original scope of my dissertation. I explored a

number of arguments against juries and the reasoning behind criticism of the jury system in the

UK, though I believe I could have done more in-depth research into the success rates of juries in

the UK. However, I was successful in picking out several specific cases and analysing their

legitimacy, such as the mentioned libel cases and the case of Patrick Pottle and Michael Randle.

Although not in my first draft, I was able to improve my dissertation following thorough self-

assessment and thus included the possibilities of an assembly of magistrates as well as an

independently acting judge; thus achieving my original objective in this aspect. Through

comparative analysis, I was able to include possible ameliorations of the jury, and how they have

been altered for improvement in the past; such as the Criminal Justice Acts of 1987 and 2003. In

this, I was ale to formulate a response as to whether the jury should be retained, concurrently

upholding both the retention of the jury whilst proposing the changes discussed in the dissertation -

which, through the use of evidence, I was able to argue would create a more legitimate system

than both alternatives and more importantly, the current legal system of the UK. However, prior to

the dissertation I had expressed my pro-jury feelings to several colleagues and although I

attempted to remain completely impartial throughout the entirety of the process, this pro-jury belief

that I inherently held before undertaking the project may have had an influence both throughout the

48 Churchill, W. (2005) The Second World War, Volume 5: Closing the Ring; 5 edition (Penguin

Classics) p679

49 Gienapp, William E. (2003) This Fiery Trial: The Speeches and Writings of Abraham Lincoln

(Oxford University Press USA) p184


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dissertation itself and my decision reached in the conclusion. Moreover, as a liberal, I am often

drawn towards the protection of the individual against the state, and commonly support systems in

which authority can be questioned to remain legitimate - many would argue that this description

aptly fits the jury system. Although I included counterarguments throughout the body of the

dissertation, I often found myself making assumptions whilst collating and collecting research. In

the future, I would ensure that throughout the entirety of the process I remain completely impartial

to any opinionated argument and present both sides of the debate evenly. Furthermore, I believe

that I could have built the body of the argument around the alternative systems, rather than

including them subsequent to the discussions of morality. This may ensure that a more balanced

argument is made, whilst continuously comparing alternative systems to one another in an even

fashion. The collation of my notes was unlike any other dissertation or project I had previously

completed or undertaken, and I was able to swiftly organise them into the negative and positive

arguments for the jury when I sat down to write the body of my essay. I will take this into the future

and ensure that this process and level of organisation is adhered to in all my other pieces of work.

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Gienapp, William E. (2003) This Fiery Trial: The Speeches and Writings of Abraham Lincoln

(Oxford University Press USA)


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Ayn Rand (1992) The Virtue of Selfishness; 50th edition (Dutton / Signet)

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Airs, J. and Shaw, A. (1999) Jury Excusal and Deferral Home Office RDSD Report No.102 (Home

Office)

To what extent should juries be upheld in the UK judicial system?

Documents

Transcript of To what extent should juries be upheld in the UK judicial system?