Wednesday 15 June 2011

Explaining our Law and Legal System ... No.4 ... Juries

Previous posts in this series:
No.1 - Legal Personnel
No.2 - Courts of Law and Tribunals
No.3 - The Judges

“The English common law rests upon a bargain between the Law and the People. The jury box is where people come into the court; the judge watches them and the jury watches back.  A jury is the place where the bargain is struck. The jury attends in judgment, not only upon the accused, but also upon the justice and humanity of the law….” (E.P. Thompson - "Writing by Candlelight" - cited by Lord Justice Auld in his Criminal Courts Review report 2001).

“I cannot bring myself to believe that there are any persons other than inmates of a lunatic asylum who would vote in favour of the abolition of trial by jury in serious criminal cases,” said Humphreys J in 1954 (‘Do We Need a Jury?’ [1954] Crim LR 457).

"Each jury is a little parliament.  The jury sense is the parliamentary sense.  I cannot see the one dying and the other surviving.  The first object of any tyranny in Whitehall would be to make Parliament utterly subservient to his will;  and the next to overthrow or diminish trial by jury, for no tyrant could afford to leave a subject’s freedom in the hands of twelve of his countrymen.  So that trial by jury is more than an instrument of justice and more than one wheel of the constitution:  it is the lamp that shows that freedom lives."  Lord Devlin - "Trial by Jury"

"Lay" involvement in the law:   The English legal system is notable for the extensive involvement of lay persons as either Jurors or as Magistrates (Justices of the Peace).  Both the Jury and the Magistracy are institutions which extend back to the early days of our law.  In 2011 the Magistracy is celebrating its 650th Anniversary and the idea of a jury trying a fellow citizen for criminal offences dates back at least to the reign of Henry II - (please see "Our legal heritage - No.2 - The formative period").  These institutions are of immense importance though, it is fair to say, there are pressures on both.  This post considers the JURY.

The jury:   Juries are used mainly for criminal cases heard in the Crown Court though it is possible to have a jury in a limited number of civil cases and also at certain inquests in the Coroners Court.

Eligibility - For criminal trials, a jury of twelve is selected from a panel of jurors summoned to hear cases.  The precise reason for having twelve jurors is lost in history.  Was it the old British "dozen" or the number of months in the year or the number of disciples in the Christian religion or for some other reason?  The modern law relating to juries is in the Juries Act 1974 which made a number of reforms.  Since 1974, further reforms have been made, most significantly by the Criminal Justice Acts of 1988 and 2003.

Basically, any adult between the ages of 18 and 70 is qualified to be a juror but they must (a) be a registered elector; (b) have been ordinarily resident in the UK (or Channel Islands or Isle of Man) for any period of at least 5 years since attaining age 13 and (c) must not be disqualified.  See "In brief: Free Legal Information."   Since the Criminal Justice Act 2003 it has become possible for certain persons (e.g. Police Officers and Justices of the Peace) to serve who were previously regarded as ineligible.  These changes came about as a result of the Criminal Courts Review conducted in 2001 by Lord Justice Auld - (the Auld Report).  He had much to say about juries - see Chapter 5 of his report.

Challenge - Historically, a defendant had a right of "peremptory challenge" (i.e. without stating a reason) against a juror.  This right was abolished by the Criminal Justice Act 1988 though it remains
possible to challenge a particular juror "with cause" which would have to be shown to the satisfaction of the trial judge.  The prosecution never had a right of peremptory challenge but may ask a juror to "stand by."  It is also possible for the prosecution to object and show cause.  The trial judge also has a right to stand a possible juror down - for example, where the person is obviously infirm and unlikely to be able to withstand a lengthy trial.

Vetting - A little-known and little-publicised process is that of "jury vetting."   The existence of this practice emerged in the late 1970s.  It is quite amazing that it developed without Parliamentary or judicial approval.  On 12th November 1979 Mr Cryer MP asked the Attorney-General a question in a Parliamentary debate - "Does the Right Hon. and learned Gentleman agree that it is unfortunate that the whole business of jury vetting and the secret guidelines drawn up by former Ministers came to public notice only as a result of a court case? Should not the guidelines about which he is talking be clear and open to ensure that there is no possible basis for the public to feel that something funny is going on behind closed doors?"  In R v Mason [1980] 3 All ER 777 the Court of Appeal gave approval to the practice and it is now carried out under guidance from the Attorney-General.   More of the background may be read in the interesting article of 4th December 1986 by E P Thompson.  The Crown Prosecution Service website also has information - Jury Vetting.  Regrettably, a search for "Jury Vetting" on the Attorney-General's Office website does not reveal the guidelines.

Majority verdicts - Historically, the verdict of a jury had to be unanimous but majority verdicts first came with the Criminal Justice Act 1967 s.13.  The law is now in the Juries Act 1974 which permits a majority verdict of at least 10 where there are 11 or 12 jurors and of at least 9 where there are 10 jurors.  The basic process is that the jury are given time - (never less than 2 hours) - to reach a unanimous verdict.  How much time will depend on the trial judge's view about what is reasonable given the particular case.  After that, the judge may indicate that a majority verdict will be acceptable.  The Auld Report said that the majority verdict "prevents the odd crank or possibly biased juror insisting on a disagreement and thereby frustrating the process."

Verdicts and the judge's role - A jury in England and Wales must return a verdict of either Guilty or Not Guilty.  The Scottish "Not Proven" verdict is unknown to English law.  In reaching the verdict, the trial judge "sums up" the case and gives the jury directions on the relevant law.  It is therefore probably fair to say as the Auld Report phrased it..

"We talk of ‘trial by jury’, but it is more accurately described as ‘trial by judge and jury’. It is a partnership in which the two have separate and overlapping contributions to the final outcome. The judge tells the jury what the law is and how it bears on the issues in the case; and they apply their new-found understanding of the law to their consideration of those issues. As to the facts, whilst the jury have primary responsibility for finding them, the judge has much to do with that too.  He may be called upon to rule whether there is evidence on which they could find the accused guilty; he may warn them to take particular care before acting on certain evidence; he may direct them about circumstantial evidence and whether, on the evidence before them, they can draw certain inferences from it; and he notes and sums up the evidence for them to assist their deliberations. The resultant verdict is, therefore, a product of a ‘partnership’ between judge and jury."

Perverse verdicts - It is frequently said that a jury may return a "perverse" verdict.  Another phrase sometimes used is "jury equity" or a "dispensing ability."  Again the Auld Report considered this and acknowledged that the possibility of a jury returning a verdict against the evidence might, occasionally, be a long-stop against State oppression.  However, he did not favour its retention seeing it as "defiance of the law" and "disregard" of the juror's oath and he recommended legislation to prevent it.  To date, no such legislation has been passed.  Precise examples of a jury actually doing this are not easy to find though the case of Clive Ponting is often mentioned as an example.

Influence on the law - Historically, the jury has influenced the development of the law in some respects.  Two examples come to mind.  First, the offence of Infanticide was introduced when it was realised that juries were (naturally) reluctant to convict women when the death penalty existed - (Infanticide Act 1938).   Secondly, juries were reluctant to convict drivers of manslaughter and this led to the introduction of the alternative offence now known as Causing Death by Dangerous Driving (Road Traffic Act 1988). It might also be noted that, to a considerable extent, the need to present cases to juries requires that the law be written in as clear and straightforward a way as possible so that it is readily explainable.  How far Parliament has succeeded in achieving this is a moot point.

Dispensing with the jury - In Northern Ireland, due to terrorism, there was extensive intimidation of jurors.  This led to a recommendation by the late Lord Diplock for non-jury trial for certain offences (referred to as "Scheduled Offences").  In England and Wales, the Criminal Justice Act 2003 Part 7 permits a non-jury trial in cases of jury tampering - see the earlier post Law and Lawyers 20th January 2011.  This will, hopefully, be a rare event but, regrettably, it appears to be necessary to have this option.

Proceedings for contempt of court are another example of where trial is without a jury.  Up to 2 years imprisonment is possible under the Contempt of Court Act 1981.  As the case of Joanne Fraill and Jamie Sewart illustrates, proceedings can be issued by the Attorney-General and the hearing is in the High Court without a jury.

Juries in Civil cases - Juries have been mostly phased out of civil cases.  This came about because, in such cases, the parties to the case have traditionally been able to influence the conduct of the proceedings.  (Note: Civil Procedure Rules now apply).  A jury of eight is still occasionally found in the County Courts: County Courts Act 1966 s66  and in the High Court: Senior Courts Act 1981 s.69.  If there is a jury it is usually in cases where fraud is alleged or the case is about defamation (i.e. libel or slander), malicious prosecution or false imprisonment.

Coroners Courts - A jury is also occasionally required in a Coroners Court.   Originally all inquests were decided by a jury but, since 1927, it is only in limited cases: Coroners Act 1988 s8(3).  This is principally where the death occurred in prison or in police custody, certain types of accident or where the death occurred in "circumstances the continuance or possible recurrence of which is prejudicial to the health or safety of the public or any section of the public."

Other issues relating to the jury system -

One is whether trial by jury - and the fact that juries do not deliver "reasoned decisions" - is compatible with the right to a fair trial under the European Convention on Human Rights.  The case of Taxquet v Belgium is very relevant to this in that the European Court looked at Belgium's system of jury trial.  The Auld Report considered the issue of "unreasoned decisions" commencing at para. 88 of the report.  In January 2010, the Solicitor's Journal considered the Taxquet case - see "Quixotic Adventures."   See also the European Court of Human Rights 4th section decision in Judge v UK 2011 which considered the Scottish system of trial with jury. 

A further issue is whether certain professions (e.g. Police Officers) should have remained ineligible for service - see the case of Abdroikof [2007] UKHL 37 concerning a police officer juror and a juror who was a solicitor working for the CPS.  The latest issue concerns jurors and defendants committing contempt of court by communicating via social networks such as Facebook - see Law and Lawyers 14th June 2011.

For some, the jury is the "Lamp which shows that Freedom Lives."  This famous phrase was used by the distinguished judge, Lord Devlin, in his book "Trial by Jury"  (1956).  This was a reference to the candles that were lit in London in the windows of houses following the acquittal of the Seven Bishops in 1688.  Many judges and lawyers see the jury as "an integral and indispensable part of the criminal justice system" - (Lord Steyn in R v Connor [2004] UKHL 2 at para 6.

For others, the jury is seen as a poor tribunal which brings together lay persons who are unused to hearing lengthy evidence and expects them to apply their minds collectively to it against a background of often difficult law.  Lord Judge has noted that the internet generation no longer gets its information from merely listening.  Doubts have been raised about the decision-making processes used by juries and this has led to calls for research though, currently, this is not permitted: Contempt of Court Act 1981 s.8.  Some of those wishing to conduct research are motivated by a desire to come up with ways of assisting juries with their task.

The former Department for Constitutional Affairs (DCA) consulted in early 2005 about whether research should be permitted - "Jury research and impropriety."  Interestingly, in February 2010, a report conducted by Professor Cheryl Thomas (University College London) on behalf of the Ministry of Justice found that juries were fair and effective.  Mr Alexander Milne QC may be seen here talking about the benefits that research might bring.

The jury is one of the hallmarks of our common law system.  It submits the accused to the judgment of his peers as opposed to a system of judgment by what might be seen as an elitist profession.  It is a system which has stood the test of time and. on the whole, appears to have public confidence.  Nevertheless, is is a system which appears to be coming under stress though it is important to bear in mind that, every week, many juries perform this important civic duty and deliver a "true verdict according to the evidence" without any problems arising.

Additional materials are available here for those wishing to delve further into this subject.

Other blogs commenting about Jury trial are: Halsbury Law Exchange - barrister Felicity Gerrity  - "Trial by jury: the importance of ordinary jurors" and  Nothing Like the Sun - Francis Fitzgibbon QC - "Professor Dawkins' jury delusion."


  1. Thank you for another useful summary. The lay involvement in the criminal justice process is under threat. I am not exactly sure from whence it originates, but it is clearly there. I suspect an entrenched view in the Home Office/Ministry of Justice that the public should not be involved and that the whole exercise should be left to professionals. Just a few examples to illustrate my case. In the case of juries, the attempts by Jack Straw to limit which types of case should be eligible for jury trial, the introduction of judges only trials in some cases (you refer to tampering, but this could have dealt with by other measures). In the case of magistrates, the growth of District Judges and the reservation of some cases to them alone, the extension of summary justice to the police and CPS, the gradual erosion of the citizens right for a commital by magistrates rather than preremptory sending. I could go on.

  2. is Judge v UK a scottish case on jury trials where their use was approved by ECtHR

  3. I am grateful for Scott's comment (above). The Judge v UK case was an admissibility decision by the European Court of Human Rights - 4th Section. The decision was handed down in February 2011.

    Taxquet v Belgium is a Grand Chamber decision and was followed in the Judge case ( see paras. 35-39 of the reasons).

  4. My own experience as a juror demonstrated to me that it is a precarious process, with several members either not interested at all in the decision or not capable of following the evidence or understanding how we should depend on it. Prejudice and first impressions played a part.

    In each of the three cases I was involved in (two as foreman) there were however a sufficient number (3 to 5) able to do the job capably and influence the others. In one case I remained however in a minority of two wanting a not guilty verdict, but the judge allowed the 10-2 majority.

    The jury process works but only just. A much better system is trial by magistrates who have the skills (particularly listening and logical) to sift all evidence and reach objective verdicts. This tribunal system is the most reliable decision making component of criminal justice in this country, much better than District Judges for example.

    Magistrates should be given more power to preside over offences that are currently sent to crown court, and the option to elect trial by jury should be abolished. It is pointless and expensive.

  5. Thank you for this comment. It is, of course, inevitable that, in any group of people, there will be those more capable than others of discharging the task given to the group. This is why some people emerge as leaders etc. We also all carry "prejudices" but it is necessary to recognise them and deal with them.

    I also think that the powers of the Mags. Court should be increased but, if this were to become policy, it would be essential to alter the legal aid provision in Magistrates' Courts. As things are, legal aid is denied to too many people who fail on the means test.

    As a supporter of the jury system, I do not entirely agree with removal of the right to elect trial by jury. Certain politicians have pushed this idea but it has not been, generally-speaking, popular with the public.

    Nevertheless, there might be some scope for more to be done by magistrates. Jury trial is one of those hallowed historical rights and the motives of politicians who suggest its removal are to be seriously questioned.

    As for cost, it is assumed that jury trial is always more expensive than a magistrates trial. We are talking here about justice and the rights of the citizen but, even considering that, I am not always convinced that a short jury trial is always more costly than the alternative. It depends how the costing is done and I have never seen how it is done!