Explaining our Law and Legal System ... No.4 ... Juries (Updated post)

Involvement of the people in the law:

 

The English legal system is notable for the involvement of individual citizens as either Jurors or Magistrates (Justices of the Peace).

 

The idea of the jury trying a fellow citizen for criminal offences dates back at least to the reign of Henry II (1154 - 1189). The office of Justice of the Peace (JP) is traceable back to 1361.

 

In modern times, juries are to be found mainly in the Crown Court of England and Wales where, along with a judge, they try criminal cases in a process known as trial on indictment. Juries are also used in a limited number of civil cases and at certain inquests in the Coroners Court (see the Coroners and Justice Act 2009 section 7).

Trial of criminal cases

Criminal offences are divided into three types.

The most serious are sent to the Crown Court for trial and sentence. Those are described as ‘triable only on indictment' and the trial process normally requires a jury.

The least serious offences are tried and sentenced in the magistrates’ court. Those are described as ‘summary offences.’

With the third type of offence, the magistrates’ court has to decide whether to send the case to the Crown Court or to keep it in the magistrates’ court. Those offences are described as ‘triable either way' and, in most such cases, the defendant can choose to be tried in the Crown Court even if the magistrates’ court is willing to keep the case. The decision about which court will try an either-way offence is called ‘allocating for trial.'

Therefore, for the most serious offences, the right to trial by jury continues to be a central feature of English criminal procedure. 

Backlog and delay

On 13 March 2025, the House of Lords published a report noting that the crown court backlog had reached a record high of 73,105 cases in September 2024 and that the impact on victims, witnesses and defendants has been significant as they wait longer for their cases to be resolved - (see Reducing the Crown Court backlog). 

 

The Lords report sets out reasons for this high figure and notes that the Labour government elected in 2024 has commissioned an independent review of criminal courts. It is likely that the review will contain radical recommendations including reforms to restrict the right to jury trial particularly where the seriousness of a case is such that the maximum sentence will be under 2 years imprisonment.

 

For the time being we can note some facts about the jury system.

 

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.

 

The Juries Act 1974 s.1 requires that persons aged 18 to under 76 are qualified to be a juror but they must (a) be registered as a parliamentary or local government 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. 

Since the Criminal Justice Act 2003 it has become possible for certain previously disqualified persons to serve as jurors (e.g. Police Officers and Justices of the Peace).  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.

Crown Prosecution Service - Jury Vetting

Vetting - A little-known process is that of "jury vetting."   The existence of this practice emerged in the late 1970s and it had come into being 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.   

 

Crown Prosecution Service - Jury Vetting

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. 

 

The 2001 Auld Report commented:

 
"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 jurors in criminal cases have a right to decide a case against the weight of the evidence or, as it is often phrased, "according to conscience" or "jury equity"? Historically, Bushel's Case (1670) 124 ER 1006  is thought to have decided that a jury may do this BUT each juror either swears or affirms an oath to 'faithfully try the defendant and give a true verdict according to the evidence." 

 

The 2001 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, Auld 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.  

 

A recent reported case is Solicitor General v Warner [2024] EWHC 918 (KB) where Mr Justice Saini discussed the matter.

 

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). 

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.  

 
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.  

 
Juries in Civil cases - Juries have been mostly phased out of civil cases.  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.  

 

Coroners Courts - A jury is also occasionally required in a Coroners Court - Coroners and Justice Act 2009 s.7.  

 

Public confidence

According to a 2024 You Gov poll, 63% of those polled expressed either a great deal or a fair amount of confidence in the jury system. The poll does not give reasons for those views and a further You Gov Poll expressed lower confidence in the British judicial system.

 
Other issues relating to the jury system -

Research - Current law (Contempt of Court Act 1981) has the effect that jury deliberations must be confidential and breaches of that confidentiality can result in contempt of court proceedings. For some this is seen as a tension with the idea that institutions ought to operate in a transparent and accountable way.

 

See LSE Research 23 March 2023 - Why it's time to allow access to jury deliberations

 

The UCL Jury Project notes that the operation of juries is a highly confidential and under-researched area. The project, led by Project Director Professor Cheryl Thomas, has pioneered the study of the jury system.   

UCL - Ground breaking research to ensure juries are fair and effective

Juries do not give reasoned decisions - In practice, the preparation of reasons for a decision is not a particularly easy task. It can be time-consuming and detailed reasons are often lengthy. It is probably unrealistic to expect juries to produce such reasons.

 

Juries are now routinely provided by the trial judge with written legal directions in the form of questions - a route to verdict. Nonetheless, the jury remains free to reach its verdict in any way it sees fit.

 

For more on this see the 2015 Report - Review of Efficiency in Criminal Proceedings

 

Ineligibility for jury service

 

Should certain professions (e.g. Police Officers) have remained ineligible for jury services? On this 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 jury remains an integral aspect of criminal justice and appears to retain public confidence even though there are serious criticisms. For some it is remains the "Lamp which shows that Freedom Lives" - Patrick Devlin "Trial by Jury" 1956. Many judges and lawyers continue to 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.  

 

The jury is one of the hallmarks of the 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.  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.
 

The original 2011 post is here 

Additional Link 14 April 2025

 

The Times crime and justice commission  published its 57-page final report and suggested that lower-level criminal cases could be tried by a new intermediate court comprising a legally qualified chair sitting with two magistrates.