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Published: Fri, 02 Feb 2018
The Jury System
The concept of the jury system was probably imported into Britain after the Norman Conquest, though its early functions were quite different from those today. Early jurors in England acted as witnesses providing sources of information on local affairs. But they gradually came to be used as adjudicators in both civil and criminal disputes. Under Henry II, the jury began to take on an important function, moving from reporting on events they knew about, to deliberating on evidence produced by the parties involved in a dispute. Gradually it became accepted that a juror should know as little as possible about the facts of the case before the trial, and which is the position today.
The jury is considered as fundamental part of the English legal system, albeit only a minority of the cases is tried by the jury in these days. In a sense it plays a vital role in ensuring that the criminal justice system works for the benefit of the public rather than for the benefit of unjust leaders. It promotes not only a healthy criminal justice system but also a healthy society, where political leaders can not abuse criminal justice system to silence their opponents.
It has attained such an importance that Lord Devlin wrote in 1956:
“Trial by jury is more than an instrument of justice and more than a wheel of the constitution; it is the lamp that shows that freedom lives.”
Jury plays a vital role in the criminal justice system in England and Wales and many other countries in the world. But the constitutional position of the English jury is vulnerable because of the unwritten constitution. In England, because of unwritten constitution, the right to trial by jury is not contained in the constitution. Generally, it is governed by ordinary Act of the parliamentary, which can be amended by the Parliament any time. So the government of the day could alter or even abolish the right to jury trial. However, due to the political barriers, the government is very cautious in doing this. Juries Act 1974 is the main statute governing the present day jury. Currently, the role of the English jury is almost entirely limited to the more serious criminal cases, but juries occasionally sit in civil trials as well.
The function of the jury
The function of the jury is to weigh up the evidence and to decide what the true facts of the case are or what actually happened. The judge gives the direction to the jury on the relevant law, which the jury has to apply to the facts of the case in order to reach a verdict. If it is a criminal case and the jury has given a verdict of guilty, then the judge will decide on appropriate sentence. In civil cases, juries function is to decide on how much money should be awarded in damages.
The jury in criminal cases
Although juries are very important in the criminal justice system, they actually deal only in a minority of the cases. Criminal offences are classified into three categories. “Summary” offences are the minor offences and less serious and are triable only in the magistrate’s courts. For example minor traffic offences. The most serious kind of offences is “indictable only” which must be tried in the Crown Court. Between these extremes kinds there is another kind of offences called as “triable either way.” Such cases, as it is clear from the name, can be tried either in the magistrate’s courts if the magistrates are willing to here the case and the defendant consents or in the Crown Court. In these cases, the defendant has the right to insist on being tried in the Crown Court, so either the magistrates or the defendant can opt for trial in the Crown Court. Jury can try a case in the Crown Court and if the defendant pleads not guilty, and the trial proceeds further, he or she will be tried before a jury. The majority of the criminal cases are summary only because they are least serious and commonly committed, and as a result 95% of the cases are heard in the magistrates courts, where the juries have no role (this also includes those cases in which accused pleads guilty in either way offences). Out of the remaining 5% of the cases heard in the Crown Court, in majority of the cases either defendant pleads guilty, so there is no need of a jury or the judge directs the jury that law demands that they acquit the defendant. As a result the juries actually decide only around 1% of criminal cases. But on the other hand this 1% amounts to 30,000 trials and these are the most serious ones come before the court.
It is very difficult to answer that why defendants opt for Crown Court trial instead of a magistrate court, but research shows that there is a perception that there are more chances of acquittal before a jury than before a magistrate. This perception is born out by statistical evidence showing acquittal rates of approximately 40% in jury trials as compared with 25% in magistrate’s courts.
Apart from its historical role in the English legal system, jury trial is under attack in recent years. Governments have attempted to reduce the use of juries in criminal cases in order to save money. The Criminal Law Act 1977 removed the right to jury trial in a number of offences by making most driving offences and relatively minor criminal damage cases summary only. Since 1977, more and more cases have been removed from the jury trail by making them summary only. Criminal Justice Act has increased the sentencing power of the magistrate from 6 months to 12 months in a single offence and this could be increased further to 18 months by delegated legislation. The purpose behind this is that more cases will be tried in the magistrate’s courts rather than being referred up to Crown Court to be tried an expensive jury. Another step to reduce the number of jury trials is that the Criminal Justice Act 2003 also allows trial by judge alone in the crown court in two situations:
Where a serious risk of jury tempering exists; or where the case involves complex or lengthy financial and commercial arrangements.
Juries in civil cases
The erosion of the use of the juries in civil cases was gradual and appears to have started in the middle of nineteenth century, when judges were given right in certain situations, to refuse to let a case be heard before a jury and to insist that it be heard in front of a sole judge. As a result the use of jury in civil cases is now almost obsolete. The Supreme Court Act 1981 gives a qualified right to jury trial in the following four cases only: libel and slander; malicious prosecution; false imprisonment; and fraud. In these cases jury trial is to be granted, unless the court is of the opinion that the trial requires any prolonged examination of documents or accounts, or any scientific or local investigation which can not be made by the jury. In all other cases the right to jury trial is at the discretion of the court.
Qualifying for jury service
Eligibility for the jury service used to depend upon the existence of the property qualification, and the juries were criticized for being ‘predominantly male, middle-aged, middle-minded and middle class’.
The qualifications for a person to act as juror and the prohibition from acting as a juror have significantly changed in the last few decades. The number of jurors remained unchanged (twelve). The age limit has been reduced to eighteen years and eligibility to act as a juror has been extended which include anyone who is registered on electoral register and who is not excluded for some specific reason. The basic qualification for jury service is that a person must be between 18 and 70 years of age and must have been a resident in the United Kingdom for at least 5 years since the age of 13 is qualified for jury service.
Schedule 1, part 1 of the Juries Act 1974, as amended by the Juries Disqualifications Act 1984, classes four categories of persons as ineligible for jury service: the judiciary, members of the legal profession and other persons connected with the administration of justice (e.g. the probation service, the crown prosecution service), members of the clergy and mentally ill.
Schedule 1, part II, as amended, disqualifies any person who has been sentenced in the United Kingdom to more than 5 years imprisonment, and the persons who have served any part of certain sentences in the past 10 years, have been placed on probation in the last 5 years, or are currently on bail in criminal proceedings.
Under ss 8 and 9 and schedule 1, part III of the 1974 Act, there are certain categories of the persons who although eligible but may claim to be excused as of right to serve as juror, if they have more pressing duties than jury service. Which include Members of medical profession, members of armed forces and Members of Parliament.
Jurors are randomly selected from the electoral register, so any one listed on the electoral register may be require serving as a juror provided that all the requirements are complied with. Research shows that there have been significant changes in the composition of juries since 1972. However, still there appears to be an inadequate representation of women and ethnic minorities. In his Review of the Criminal Courts Lord Justice Auld Concluded that despite the reforms of previous decades, juries still lacked diversity and were not sufficiently representatives of the communities from which they were drawn.
Selecting and summoning jurors
Before 2000, jurors were selected locally by the summoning officer of the each court centre, but a Central Summoning Bureau has now been established at Blackfriars Crown Court. The bureau operates on a national basis and randomly select names from the electoral register by computer, taking in to account the number of prospective jurors needed for each area. It is then responsible for issuing summons and for dealing with applications for excusal and deferral.
The people selected by way of random selection then receive summons to attend the Crown Court at a specified time. The jury for an individual case will be selected from the panel consisting of all the persons summoned, if the defendant has not pleaded guilty. The required number of jurors (twelve) is selected from the jury panel by ballot, conducted in open court. After an opportunity for challenges, the jury is sworn and the trial can begin.
The opportunity for the defence to influence the composition of the jury was eliminated in 1988 when the defence’s right of peremptory challenge was completely abolished. In contrast, the prosecution’s right to stand jurors by is unchanged. Both sides have this right to challenge for cause, but it is of limited use in practice.
Challenging for cause
Both the parties have the right to challenge any or all of the jurors for cause. The fact that a juror is ineligible or disqualified from the jury service would clearly be grounds for a challenge, but a juror may also be challenged on the ground of bias. The test for the bias has been approved by House of Lords in the case of Porter v Magill, which asks a question that whether a ‘fair minded and informed observer’ would conclude that there was ‘a real possibility of bias’.
The issue of race
As the principle of random selection lies at the heart of the jury system, so the jurors are not generally selected on the basis of gender or ethnic origin. Lord Justice Auld, in his 2001 review, recommended that in racially sensitive cases there should be modified selection procedure to ensure that up to three ethnic minority jurors were chosen. However, the government has rejected this proposal.
Prosecution right of stand-by a juror
The prosecution has always had the right to request that a juror ‘stand by for the Crown’. In this process, the juror goes back into the pool and may in theory be called again for his/her services, in case pool runs out. The prosecution can thus defer having to show cause until the pool is exhausted. The most obvious situation in which this form of challenge may be used is in connection with jury vetting.
The right of stand by is controversial because it is not available to the defence. Previously defence counsel had the right to exclude up to three jurors without showing any cause, known as peremptory challenge, but this was abolished by the Criminal Justice Act 1988. The only form of challenge available to the defence is the right to challenge for cause.
The practice of jury vetting started in 1978 when it was discovered in an official secrets trial that the prosecution had vetted the names on the jury panel in order to identify those who might me disloyal. The current guidelines on the use of this practice date from 1988 and permit two types of checks. The first involves checking the names of the potential jurors against police records and the second type of vetting involves making ‘authorized checks’ against the records of Special Branch and the security services. Authorized checks can only be made in national security and terrorism cases, and require the personal consent of the Attorney General. If the checks reveal information about a juror which is of concern to the Director of Public Prosecution, the prosecutor in the case may seek to exclude that person by asking him or her to ‘stand-by’ for the Crown.
The judge’s discretion to discharge the jury
The 1974 Act empowers a judge to discharge a person from jury service, where there are doubts about his/her capacity to act as juror, because of language difficultiesor a physical disability. A judge may discharge a person who is unsuitable for jury services because of illiteracy or who might be the subject of challenge for cause. It is also clear from the section 16 Juries Act 1974 that a person may also be disqualified once a trial has begun because of the reason that he is taken ill or it has become apparent that he may be biased.
There is no system of alternate juror in England and Wales to take the place of discharged juror, but the trial can continue as long as the jury does not fall below nine in number.
Where a juror in a longer trial encounters a temporary difficulty such as child-care problem or an urgent public service commitment, the judge may be able to avoid discharging the juror by allowing a short adjournment instead. Exceptionally a judge may discharge the entire jury if it appears that jury tempering has taken place,or that the jury may be unable to reach a fair verdict.
The jury in the course of the trial
A discussion of jury trial is incomplete without a reference to the important functions which a judge plays in the proceedings. Although the trial is organized on the basis that the judge is responsible for issues of law and the jury for making decision on facts, but there are three points that need to be considered. First the judge has the power to halt a weak prosecution case and direct the jury to acquit. The exercise of this power has given rise to a debate that whether there should be a fixed division of functions between a judge and a jury. In 1981, in an important ruling, Court of Appeal said that judge’s power to intervene in this way should be confined to those cases where the judges arrive at the conclusion that the prosecution evidence is so weak that the jury could not properly convict on it. But the Royal Commission on Criminal Justice actually recommended that the Court of Appeal ruling should be reversed to allow the judges to direct an acquittal if they consider that the prosecution case to be clearly too weak to be left to the jury. Such a power is, on the one hand an important safeguard against miscarriages of justice and on the other hand, excessive reliance on this power, shows a lack of faith in the jury itself to reach at a satisfactory outcome. Secondly judge has an important responsibility to assist the jury in its determination of the facts, during the course of the trial. Two aspects of this responsibility are the power of the judge to intervene during the course of the evidence and the power to comment on the facts in the judicial summing up at the end of a case. Albeit the questioning of the witnesses is generally left to the lawyers for each side, but it is recognized that the judge may intervene if it is necessary to clear certain points that have been left unclear or to exclude irrelevant matters and to discourage repetition. In practice judges even have wide discretion to intervene while witnesses are giving their evidence. Thirdly as the criminal law is a very complex field, so the jury’s decision on the facts of the case is predicated on the assumption that they have understood the legal concepts applicable to the crime for which the defendant is on trial. But in complex case where some concepts require explanation, their legal meaning will have to be very carefully explained to the jury by the judge in summing up, and in turn will be applied by the jury in the course of its factual decision-making.
Judicial pressure on the jury
It is a generally accepted principle that a jury must be allowed to consider its verdict free from all external pressures, such as threats, violence, intimidation, or bribery. It is also very important that a jury should not be under the undue influence of the trial judge. If it is so, it may lead to the defendant’s conviction being quashed on appeal.
One of the example of the improper judicial pressure occurred in R v McKenna, in which the trial judge Stable J, threaten the jury the jury members that if they did snot return the verdict in the next 10 minutes they would be locked up all night. Within six minutes, jury gave the verdict of guilty against the defendants, having spent previous two and a quarter hours unable to agree. On appeal the convictions were quashed because of a material irregularity in the course of the trial. The Court of Criminal Appeal said:
“It is a cardinal principle of our criminal law that in considering their verdict, concerning, as it does, the liberty of the subject, a jury shall deliberate in complete freedom, uninfluenced by any promise, unintimidated by any threat. They still stand between Crown and the subject, and they are still one of the main defences of personal liberty. To say to such a tribunal in the course of such deliberations that it must reach a conclusion with in ten minutes or else undergo hours of personal inconvenience and discomfort, is a disservice to the cause of justice…”
As for as the communication between judge and jury is concerned, trial judge must be at all times in a position to give proper advice to the jury on any matters of law and fact which are problematic to the jurors. There should be no private or secret communication between the judge and the jury for the sake of impartiality and openness. During the course of trial all the communication should be dealt with in open court in the presence of entire jury, defendant and his counsel. Failure to observe this practice may result on appeal in the quashing of the defendant’s conviction on the ground that is it is unsafe.
Ideally the verdict of the juries must be unanimous but in 1967 majority verdicts of ten to two were introduced or in some cases nine to one if the jury has been reduced during the trial. This is now provided in the Juries Act 1974. However if the jury have failed to reach a unanimous verdict after what the judge considers reasonable period of deliberation (not less than two hours), the judge can direct them that they may reach a majority verdict. The foreman of the jury must state in open court the number of jurors agreeing and disagreeing with the verdict.
The Secrecy of the jury room
When the jury retire to the jury room to consider their verdict, they conduct their deliberation in secret. When they return their verdict they are not required to give reasons for the decision or to disclose any other form of information on how they reached the conclusion. In other words, the verdict of the jury is sovereign.
The prohibition on disclosure of deliberations is imposed by the section 8(1) of the Contempt of Court Act 1981 which makes it a contempt of court, and therefore an offence, for any person to obtain , disclose or solicit any particulars of statements made, opinion expressed, argument advanced or vote cast by members of a jury in the course of their deliberations. In the case of Attorney-General v Associated Newspapers Limitedit was held that this total prohibition included indirectly obtained disclosure, not from the jurors themselves, but from an outside party conducting research into the juries who had placed an advert offering payment to jurors if they took part in the research.
Once they retire to the jury room the jury is not allowed to communicate with anyone other than the judge and an assigned court officer. The court’s primary concern during their deliberation is to ensure that they are kept inviolate and free from outside influence or eavesdropping.
If the jury during the deliberation send a note to the judge, the judge must disclose the terms of the note to counsels of both sides and reconvene the court without the jury to invite submissions on the matter. It is wrong for the judge to give these directions to the jury through the medium of the court clerk. The jury must be recalled to be given directions on the matter by the judge.
The sovereignty of the jury verdict is that it is unchallengeable on appeal and the Court of Appeal will not receive evidence of discussions which take place in the jury room.
The Royal Commission on Criminal Justice (1993) recommended that section 8 should be amended to permit genuine academic research but this was not implemented. There is a strong opposition to any erosion of the jury’s right of secret deliberations. Some senior judges feared that exposing the jury to open scrutiny would focus attention onto their weaknesses at the expense of reinforcing their strengths, so instead of restoring public confidence in its role there would be calls for its abolition and the consequent loss of a constitutional safeguard for the citizens.
Arguments in favour of jury system
Several advantages have long been claimed for trial by jury, such as:
- Jury best reflect the views of the society because of random selection from a wide rage of population. When a person’s liberty is at stake it is a matter of principle that s/he should be tried by his/her peers.
- The jury is regarded by the public as the ‘bulwark of individual liberties’.
- Fact-finding is a matter of common sense and does nor require any specialized legal training
- The opinion of the 12 jurors is better than the single opinion of the judge since it will more likely to prevent the individual biases.
- It can be totally independent because it is unaccountable.
- Juries are barometers of public feeling on the state of law, e.g. by deliberately acquitting against the weight of the evidence to express disapproval of a ‘bad’ or ‘unpopular’ aw.
- There is no satisfactory alternative to a lay jury.
- The presence of the lay jury ensures that the proceedings are kept simple.
Arguments raised against the jury system
- The argument that due to the random selection, a jury represents the society is deceptive as the juries can comprise only to those, who are able to act as juror at the end of the selection process.
- The jury is an uneducated body in the law and is often unable to weigh evidence properly and to understand certain complex matters.
- The jury is not suitable for the complex fraud cases and these cases very often cause problem for the lay jury. The Roskill Report (1986) recommended the replacement of the jury in such cases by a judge sitting with expert assessors.
- Juries are often unable to understand the more complex distinction in the law, such as the distinction between murder and manslaughter.
- Jurors may be dominated by two or three strong minded individuals in the jury.
- It is a fact that juries acquit proportionately more defendant than the magistrates do. Many critics of the jury system argue that this is a major failing on the part of juries, arising either from their inability to perform their function properly, or from their sympathy with defendants, or both.
- Jurors may be biased for or against certain groups- e.g. they may favour attractive member of the opposite sex, or be prejudiced against the police in cases of malicious prosecution or false imprisonment.
- It is not possible to guarantee that there has been absolutely no tempering with the jury.
- The unaccountability of the jury by virtue of the secrecy of the jury room, is against the democratic principles.
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