p. 48113. The jury
- Helen Rutherford, Helen RutherfordSenior Lecturer, Northumbria University
- Birju KotechaBirju KotechaSenior Lecturer, Northumbria University
- and Angela MacFarlaneAngela MacFarlaneSenior Lecturer, Northumbria University
Abstract
A jury consists of twelve, randomly-selected members of the public, who decide guilt or innocence in the most serious criminal trials in the Crown Court. This chapter explains the rules on eligibility for, and disqualification or excusal from jury service. It considers the power of the jury to acquit in defiance of the evidence (‘jury equity’), the confidentiality of jury deliberations and the implications of that for appeals, the ethnic composition of a jury, whether juries should be excluded from certain trials such as those involving serious fraud or where there is evidence of jury ‘tampering’, whether the accused should be able to ‘waive’ their right to jury trial, and the impact of social media on jury trials. It concludes by examining the relative advantages and disadvantages of jury trials.
Learning objectives
By the end of this chapter, you should be able to:
explain the criteria for eligibility for jury service;
critically consider the merits of the changes to ineligibility, disqualification, and excusal for jury service in the Criminal Justice Act 2003;
assess the case law and reform proposals in cases where defendants from an ethnic minority seek modification of the ethnic composition of the jury;
critically consider the arguments for and against (a) the exclusion of jury trials in certain cases, and (b) jury waiver;
explain the policy of jury selection in England and compare it with that in the United States.
p. 483Introduction
The jury is described as the cornerstone of the criminal justice system in England and Wales. One of the most distinctive features of the Crown Court trial is, undoubtedly, the input of the jury. However, its role may be more symbolic than most people realise. Crown Court trials represent no more than 2 per cent of all criminal trials, with the vast majority of criminal prosecutions taking place in the magistrates’ courts. However, it should be noted that a jury does decide every criminal offence that is triable ‘on indictment’ (at least, where the accused pleads not guilty). This category includes the most serious offences, such as murder, manslaughter, rape, and robbery. Furthermore, where a criminal offence is one ‘triable either way’, then the defendant can elect to have trial before a jury. The use of juries in civil proceedings, on the other hand, is very limited (see s.69 (1) of the Senior Courts Act 1981, discussed in 13.1.5).
The composition and operation of the jury have been the subject of much debate in recent years and significant changes have been made to the former. The starting point for an understanding of the jury is a thorough understanding of the basic law relating to it. To that must be added a critical awareness of the current issues relating to the workings of the jury.
13.1 The role of the jury
During a trial, the judge directs the jury as to the relevant principles of law and evidence. The jury’s job in a trial is to determine issues of fact (i.e. what actually happened) and reach a verdict on that basis. In a civil trial, the jury’s function is to determine whether the claimant has established their case on the balance of probabilities. As juries in civil trials are now very rare, in the remainder of this chapter all references to juries and jury trials will be to criminal prosecutions in the Crown Court, unless otherwise stated. Image 13.1 shows a typical Crown Court jury.
Image 13.1 A jury panel
13.1.1 The jury’s function in criminal trials
In a criminal trial, at the close of the case (i.e. after the prosecution and defence have presented their version of events and examined and cross-examined the accused, the alleged victim, and any witnesses), the judge sums up the issues and legal principles, and then the jury retires to consider its verdict. This will either be ‘guilty’ if the prosecuting body, usually the Crown Prosecution Service (CPS), has established its case beyond reasonable doubt, or ‘not guilty’ if not.
Key point
Although a judge may direct a jury to acquit, the judge may not direct the jury to convict. The decision whether or not the prosecution has proven its case is always a matter for the jury alone.
p. 484↵This principle was confirmed by the House of Lords in R v Wang [2005] UKHL 9, [2005] 1 WLR 661. The appellant, Cheong Wang, was indicted on two counts of having an ‘article which has a blade or is sharply pointed’ in a public place, contrary to s.139(1) of the Criminal Justice Act 1988. He did not deny having the articles—a sword and a knife—with him but argued that he was a Buddhist and liked to stop at ‘remote and uninhabited places’ to practise a traditional martial art called Shaolin. However, the trial judge directed the jury that, as a matter of law, Wang had no defence and that they were therefore to return guilty verdicts. The jury duly convicted and the Court of Appeal dismissed Wang’s appeal. However, on further appeal, the House of Lords quashed the convictions. Delivering a unanimous judgment, Lord Bingham said:
No matter how inescapable a judge may consider a conclusion to be, in the sense that any other conclusion would be perverse, it remains his duty to leave the decision to the jury and not to dictate what that verdict should be.
Moreover, a judge cannot pressurise a jury into reaching a guilty verdict. Where this happens, the Court of Appeal almost inevitably quashes the conviction. In R v McKenna and Others [1960] 1 QB 411, Cassells J 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.
p. 485↵In R v Watson and Others [1988] QB 690, Lord Lane CJ said the jury
must not be made to feel that it is incumbent upon them to express agreement with a view they do not truly hold simply because it might be inconvenient or tiresome or expensive for the prosecution, the defendant, the victim or the public in general if they do not do so.
The principle that juries must not be pressurised into reaching a verdict was emphasised in R v Buttle [2006] EWCA Crim 246, the facts of which are given at 13.1.3 (the case also raised issues about the secrecy of jury deliberations). Gage LJ said: ‘it is clear that a jury must not be put under undue pressure’. However, ‘pressure’ should be distinguished from ‘exhortation’. In Shoukatallie v R [1962] AC 81, Lord Denning said that ‘the question … is whether the judge went beyond exhortation which is permissible, and exerted some measure of coercion which is not’.
Learn about the duties of a juror in the following video:
Video 13.2: Being a juror. (This will open in a new tab.)
13.1.2 Jury equity
One of the supposed strengths of jury trials is that a jury may acquit anyone, regardless of the law or the weight of the evidence. This is known as the principle of ‘jury equity’. In R v Ponting [1985] Crim LR 318, a jury acquitted the accused of charges brought under the Official Secrets Act 1911. This was despite the fact that there was no argument that the accused had committed all the elements of the offence, and the judge had directed the jury that, as a matter of law, he had no defence.
Example
R v Ponting [1985] Crim LR 318
In July 1984, Clive Ponting, a departmental head in the Ministry of Defence, sent two documents to Tam Dalyell, a Labour MP. The documents belonged to the ministry and related to parliamentary inquiries about the sinking of the Argentine warship the General Belgrano, during the 1982 Falklands conflict. Dalyell was a known critic of the government regarding the Belgrano sinking. The first document was unclassified but the second was marked ‘Confidential’. Ponting was charged with an offence of disclosing confidential material under the Official Secrets Act 1911, although there was a defence if the disclosure was to ‘a person to whom it is in the interest of the State to communicate it’. There was no argument that Ponting had committed all the elements of the offence; his only defence was that Dalyell was a person to whom it was his duty ‘in the interest of the State’ to communicate the documents. McCowan J directed the jury that, as a matter of law, the ‘interest of the State’ was synonymous with the ‘interest of the government of the day’. However, despite this clear indication from the judge that the defence was unavailable, the jury returned a verdict of ‘not guilty’.
p. 486↵According to Feldman’s book Civil Liberties and Human Rights (Clarendon Press, 1993), at p. 641, ‘the jury acquitted Mr Ponting, probably reflecting public contempt for the government’s attempt to conflate its own narrow political interest with the state’s interest’. Birkinshaw, in Freedom of Information (Cambridge University Press, 2010) at p. 88, has suggested that the acquittal ‘no doubt related to a jury refusing to be browbeaten by a judge’. Another example of ‘jury equity’ is the case of Bridget Gilderdale.
Example
R v Gilderdale, The Times, 25 January 2010
In January 2010, Bridget Gilderdale was cleared by a jury at Lewes Crown Court of the attempted murder of her thirty-one-year-old daughter, Lynn. Lynn had been suffering from myalgic encephalomyelitis (ME), otherwise known as chronic fatigue syndrome (CFS)—which causes long-term tiredness which is not relieved by rest or sleep—since she was fourteen years old. Her condition was particularly debilitating and she had previously attempted to take her own life to relieve her suffering. Bridget had cared for Lynn throughout the seventeen years that followed and had tried to persuade her daughter not to take her own life. However, she eventually agreed to help Lynn to die by providing her with morphine and injecting air into her veins after Lynn told her mother that she wanted ‘the pain to go’. After Lynn’s death, Bridget pleaded guilty to aiding and abetting her daughter’s suicide and was given a twelve-month conditional discharge. However, the prosecution proceeded with the attempted murder charge, which eventually led to a not guilty verdict. Given the strength of the prosecution evidence and the guilty plea to the assisted suicide charge, the jury’s verdict is widely regarded as an example of jury equity. The trial judge, Bean J, was prompted to comment as follows: ‘I do not normally comment on the verdicts of juries but in this case their decision, if I may say so, shows common sense, decency and humanity which makes jury trials so important in a case of this kind.’
Thinking point
Are magistrates more or less likely to acquit than a jury?
In the magistrates’ court, the arbiters of fact are not a jury but the magistrates. Would a bench of magistrates have been more or less likely than a jury to acquit the defendants in these cases?
Penny Darbyshire, in ‘The Lamp that Shows that Freedom Lives—Is It Worth the Candle?’ [1991] Crim LR 740 (at p. 748), is very critical of ‘jury equity’. She writes:
Jurors will sometimes acquit, or convict, for a variety of extraneous reasons, which have nothing to do with replacing the law with their own sense of fairness or equity. They include the pressure of incarceration in the jury room and the replacement of the p. 487↵high standard of proof ‘beyond reasonable doubt’ with a lesser standard … Jurors also sometimes base their decisions on sympathy or hostility towards other trial participants, notably counsel and witnesses.
Thinking point
Is jury equity a strength or a weakness?
Is the jury’s power to acquit someone in open defiance of the law and/or evidence a strength or a weakness of the jury system?
13.1.3 Appeals against decisions of the jury and the ‘confidentiality’ principle
Appeals by the prosecution
It is extremely rare for there to be an appeal by the prosecution against an acquittal by a jury. Until quite recently, there was no possibility at all; however, s.76 of the Criminal Justice Act 2003 does allow the prosecution to apply to the Court of Appeal to quash an acquittal and order a retrial following a trial on indictment. The first occasion on which this happened was in R v Dunlop [2006] EWCA Crim 1354, [2007] 1 WLR 1657. William Dunlop had been charged with the murder of a young woman, Julie Hogg, but pleaded not guilty. At the trial in May 1991, the jury failed to reach a verdict and so a retrial was held in October 1991, with Dunlop again pleading not guilty. The second jury also failed to reach a verdict, at which point the Crown withdrew the case and a verdict of not guilty was entered.
Several years later, while in prison for an unrelated offence, Dunlop admitted his guilt to a prison officer, and in April 2000 he was convicted of perjury for lying to the Crown Court during the 1991 trials. However, after the Criminal Justice Act 2003 came into force in April 2005, the Crown submitted an application to the Court of Appeal to have the 1991 acquittal quashed. The Court agreed and Dunlop was duly tried for Julie’s murder for a third time in September 2006. On this occasion, he pleaded guilty.
Do not confuse this process with that whereby the Attorney General refers cases to the Court of Appeal following a defendant’s acquittal by a Crown Court. Attorney General’s references provide an opportunity for the Court of Appeal to state the law on a subject, but do not involve any change to the Crown Court’s decision.
Appeals by the defence
Appeals against conviction are much more common. Usually, this relates to an alleged misdirection by the judge on a point of law or evidence. However, the Court of Appeal is, in certain circumstances, prepared to hear evidence of events affecting the jury. If it finds an ‘irregularity’ serious enough to bring the conviction into p. 488↵doubt, then it may quash a conviction. An issue that has to be carefully addressed here is s.74(1) of the Criminal Justice and Courts Act 2015 (CJCA 2015), which inserts several new provisions into the Juries Act 1974, effective April 2015. Section 20D(1) of the 1974 Act (as amended) provides that it is an offence for a person ‘intentionally (a) to disclose information about statements made, opinions expressed, arguments advanced or votes cast by members of a jury in the course of their deliberations in proceedings before a court, or (b) to solicit or obtain such information’. There are several exceptions; for example, it is obviously lawful for the jury to deliver their actual verdict (s.20E(1) of the Juries Act 1974 (as amended)). It is also lawful for the trial judge ‘to disclose information (a) for the purposes of dealing with the case, or (b) for the purposes of an investigation by a relevant investigator into whether an offence or contempt of court has been committed by or in relation to a juror in the proceedings’ (s.20E(2) of the Juries Act 1974 (as amended)).
Section 20F(1) of the Juries Act 1974 (as amended) provides that it is lawful to disclose information about the jury’s deliberations if
the person making the disclosure reasonably believes that (i) an offence or contempt of court has been, or may have been, committed by or in relation to a juror in connection with those proceedings, or (ii) conduct of a juror in connection with those proceedings may provide grounds for an appeal against conviction or sentence.
Section 20F(7) of the Juries Act 1974 (as amended) then provides that it is not an offence under s.20D(1) for a person to disclose information in evidence in:
contempt of court proceedings brought as a consequence of a juror allegedly breaching s.20D(1);
an appeal where an allegation relating to a juror’s conduct forms part of the grounds of appeal.
Section 20F(7)(b) is important, as it means that the Court of Appeal or Supreme Court may be able to hear appeals involving alleged jury misconduct during deliberations without breaching s.20D(1). Section 74(1) of the CJCA 2015 also repealed s.8 of the Contempt of Court Act 1981, which forbade any investigation into things said during the jury’s ‘deliberations’. Prior to the abolition of s.8, there were a number of cases which examined the extent to which this restricted the appeal courts’ ability to hear appeals against alleged irregularities during a jury trial. Some of these cases remain relevant as a guide to the likely scope of s.20D(1).
The classic example is R v Young [1995] 2 Cr App R 379, where allegations were made that the jury convicted the defendant of two counts of murder after consulting a makeshift Ouija board while its members were sequestered in a hotel overnight. The Court of Appeal first had to decide whether the court itself was bound by s.8. Lord Taylor CJ held that s.8 did, in general terms, bind the court and so, unless s.8 could be avoided, it would be impossible to investigate what may or may not have happened prior to the jury returning its verdict. However, Lord Taylor then held that p. 489↵s.8 did not apply to the facts of the Young case because when the jury was sequestered in the hotel its members were not ‘deliberating’. Having decided that s.8 did not apply, the Court held that the use of the Ouija board was ‘not merely objectionable but amounted to a material irregularity’ and quashed Young’s convictions (although it did order a retrial, at which Young was duly reconvicted).
In R v Qureshi [2001] EWCA Crim 1807, [2002] 1 WLR 518, the Court of Appeal decided, because of s.8, that it could not give leave to hear an appeal, despite one of the jurors, after conviction, alleging that a range of irregularities had occurred during the jury’s deliberations. The allegations included making disparaging remarks about the defendant, bringing newspapers into the jury room, using mobile phones to contact outsiders during the trial, and adopting a bullying attitude. One juror was alleged to have fallen asleep during the evidence; another was alleged to have been deaf and unable to hear all the evidence. Despite all of this, the Court of Appeal felt it had no choice but to refuse leave to appeal because all the allegations related to matters protected by s.8.
In R v Mirza [2004] UKHL 2, [2004] 1 AC 1118, the House of Lords heard another case involving post-conviction allegations of irregularities having taken place during the jury’s deliberations. One of the jurors alleged that at least some of the other jurors were racist and prejudiced against the defendant, who was from Pakistan but had been living in England since 1998. In a letter sent to the defendant’s lawyers, it was alleged that ‘[t]he bigots [on the jury] had decided that the case brought by the prosecution was not good enough for them, so they embellished it’. This prompted the defendant, who had been convicted of indecent assault, to appeal. The Court of Appeal dismissed his appeal as it considered itself bound by the decision in Qureshi. The defendant appealed again. The question for the Lords was whether the juror’s letter could be used as a basis for allowing an appeal. The Lords held not, and dismissed the appeal.
However, the Lords actually disagreed with the Court of Appeal in R v Qureshi and held that s.8 of the Contempt of Court Act 1981 did not apply to the appeal courts (overruling R v Young on that point). The Lords decided that there was an even older common law rule to the same effect, preventing appeal judges from investigating appeals relating to alleged irregularities in the course of jury deliberations. The common law rule was designed to ensure the confidentiality of jury deliberations. Several reasons were given for this principle. Lord Hobhouse explained that ‘nothing could be more destructive … than the juror coming out of court and communicating his or her views about the jury’s deliberations to the media or to persons who are likely to disagree with the verdict’. Lord Hope said that ‘the law recognises that confidentiality is essential to the proper functioning of the jury process, that there is merit in finality and that jurors must be protected from harassment’.
Thus, it was legally impossible to bring an appeal against conviction based on evidence of allegations of improprieties that may have occurred during the jury’s deliberations (the confidentiality principle). However, the confidentiality principle p. 490↵did not apply when appeals were brought against conviction based on evidence of allegations of improprieties caused by or attributable to extraneous matters. The position in both Canadian and English law was summarised by the Supreme Court of Canada in R v Pan; R v Sawyer [2001] 2 SCR 344, where Arbour J explained that the law
seeks to preserve the secrecy of the jury’s deliberations, while ensuring that those deliberations remain untainted by contact with information or individuals from outside the jury. As a result, where the evidence establishes that the jury has been exposed to outside information or influences, it will generally be admissible.
A number of English cases have addressed the question of the difference between jury deliberations (which were subject to the confidentiality rule) and extraneous matters which might have influenced those deliberations (which were not):
An example of the former situation is R v Buttle [2006] EWCA Crim 246. Buttle had been convicted of rape and assault by penetration. On appeal, it was contended that one of the jurors had been pressurised by three other jurors to return a guilty verdict. However, the appeal court dismissed Buttle’s appeal. Gage LJ simply said that ‘this Court cannot enquire into the privacy of what goes on in the jury room’.
An example of the latter situation is R v Karakaya [2005] EWCA Crim 346, [2005] 2 Cr App R 5. Here, the accused had been convicted of rape. After the jury left court, it was discovered that a juror had taken into the jury’s deliberating room extraneous documents (academic articles dealing with rape). Karakaya appealed, arguing that the presence of the documents in the jury room amounted to an irregularity. The Court of Appeal quashed the conviction (although a retrial was ordered) because the verdicts were not necessarily based purely on the evidence actually presented at trial. The Court of Appeal distinguished R v Mirza on the basis that this case involved consideration of extraneous documents.
Another example of the latter situation is R v Pintori [2007] EWCA Crim 1700, [2007] Crim LR 997, where the defendant had been convicted of possession of heroin but appealed when it emerged, post-verdict, that one of the jurors had been employed by the police force (albeit in a civilian capacity) and knew some of the officers involved in bringing the prosecution. On appeal, it was submitted that this juror—and by extension, the whole jury—may have been biased against the defendant. The Court of Appeal allowed the appeal. R v Mirza was again distinguished, as this case also involved the question of external influences on the jury’s deliberation process.
Another example of the latter situation is R v Marshall and Crump [2007] EWCA Crim 35, [2007] Crim LR 562, although in this case the Court of Appeal upheld the appellants’ robbery convictions, despite the fact that ‘extraneous’ material was found in the jury room after the trial had concluded, consisting of printouts from three websites: those of the CPS, the Home Office, and a criminal solicitors’ practice. Hughes LJ said that although the material was ‘wholly extraneous’, it was ‘largely material which was in the public domain and to which an intelligent p. 491member of the public serving on the jury could perfectly legitimately have access’. As a result, the Court concluded that the guilty verdicts were ‘safe’.
In R v Thompson and Others [2010] EWCA Crim 1623, [2010] 2 Cr App R 27, six appellants appealed against convictions for various offences. In each case, the appellant had alleged, inter alia, jury irregularity. The irregularities alleged by each appellant were as follows:
Benjamin Thompson had been convicted at Oxford Crown Court of causing grievous bodily harm with intent. After the trial, several jurors wrote a letter to the trial judge indicating that one of the jurors had used the internet to bring extraneous material ‘relating to the case and legal terminology’ into the jury room.
Jason Crawford was convicted at Harrow Crown Court of two counts of cocaine possession with intent to supply. After the trial, one of the jurors made a phone call to Crawford’s solicitor asserting that, although she had been inclined towards a not guilty verdict, she had been ‘put under immense pressure by other jurors to change her decision’.
Ahmed Gomulu was convicted at the Old Bailey of murder and wounding with intent. After his trial, members of Gomulu’s family reported that the victim’s brother had been seen talking to members of the jury during the trial.
Chris Allen was convicted of rape at Newport Crown Court. After his trial, it was claimed that the jury may have become aware that Allen was facing a second jury trial for an unrelated offence.
David Blake was convicted at Newcastle Crown Court of having an article with a blade or point on school premises. After the trial, evidence emerged that one of the jurors had conducted ‘experiments’ involving nail clippers.
Kamulete Kasunga was convicted of assault occasioning actual bodily harm at Wood Green Crown Court. After the trial, it emerged that a juror had written to the judge expressing concerns over the verdict.
Only one appeal—Blake’s—was successful. The appeals in the other five cases were dismissed. The alleged irregularities in Crawford’s and Kasunga’s cases were described as ‘classic Mirza territory’; in other words, they related to allegations protected by the confidentiality principle, which were therefore inadmissible. The allegation in Gomulu’s case was rejected for lack of evidence. Allen’s appeal failed for similar reasons. Thompson’s appeal raised more difficulties. Lord Judge CJ said that the use of the internet would have constituted an irregularity. However, the verdict was nevertheless held to be safe on the basis that the jurors’ letter to the trial judge
does not suggest that the juror, or anything he or she said to the other members of the jury, led them, in dereliction of their duty, to do other than follow the directions in law given by the judge, as supplemented by him in answer to the numerous notes in which the jury sought further directions.
p. 492↵On the specific issue of jurors using the internet, Lord Judge CJ offered the following observations:
The use of the internet has expanded rapidly in recent years and it is to be expected that many, perhaps most, jurors, will be experienced in its use and will make habitual reference to it in daily life. … [The] use of the internet is so common that some specific guidance must now be given to jurors. … Jurors need to understand that although the internet is part of their daily lives, the case must not be researched there, or discussed there (for example, on social networking sites), any more than it can be researched with, or discussed amongst friends or family, and for the same reason. The reason is easy for jurors to understand. Research of this kind may affect their decision, whether consciously or unconsciously, yet at the same time, neither side at trial will know what consideration might be entering into their deliberations and will therefore not be able to address arguments about it. This would represent a departure from the basic principle which requires that the defendant be tried on the evidence admitted and heard by them in court. [We] do not purport to lay down a standard form of words; the sense of the message is familiar to all judges. What matters is that it should be explicitly related to the use of the internet. We recommend a direction in which the principle is explained not in terms which imply that the judge is making a polite request, but that he is giving an order necessary for the fair conduct of the trial.
The principles laid down in R v Mirza—of the paramount importance of maintaining confidentiality of jury deliberations—can be starkly contrasted with the scenes immediately after the culmination of the Michael Jackson trial People of California v Jackson (1133603: The People of the State of California v. Michael Joe Jackson) in Santa Maria, California, in June 2005. There, members of the jury held an impromptu, televised press conference to discuss the reasons for their not guilty verdicts, which was broadcast around the world. Had that conference taken place immediately after the end of an English criminal trial, the jurors would almost certainly have been prosecuted for contempt of court.
An example of this occurred in Attorney General v Scotcher [2004] UKHL 36, [2005] 1 WLR 1867. The defendant, S, who sat as a juror in a trial of two brothers accused of drug dealing in January 2000, was convicted of contempt of court after he wrote a letter to the mother of the accused after the trial telling her that he thought her sons’ convictions were unsafe because some of the other jurors had been too keen to get the trial over with and go home. The House of Lords upheld S’s conviction, holding that his motives in seeking to overturn a miscarriage of justice provided no defence to a charge of contempt.
Thinking point
Should the principle of jury confidentiality continue to apply?
Should the common law confidentiality principle, as explained by the House of Lords in Mirza, continue to apply following the recent amendments to the Juries Act 1974?
p. 493↵Section 18(1) of the Juries Act 1974 is designed to eliminate unnecessary appeals. It states that no judgment after verdict in any trial by jury in any court shall be stayed or reversed by reason:
that the provisions of this Act about the summoning or impanelling of jurors, or the selection of jurors by ballot, have not been complied with; or
that a juror was not qualified in accordance with s.1 of this Act; or
that any juror was misnamed or misdescribed; or
that any juror was unfit to serve.
Examples of this include:
R v Chapman and Lauday (1976) 63 Cr App R 75—evidence emerged after the trial that one of the jurors had such a severe problem with earwax that he could not hear the summing up. The defendants appealed, but the appeal was dismissed.
R v Bliss (1987) 84 Cr App R 1—after conviction, the defendant recognised one of the jurors as being a man with whom he had been involved in a fight in a pub some six months earlier. He appealed, arguing that the juror might have been ‘hostile’ to him, but this was rejected.
R v Richardson [2004] EWCA Crim 2997—evidence emerged after the defendant’s conviction of rape and indecent assault that one of the jurors was actually disqualified because of his own conviction for indecent assault, but had served in any event. However, his appeal was dismissed.
13.1.4 Majority verdicts
The concept of majority verdicts was introduced by the Criminal Justice Act 1967 and is now regulated according to s.17 of the Juries Act 1974. This states that a jury’s verdict ‘need not be unanimous’ where at least ten of the jurors agree (s.17(1)(a)) or, in the rare cases where there are ten jurors, at least nine of them agree (s.17(1)(b)). The main advantage of a majority verdict is that it avoids the problem of one juror with extreme and/or intractable views holding out against the rest, and it should lessen the need for expensive and time-consuming retrials. Conversely, it has been argued that majority verdicts ‘dilute’ the concept of proof beyond reasonable doubt—on the ground that if one juror is not satisfied as to guilt, there must be a doubt—and hence gives less protection to the innocent. This, in turn, weakens public confidence in the system. It is for the judge to decide and give a direction if they decide to allow a majority verdict and the judge cannot consider this until the jury has spent at least two hours trying to reach a unanimous verdict. However, the convention is to allow at least two hours ten minutes, to allow for time for the jurors to walk to the jury room from the court room, thus ensuring a minimum time of two full hours of deliberations. However, rather fortuitously, it is also an easy and fun way to remember the p. 494↵minimum time period, as with a jury of twelve you can have two dissenting as long as there are ten in agreement, so two hours ten minutes.
Thinking points
Are majority verdicts acceptable? Should the jury have to be unanimous?
Are majority verdicts acceptable, given the requirement that the prosecution prove its case beyond reasonable doubt?
What might be the effect of a requirement to have unanimous verdicts?
13.1.5 The jury’s function in civil trials
Section 69 of the Senior Courts Act 1981 lists the categories of civil cases that can be heard by a jury in the High Court. The list includes fraud, malicious prosecution, and false imprisonment. For an example of the use of a civil jury in a malicious prosecution case, see Morrison v Chief Constable of the West Midlands [2003] EWCA Civ 271; for a case involving a civil jury in a false imprisonment case, see Lorenzo v Chief Constable of the West Midlands [2012] EWCA Civ 1863. The list used to include libel and slander (collectively known as defamation) as well, but those actions were deleted by s.11 of the Defamation Act 2013. According to the explanatory notes to s.11, this change does not prevent juries from hearing defamation cases, but ‘defamation cases will be tried without a jury unless a court orders otherwise’. In Yeo v Times Newspapers [2014] EWHC 2853, [2015] 1 WLR 971, the first case involving s.11, the High Court refused to order a jury trial in a defamation case brought by the former Conservative MP Tim Yeo. The Court said that jury trials in defamation cases would now be ‘the exception rather than the rule’. In refusing Yeo’s request for a jury trial, the Court said that the claimant had failed to ‘identify any skills, knowledge, aptitudes or other attributes likely to be possessed by a jury which would make it better equipped than a judge to grapple with the issues’. The Court also pointed out that ‘trial by jury invariably takes longer and is more expensive than trial without a jury’. These factors did not preclude jury trial, but ‘the extra time and cost require justification’. On the basis of Yeo, it seems safe to say that jury trials in defamation cases in the future will be very rare.
Even in one of the listed areas, s.69(1) states that ‘the action shall be tried with a jury 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 cannot conveniently be made with a jury’. In March 1994, nearly twenty years before the Defamation Act 2013, the Court of Appeal denied an application for trial by jury from two environmental campaigners of a libel action (the so-called ‘McLibel’ case) brought against them by the McDonald’s restaurant chain. The Court said that the scientific issues would make it impossible for the case to be p. 495↵heard satisfactorily by a jury. The case duly went to trial before a single judge and lasted over a year—the longest libel action in history.
Test your understanding of this section by answering the following self-test questions:
Self-test questions 13.1. (This will open in a new tab.)
13.2 The selection of the jury
13.2.1 Liability to serve
The rules as to eligibility to serve on a jury are contained in s.1 of the Juries Act 1974 (as amended). The requirements can be summarised as follows. The individual must be:
registered as an elector;
aged between eighteen and seventy-five. The minimum age is eighteen. As discussed in the talking point, the maximum age was raised from sixty-five to seventy in 1988 and was raised again to seventy-five in 2016;
ordinarily resident in the UK, the Channel Islands, or the Isle of Man for five years from the age of thirteen.
No other eligibility criteria are required. In particular, there is no requirement that jurors be British citizens. This may be contrasted with the position in Canada, for example, where citizenship is a requirement for eligibility for jury service.
Thinking points
Jury eligibility: should citizenship be a criterion? Why is there an upper age limit for jurors?
What are the arguments for and against citizenship being a requirement for eligibility to serve on a jury?
Although Parliament has now raised the upper age limit for jurors, should the government have gone further and simply abolished the limit?
13.2.2 Ineligibility
Major changes were made to this area of law in April 2004, when s.321 of the Criminal Justice Act 2003 came into effect. Previously, Sch.1 to the Juries Act 1974 listed various categories of people as being ineligible for jury service. There were four Groups:
the Judiciary (Group A): this group included judges and magistrates, both current and retired;
Other Persons Concerned with the Administration of Justice (Group B): this was a very large group. It included the police and barristers and solicitors ‘whether or not in actual practice as such’;
Mentally Disordered Persons (Group D): this group includes persons ‘liable to be detained’ under the Mental Health Act 1983 (MHA) or ‘resident in a hospital on account of mental disorder’ as defined by the MHA (Sch.1 to the Juries Act 1974, as amended by s.2 of the Mental Health (Discrimination) Act 2013).
Section 321 of the 2003 Act abolished Groups A, B, and C. This means that judges, lawyers, the police, and clergy all became eligible for jury service. Only those in Group D remain ineligible.
Key point
The general rule in the English criminal justice system is that all people who are eligible to serve on a jury should do so if summonsed. Only the mentally disordered are ineligible for jury service.
The enactment of s.321 in the 2003 Act was the culmination of a reform proposal advanced by Auld LJ in his Review of the Criminal Courts in England and Wales, commissioned by the government and published in September 2001. Auld LJ had recommended that English law should be brought into line with certain other jurisdictions, including a number of US states, where far fewer restrictions were placed on jury eligibility. The core objective of the reform was to broaden the pool of potential jurors and to make the jury more representative of society.
Critical debate
Composition of the jury has long been a vexed question. At one time, it was said that the English jury was ‘middle class, male, middle minded and middle aged’. This was mainly because at one time eligibility for jury service was linked to property ownership. Following the abolition of this requirement in the early 1970s, this criticism is no longer true, but the issue that the jury should be representative of society remains. What were the reasons for excluding from jury service: (a) judges and lawyers; (b) the police; and (c) the clergy? Do you agree with Parliament that these people should now be required to serve on a jury? What are the potential problems with having lawyers and police officers serving as jurors?
The first case involving s.321 to reach the appeal courts was R v Abdroikov and Others [2007] UKHL 37, [2007] 1 WLR 2679. The case involved three separate cases which p. 497↵were joined into a single appeal, where it was argued that the presence of certain jurors created a risk of ‘apparent’ bias, and hence the appellants’ entitlement to a fair trial by an ‘independent and impartial tribunal’, guaranteed by Article 6 of the European Convention on Human Rights (ECHR), was not satisfied. The appellants in the three cases were:
Nurlon Abdroikov, who had been convicted of attempted murder by an Old Bailey jury containing a serving police officer, although he had no connection to the case. The officer’s presence on the jury was only revealed at a very late stage in the trial, when the jury had already retired to consider their verdict;
Richard Green, a heroin addict, who had been convicted at Woolwich Crown Court of ABH contrary to s.47 of the Offences against the Person Act 1861, his jury also containing a police officer, PC Mason. In this case, the victim, Sergeant Burgess, was also a police officer (he had pricked his finger on a used syringe in Green’s pocket whilst conducting a search). PC Mason and Sergeant Burgess were both serving in the same London borough at the time of the incident and had once served in the same police station at the same time, although the two officers were not known to each other. PC Mason’s presence on the jury was only discovered, by chance, after the trial;
Ken Williamson, who had been convicted at Warrington Crown Court on two counts of rape. His jury contained a solicitor, Martin McKay-Smith, who had been employed by the CPS since 1986. McKay-Smith had contacted the court in advance to inform them of his occupation and background and defence counsel had sought to challenge his involvement, citing Article 6 of the ECHR. However, the trial judge had rejected this challenge, ruling that he was obliged by s.321 of the Criminal Justice Act 2003 to order McKay-Smith to serve.
The appellants invoked the principle established by Lord Hewart CJ in R v Sussex Justices, ex parte McCarthy [1924] 1 KB 256 that ‘it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done’, a principle subsequently endorsed by the European Court of Human Rights. The appellants contended that this principle was not met in a case where one of the jurors was employed by a body (the police and the CPS) dedicated to promoting the success of one side in the adversarial trial process. However, the Court of Appeal rejected all of the appeals. Applying the test for ‘apparent’ bias laid down in earlier case law, namely, ‘whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased’ (Porter v Magill [2001] UKHL 67, [2002] 2 AC 357), Lord Woolf CJ held that a fair-minded and informed observer would not conclude that there was a real possibility that a juror was biased merely because his occupation was one which meant that he was involved in some capacity or other in the administration of justice.
p. 498↵The three appealed against that decision to the House of Lords, which, albeit by a narrow majority of three to two, allowed the appeals in two of the three cases. Giving the leading judgment, Lord Bingham said:
It must be accepted that most adult human beings, as a result of their background, education and experience, harbour certain prejudices and predilections of which they may be conscious or unconscious. I would also, for my part, accept that the safeguards established to protect the impartiality of the jury, when properly operated, do all that can reasonably be done to neutralise the ordinary prejudices and predilections to which we are all prone. But this does not meet the central thrust of the case made by [counsel] for the appellants: that these cases do not involve the ordinary prejudices and predilections to which we are all prone but the possibility of bias (possibly unconscious) which, as he submits, inevitably flows from the presence on a jury of persons professionally committed to one side only of an adversarial trial process.
Lord Bingham observed that in the 2001 Review of the Criminal Courts, which eventually led to the enactment of s.321, Auld LJ had indicated that police officers and holders of similar occupations should not sit in every case regardless of the circumstances, but that ultimately the trial judge should decide—on a case-by-case basis—whether their presence was compatible with the principle of justice being seen to be done. In Richard Green’s case, the majority (Lord Bingham, Baroness Hale, and Lord Mance) pointed out that there was an evidential dispute between Green and Sergeant Burgess (the victim), and the jury had to choose to prefer the evidence of one or the other. As Sergeant Burgess and PC Mason (the juror) shared the same local service background, Lord Bingham held that the ‘instinct’ of a police officer juror to prefer the evidence of ‘a brother officer’ to that of the defendant ‘would be judged by the fair-minded and informed observer to be a real and possible source of unfairness’. Lord Bingham stated that it ‘is not a criticism of the police service, but a tribute to its greatest strength, that officers belong to a disciplined force, bound to each other by strong bonds of loyalty, mutual support, shared danger and responsibility, culture and tradition’. Green was, therefore, ‘not tried by a tribunal which was and appeared to be impartial’. His appeal was allowed and the conviction was quashed.
In Ken Williamson’s case, Lord Bingham held that it was ‘clear that justice was not seen to be done where one of the jurors was a full-time, salaried, long-serving employee of the prosecutor’. His appeal was therefore also allowed and his convictions quashed (although the door was left open for a retrial—presumably without CPS solicitors involved).
The majority did rule that there were situations where police officers and CPS solicitors would meet the tests of impartiality. Indeed, Nurlon Abdroikov’s case was one of them and his attempted murder conviction was upheld. Lord Bingham stated that, although it was ‘unfortunate’ that the police officer’s identity was only revealed to the trial judge at such a late stage, ‘had the matter been ventilated at the outset of the trial, it is difficult to see what argument defence counsel could p. 499↵have urged other than the general undesirability of police officers serving on juries, a difficult argument to advance in face of the parliamentary enactment’ (meaning s.321 of the 2003 Act).
Lords Rodger and Carswell dissented in the appeals of Green and Williamson. Lord Rodger, in a powerful dissent, said that many (if not most) jurors would harbour some prejudices of various kinds. He pointed out that there was a ‘risk’ in any Crown Court trial that some jurors may (for example) be homophobic, or sexist, or racist. However, he said that the law takes steps to minimise the risk by making jurors take an oath or affirm that they will ‘faithfully try the defendant and give a true verdict according to the evidence’, and by making the judge give them a direction that they must assess the evidence impartially. Lord Rodger said that it would ‘be naïve to suppose that these safeguards will always work with every juror’—but he thought that the presence of the other eleven jurors would ‘neutralise any bias on the part of one or more members and so reach an impartial verdict’. He later observed that allowing the appeals in Green’s and Williamson’s cases would ‘drive a coach and horses through Parliament’s legislation and will go far to reverse its reform of the law’. He thought that it was the ‘rational policy of the legislature’ to decide who was eligible to serve as jurors and then to treat them all alike. Applying these principles to the three appeals, Lord Rodger said:
Like all other jurors, be they clergymen, defence lawyers, butchers, estate agents, prostitutes, petty crooks or judges, police officers and CPS lawyers sit as private individuals. Each brings his or her own particular experience to bear on the case they have to try … I can see no reason why the fair minded and informed observer should single out juries with police officers and CPS lawyers as being constitutionally incapable of following the judge’s directions and reaching an impartial verdict. … An observer who singled out juries with these two types of members would be applying a different standard from the one that is usually applied.
Referring more specifically to Green’s case, Lord Rodger added that Parliament must have known, when passing s.321, that police officers had previously been ineligible for jury service. Nonetheless, Parliament had ‘judged it proper in today’s world to remove the bar and to rely on the officers’ commitment to uphold the law … like any other juror’. Similarly, referring to Williamson’s case, Lord Rodger said that ‘one of the qualities required of any CPS lawyer is an ability to assess evidence and to take proper decisions based on his assessment of the evidence, regardless of any pressure from the investigating police officers or from the media’. His Lordship concluded that ‘[a] fair minded and rational observer might just think that such a person would be capable of bringing his realism, objectivity and skills to bear when acting as a juror. Why, at the very least, should the observer assume that they would desert him?’
The guidance provided by the House of Lords has been applied in subsequent cases. R v I [2007] EWCA Crim 2999 involved a trial at Carlisle Crown Court. Before the case even began, a potential juror told the judge that he was a police officer and he knew all the officers who were to give evidence. The defence objected p. 500↵to him sitting but the judge disagreed, ruling that the fact of knowledge of particular witnesses in itself was not a bar to an individual being on the panel. He described it as analogous to a barrister sitting on a jury and knowing particular witnesses and the judge. The trial went ahead with the police officer on the jury and the defendant was convicted of a number of offences. However, the Court of Appeal quashed the convictions, holding that ‘there was here a real possibility of bias arising from the presence on the jury of a police officer who knew the police witnesses. The possibility that he might be likely to accept the words of his colleagues, irrespective of the dispute between the parties, is one which can only be described as real.’
In R v Khan and Others [2008] EWCA Crim 531, [2008] 3 All ER 502, there were five separate cases before the Court of Appeal; this time, none of the convictions was quashed. The cases can be summarised as follows:
Case 1: Bakish Khan and Ilyas Hanif had been convicted at Sheffield Crown Court of conspiracy to supply heroin. During the trial, a juror had informed the judge that he was a police dog-handler and knew one of the witnesses for the prosecution, who was another police officer. The trial judge, however, rejected an application to discharge the juror.
Case 2: Martin Lewthwaite had been convicted at Bristol Crown Court of causing grievous bodily harm (GBH) with intent. At the beginning of the trial, a juror informed the judge that he was a police Detective Chief Inspector but was involved with drugs crimes working outside the Nailsea area where the attack took place, and did not know any of the witnesses. The trial judge also rejected an application to discharge the juror. In both of these cases, the Court of Appeal held that the fact that a juror was a police officer and might seem likely to favour the evidence of a fellow police officer would not, of itself, lead to an appearance of bias, and therefore did not automatically disqualify the juror.
Case 3: Michael Khan had been convicted at Hull Crown Court of non-disclosure of property in his bankruptcy, contrary to s.351 of the Insolvency Act 1986. A juror at his trial was employed by the CPS as a media officer. The trial judge rejected an application to discharge the juror. The Court of Appeal upheld the conviction. Here, the Court pointed out that Khan had been prosecuted by the Department of Trade and Industry, not the CPS, and there could be ‘no objection’ to a member of the CPS being a juror in a case prosecuted by a different authority.
Case 4: Roy Cross had been convicted of wounding with intent at Worcester Crown Court. After conviction, he became aware that one of the jurors was a prison officer at a prison where he had been remanded before and during trial.
Case 5: Stanley Hill had been convicted of the attempted murder of a woman called Wendy Crooks at Liverpool Crown Court and sentenced to life imprisonment. p. 501After conviction, he made essentially the same discovery as Cross. Cross and Hill both argued that there was a risk that the prison officers knew information detrimental to them. This was rejected by the Court of Appeal, which held that the mere suspicion that a juror might, by reason of having been employed as a prison officer, have acquired knowledge of that defendant’s bad character could not, of itself, lead an objective observer to conclude that the juror had an appearance of bias.
Thinking point
Should police officers and other people employed in the criminal justice system be able to sit on juries?
Commenting on these case law developments, Nick Taylor (‘Jury: Bias—Presence on Jury of Persons Concerned with Administration of Justice’ [2008] Crim LR 641) observes that there is now a ‘potentially very difficult burden upon the trial judge’ to determine suitability. He suggests that Crown Court judges ‘may be left wondering whether the clarity of the old exclusionary position was more desirable’. What do you think?
Two of the appellants in Case 1, Bakish Khan and Ilyas Hanif, successfully appealed to the European Court of Human Rights on the basis that the presence of the police officer on the jury in their case had infringed their right to a fair trial under Article 6 of the ECHR. In Hanif and Khan v UK (2012) 55 EHRR 16, the Strasbourg court held that, where there was a jury trial (a) involving an ‘important conflict’ relating to prosecution evidence; and (b) where one of the jurors was a police officer who was ‘personally acquainted’ with the police officer giving that evidence, then ‘jury directions and judicial warnings are insufficient to guard against the risk that the juror may, albeit subconsciously, favour the evidence of the police’.
Hence, the Hanif and Khan ruling is a relatively narrow one, although there will almost inevitably be further case law exploring the concepts of ‘important conflict’ and ‘personally acquainted’, both of which are apparently required for a violation of Article 6. Intriguingly, however, the Strasbourg court stated that it was ‘leaving aside the question of whether the presence of a police officer on a jury could ever be compatible with Article 6’ (emphasis added). This may imply that, had it been required to confront the issue head on, the court would have ruled that the presence of any police officer on a jury (whether ‘personally acquainted’ with a prosecution witness or not) infringed the defendant’s right to a fair trial. In ‘Police Officers on Juries’ (2012) 71 CLJ 254, John Spencer argues:
In retrospect it surely was a bad idea to make police officers eligible to serve. In practical terms, the need for judges to question police jurors about their relationships (if any) with witnesses adds a new and needless complication to the trial, and where one does serve and the defendant is convicted, a new and needless ground for possible appeal. p. 502↵And in theoretical terms, however honest the individual officer, in public perception a policeman is a member of the opposing team. … The government should now make a virtue out of necessity and, taking the initiative, reverse the change its predecessor made before another Strasbourg condemnation forces it to do so.
Meanwhile, the Court of Appeal continues to deal with domestic cases involving challenges to conviction on the basis of allegedly inappropriate jurors. In R v L [2011] EWCA Crim 65, [2011] 1 Cr App R 27, the appellant had been convicted of burglary and attempted burglary at the Central Criminal Court (the Old Bailey). He appealed on the basis that the jury had included an employee of the CPS, a serving police officer, and a retired police officer—in other words, three out of the twelve jurors were individuals linked in some way with the prosecuting arm of the criminal justice system. The Court of Appeal emphasised that questions of eligibility or disqualification or excusal were directed to individual potential jurors, not to the jury as a whole, and so the mere fact that a quarter of the jury had connections to the police or the CPS did not of itself render the convictions unsafe. As far as the two police officers were concerned, the Court of Appeal decided that there was no reason why the position of either should cause any concern. Neither had any connection with the police force or the individual officers involved in the trial, nor with the Old Bailey.
However, the position of the CPS employee did cause concern. She had worked for the CPS for nine years, initially as a secretary to the Director of the Service’s North East London Sector and subsequently providing administrative support to advocates at Snaresbrook Crown Court. Although stressing that each case had to be considered on its facts, Lord Judge CJ said that her service with the CPS was ‘long enough and of sufficient importance’ to fall within the ambit of the problem identified by Lord Bingham in R v Abdroikov and Others that ‘justice is not seen to be done if one discharging the very important neutral role of juror is a full-time, salaried, long-serving employee of the prosecutor’. As a consequence, the Court allowed L’s appeal—but did order a retrial.
13.2.3 Disqualifications
Under Sch.1 to the Juries Act 1974, certain persons with a criminal record were disqualified either for life, ten years, or five years, depending on the sentence they received. This category has been preserved by the Criminal Justice Act 2003, although the rules have been simplified. The new position is that the following are disqualified:
persons sentenced to imprisonment:
those sentenced to five years or more: disqualified for life;
those sentenced to up to five years (including suspended sentences): disqualified for ten years;
those convicted of an offence under s.20A, s20B, s.20C, or s.20D of the Juries Act 1974 (see 13.9 below): disqualified for ten years;
Thinking point
Why are some convicted criminals and those on bail prevented from serving as jurors?
Is it fair that someone who has committed a criminal offence could potentially (depending on the sentence imposed) face a lifetime ban from jury service? After all, is imprisonment not meant to serve (at least in part) as a form of rehabilitation into society? What about those on bail—is the disqualification of those on bail not a contradiction of the fundamental legal principle ‘innocent until proven guilty’?
13.2.4 Excusal
Under the Juries Act 1974, various categories of people were excused as of right from jury service if they did not wish to serve. This included:
any person who had served on a jury within the preceding two years;
Members of Parliament (MPs) and Members of the European Parliament (MEPs);
members of the Armed Forces;
doctors, dentists, nurses, and vets;
members of religious societies or orders.
Following enactment of the Criminal Justice Act 2003, however, the only people entitled to be excused as of right now are:
any person who had served on a jury within the preceding two years (s.8 of the 1974 Act);
members of the Armed Forces (and even here, it will require a certificate from the individual’s commanding officer that it would ‘be prejudicial to the efficiency of the service if that member were to be required to be absent from duty’ (s.9 of the 1974 Act)).
Hence, MPs, doctors, dentists, nurses, and vets all lost their entitlement to automatic excusal. Do you agree with Parliament that MPs, doctors, dentists, nurses, and vets should now be required to serve on a jury, with no guarantee of excusal?
Persons may have their jury duty excused or deferred at the discretion of the Jury Central Summoning Bureau (JCSB) if they can show ‘good reason’. A Home Office research study in 1999, based on a sample of 50,000 people summoned for jury service, found that 38 per cent of them were excused at the judge’s discretion. The study found that the most common reasons were:
13.2.5 The process of selection
Juries are selected from the electoral register. This is designed to ensure a random selection. In R v Sheffield Crown Court, ex parte Brownlow [1980] QB 530, Lord Denning MR said:
Our philosophy is that the jury should be selected at random—from a panel of persons who are nominated at random. We believe that 12 persons selected at random are likely to be a cross-section of the people as a whole—and thus represent the view of the common man. … The parties must take them as they come.
The case of R v Salt [1996] Crim LR 517 provides an interesting illustration of this. The defendant was convicted of burglary but appealed after it emerged that one of the jurors was the son of a court usher, who had been asked by his father to serve on D’s jury owing to a shortfall in prospective jurors. D’s conviction was quashed. The Court of Appeal actually denied that a random selection policy, as such, existed, but did state that every practicable effort should be made to make the selection random. This was not the case in D’s trial.
However, the policy of random selection is not without problems, as certain groups in society (e.g. young people, students, and members of ethnic minority groups) tend to be under-represented on the electoral register—and hence on juries too. However, some of the problems were alleviated (if not removed) by the introduction in late 2000 of the JCSB computerised system, which now handles all jury summonses.
In his Review of the Criminal Courts (2001), Auld LJ recommended that ‘[q]ualification for jury service should remain the same, save that entitlement to, rather than actual, entry on an electoral role should be a criterion. Potential jurors should be identified from a combination of a number of public registers and lists.’ Something similar to this system operates in many US states, whereby driving licence records are used as a means of identifying potential jurors. After all, many people of voting age hold driving licences but are not registered to vote; these potential jurors will never be called for jury service under the present system.
Proposed reform to allow profoundly deaf people to sit on juries
The Police, Crime, Sentencing and Courts Bill 2021–22, when implemented, will amend the Juries Act 1974 to allow profoundly deaf people to sit on juries. It has previously been prohibited if the deaf person would need a British Sign Language interpreter in the jury room, as the jury room could only have jurors in it and not any extra people, regardless of the circumstances. Under the amended legislation, the p. 505↵interpreter will be able to remain with the jury in the jury room to enable the deaf person to act as a juror, but must not interfere in the deliberations of the jury.
Thinking points
How ‘random’ is random selection? Could the jury selection process be improved?
Is there really ‘random’ selection of the jury in England?
How might the selection process be improved?
Test your understanding of this section by answering the following self-test questions:
Self-test questions 13.2. (This will open in a new tab.)
13.3 Challenges to jury membership
13.3.1 Challenge ‘for cause’
Both prosecution and defence have the right to challenge all or any of the jurors ‘for cause’. Challenges ‘for cause’ are very rare, mainly because the defence has very little information on which to base a challenge and challenges have to be based on a ‘foundation of fact’ (R v Chandler [1964] 2 QB 322). Since 1973, only jurors’ names and addresses are known to the defence (prior to that date, jurors’ occupations were also known). The only guidance provided by the 1974 Act is s.12 (4), which simply states that ‘[t]he fact that a person summoned to serve on a jury is not qualified to serve shall be a ground of challenge for cause; but subject to that … nothing in this Act affects the law relating to challenge of jurors’.
Useful guidance as to when challenge for cause may exist comes from the Supreme Court of Canada. In R v Williams [1998] 1 SCR 1128, McLachlin CJ stated that prejudice might occur in four situations:
interest prejudice: when jurors may have a direct stake in the trial due to their relationship to the defendant, victim, witnesses, or outcome;
specific prejudice: when a juror has attitudes and beliefs about the particular case that may render them incapable of deciding guilt or innocence with an impartial mind. These attitudes and beliefs may arise from personal knowledge of the case, publicity through mass media, or public discussion and rumour in the community;
generic prejudice: when a juror holds stereotypical attitudes about the defendant, victims, witnesses, or the nature of the crime itself. Bias against a racial or ethnic group or against persons charged with sex abuse are examples of this;
conformity prejudice: when the case is of significant interest to the community, causing a juror to perceive that there is strong community feeling about a case coupled with an expectation as to the outcome.
In the United States, by way of contrast, the jury is openly and routinely questioned about a whole range of issues—their occupations, political or religious beliefs, and so on—in order to eliminate bias. This process is known as ‘voir dire’ and can take hours, p. 506↵days, or even weeks. The examination of the jury in the trial of Jack Ruby for shooting Lee Harvey Oswald, the alleged assassin of President John F. Kennedy in Dallas in 1964, took fifteen days. That was nothing compared to the vetting of the jury for the trial of O. J. Simpson for allegedly stabbing to death his ex-wife and a friend of hers; this vetting took forty days (26 September–4 November 1994). Both prosecution and defence (in criminal trials) and claimant and defendant (in civil trials) can then employ an unlimited number of challenges for cause to ‘strike’ unsuitable jurors. Both sides also have a limited number of peremptory challenges (see 13.3.3).
The voir dire is designed to produce juries that are unbiased. However, as well as being very time-consuming (and hence expensive), it has another obvious weakness: it is open to abuse by counsel seeking to secure a favourable jury. Alistair Bonnington (‘The Jury: A Suitable Case for Treatment?’ (1995) NLJ 847), commenting on the use of voir dire in civil trials in the United States, pointed out:
Now specialised firms have been set up to advise parties on jury selection techniques. They argue strongly that this work … will lead to the result desired by their client in virtually every case—in other words, the court process itself doesn’t matter at all if you select the right jurors.
The Chief Justice of Canada was moved to speak out against the US voir dire system. In R v Find [2001] 1 SCR 863, McLachlin CJ said that voir dire ‘treats all members of the jury pool as presumptively suspect’. She observed that ‘prospective jurors are frequently subjected to extensive questioning, often of a highly personal nature’ and that it was ‘unclear that the American system produces better juries’ than other systems, including the one in England and Wales.
However, two articles written by British lawyers who witnessed voir dire at first hand were much more positive about the US system. According to Mark George (‘Jury Selection, Texas Style’ (1988) NLJ 438), jury selection proceeded ‘on a rational and logical basis’ and the jurors excluded—even those removed peremptorily—would have known that ‘there was some reasoning behind their rejection’. Similarly, Richard May (‘Jury Selection in the USA: Are There Lessons to Be Learned?’ [1998] Crim LR 270) commented that the ‘care with which the proceedings were undertaken was impressive and leads one to ask whether enough is done in England to ensure that juries are unbiased’. However, in R v Tracey Andrews [1999] Crim LR 156, the Court of Appeal came out against introducing voir dire in England and Wales, on the basis that it contradicted the principle of random selection.
Thinking point
Would the US system of ‘voir dire’ be better than the current English system?
Compare and contrast the English system of jury challenges with the US system of voir dire.
Are there any arguments in favour of voir dire being introduced into England and Wales?
13.3.2p. 507 Challenge by the prosecution
The Crown may ask one or more potential jurors to ‘stand by’ before they take the juror’s oath. Where this happens, the juror is moved to the back of the queue of potential jurors for that trial. No reason need be given, but the situations in which the Attorney General has authorised the use of ‘stand-by’ are restricted, especially since the defence lost its power of peremptory challenge in 1988 (see later at 13.3.3). Guidelines issued by the Attorney General provide that ‘it has been customary’ for Crown prosecutors to invoke stand-by only ‘sparingly and in exceptional circumstances … on the basis of clearly defined and restrictive criteria’. Furthermore, the ‘prosecution should not use its right in order to influence the overall composition of a jury or with a view to tactical advantage’.
Two examples of circumstances in which it would be ‘proper’ for the Crown to exercise its stand-by power are given in the Guidelines. The first is where a prospective juror is revealed to be ‘manifestly unsuitable’, for example, if the case is complex and the juror is illiterate. The second is where a ‘jury check’ has revealed information justifying exercise of the right to stand by. One such case was R v McCann and Others (1991) 92 Cr App R 239, in which three Irish nationals were charged with conspiracy to murder the then Northern Ireland Secretary, Tom King. Because of the national security implications of the case, the Attorney General authorised a jury check and one juror was stood down as a result. The defendants were convicted and appealed, arguing that ‘stand-by’ was: (a) contrary to the principle of random selection; (b) unconstitutional; and (c) unfair, in that it gave the prosecution an advantage. However, the appeal was dismissed on this ground. Beldam LJ said that the Attorney General’s guidelines were both a ‘self-imposed restraint on the Attorney General’s right of stand-by and in certain circumstances a safeguard for the interests of an accused’.
An example of what could happen if stand-by powers are not restricted occurred in Canada in the case of R v Biddle (1995) 96 CCC (3d) 321. The defendant (B) was charged with four counts of assault on women. He was convicted by an all-female jury, which itself is unobjectionable; however, prosecution counsel had set out to empanel an all-female jury and succeeded in doing so by virtue of the standby power given to them under Canadian criminal procedure rules. B successfully appealed to the Supreme Court, albeit on another ground. Interestingly, some of the judges who commented on the stand-by issue did not think that it was necessarily unfair on the defendant. L’Heureux-Dubé J stated that making findings of bias on the basis of ‘assumed stereotypical reactions based on gender’ was ‘dangerous [and] contrary to our concepts of equality and individuality’. She held that there was nothing in the circumstances of the case that lifted the submission that an all-female jury could give rise to a reasonable apprehension of bias ‘above the level of unwarranted stereotyping’.
13.3.3p. 508 Abolition of the defence ‘peremptory challenge’
The right of the defence to challenge jurors ‘without cause’, otherwise known as the ‘peremptory challenge’, was abolished by s.118 of the Criminal Justice Act 1988. The Committee on Fraud Trials (the Roskill Committee) had recommended the abolition of the peremptory challenge in 1986 on the basis that it was being abused, for example, by removing someone who looked like they might understand and/or sympathise with the prosecution and replacing them with someone who looked less likely to understand the case and/or more likely to sympathise with the defence; another ground was that it could upset and/or antagonise rejected jurors. There was also the danger that the peremptory challenge could be abused in cases where the race and/or gender of the accused was a possible factor. As counsel for the defence had little information about prospective jurors when making peremptory challenges, this encouraged the application of stereotypes. The Committee’s report concluded that ‘[t]he public, the press and many legal practitioners now believe that this ancient right is abused cynically and systematically to manipulate cases towards a desired result. We conclude that … such manipulation is wholly unacceptable and must be stopped.’ This recommendation was duly taken up by the government and then by Parliament when enacting the 1988 Act.
Thinking points
Why was ‘peremptory challenge’ abolished? And why did the defence lose the right to challenge, but not the Crown?
Up to 1988, it was possible for the defence in a criminal trial to challenge a juror without cause—a ‘peremptory challenge’. Was it right to abolish peremptory challenges? Should the Crown’s right of ‘stand-by’ be removed as well?
13.3.4 Challenge to the array
Under s.12 (6) of the Juries Act 1974, the entire jury may be challenged (known as ‘challenge to the array’) if the official who summoned them was ‘biased or acted improperly’. An unsuccessful ‘challenge to the array’ was brought in R v Danvers [1982] Crim LR 680, which is discussed at 13.5.
Test your understanding of this section by answering the following self-test questions:
Self-test questions 13.3. (This will open in a new tab.)
13.4 Jury vetting
In general terms, jury vetting refers to the covert investigation of potential jurors in order to assess their suitability for a particular trial. More specifically, jury vetting is a two-stage process. First, vetting involves the police checking potential jurors’ records p. 509↵for previous criminal convictions (if any). Second, in limited circumstances, a further investigation by the security services may be required.
13.4.1 Police vetting
In R v Sheffield Crown Court, ex parte Brownlow [1980] QB 530, the Court of Appeal delivered a damning putdown of jury vetting. Both Lord Denning MR and Shaw LJ were adamant that it should not be introduced into English law, mainly on constitutional grounds. However, the Court of Appeal has subsequently endorsed the practice in R v Mason [1981] QB 881. Lawton LJ stated that standard jury vetting by the police was necessary, if only to ensure that disqualified persons—essentially those with criminal convictions—are excluded from juries.
He concluded that prosecutors may ‘consider that a juror with a conviction for burglary would be unsuitable to sit on a jury trying a burglar; and if he does so he can exercise the Crown’s rights [of stand-by]. Many persons, but not burglars, would probably think that he should.’
13.4.2 Further vetting in ‘exceptional cases’
In guidelines issued by the Attorney General in 1988, two ‘exceptional types of case of public importance’ are identified as justifying jury checks going beyond routine police investigation of criminal records. These are stated to be justified ‘in the interests of both justice and the public’. They are:
cases involving national security;
terrorism cases.
The particular aspects of these cases which may justify ‘extra precautions’ are: (a) in security cases, a danger that a juror may make an ‘improper use’ of sensitive evidence; (b) in both security and terrorism cases, the
danger that a juror’s political beliefs are so biased as to go beyond normally reflecting the broad spectrum of views and interests in the community, to reflect the extreme views of sectarian interest or pressure groups to a degree which might interfere with his fair assessment of the facts of the case or lead him to exert improper pressure on his fellow jurors.
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13.5 The ethnic composition of the jury
The Court of Appeal has turned down several claims to a ‘right’ to a multiracial jury, stressing the overriding importance of random selection. The leading case is R v Ford [1989] QB 868, where Lord Lane CJ said that ‘such a principle cannot be correct, for it would depend on an underlying premise that jurors of a particular racial origin or holding particular religious beliefs are incapable of giving an impartial verdict’. This is p. 510↵in line with the majority of earlier authorities on the point, in which ethnic minority defendants were refused permission to have their all-white or predominantly white jury replaced or modified in order to ensure more ethnic minority jurors. In one such case, R v Danvers [1982] Crim LR 680, it was argued, unsuccessfully, that an all-white jury could not comprehend the mental and emotional atmosphere in which black families in England lived.
Two cases took a different view. R v Binns and Others [1982] Crim LR 522, 823 involved twelve young, male defendants, all but one of whom was of West Indian origin. The judge and the prosecution accepted the proposition that the jury should contain a reasonable proportion of black people. Eventually, a jury was sworn in containing one young man and two middle-aged women of West Indian origin and one young Asian man. All of the defendants were acquitted. R v Thomas and Others (1989) 88 Cr App R 370 involved four defendants of Afro-Caribbean origin charged with murder and wounding with intent. The alleged murder victim was white. The alleged wounding victim was African. When the Old Bailey jury appeared, they were all white. At the instigation of the defence, the trial judge ruled that he did have a power to stand by jurors in order to achieve a community balance but that this power was to be ‘used sparingly and in very exceptional circumstances’. He then ruled that the present case was not exceptional; the offences charged were not confined to the black community but could be, and frequently were, committed by all racial groups. He concluded by saying that he was not persuaded that ‘an à la carte or specially selected jury’ was required. However, both R v Binns and Others and R v Thomas and Others were disapproved of in R v Ford, in the latter case for suggesting that judges had even an ‘exceptional’ power to interfere with randomly selected juries to ensure a racial balance.
In 1993, the Runciman Commission recommended that, in some cases, race should be taken into account. It suggested that either counsel should be able to apply to the judge for a multiracial jury (i.e. up to three people from ethnic minorities). The judge would only grant this if the case had some special feature. More recently, in his Review of the Criminal Courts of England and Wales, Sir Robin Auld, a senior judge of the Criminal Division of the Court of Appeal, recommended that ‘[p]rovision should be made to enable ethnic minority representation on juries where race is likely to be relevant to an important issue in the case’. However, in its Justice for All White Paper (2002), the government rejected this proposal without explaining why it had done so, other than to say that ‘we have concluded that it would be wrong to interfere with the composition of the jury in these cases’. Objections can be advanced against the Runciman/Auld proposals on two grounds: (a) objections in principle; and (b) objections in practice.
13.5.1 Objections in principle
On the first point, it can be said that the Runciman/Auld proposals seem to presume that an all-white jury would be unable to return an unbiased verdict in a p. 511↵case involving a defendant from a minority ethnic group (see the extract from the judgment in Ford earlier). Another objection is based on the ‘floodgates’ argument. Suppose that the law did allow a black, Asian, or any ethnic minority defendant to request, or even demand, that an all-white jury be modified so as to include some ethnic minority jurors. Would the law then be vulnerable to reform demands that other minority groups should have the same rights?
On this point, in R v McCalla [1986] Crim LR 335, the defendant, a young black man, was charged with conspiracy to rob. He applied for the jury to be ‘racially balanced’ or, alternatively, to have a minimum of two black members. The basis for the application was that only black jurors could fully appreciate the way in which the police treat young black people. Without such appreciation, he argued, he could not expect to receive a fair trial, as the main thrust of his defence amounted to a challenge to the evidence of white police officers. This argument was rejected by the trial judge, who said that it would be wrong in principle to allow a defendant to stipulate the kind of jury to try him. If allowed in this case, the judge argued, it would be capable of ‘infinite’ extension to other minority groups, such as homosexuals, Freemasons, militant feminists, alcoholics, members of extreme political groups, and even criminals. The trial judge concluded that such a ‘fundamental change’ in the way juries are made up was not for judicial action but for Parliament.
13.5.2 Objections in practice
There are also practical objections to the proposals. Another reason given by the trial judge for rejecting the defendant’s request in R v McCalla (1986) was that it would be impractical for the jury panel to be artificially enlarged in order to ensure that a ‘proper’ proportion of its members were black (or indeed, from any minority ethnic group). Other practical objections relate to the details of the Auld proposal, which are set out in the questions on the Auld Review proposal next.
The Auld Review proposal
What does ‘ethnic minority representation’ actually mean?
Would an Afro-Caribbean defendant (for example) be entitled to Afro-Caribbean jurors, or would jurors of any ethnic minority group (i.e. not necessarily the same ethnic minority group as the defendant) suffice?
In which cases would it be that ‘race is likely to be relevant’?
What test could be adopted to establish whether or not an issue is ‘important’?
The Court of Appeal confirmed the correctness of the decision in Ford in R v Smith (Lance Percival) [2003] EWCA Crim 283, [2003] 1 WLR 2229. Smith, who was black, was charged with various offences, including causing GBH with intent. The alleged victim was white. The jury at Preston Crown Court was all-white. At trial, Smith did p. 512↵not raise any concerns about the jury but, after conviction, he appealed that he had been denied a fair trial, contrary to the guarantee of a fair trial in Article 6 of the ECHR. However, the Court of Appeal found that the trial was nevertheless fair. Giving judgment, Pill LJ said:
We do not accept that it was unfair for the defendant to be tried by a randomly selected all-white jury or that the fair-minded and informed observer would regard it as unfair. We do not accept that, on the facts of this case, the trial could only be fair if members of the defendant’s race were present on the jury. It was not a case where a consideration of the evidence required knowledge of the traditions or social circumstances of a particular racial group. The situation was an all too common one, violence late at night outside a club, and a randomly selected jury was entirely capable of trying the issues fairly and impartially. Public confidence is not impaired by the composition of this jury.
Pill LJ thought that the ‘wider the experience of jurors and the deeper their wisdom the greater assistance it will give them in their deliberations’, but this was not enough to make Smith’s jury unfair.
Thinking point
Should race be a factor in jury selection?
At one point, Pill LJ states: ‘It was not a case where a consideration of the evidence required knowledge of the traditions or social circumstances of a particular racial group.’ Does this imply that, where a case did require such knowledge, the outcome may be different? If so, in which cases might such knowledge be required?
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13.6 Jury intimidation or ‘tampering’
13.6.1 Juries in England and Wales
The problem of jury intimidation or tampering (or ‘nobbling’, as it is sometimes called) led to the suspension of jury trials for terrorist offences in Northern Ireland in 1973 (see 13.6.2). It has caused problems in England too. In 1982, several Old Bailey trials had to be stopped because of attempted ‘tampering’—one after seven months. In 1984, jurors in the Brinks-Mat trial had to have police protection to and from the court and their telephone calls intercepted. In 1994, a four-month fraud trial at Southwark Crown Court was abandoned. Eventually, Parliament acted.
Section 54 of the Criminal Procedure and Investigations Act 1996 allows for new prosecutions where ‘tainted acquittals’ are produced (i.e. acquittals made by juries that had been intimidated). However, this provision has never been employed.
p. 513 Section 44 of the Criminal Justice Act 2003 allows the prosecution to apply to the court for a judge-only trial, which will be granted if two conditions are satisfied:
there is ‘evidence of a real and present danger that jury tampering would take place’ (s.44(4));
the ‘likelihood that [jury tampering] would take place would be so substantial as to make it necessary in the interests of justice for the trial to be conducted without a jury’ (s.44(5)).
Section 44 was invoked for the first time in England in R v Twomey and Others [2009] EWCA Crim 1035, [2010] 1 WLR 630. The case started with an armed robbery at Heathrow Airport in February 2004. In 2007, three men stood trial, but after more than six months the number of jurors had dwindled to ten, and they were unable to reach a unanimous verdict. They were discharged and a retrial started in the summer of 2008, this time with four defendants. Some six months later, in December 2008, the prosecution informed the trial judge of evidence that approaches had been made to two of the jurors. The jury was again discharged and a second retrial ordered. At this point, the prosecution applied for that trial to be conducted without a jury. The trial judge accepted that a serious attempt at jury tampering had occurred. However, because of the importance of the issues raised, a senior circuit judge, Calvert-Smith J, was brought in to decide whether to invoke s.44. He found that there was a ‘real and present danger’ that jury tampering would happen again at the retrial. However, he also ruled that a jury protection ‘package’ involving more than thirty police officers and costing around £1.5m would reduce the risk of jury tampering to an acceptable level. He therefore rejected the application. The prosecution appealed and, in June 2009, the Court of Appeal held that both conditions in s.44 had been met and therefore allowed the appeal. The retrial was ordered to take place without a jury.
The standard of proof
The Court said that, because s.44 applies to criminal proceedings, the criminal standard of proof had to be met for both conditions.
The Human Rights Act 1998 and the right to a fair trial
The Court of Appeal stated very clearly that ordering Crown Court trial by judge alone did not infringe the right to a fair trial by an independent and impartial tribunal that is encapsulated by Article 6 of the ECHR. A judge-only trial ensured that all of the necessary procedural safeguards would be met. Lord Judge CJ stated:
[It] is important to emphasise that … the process of dispensing with a jury in a case where it is established that a jury trial is likely to be abused or subverted, the end result is not an unfair trial, but a trial by judge alone, where the necessary procedural safeguards available in a trial by jury are and remain available to the defendant. p. 514↵It therefore does not follow from the hallowed principle of trial by jury that trial by judge alone, when ordered, would be unfair or improperly prejudicial to the defendant. The trial would take place before an independent tribunal and, as it seems to us, for the purposes of article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, it is irrelevant whether the tribunal is judge and jury or judge alone.
The first condition: ‘Real and present danger’
Lord Judge CJ offered the following guidance on the operation of the first condition in s.44(4), that there must be a ‘real and present danger’ that jury tampering may take place:
The first condition addresses the risk that jury tampering may take place at any stage of the trial before the jury has returned their verdict. The real and present danger to be addressed therefore relates to the entire trial process. Where the court is sure that there is a real and present danger that the right to jury trial will be abused or misused by jury tampering, the first condition is established.
Applying these principles, Lord Judge CJ concluded that the first condition was ‘emphatically established’.
The second condition: Alternative measures to judge-only trial
The second condition in s.44(5) requires that, after making due allowance for any reasonable steps which might minimise the danger of jury tampering, the judge should be sure that there would be a sufficiently high likelihood of jury tampering to make it necessary to have a trial by judge alone. On this issue, Lord Judge CJ referred to a case in the Northern Ireland Court of Appeal, R v Mackle and Others [2008] NI 183, where s.44 had already been applied. That court had stated that ‘the feasibility of measures, the cost of providing them, the logistical difficulties that they may give rise to, and the anticipated duration of any necessary precautions’ were all relevant matters to be considered in deciding whether the second condition had been met. The court in Mackle and Others had further decided that it was relevant to consider whether the level of police protection required in order to counter the threat of jury tampering might ‘affect unfavourably the way in which the jury approached its task. If a misguided perception was created in the minds of the jury by the provision of high level protection this would plainly sound on the reasonableness of such a step.’ In Twomey and Others, Lord Judge CJ stated:
We respectfully agree with this approach, and in the course of reaching our own conclusion, we examined some of the possible measures to ensure jury protection. We further examined their likely impact on the ordinary lives of the jurors, performing their public responsibilities, and considered whether, in some cases at any rate, even p. 515↵the most intensive protective measures for individual jurors would be sufficient to prevent the improper exercise of pressure on them through members of their families who would not fall within the ambit of the protective measures.
Lord Judge CJ concluded that the protection ‘package’ identified by Calvert-Smith J would not obviate the risk. A more extensive protection ‘package’ involving more than eighty police officers and costing around £6m would be required, but even that did ‘not sufficiently address the potential problem of interference with jurors through their families’. Lord Judge CJ stated that, even if it were accepted that the more extensive package dealt with
the dangers posed to the integrity of trial by jury, it would be unreasonable to impose that package with its drain on financial resources and police manpower on the police, and, no less important, it would be totally unfair to impose the additional burdens consequent on the deployment of this package on individual jurors.
Therefore, the second condition was also established.
Defence rights to challenge the trial judge
The Criminal Justice Act 2003 allows the defence to make ‘representations’ to the trial judge when they are considering whether to discharge a jury and/or to proceed to judge-only trial in alleged jury-tampering cases. Lord Judge CJ considered whether this right meant that the Crown had to disclose all of its evidence of jury tampering to the defence. The answer was ‘No’ because some of the evidence might be extremely sensitive. In Lord Judge’s words, ‘Experience suggests that the seriousness of jury tampering problems is usually proportionate to the seriousness of the alleged criminality’—meaning that jury tampering is more likely in cases involving organised crime and/or terrorism. Disclosing all of the Crown’s evidence of jury tampering in such cases would be very dangerous for the wider community. Lord Judge CJ said:
In short, the process [under s.44] could not apply where the actual or potential interference with the jury was of the most serious or sophisticated kind, and where, for example, disclosure of the evidence might imperil life or health or involve the disclosure of police operational evidence or methodology which, if disclosed, would be of considerable interest to the criminal world and damaging to the public interest. In such cases, faced with an order for disclosure, the Crown would be left with no alternative but to discontinue the prosecution. If so, the objective of the jury tampering would have succeeded. In short, therefore, we reject the submission that the evidence relied on by the Crown, or the bulk of it, must always be disclosed.
The implications for the trial judge
Lord Judge CJ also considered what a trial judge should do after having identified jury tampering, deciding that the provisions of s.44 are satisfied, and therefore p. 516↵discharging the jury. There were two options: (a) proceed directly to a judge-only trial with the same judge; or (b) terminate the trial (effectively forcing the CPS to bring a retrial, possibly in front of a different judge). Lord Judge CJ stated that the former option was preferable:
[Given] that one of the purposes of [s.44] is to discourage jury tampering, and given also the huge inconvenience and expense for everyone involved in a re-trial, and simultaneously to reduce any possible advantage accruing to those who are responsible for jury tampering or for whose perceived benefit it has been arranged by others, and to ensure that trials should proceed to verdict rather than end abruptly in the discharge of the jury, save in unusual circumstances, the judge faced with this problem should order not only the discharge of the jury but that he should continue the trial.
This very issue arose subsequently in R v S [2009] EWCA Crim 2377, [2010] 1 All ER 1084. The trial judge in that case had decided that, following evidence of jury tampering, the s.44 conditions were satisfied. He had discharged the jury but decided to continue as the judge in a judge-only trial. The appellant, S, had challenged that decision. The Court of Appeal in S allowed the appeal, but it did point out that the case was ‘unusual’ and ‘indeed an extreme case’.
Twomey and Others: The aftermath
Following the Court of Appeal’s ruling, the first Crown Court criminal trial in England and Wales without jurors for more than 350 years duly took place at the Old Bailey in March 2010. At the end of the trial, Treacy J convicted all four defendants of robbery, and three were also convicted of possession of a firearm with intent to commit robbery. Appeals against conviction were subsequently dismissed by the Court of Appeal (R v Twomey and Others [2011] EWCA Crim 8, [2011] 1 WLR 1681) and the European Court of Human Rights (Twomey and Others v UK (2013) 57 EHRR SE15). The Strasbourg court noted that although ‘several’ signatory states to the ECHR provided for jury trials, not all did so, and that ‘there is no right under Article 6 of the Convention to be tried before a jury’. The Court stated that trial with a judge and jury and trial with a judge alone were ‘two forms of trial which are in principle equally acceptable under Article 6’. For an excellent summary and discussion of the issues raised in Twomey and Others, see Nick Taylor’s case note in Criminal Law Review ([2010] Crim LR 82).
In R v J and Others [2010] EWCA Crim 1755, [2011] 1 Cr App R 5, the Court of Appeal held that a trial judge’s decision to order a judge-only trial was wrong on the basis that the condition in s.44(5) had not been met. The appeal court decided that, because the trial (for conspiracy to pervert the course of justice) was only estimated to last for two weeks, any protective measures needed to safeguard the jury against tampering would not ‘impose an unacceptable burden on the jurors by intruding for a prolonged period on their ordinary lives’. Lord Judge CJ emphasised that a judge-only trial must remain the ‘decision of last resort’ and hence that a trial judge had to be ‘sure’ that the conditions in the Act had been met.
p. 517↵In R v Guthrie and Others [2011] EWCA Crim 1338, [2011] 2 Cr App R 20, the four appellants were facing charges of six counts of conspiracy to defraud, at Wood Green Crown Court in London. During deliberations, it emerged that jury tampering had taken place, albeit involving tampering carried out by a third party. Nevertheless, the trial judge decided to discharge the jury and to continue the trial on her own. The appellants appealed, unsuccessfully, against that decision. In the Court of Appeal, Lord Judge CJ began by pointing out that the issues in a case such as R v Twomey (2009) (where the trial judge has to decide whether a trial can start without a jury) and those in cases such as R v S (2009) and the present case (where a jury has been discharged and the question was whether to continue without a jury) were ‘not identical’. In the latter type of case, s.46(3) of the Criminal Justice Act 2003 applied. This states that:
[w]here the judge, after considering any such representations, discharges the jury, he may make an order that the trial is to continue without a jury if, but only if, he is satisfied (a) that jury tampering has taken place, and (b) that to continue the trial without a jury would be fair to the defendant or defendants.
Lord Judge CJ stated:
Nothing in the legislation suggests that the trial judge who has made findings that the pre-conditions to the discharge of the jury and the continuation of the trial are satisfied must then recuse himself. Such a proposition would effectively extinguish the power created by s.46 (3). It would be strange if it were possible for a criminal or group of criminals to take extreme steps to undermine the process of trial by jury, and then to argue that judge who had made the necessary findings should not continue the trial.
Lord Judge CJ added that, although there were situations (e.g. where the trial judge had considered material on public interest immunity grounds which bore on the entire conduct of the prosecution) in which it might be right for the trial judge to disqualify themselves, the ‘normal approach’ was that the case should continue with the same judge. The Court of Appeal also decided that the provisions in the 2003 Act were not limited to ‘serious’ criminal activity, nor were they confined to cases involving ‘serious’ intimidation. Finally, there was no need to ascribe responsibility for jury tampering to each, or indeed any, of the defendants in any given trial. The 2003 Act was concerned with the trial process, not the behaviour of the defendant(s). Applying these principles in Guthrie and Others, it was therefore irrelevant that:
the charges faced by the appellants were not especially serious;
the tampering did not involve ‘serious’ intimidation;
the tampering had been carried out by a third party (in any case, a ‘personal link’ between the third party and one of the appellants was ‘amply established’).
Section 46(3) was invoked again in R v McManaman [2016] EWCA Crim 3, [2016] 1 WLR 1096. M was on trial for rape at Liverpool Crown Court. During the trial, M’s p. 518↵nephew, B, who had been in the public gallery, sent a Facebook friend request to one of the jurors (Miss D). She informed the court. Although B told police that he had contacted Miss D simply because he found her attractive, the trial judge, Hatton J, dismissed that explanation as ‘fanciful’. Instead, Hatton J decided that B’s motivation had been either to intimidate Miss D or to develop a relationship with her to interfere with the judicial process. Hatton J concluded that (a) there had been jury tampering; and (b) it had been with M’s knowledge, or at least his acquiescence. He therefore discharged the jury but exercised his powers under s.46(3) to continue the trial without a jury. M was convicted and appealed, contending that (a) Hatton J could not have been sure to the criminal standard of proof that B’s approach to Miss D had been a deliberate attempt to frighten or otherwise influence her; (b) it was unfair to remove M’s right to a jury trial unless his involvement in the tampering was proved. The appeal was dismissed: (a) on the evidence, Hatton J had been entitled to decide that the explanation given by B was ‘fanciful’ and that he had deliberately sought out Miss D; (b) it was not necessary to prove that M was involved in the jury tampering. Lord Thomas CJ said that the 2003 Act only ‘requires proof of jury tampering; it does not require proof of tampering by the defendant’ (emphasis added). Indeed, jury tampering would ‘ordinarily’ be conducted by someone other than the defendant. Lord Thomas said that ‘in such cases, the objective of the legislation is to prevent the tampering, it matters not that the defendant is not involved or not proved to be involved’.
13.6.2 Criminal juries in Northern Ireland
Between 1973 and 2007, all cases in Northern Ireland involving (or potentially involving) terrorism were heard by a single Crown Court judge without a jury. These were called ‘Diplock courts’ after Lord Diplock, who chaired the Commission that recommended this form of trial. The Northern Ireland (Emergency Provisions) Act 1973 (subsequently replaced by the Northern Ireland (Emergency Provisions) Act 1991 and most recently s.75 of the Terrorism Act 2000) created a presumption against jury trial in respect of various offences, including murder. Diplock courts were designed to deal primarily with the problems caused by sectarian ‘troubles’ involving Republican and Loyalist terrorism offences. Diplock courts were justified for two reasons:
the threat of intimidation—not just of individual jurors but members of their family;
the danger of perverse verdicts by partisan jurors—for example, if a Catholic defendant was to be tried by a jury consisting predominantly of Protestant jurors (or vice versa).
Although designed as a means of allowing—as far as possible—unbiased trials involving, or potentially involving, crimes allegedly committed by organisations such as the Irish Republican Army (IRA) or the Ulster Defence Force (UDF), Diplock courts were p. 519↵used in other cases. In 2005, Abbas Boutrab, an Algerian national, was convicted by a single judge at Belfast Crown Court of possessing and collecting information ‘for a purpose connected with the commission, preparation or instigation of an act of terrorism’, contrary to s.57 of the Terrorism Act 2000. Boutrab had downloaded information from the internet on how to blow up a passenger jet. According to The Times newspaper, Boutrab’s case was a landmark because he was the first ‘Islamist terrorist’ to be tried and convicted using the Diplock system.
In August 2006, however, the British government announced that Diplock courts were to be abolished for the majority of Crown Court trials in Northern Ireland, effective from July 2007. According to the Belfast Telegraph, in an article published in July 2007:
[T]housands of cases have been tried using the [Diplock] system including the loyalist paramilitary gang, the Shankill Butchers, who were sentenced to life imprisonment in the 1970s for murdering Catholics in north and west Belfast. The number of trials being carried out at the courts has dropped dramatically over the last few years with just 61 cases last year and 49 in 2005.
These reforms were implemented by the Justice and Security (Northern Ireland) Act 2007, effectively bringing Crown Court trials in Northern Ireland into line with England and Wales. However, the Director of Public Prosecutors (DPP) is authorised to order a judge-only trial in Northern Ireland if ‘satisfied that there is a risk that the administration of justice might be impaired if the trial were to be conducted with a jury’ (s.1(2) of the 2007 Act). In 2016, the DPP ordered a judge-only trial for a former British soldier accused of the attempted murder of an unarmed civilian in County Tyrone, Northern Ireland, in June 1974. The defendant challenged the DPP’s decision but it was upheld by the UK Supreme Court (Re Hutchings’ Application for Judicial Review [2019] UKSC 26). Giving the unanimous judgment of the Supreme Court, Lord Kerr said that:
[t]aking effective precautions against jury bias presents formidable difficulties. These difficulties are particularly acute in cases which involve attacks on the security forces or where members of the security forces have fired on individuals. Such cases are almost invariably highly charged, and they give rise to strong feelings in both sides of the community. Apprehension that jury trial in such cases might put the goal of a fair trial in peril is unavoidable. … It is important to focus on the need for a fair trial. Trial by jury is, of course, the traditional mode of trial for serious criminal offences in the United Kingdom. It should not be assumed, however, that this is the unique means of achieving fairness in the criminal process.
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13.7 Juries in serious fraud trials
One area of jury trials that has attracted considerable attention in recent years is cases of serious fraud. By their very nature, allegations of fraud imply secrecy and deception. The issues involved in such cases tend to be very complex, with much accounting and financial information to be examined. There may also be several defendants. p. 520↵This all means that serious fraud trials are very time-consuming. The Roskill Committee (1986), the Home Office (1998), and Auld LJ (2001) all examined the use of the jury in these cases, and all broadly concluded (the exact recommendations differed) that jury trials should be at least modified, if not entirely abolished, in serious fraud cases. The Home Office’s 1998 consultation paper (Juries in Serious Fraud Trials) stated that a single judge offered a ‘simple, viable alternative to jury trial’ in ‘long and complex fraud trials’. However, it also acknowledged that ‘jurors could do a good job in complex fraud trials if they were selected in a special way’.
The Home Office proposed two such special selection processes: (a) ‘some sort of screening procedure’ for jurors; and (b) an ‘entirely separate pool of jurors to be summoned exclusively to sit on serious fraud trials’. The latter proposal was acknowledged to be ‘more radical and much more difficult’. The government observed that there was ‘no lack of precedent for this’. It was observed that district judges (magistrates’ court) dealt with summary cases alone and that ‘trial by judge alone is the general rule in civil cases in England’. Moreover, the government noted that ‘the Northern Ireland experience’—meaning Diplock courts—‘provides an example of how such an arrangement can work … in relation to serious criminal offences’.
Auld LJ’s Review was more radical. It suggested that:
in serious and complex frauds the nominated trial judge should have the power to direct trial by himself and two lay members drawn from a panel established by the Lord Chancellor for the purpose (or, if the defendant requests, by himself alone).
The panel would comprise people identified as having expertise in financial matters—accountants, auditors, bankers, stockbrokers, and so on. Although this proposal retained some lay involvement in the trial process, it was a significant reduction from twelve randomly selected members of the public to only two people. Perhaps more significantly, this panel would not be deciding guilt or innocence alone (as the present jury does) but would operate alongside the judge.
The Labour government’s response, in the Justice for All White Paper (2002), accepted the principle of this idea but not the specific proposal. The government stated that ‘identifying and recruiting suitable people raises considerable difficulties … we propose such cases are tried by a judge sitting alone’. Section 43 of the Criminal Justice Act 2003 implemented this latter proposal. It provided for judge-only trials where
[t]he complexity of the trial or the length of the trial (or both) is likely to make the trial so burdensome to the members of a jury hearing the trial that the interests of justice require that serious consideration should be given to the question of whether the trial should be conducted without a jury.
However, so controversial were the proposals that the Labour government only secured the approval of Parliament by agreeing not to implement s.43 unless Parliament was given a further opportunity to debate the issue. In the end, s.43 was never brought into effect, and it has now been repealed by s.113 of the Protection of p. 521↵Freedoms Act 2012. The Coalition government’s Explanatory Notes accompanying the 2012 Act indicate that this repeal gave effect to their pledge to ‘protect historic freedoms through the defence of trial by jury’ (‘Programme for Government’, section 3: civil liberties).
13.7.1 Exclusion of juries from serious fraud trials: Summary of the arguments
Advantages: judge-alone trial saves time at trial because the judge does not have to explain so many matters to the jury. In theory, it should also lessen the risk of bias or outside influence. Judges are expected to explain and justify their decisions, unlike juries, who simply return a verdict of ‘Guilty’ or ‘Not guilty’. Thus, where a judge reaches a guilty verdict, they must justify this decision with reasons; this provides greater transparency to the decision-making process and may give the defence an opportunity to consider an appeal, which would not otherwise be possible.
Disadvantages: judge-alone trial reduces the amount of lay participation in the legal system. There is the possibility that judges sitting alone would become ‘case-hardened’ or ‘prosecution-minded’. The extra burden on the judge may be too onerous. Although they would no longer have to direct the jury, the judge would now have to assimilate all the issues of fact and reach a verdict. The fact that judges are required to justify their decisions may open up new possibilities for expensive, time-consuming appeals.
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Self-test questions 13.7. (This will open in a new tab.)
13.8 Jury waiver
In his Review of the Criminal Courts (2001), Auld LJ proposed that ‘defendants in the Crown Court … should be entitled with the court’s consent to opt for trial by judge alone’. This recommendation is known as ‘jury waiver’. In many common law jurisdictions—Australia, Canada, New Zealand, and the US—where trial by jury exists, the defendant may nevertheless waive their ‘right’ to jury trial and instead opt for trial by a single judge. In R v Turpin and Siddiqui [1989] 1 SCR 1296, for example, Wilson J in the Supreme Court of Canada stated that a ‘jury trial may not be a benefit and may even be a burden on the accused’. The obvious question to raise in response to this is: why would a defendant entitled to jury trial waive that right? According to the commentators Doran and Jackson (‘The Case for Jury Waiver’ [1997] Crim LR 155), there are three reasons:
the notion of a jury as ‘defence friendly’ is outdated. Although juries may acquit against the evidence, there is a ‘worrying phenomenon’ of doubtful convictions;
judges may be better equipped to analyse certain kinds of evidence. In particular, juries are ‘in awe’ of scientific evidence and are ‘neither willing nor qualified’ to be critical of such evidence;
Other possibilities involve cases where the defendant could appear unsympathetic or where the evidence was potentially inflammatory (e.g. child abuse) or gruesome, where the jury might be shocked into a guilty verdict. Jury waiver may also be appropriate in cases that have attracted pre-trial publicity (especially publicity that was adverse to the accused). Recent examples in England and Wales of such cases include:
Rosemary West, convicted of the ‘Cromwell Street’ murders of ten young women and girls, including her own sixteen-year-old daughter Heather;
Tracie Andrews, convicted of her boyfriend’s murder after publicly claiming he had been murdered in a ‘road rage’ incident by a stranger;
Dr Harold Shipman, Britain’s most prolific serial killer (now deceased).
In many of these cases, including West and Andrews, the defendants appealed against their convictions, arguing that the adverse pre-trial publicity prejudiced the jury against them and therefore denied them a fair trial. In all such cases, the appeals were dismissed, the Court of Appeal taking the view that warnings given to the respective juries by the trial judges had ensured that justice had been done. In R v West [1996] 2 Cr App R 374, for example, Lord Taylor CJ stated that it would be ‘absurd’ if allegations of murder were ‘sufficiently horrendous so as inevitably to shock the nation’ that the accused could not be given a fair trial. Of course, no one argues that the defendants should not be tried at all purely because the case has attracted publicity—but does it follow that jury trials will be fair?
A more recent Court of Appeal case dealing with pre-trial publicity is R v Abu Hamza [2006] EWCA Crim 2918, [2007] 2 WLR 226. The case involved Abu Hamza, the imam of Finsbury Park Mosque in north London, who was convicted in February 2006 of six counts of soliciting murder (in addition to a number of other offences). On appeal, it was argued that Abu Hamza had not received a fair trial because of ‘changes in attitude and public perception in relation to terrorism’ following the attacks on New York on 11 September 2001 and London on 7 July 2005. It was contended that the adverse pre-trial media publicity meant that Abu Hamza’s trial was unfair. It was argued that the media had led a ‘sustained campaign’ which was ‘almost entirely hostile’ and ‘couched in particularly crude terms’. However, the appeal was dismissed. Lord Phillips CJ acknowledged that there had been a ‘prolonged barrage’ of adverse publicity, some of which treated the defendant as ‘an ogre’. However, the Lord Chief Justice accepted the trial judge’s conclusion that a properly directed jury would be able to return an impartial verdict. Abu Hamza had received a fair trial.
The government agreed with Auld LJ’s proposal to introduce jury waiver into English law. The government’s Justice for All White Paper (2002) stated that ‘defendants in p. 523↵the Crown Court should in future have the right to apply to the court for trial by a judge sitting alone. The judge will have discretion whether to grant the application and will have to give reasons for this decision.’ The subsequent Criminal Justice Bill, when introduced into Parliament in 2002, stated that if defendants were to apply for waiver, the judge ‘must’ grant it, subject to a proviso. The judge would be entitled to refuse if ‘satisfied that exceptional circumstances exist which make it necessary in the public interest for the trial to be conducted with a jury’. However, by the time the Criminal Justice Act 2003 was passed, the jury waiver reform had been dropped following opposition from Parliament, primarily in the House of Lords. At the time of writing, there seems little political incentive for another attempt at implementing jury waiver.
Thinking point
Should the accused be entitled to ‘waive’ their right to jury trial?
Should the defendant faced with the prospect of trial by jury in the Crown Court be allowed to ‘waive’ that right? If so, should this be with the consent of the court, the prosecution, both, or neither (in which case, it would effectively be ‘waiver on demand’)?
Can you think of any circumstances where the prosecution may object to a defendant seeking to ‘waive’ trial by jury?
When might the judge decide that ‘exceptional circumstances … in the public interest’ (to use the terminology from the Criminal Justice Bill 2002/03) would justify rejecting a plea for jury waiver and, effectively, force a reluctant defendant to face a jury?
Test your understanding of this section by answering the following self-test questions:
Self-test questions 13.8. (This will open in a new tab.)
13.9 Jurors, social media, and the internet
A number of recent cases have highlighted the problems created for the proper administration of justice if jurors succumb to the temptation to either discuss a case on social media or conduct their own online research into the case. In so doing, the jurors risk breaching their obligation to decide the case based solely on the evidence that they see and hear in the courtroom. These cases have now prompted Parliament to intervene, in the form of the creation of a number of new criminal offences in the CJCA 2015, which came into effect in April 2015.
13.9.1 Power of the judge to order jurors to surrender electronic communications devices: Section 15A, Juries Act 1974 (as amended)
Section 69 of the CJCA 2015 inserted a new provision, s.15A, into the Juries Act 1974. The new provision empowers a trial judge to order members of a jury to surrender p. 524↵‘electronic communications devices’ such as smartphones or tablets. The power is exercisable at the judge’s discretion and will be available if the judge considers that to do so ‘is necessary or expedient in the interests of justice’ and that such an order would be ‘a proportionate means of safeguarding those interests’ (s.15A(2)). Failure to comply would amount to a criminal offence (s.15A(5)). ‘Electronic communications device’ is defined as ‘a device that is designed or adapted for a use which consists of or includes the sending or receiving of signals that are transmitted by means of an electronic communications network’ (s.15A(7)).
13.9.2 New offence of conducting research into a live case: Section 20A, Juries Act 1974 (as amended)
Section 71(1) of the CJCA 2015 inserted a new provision, s.20A, into the Juries Act 1974. The new provision creates an offence of conducting ‘research’ into a case during the trial period by a member of the jury. The offence will only be committed if the juror ‘intentionally seeks information’ and ‘when doing so, knows or ought reasonably to know that the information is or may be relevant to the case’ (s.20A(2)). The ways in which a person may be regarded as having sought information in contravention of s.20A(1) include (but are not limited to) asking a question; searching an electronic database, including by means of the internet; visiting or inspecting a place or object; conducting an experiment; or asking another person to seek the information (s.20A(3)). It would not be an offence to seek information ‘if the person needs the information for a reason which is not connected with the case’ (s.20A(6)), or to seek information from the judge (s.20A(7)(b)), or to seek information ‘from another member of the jury, unless the person knows or ought reasonably to know that the other member of the jury contravened this section in the process of obtaining the information’ (s.20A(7)(d)). ‘Information’ which is ‘relevant to the case’ for the purposes of the offence includes (but is not limited to) information about any of the following: a person involved in events relevant to the case; the trial judge; any other person involved in the trial, whether as a ‘lawyer, a witness or otherwise’; the law relating to the case; the law of evidence; or court procedure (s.20A(4)).
The new offence is designed to deal with situations such as that which arose in Attorney General v Dallas [2012] EWHC 156 (Admin), [2012] 1 WLR 991. In that case, a juror conducted her own research into the case and, when discovered, was charged with—and convicted of—contempt of court, under s.8(1) of the Contempt of Court Act 1981 (since repealed). This conduct would now be prosecuted under s.20A. In Dallas, Lord Judge CJ explained why this conduct attracted criminal liability. He said that the juror ‘did not merely risk prejudice to the due administration of justice, but she caused prejudice to it. … The damage to the administration of justice is obvious.’ This ‘damage’ manifested itself in at least five different ways, according to Lord Judge. First, the information which the juror found online, although not adduced in evidence, might have played its part in her verdict. Second, she disclosed some or all p. 525↵of that information to her fellow jurors. Third, the complainant had to give evidence of his ordeal again, at the retrial. Fourth, the time of the other members of the jury was wasted. Finally, the public was put to additional unnecessary expense in paying for the retrial.
In the appeal case of R v Dhaliwal and Others [2020] EWCA Crim 843, a juror conducting his own research into a defendant’s background was held not to have undermined the fairness of the trial and the safety of the convictions of eight defendants. The juror, John Sayles was prosecuted and pleaded guilty to breaching s.20A of the Juries Act 1974. He was sentenced to four month’s imprisonment suspended for two years, narrowly avoiding a custodial sentence.
13.9.3 New offence of sharing information obtained during prohibited research with other jurors: Section 20B, Juries Act 1974 (as amended)
Section 72(1) of the CJCA 2015 inserted a new provision, s.20B, into the Juries Act 1974. Section 20B(1) creates a new offence of intentionally disclosing information obtained during prohibited research (i.e. in contravention of the new offence under s.20A, discussed earlier) with other jurors.
The new offence is designed to deal with situations such as that which arose in Attorney General v Beard [2013] EWHC 2317 (Admin), [2014] 1 Cr App R 1. In that case, a juror conducted research into the case and then disclosed his findings to another juror. He was charged with, and convicted of, contempt of court, contrary to s.8(1) of the Contempt of Court Act 1981. This conduct would now be prosecuted under s.20B.
13.9.4 New offence of engaging in ‘prohibited conduct’: Section 20C, Juries Act 1974 (as amended)
Section 73(1) of the CJCA 2015 inserted a new provision, s.20C, into the Juries Act 1974. Section 20C(1) creates a new offence of intentionally engaging in ‘prohibited conduct’, defined as ‘conduct from which it may reasonably be concluded that the person intends to try the issue otherwise than on the basis of the evidence presented in the proceedings on the issue’ (s.20C(2)). An offence under s.20C(1) is committed whether or not the person knows that the conduct is prohibited conduct (s.20C(3)).
The new offence is designed to deal with situations such as that which arose in the cases of Attorney General v Fraill and Sewart [2011] EWHC 1629, [2011] 2 Cr App R 21 and Attorney General v Davey [2013] EWHC 2317 (Admin), [2014] 1 Cr App R 1. In the former case, a juror contacted one of the defendants via Facebook and they discussed the case (while it was still ongoing); in the latter case, a juror posted a comment on Facebook about how he was going to be able to decide the fate of the accused (who had been accused of sexual activity with a child), whom the juror described as a ‘paedophile’, even though the case was still ongoing. p. 526↵In both cases the jurors were charged with, and convicted of, contempt of court, contrary to s.8(1) of the Contempt of Court Act 1981. This conduct would now be prosecuted under s.20C.
In Fraill and Sewart, Lord Judge CJ explained the underlying principles involved when he said:
If jurors make their own inquiries into aspects of the trials with which they are concerned, the jury system as we know it, so precious to the administration of criminal justice in this country, will be seriously undermined, and what is more, the public confidence on which it depends will be shaken. The jury’s deliberations, and ultimately their verdict, must be based—and exclusively based—on the evidence given in court. … The revolution in methods of communication cannot change these essential principles. … Information provided by the internet (or any other modern method of communication) is not evidence. Even assuming the accuracy and completeness of this information (which, in reality, would be an unwise assumption) its use by a juror exposes him to the risk of being influenced, even unconsciously, by whatever emerges from the internet. This offends our long-held belief that justice requires that both sides in a criminal trial should know and be able to address or answer any material (particularly material which appears adverse to them) which may influence the verdict.
Test your understanding of this section by answering the following self-test questions:
Self-test questions 13.9. (This will open in a new tab.)
13.10 Advantages of jury trials
13.10.1 Public participation
Juries allow the ordinary citizen to take part in the administration of justice, so that verdicts are seen to be those of society rather than the judicial system. Lord Denning has described jury service as giving ‘ordinary folk their finest lesson in citizenship’. According to W.R. Cornish, in The Jury (1968 at p. 255):
The system has the intrinsic advantage that in drawing upon a steady stream of ordinary citizens it is not only educating them in the work of the courts, but also, since they are generally satisfied with their own performance, sending them back to their ordinary lives with a sense of the fairness and propriety of the judicial process in this country.
A Home Office consultation paper entitled Juries in Serious Fraud Trials (1998) postulated that the presence of members of the public on juries offered ‘reassurance that the defendant’s guilt or innocence is not being determined by the State … public involvement in the justice system is the sign of a healthy and democratic society’. Perhaps slightly optimistically (one might even say naively), it was asserted that ‘[n]ot only is the quality of justice improved by the participation of the public but the community is enriched by it … jury trials keep the law in touch with the public and encourage the lawmakers to take account of their wishes’.
The alternative viewpoint has been put forward very forcefully by Darbyshire (1991, at p.746). She argued that this ‘romanticism’ about juries is ‘quite devoid of constitutional or jurisprudential support’. She suggested that ‘most of those who p. 527↵justify the jury as the quintessence of lay participation in a lawyer’s paradise ignore the massive involvement of lay people’—meaning magistrates—in decision-making in the English legal system.
13.10.2 Juries are the best judges of facts
There is an argument that jurors (being, in the main, ordinary members of the public) are better equipped than judges or magistrates to assess issues such as the credibility of witnesses and whether the defendant in a theft trial is dishonest. Many defences in criminal law involve a ‘reasonable man’ test—diminished responsibility, duress, self-defence … who better to undertake this task than jurors? As most jurors only serve once, they should approach their cases relatively fresh and with an open mind, unlike judges and magistrates, who are vulnerable to the argument that they can become ‘case hardened’—meaning that they can become cynical, having heard similar arguments in similar cases, perhaps over many years. Furthermore, there is a ‘strength in numbers’ argument, or, put another way, twelve heads are better than three (magistrates) or one (judge). Weight of numbers arguably helps to minimise the possible risks of prejudicial views influencing the verdict.
13.10.3 Clear separation of responsibility
It has been argued that juries provide a better balance to proceedings in the trial courts, dividing the responsibilities of the trial into those who determine the law (the judge) and those who determine the facts (the jury).
13.10.4 Encourages openness and intelligibility
Because a jury is composed of randomly selected members of the public, the lawyers (especially those acting for the prosecution) have to present their evidence in a manner which the jury can understand. After all, the burden of proof in most matters of criminal law is on the prosecution (the main exceptions being the insanity and diminished responsibility defences), and to get a conviction the Crown needs to persuade the jury of the defendant’s guilt ‘beyond reasonable doubt’. In other words, if the jury members are confused and do not understand the prosecution case, how can the jury be convinced of the defendant’s guilt? Because of this, it should follow that the general public—who may be watching the trial from the public gallery, or hearing about the trial on the TV, or reading about it in the newspapers—are better able to understand what is going on. There is a risk that replacing the jury, either with a single judge, a panel of judges, or some other alternative, will encourage the lawyers to present their case in a more specialised, technical way with more legal jargon. This would in turn mean that trials may no longer be readily comprehensible to the public.
13.11p. 528 Disadvantages of jury trials
13.11.1 Cost and time
Jury trials are much more expensive than trial by magistrates. It has been estimated that an uncontested case in the Crown Court costs five times more than one in the magistrates’ court, while a contested Crown Court case costs around eight times as much. Why is there such a dramatic cost disparity? The main reason is time: jury trials are much lengthier than trial by magistrates. The time factor leads to other disadvantages: defendants may spend months on remand awaiting a Crown Court trial, and it can also lead to witnesses’ recollection of the events getting weaker. Not everyone agrees that the extra cost and time is a disadvantage, however. According to Heather Hallett QC (Counsel, October 1998, p. 3), ‘[a] jury trial is superior to a trial before magistrates and there is a greater chance of seeing justice done at the Crown Court than at the magistrates’ court, if only because greater time, trouble and money are spent on jury trials’.
13.11.2 Risk of perverse verdicts
Excessive damages awards in civil actions
There are numerous examples of juries in civil trials in the High Court awarding large sums of money in compensation which are often contested and, sometimes, reversed on appeal. The leading cases all involve defamation, where the claimant seeks compensation for damage to their reputation caused by the publication of an untrue statement about them. The leading cases are:
Sutcliffe v Pressdram Ltd [1990] 1 All ER 269—in which Sonia Sutcliffe, the wife of Peter Sutcliffe, the Yorkshire Ripper, was awarded £600,000 against the publishers of Private Eye magazine, which had published an article suggesting that she had been paid £250,000 by the Daily Mail for her story. She denied this claim and sought compensation. The jury’s award was overturned on appeal; subsequently, Mrs Sutcliffe accepted £60,000 in out-of-court settlement.
Rantzen v Mirror Group Newspapers [1993] 4 All ER 975—in which Esther Rantzen, the erstwhile TV presenter and founder of the Childline charity, was awarded £250,000 against the publishers of The People newspaper for a series of articles which alleged that, despite her knowing that a boys’ schoolteacher in Kent was guilty of sexually abusing children, she had nevertheless protected him because of his past services to her in assisting in the preparation of a TV programme about the sexual abuse of children. The award was overturned on appeal, with the Court of Appeal substituting an award of £110,000. Neill LJ said: ‘Judged by any objective standards of reasonable compensation or necessity or proportionality the award of £250,000 was excessive.’
John v Mirror Group Newspapers [1996] 2 All ER 35—in which Elton John was awarded £350,000 against the publishers of the Sunday Mirror newspaper. p. 529He had sued in respect of allegations made in the Sunday Mirror, under the headline ‘Elton’s diet of death’, that he was on a fad diet called ‘Don’t swallow and get thin’, whereby he chewed food but spat it out instead of swallowing it. In particular, there were specific allegations that he had been spotted spitting food into a napkin at a dinner in Los Angeles. The jury’s award was overturned on appeal, with the Court of Appeal awarding £75,000. The Court described the jury’s awards as ‘manifestly excessive’. Lord Bingham MR said that it was ‘offensive to public opinion, and rightly so, that a defamation plaintiff should recover damages for injury to reputation greater, perhaps by a significant factor, than if that same plaintiff had been rendered a helpless cripple or an insensate vegetable’. He added that the time had come ‘when judges, and counsel, should be free to draw the attention of juries to these comparisons’.
In Grobbelaar v News Group Newspapers [2002] UKHL 40, [2002] 1 WLR 3024, the Court of Appeal took the apparently unprecedented step of reversing a High Court jury’s verdict in a defamation case as to liability—not just on the amount of damages. The Sun newspaper had published a series of articles in which it claimed that Bruce Grobbelaar, the former Liverpool FC goalkeeper, had fixed football matches for money. The allegations were based on covert video recordings in which Grobbelaar appeared to have confessed to having taken money to ‘throw’ matches. Grobbelaar was subsequently prosecuted on two counts of corruptly attempting to influence the outcomes of matches. He admitted the comments captured on video were true, but claimed that he had done so as a ruse to help bring those paying the bribes to justice. The Crown Court jury could not agree on a verdict. A retrial was ordered; this time, the jury acquitted on one count and failed to agree on the other, whereby a second not guilty verdict was entered.
Grobbelaar then began defamation proceedings against the publishers of The Sun. At the end of the trial, the High Court jury found for the claimant and awarded £85,000 damages. The Sun’s publishers appealed, inter alia, on the ground that the verdict was perverse. Simon Brown LJ said that the Court of Appeal ‘must inevitably be reluctant to find a jury’s verdict perverse and anxious not to usurp their function’ but that it was ‘the experience of all of us that juries from time to time do arrive at perverse verdicts’. He went on to hold that the decision of the High Court jury was ‘not merely surprising but unacceptable’; the result was ‘an affront to justice’. Thorpe LJ agreed, saying that ‘it would be an injustice’ to allow the jury’s verdict to stand.
On Grobbelaar’s appeal to the House of Lords, the Court of Appeal judgment was reversed, and that of the jury reinstated (mostly). The Lords ruled that the task of an appellate court was to seek to interpret the jury’s decision and not to take upon itself the determination of factual issues. In the case, there was no justification for concluding that the jury must have acted ‘perversely’ in making its finding and so the jury’s verdict that Grobbelaar had been defamed was reinstated. However, the Lords also ruled that the jury had fallen into serious error in its approach to the amount of damages. Grobbelaar had in fact acted in a way in which no decent or honest p. 530↵footballer would act and which could, if not exposed and stamped on, undermine the integrity of the game. It would be an affront to justice if a court of law were to award substantial damages to a man shown to have acted in such flagrant breach of his legal and moral obligations. Accordingly, the jury’s award of damages was quashed and an award of £1 nominal damages substituted.
Criminal trials
Juries can, and do, return verdicts against the evidence (R v Ponting [1985] Crim LR 318, discussed at 13.1.2, is an example). A 1972 study by McCabe and Purves, The Jury at Work, looked at 173 acquittals, and concluded that only 15 (9 per cent) defied the evidence (the rest being down to a weak prosecution case and/or a credible defence). In 1979, however, a study by Baldwin and McConville—Jury Trials, which examined 500 cases (both convictions and acquittals)—found that 25 per cent of the acquittals were questionable. They described jury trial as ‘an arbitrary and unpredictable business’.
Darbyshire (‘The Lamp that Shows Freedom Lives’ [1991] Crim LR 740) is very critical of this facet of the jury system, and in particular the way that it is held up by defenders of the jury as an advantage. She asks (at p. 750): ‘What business have the jury to be rewriting the law?. … The jury is an anti-democratic, irrational and haphazard legislator, whose erratic and secret decisions run counter to the rule of law.’ She is particularly scathing about other commentators’ reaction to a case in which a hot-dog seller was acquitted by a ‘sympathetic’ jury on a charge of wounding on the ground of provocation—which is, as a matter of law, not a defence to that crime. One such commentator had suggested that the jury ‘were saying … that provocation ought to be a defence’ to wounding, ‘and in saying this they would have the support of the bulk of the nation’ (M.D.A. Freedman, ‘The Jury on Trial’ (1981) 34 Current Legal Problems 65 at p. 93). Darbyshire retorted by asking how the jury, or anyone else for that matter, could know what the ‘bulk of the nation’ wants. Instead, she supported the following assessment by Duff and Findlay (‘The Jury in England: Practice and Ideology’ (1982) 10 IJLS 253 at p. 258): ‘The jury, so irrationally selected, would appear to be a crude engine for the job of checking unpopular laws. … The jury then may even be counterproductive in such situations, as the legislature may not feel constrained to intervene if they know that harsh or outdated laws are not being strictly applied.’ If a jury can acquit despite the evidence, Darbyshire points out, then what is to stop them convicting despite the evidence? The answer is, of course, nothing.
Thinking point
Should ‘jury equity’ be abolished by Parliament?
In his Review of the Criminal Courts (2001), Sir Robin Auld recommended that ‘[t]he law should be declared, by statute if need be, that juries have no right to acquit defendants in p. 531↵defiance of the law or in disregard of the evidence’. The government, in its response, did not adopt this recommendation. Should juries be required, as Auld LJ suggested, to comply with the law? In other words, should ‘jury equity’ be abolished by Parliament?
13.11.3 Racist jurors in criminal trials
Article 6 of the ECHR confers the right to a fair trial by an impartial tribunal. This provision has been invoked in two cases before the European Court of Human Rights in Strasbourg, where at least one juror has faced an accusation of racism: Gregory v UK (1998) 25 EHRR 577 and Sander v UK (2001) 31 EHRR 44. In Gregory, where one juror alleged, during the course of the trial, that other jurors had been making racist comments and jokes (which was collectively denied by the others), the trial judge allowed the trial to continue, albeit after warning the jurors to remember their oath to try the case according to the evidence. The Strasbourg court held that the applicant’s Article 6 rights had not been infringed. However, there was a very different result in Sander. Here, after similar allegations, one juror admitted that he may have made racist comments but denied actually being racist. The judge allowed the trial—albeit, again, after reminding the jurors of their oath—to continue and Sander was convicted. But his appeal to the Strasbourg court was successful (albeit by a majority verdict). The Court held that the trial judge should have discharged the jury and held a retrial. The difference in the two cases appears to be that in Gregory, there was only an unsubstantiated allegation of racism, whereas in Sander, one juror did admit making racist comments.
It seems that the timing of allegations of racism is critical. In both Gregory and Sander, the juror involved raised the allegations during the trial and the appeals related to the judge’s response to them. However, when allegations of racism are made after a verdict, it is much more difficult to investigate. You should refer back to the cases of R v Qureshi [2001] EWCA Crim 1807, [2002] 1 WLR 518 and R v Mirza [2004] UKHL 2, [2004] 2 WLR 201, in which the Court of Appeal and House of Lords, respectively, declared themselves unable to investigate post-verdict allegations of jury impropriety, including allegations of racism. The guilty verdicts in both cases were upheld.
Thinking point
How should the courts deal with evidence of juror prejudice?
Is the decision in Sander compatible with the outcomes in the cases of Qureshi and Mirza, discussed earlier? If there is evidence of jury prejudice, should it matter whether the evidence was raised during the trial (as in Sander) or afterwards (as in Qureshi and Mirza)?
13.11.4p. 532 Compulsory jury service
While research has shown that many people find jury service a rewarding experience, others may have a negative attitude towards it. This may be because some people see jury service as an obligation rather than a privilege. It may be regarded by some jurors as time-consuming, inconvenient, and even financially disadvantageous. These attitudes may lead to people seeking excusal or deferral. Those who are unsuccessful in getting their jury service excused or deferred may then be resentful and not take their responsibility seriously enough, or try to get the deliberations over with as quickly as possible. For an example of a case where this may have happened, refer back to Attorney General v Scotcher [2004] UKHL 36, [2005] 1 WLR 1867, discussed at 13.1.3.
13.11.5 Distress caused to jury members
Especially in murder, rape, and child abuse cases, the jury has to hear and sometimes see, very graphic and potentially distressing evidence. After Rosemary West’s murder trial in 1995, some jury members were offered professional counselling. In R v Wagner and Bunting, the notorious Australian ‘Snowtown’ murders case in 2002 (otherwise known as the ‘Bodies in Barrels’ murders), the evidence was so gruesome that three of the original jury dropped out, unable to cope with the evidence of sadistic torture and killing. Some of the jurors in South Australia’s Supreme Court who did make it through to the end (and delivered guilty verdicts) had to receive counselling afterwards.
During his summing up at the end of the trial of the ‘M25’ rapist, Antoni Imiela, at Maidstone Crown Court in 2004, the trial judge told the jury to put aside feelings of ‘revulsion, distress or dismay’ and to decide their verdict in a ‘calm and dispassionate manner’. He concluded that it was ‘essential that you come to your decision based on the facts with your judgment unclouded and not distorted by emotions’. After deliberating, the jury returned seven guilty verdicts of rape.
More recently, at the start of the January 2007 murder trial of Canadian pig-farmer Robert William Pickton, accused of abducting and murdering six prostitutes and then feeding their remains to his pigs, the trial judge in British Columbia’s Supreme Court had to warn the jury that their task would be grisly. He said that:
where evidence is particularly distressing, there is a concern that it may arise feelings of revulsion and hostility, and that can overwhelm the objective and impartial approach jurors are expected to bring to their task. You should be aware of that possibility and make sure it does not happen to you.
Pickton was eventually convicted of six counts of second-degree murder in December 2007.
13.11.6 Lacking skill?
Lord Denning MR once suggested that jurors should not be selected at random but should be selected in much the same way that magistrates are, with interviews and p. 533↵references required. This would, he thought, improve the decision-making skills of the jury as a whole. However, such a system would obviously be more time-consuming and expensive than the present system. There is also the danger that a jury capable of satisfying such a selection process would be self-selecting—more intelligent, better educated people are likely to be drawn from a narrower socio-economic group than the population as a whole. Introducing a selection process would also appear to run counter to the government’s policy, in recent years, to widen the pool of jurors as much as possible.
Jury trials, the COVID-19 pandemic, and the possibility of remote jury trials
In response to the global pandemic and the risk of spreading coronavirus, Lord Burnett, the Lord Chief Justice announced that all new jury trials were to be suspended from 23 March 2020. The blanket suspension did not last long and by 18 May 2020 a small number of courts were able to resume new jury trials under special arrangements. This included the use of separate rooms for the jury, the press, and the participants, which were then linked through the use of closed-circuit TV. The number of courts recommencing jury trials gradually increased. The impact of the closures and the other measures introduced in response to the pandemic, such as social distancing and self-isolation, is that there still remains a significant backlog of Crown Court cases. By the end of March 2021 there were 59,532 outstanding Crown Court cases; this represents an increase of 53 per cent for trial cases compared to the previous year. The delays to trial are significant and defendants and victims are having to wait years for their cases to be listed for trial. By January 2021, there were over 290 COVID-safe jury trial courtrooms, more than the number available pre-pandemic, to try to combat the backlog, and the backlog is reducing but very slowly.
The Coronavirus Act 2020 (CA 2020) and the Criminal Procedure (Amendment No 2) (Coronavirus) Rules 2020, SI 2020/417 temporarily amended some procedural requirements in relation to criminal hearings. The changes included an expanded use of live video and audio links to allow witnesses and defendants to participate in hearings and trials, although not jury trials.
Whilst the CA 2020 expires on 25 March 2022, many of the procedural changes are set to stay when the Police, Crime, Sentencing and Courts Bill 2021–22 is passed into law, in particular in relation to the use of live video and audio links, although not as extensively as with the CA 2020.
In March 2020, Lord Burnett, when suspending jury trials, said that they could not be carried out remotely and whilst there are still no plans to introduce remote jury trials, the concept has been explored further since his announcement.
Justice, a non-governmental all-party membership organisation and a registered charity, has been testing the concept of a fully remote jury trial using volunteers. Read more about the trial on the Justice website. The Scottish government evaluated these remote mock jury trials in a briefing paper.p. 534↵
Thinking point
Should remote jury trials be introduced?
Do you think that the justice system would benefit from the use of remote jury trials? What safeguards do you think would be necessary to ensure confidence in the use of remote jury trials?
Summary
The main use of the jury in the English legal system is for trial on indictment in the Crown Court. Civil juries are rare.
The role of juries in criminal trials is to determine issues of fact and deliver a verdict. Juries cannot be directed to convict, nor must they be pressurised into returning a verdict. Juries are entitled to return a not guilty verdict, even if this appears to be in defiance of the law and/or evidence—this is ‘jury equity’.
The deliberations of the jury are secret and alleged irregularities which occur during them cannot form the basis of an appeal against conviction (R v Mirza). However, the situation is different if extraneous matters may have influenced the jury’s verdict.
The jury’s verdict does not have to be unanimous—majority verdicts are allowed.
The rules as to eligibility are contained in s.1 of the Juries Act 1974, but these rules were significantly amended by s.321 of the Criminal Justice Act 2003. Previously, the judiciary (including magistrates), lawyers, the police, and clergy (among others) were ineligible. Now, only the mentally disordered are ineligible. The fact that lawyers and police officers can serve on juries has been challenged in litigation which has reached the House of Lords (R v Abdroikov and Others (2007)) and the European Court of Human Rights (Hanif and Khan v UK (2012)).
Various people are disqualified from jury service (e.g. people in prison) and others are entitled to be excused (e.g. members of the armed forces).
Juries are selected from the electoral register. Both prosecution and defence have the right to challenge all or any of the jurors ‘for cause’, but the core principle in England and Wales is of random selection. This may be contrasted with the ‘voir dire’ system used in the United States.
There is no ‘right’ to have the ethnic composition of a jury modified, although the introduction of such a ‘right’ has been proposed as a possible reform of jury trials.
p. 535 In cases of jury ‘tampering’, it is possible for a trial involving an indictable offence to be heard in a Crown Court by a judge acting alone, under s.44 of the Criminal Justice Act 2003, subject to stringent conditions being satisfied. ‘Judge-only’ trials do not infringe the right to a fair trial in Article 6 of the ECHR (Twomey and Others v UK (2013)).
Section 43 of the Criminal Justice Act 2003 provided that serious fraud trials should be heard by a judge alone, not by a jury. However, this option was never brought into effect and it has now been repealed by the Protection of Freedoms Act 2012.
One option which exists in other countries is ‘jury waiver’, where the accused may opt out of jury trial. However, this is not an option in England and Wales.
Jurors who discuss an ongoing case using social media and/or who conduct their own internet research into an ongoing case face criminal liability for contempt of court. The core principle here is that jurors must reach their verdict based only on the evidence heard in court.
Questions
Test your understanding of this chapter by trying the following scenario questions:
Chapter 13 Scenario questions. (This will open in a new tab.)
Also consider these questions:
What are the eligibility criteria for jury membership under the Juries Act 1974?
Following the reforms introduced in the Criminal Justice Act 2003, which people are disqualified from jury service, and which people are entitled to be excused from jury service?
What rights do the prosecution and defence have, at the outset of a Crown Court trial, to challenge prospective jurors, either with or without cause?
In which circumstances may the prosecution apply for a Crown Court trial without a jury?
In which circumstances may a trial judge modify the ethnic composition of a Crown Courty jury?
What is meant by ‘jury vetting’?
Sample question and outline answer
Question
In passing the Criminal Justice Act 2003, Parliament abolished most of the categories of persons either ineligible for, disqualified from, or entitled to be excused from jury service. It was quite right to do this: after all, juries are supposed to reflect the public’s involvement in the criminal justice system.
Discuss.
p. 536Outline answer
Answers should briefly explain what ‘jury service’ means, especially in the context of the ‘criminal justice system’: twelve members of the public, randomly selected to decide guilt or innocence in a Crown Court trial.
Describe the basic eligibility rules (as set out in the Juries Act 1974): minimum/maximum age limits; five-year residency in the UK (but not necessarily nationality); registration on the electoral roll.
Describe the ineligibility/disqualification/excusal rules prior to the CJA 2003: judges, magistrates, lawyers, police, clergy, mentally ill, and so on ineligible; certain criminals and people on bail disqualified; MPs, MEPs, peers, doctors, dentists, vets, armed forces, those with previous jury service, and those aged over sixty-five entitled to automatic excusal. Comment on the reasons for these rules: important jobs, possible bias, ability to influence other jurors, etc.
Explain the post-CJA 2003 legal landscape: only the mentally ill are ineligible; little change to disqualification; only those with previous jury service and armed forces are entitled to be excused. Comment on the reasons for the changes: to produce a more representative jury by getting more middle-class professionals (judges, lawyers, police, doctors, and so on) involved; to reduce the likelihood of the same people being selected more than once because of a larger ‘pool’ of potential jurors, etc.
Discuss the post-CJA case law involving police officers, prison officers, and CPS employees on juries: R v Abdroikov and Others (2007), House of Lords; R v I (2007), Court of Appeal; R v Khan and Others (2008), Court of Appeal; R v L (2011), Court of Appeal; Hanif and Khan v UK (2012), European Court of Human Rights. Observe, for example, that in Hanif and Khan the ECHR stated that the defendant’s right to a fair trial would be violated where a police officer on the jury was ‘personally acquainted’ with a police officer giving evidence on behalf of the prosecution, at least where there was an ‘important conflict’ about this evidence, which is ostensibly a narrow ruling. However, the Court seems to imply that the presence of any police officer on a jury might violate Article 6 of the ECHR.
Reach a conclusion as to whether or not the UK Parliament was ‘quite right’ to change the eligibility/disqualification rules.
Further reading
- ● Corker, D. ‘Trying Fraud Cases without Juries’ [2002] Crim LR 283
This article explores a number of issues around the idea of ‘judge-only’ trials in fraud cases, such as the complex safeguards that would be required, and might help the reader to understand why s.43 of the Criminal Justice Act 2003 was never brought into force (and has now been repealed).
This article analyses the ability of the criminal justice system to ‘control’ jurors (i.e. stop them from conducting their own research into a case) in a society where internet use is so prevalent.
- ● Darbyshire, P. ‘The Lamp that Shows that Freedom Lives—Is It Worth the Candle?’ [1991] Crim LR 740
This is an article in which the author offers a powerful critique of ‘jury equity’.
- ● Doran, S. and Jackson, J. ‘The Case for Jury Waiver’ [1997] Crim LR 155
This article presents arguments in favour of introducing into the English legal system an option for defendants to ‘waive’ their ‘right’ to jury trial in the Crown Court.
- ● Hungerford-Welch, P. ‘Police Officers as Jurors’ [2012] Crim LR 320
This article analyses the background to the Criminal Justice Act 2003 reforms on eligibility and the leading cases since, including Abdroikov and Others and Hanif and Khan.
- ● Quinn, K. ‘Jury Bias and the European Convention on Human Rights: A Well-Kept Secret?’ [2004] Crim LR 998
This article assesses the principle of ‘confidentiality’ of jury deliberations and its compatibility with Article 6 of the ECHR, the right to a fair trial, as seen in cases such as Mirza, Gregory, and Sander.
- ● Thornton, P. ‘Trial by Jury: 50 Years of Change’ [2004] Crim LR 683
This article provides a valuable summary and analysis of the major changes to the system of jury trials from 1953 to 2003 (including the reforms introduced by the Juries Act 1974, the Contempt of Court Act 1981, and the Criminal Justice Act 2003).
