G151 ELS

1

LLAAYY PPEEOOPPLLEE IINN TTHHEE LLEEGGAALL SSYYSSTTEEMM:: JJUURRIIEESS

By the end of this unit, you should be able to: Explain what qualifications a jury member should have Understand how jury panels are selected Explain the role of the jury in both criminal and civil cases Understand the changes made by the Criminal Justice Act 2003 to the selection of jurors.

You should also be able to evaluate: The current working of the jury system The issues that have been raised with the current approach The proposed alternatives to a jury trial, including the government’s suggestions regarding the fraud

trials.

Homework: Using all of the information in class, as well as doing some further reading (see the suggestions contained within the pack, or the textbooks) evaluate the accuracy of the following statement:

The jury system is an effective representation of the people and works! Remember that you will need to consider both sides before you conclude!

End of unit test. You will have a detailed factual test on the topic of lay people (this includes magistrates) and you will have one week from the end of teaching to revise for the test.

G151 ELS

2

JJUURRIIEESS...... THE INTRODUCTION

We have juries around for hundreds of years, and anytime the argument arises that we should get rid of them, people are shocked and stunned.

This topic is going to enable you to decide whether you agree with Lord Devlin that they are “the lamp that shows that freedom lives” or with Penny Darbyshire that the only reason we keep

them is that we are a sentimental lot!

Ok, so the theory. Juries are supposed to be completely independent and are able to chose to decide the case anyway they see fit, even if it goes against all the evidence or seems ‘perverse’ [we’ll come back to this later]. If the judge interferes with their decision, then this would be grounds for quashing the conviction. Bushell’s Case 1670 R v McKenna 1960

Developing AO2 Critical Comment: Why is it so important that the jury is independent of the judge?

G151 ELS

3

QQUUAALLIIFFIICCAATTIIOONNSS OOFF JJUURROORRSS

*KEY STATUTE* Juries Act 1974 (as amended) HHOOWW MMAANNYY PPEEOOPPLLEE SSEERRVVEE EEAACCHH YYEEAARR?? WWHHAATT AARREE TTHHEE CCHHAANNCCEESS OOFF BBEEIINNGG CCAALLLLEEDD?? 11 IINN

Ok, so who can’t? Well there are different categories...

1. Disqualified If you do not disclose that you are disqualified, you can be fined up to £5,000

PERMANENT disqualification Disqualified for 10 YEAR Imprisoned for 5 years +. This includes: In the last 10 years, any sentence of Imprisonment or suspended sentence or

some kind of community order Anyone currently on BAIL

CAPACITY The judge can discharge a juror if

they lack the capacity to perform Mentally DISORDERED their role effectively. Anyone who meets the criteria under the e.g. blind, deaf, understanding of English Mental Health Act 1983 (as amended). Very wide definition!

Age: Registered? Residency?

G151 ELS

4

2. Excusals

There used to be lots of these (e.g. doctors, solicitors, firemen etc.) However, s.321 of the Criminal Justice Act

2003 removed most of these. Why?

Now, the only excusal that exists is for members of the armed forces who are able to get their commanding officer to certify their need.

There are, however, discretionary excusals, whereby if a potential juror can’t serve for a very good reason, he can apply to the Central Jury Summoning Bureau for the duty to be deferred. It doesn’t mean it will be granted!

What sort of things might be ‘excusable’?

Lawyers and the Police Now this is controversial one... currently, any lawyer, policeman, or judge may be called and serve on a jury. The question is whether this contravenes their right to a fair trial under article 6 of ECHR.

There have been two sets of highly controversial appeals on this ground recently:

Student Task: Read the enclosed article and answer the following questions:

1. What was the problem under the old selection process?

2. Name two of the types of people now allowed to sit on juries 3. Why might there be a problem with some of these people sitting on a jury? 4. Name two other jurisdictions that still ban these people. 5. What did Lord Justice Auld think of the exemption? Do you agree? 6. Are there any other types of professionals that Lord Bingham and/or Baroness Hale thinks should still be

banned?

G151 ELS

5

R v Abdroikov & others (2007)HL This is the case discussed in the article

Two of the convictions were overturned and the convictions quashed on the appearance of bias. The majority (3:2) found that the presence of legal professionals might breach article 6. Remember: justice must be seen to be done!

... However, this is has been somewhat limited by the more recent CA case of R v Khan 2008 which said that the judge should be told if there was a policeman on the jury, but unless the police evidence was the key element of the case or is challenged, it should not be a problem! What do you think?

Further Reading Mitchell A. Jury Selection: One Step Forwards, Two Steps Back? A Level Law Review Sept. 2008 pp.2-4

G151 ELS

6

Sworn in

SSEELLEECCTTIIOONN OOFF JJUURRYY PPAANNEELLSS So, you are of age, residence and registered... what next?

Either: Get an excusal; or Criminal offence!

Summons in the

post...

7 days to reply to the

CJSB

No way! I’m not

doing that!

Turn up at court

Usually expected to

sit for around 2

weeks.

Vetting Routine police

check Wider background

Court official chooses

15 at random...

Why?

Challenges? To the array For cause To stand by

G151 ELS

7

Vetting Once the list of potential jurors is created, the list is passed to the prosecution and the defence. At this point they may ‘vet’ the jury looking at their suitability. The powers to vet are very limited. 1. Routine police check

The aim is to eliminate those who are disqualified, and looks at the criminal convictions of jurors. R v Mason 1980

2. Wider background check

This is much more controversial, as it involves looking at the political and other background of the jurors. There is guidance from the Attorney-General on this. He states that it should only be used in exceptional circumstances e.g. matter of national security where much of the evidence will be given in camera and they will still need the permission of the AG.

Challenging Once they have the potential panel of 15, both the prosecution and the defence have some powers to challenge the jurors and remove some before they are sworn in.

But please note these are in no way as extensive as the US. 1. To the array

This is a challenge to the whole jury on the basis that they were selected in an unrepresentative way. It does not include race (R v Ford 1989)

2. For Cause

This is a challenge to an individual juror on the basis that they know someone involved in the trial or for other reasons and they must say why. R v Wilson, Sprason 1995 wife of a prison officer tried to be excused but wasn’t allowed. Both convictions

were quashed as DD had been remanded at her husband’s prison. Justice must be seen to be done.

3. Right to stand by *PROSECUTION ONLY*

There are grounds, but in practice, there is no need to give any reason. The juror goes to the end of the list, which means that it is unlikely that they will be called. The Attorney-General has said that it should be used sparingly, but it has been criticised as it is a very wide power!

AO2 Criticism development What role should the beliefs of the jury play in evaluating their fitness to judge?

G151 ELS

8

TTHHEE JJUURRYY’’SS RROOLLEE IINN CCRRIIMMIINNAALL TTRRIIAALLSS Juries sit in the court and deal with around percentage of overall cases. Although this does not sound like a great deal, it is the main way that the ordinary person takes part in the criminal justice system and amounts to around cases a year. They will sit in panels of . They will deal with two types of offences:

1. e.g. murder; and 2. e.g. theft.

THE ROLE: The jury, having looked at the evidence only presented in the case, need to decide whether the defendant is

guilty or not guilty on the basis of the facts argued. The foreman will read the verdict, but the jury does not need to give any reasons for their decision and

they debate in secret. Should anyone decide to try and break the secrecy of the jury room, they may be liable under s.8 Contempt of Court Act 1981, which makes it an offence to disclose what goes on in the jury room. [No selling your story then!]

Over the last 20 years, more and more offences have been ‘taken away’ from the jury and made into summary offences. Why?

VERDICTS Generally the aim is to achieve a verdict, but there may be occasions when they cannot reach the verdict – should D be found not guilty? Since 1967, if the jury has been deliberating for around 2 hours, then the judge can call the jury back in and make it clear that he will accept a majority verdict from them. Around 20% of verdicts are now majority verdicts. However, there are limits on what majority will suffice;

If there is a full panel (12) then, an 11:1 or 10:2 will be accepted If they have ‘lost’ jurors then the ratio reduces. If the panel falls to 9 then it must be unanimous.

Help! How can we lose jurors?! Is the court that complicated?!

G151 ELS

9

TTHHEE JJUURRYY’’SS RROOLLEE IINN CCIIVVIILL TTRRIIAALLSS Their role here is even more limited. There are four areas where you may be on a civil jury:

What do all these four things have in common?

THE ROLE Here the role is very different. They have a dual role:

1. To decide whether the claimant has proved their case and if so, 2. Then what amount of damages should be awarded.

It is that second power which has caused a lot of problems for the courts.

The juries will sit in different courts: the QBD of High Court and the County Court. (under the Supreme Court

Act 1981)

The judge can refuse a jury trial if the case involves complicated documents or accounts or scientific evidence and seems unsuitable.

Defamation

Malicious

Prosecution

False imprisonment

Fraud*

Means: or

This is the most controversial.... and the government has tried to remove this many times over the last couple of years... However, it hasn’t made it through yet! TASK: Read the extract at the end. When would they be allowed

to refuse a jury? Do you agree with the

proposal?

G151 ELS

10

Defamation This makes up the majority of the cases (but only a few – claims for less than

£10,000 can now be taken care of with a single judge Defamation Act 1996)

However: the awards that the juries were given to claimants were getting ridiculous, so the Court of Appeal was given new powers to vary the award given if the jury’s seems “excessive or inadequate”. Courts and Legal Services Act 1990 s. 8

Personal Injury You’ve heard of those cases where they are awarded millions for spilling coffee? Well, they’re American – our juries are not allowed near this area!

Our personal injury area works rather differently. In theory you could have a jury, but the courts have decided only in exceptional circumstances. [Ward v James 1966].

So, what is exceptional? Read the facts of the case below, and complete the tasks [Sorry guys!]

H V MINISTRY OF DEFENCE (1991) Facts The defendants admitted medical negligence which led to H (a solider) having to have the major part of his penis amputated. H applied to have trial by jury to decide the amount of damages he should receive. A judge granted his application, but the defendants appealed against this decision to the Court of Appeal. The Court of Appeal allowed that appeal saying that the judge should not

have used his discretion to make the order. Law The Court of Appeal said that the policy which should be followed was that in Ward v James (1966) which had held that trial by jury was normally inappropriate for any personal injury case because the assessment of damages to compensate for injuries must ‘be based upon or have regard to conventional scales of damages’. The Court of Appeal also pointed out that ‘the very fact that no jury trial of a claim for damages for personal injuries appears to have taken place for over 25 years affirms how exceptional the circumstances would have to be before it was appropriate to order such a trial’

1. Why is a jury unsuitable for deciding the amount of damages to be awarded as compensation for personal injuries?

2. What other problems are there in using juries in

civil cases? 3. Would you consider this case an exceptional

circumstance? Why?

G151 ELS

11

Coroners Court Juries also sit here, in panels of 7-11, in four types of cases, and their role is to determine the cause of death:

HEALTH AND SAFETY OF THE PUBLIC DEATHS IN POLICE CUSTODY OR IN THE

COURSE OF THEIR DUTY.

DEATHS IN PRISON INDUSTRIAL ACCIDENTS

Further Reading: Roberts H. The Use of Juries in Civil Cases A Level Law Review January 2007 pp.24-5

G151 ELS

12

CCRRIITTIICCIISSMM AANNDD EEVVAALLUUAATTIIOONN Use the information in the crossword, and the work from the IWB to evaluate the current use of juries in the law.

POINT EXPLANATION ADV OR DIS? Use of electoral register

Disqualified jurors

Excusals & challenges

Public confidence?

Jury Equity?

Open system of justice

Secrecy

Perverse decisions

Bias

Media influence

Lack of understanding

Fraud trials

Acquittal rates

Cost

Further Reading Mitchell A. A Light that Never Goes Out? Examining criticisms of trial by jury in criminal cases A Level Law Review April 2007 pp. 2-5

G151 ELS

13

AALLTTEERRNNAATTIIVVEESS TTOO JJUURRIIEESS..

Read pp. 160-1 of the text book, complete the gird below detailing the potential alternatives to trial by jury.

IDEA DESCRIPTION ADVANTAGES DISADVANTAGES

G151 ELS

14

RREEVVIISSIIOONN QQUUEESSTTIIOONNSS

1. Which case illustrates that the jury is independent of the judge?

2. Name two types of people who are disqualified from sitting as jurors.

3. What percentage of cases are heard by a criminal jury?

4. What are the main requirements to be a juror?

5. Which act covers the requirements of jurors?

6. Name one way that the Criminal Justice Act 2003 changes the selection of jurors.

7. How many people may appear on a civil jury?

8. Name two areas of the civil law covered by juries

9. When might a personal injury jury be allowed?

10. How have the courts modified the use of a jury in defamation?

11. Name two types of death that a coroner’s jury might be allowed in.

12. What is the role of the jury in the coroner’s court?

13. Name three advantages of the jury system and explain them

14. Name three disadvantages of the jury system and explain them

15. Describe two alternatives to the jury system.

EEXXTTEENNSSIIOONN TTAASSKK:: Below is a past question on juries, using your knowledge and understanding, complete the essays. Remember not to give yourself any more that 30 minutes for the full question.

(a) Describe both the qualifications required for jurors and the procedures for selecting a jury. [18 marks]

(b) Discuss the arguments for retaining juries. [9 marks] January 2009

G151 ELS

15

October 24, 2007

Jury service: should the Government turn the clock back?

Do people in the legal profession influence the juries on which they sit — and does having a police officer or lawyer make that jury less impartial?

Frances Gibb, Times Legal Editor

The jury in the English legal system holds centre stage in deciding innocence or guilt.

So it is no surprise that rules have been drawn up over the centuries as to how it

should operate and as to who can or cannot sit. As Lord Bingham of Cornhill, the

senior law lord, put it last week: “To a large extent the integrity of the trial process

hangs on the jury’s integrity.” The rules, he added, reflect a truth: “If a metal bell be

flawed, it will not ring true.”

The middle-class opt-out from jury service was one big flaw of the system. Juries, it

was said, were dominated by the unemployed and by housewives. They no longer

represented the population at large.

So in 2003 under the Criminal Justice Act the Government brought in a law aimed at

ending the exemptions enjoyed by a range of people — judges, lawyers, doctors,

priests — while tightening the rules to make it harder to get out of jury service.

Since, scores of judges — including members of the Court of Appeal — and lawyers,

including Cherie Booth, QC, have sat as jurors.

But do they influence the juries on which they sit — and does having a police officer

or lawyer make that jury less impartial? Last week in the House of Lords three

defendants challenged their convictions on the basis that their right to a fair trial was

breached because the juries included, in two cases, police officers and in the third, a

lawyer employed by the Crown Prosecution Service (CPS).

The five law lords were divided but a majority upheld appeals in two of the cases —

one involving a man charged with two rapes whose conviction has been quashed and

his case sent back to the Court of Appeal — because of the possibility that the

defendants had an unfair trial.

The ruling raises questions about the workings of the rule obliging lawyers and

police officers to serve as jurors. The reason that lawyers and others were originally

exempt was examined by a committee under Lord Morris of Borth-y-Gest that

reported in 1965. It was right, the committee said, that those whose work was

“connected with the detection of crime and the enforcement of law and order must

be excluded, as must those who professionally practise the law, or whose work is

concerned with the functioning of the courts”.

One danger, the committee added, was that their specialist knowledge may cause

them to be “built-in” leaders on a jury. Even civilian employees of police forces

“became identified with the service through their everyday contact with its

members”. Police officers are still barred from sitting in Scotland, Northern Ireland,

Australia, New Zealand, Canada, Hong Kong, Gibraltar and various US states.

The issue was next looked at by Lord Justice Auld in his review of the criminal courts

published in 2001. He took a different view. He said that there was no reason why

the risk of prejudice was any greater among those excluded than with anyone else

sitting as a juror — shopkeepers or house-owners who had been burgled, or car

owners whose cars had been vandalised or people with strong views on legalising

drugs or euthanasia.

Risk of prejudice or partiality could never be eliminated, he said. “The variety of

prejudices that jurors can have are almost unlimited.” But provided the judge was

satisfied that a potential juror was not likely to raise a reasonable suspicion or

apprehension of bias, then the fairness of the trial should not be at risk.

In his ruling last week, Lord Bingham cited Auld — whose views were echoed in

2005 by the Court of Appeal — that the system operates its own checks and

balances. The fact that there are 12 jurors was a protection against the prejudices of

any individual resulting in unfairness, he said, dismissing the first appeal in which it

had emerged that the jury foreman was a police officer.

But the second case was different. In it, a police officer on the jury worked in the

same borough as the sergeant in the case, although they did not know each other.

G151 ELS

16

That in itself would not have been enough to have justified quashing the conviction.

But the case turned on disputed evidence from a police sergeant.

So, Lord Bingham said, it did not involve the “ordinary prejudices and predilections

to which we are all prone but the possibility of bias (possibly unconscious) . . . which

inevitably flows from the presence in a jury of persons professionally committed to

one side only of an adversarial trial process”, not just involved in some capacity in

the administration of justice. An observer would say that the instinct of a police

officer would be to prefer the evidence of a fellow officer rather than a drug addict —

a “real and possible source of unfairness”.

Lord Justice Auld’s safeguard, that it could be for a judge to decide, did not help if

neither the judge nor counsel knew from the start that there was a police officer on

the jury.

The third case involved a Crown prosecutor on the jury. Lord Bingham questioned

whether employed prosecutors should sit on juries at all. He said: “It must be

doubted whether Lord Justice Auld or Parliament contemplated that employed

Crown prosecutors would sit as jurors in prosecutions brought by their own

authority.” He added that in his opinion, justice was not seen to be done if a person

discharging the “very important neutral role of juror is a full-time, salaried employee

of the prosecutor”.

So what is to be done? If Crown prosecutors should not sit, what about defence

lawyers or other categories of juror? Lord Rodger of Earlsferry, who trenchantly

dismissed all three appeals, accepted that there was risk but argued that it was

manageable. The law, he said, was not naive; the assumption behind a panel of 12

jurors was that any bias would be neutralised. Just because there was a real

possibility of a juror being biased did not mean a real possibility that the jury could

not return an impartial verdict.

And why, he said, should police or CPS lawyers be singled out? What of a gay man

trying a homophobic attack? The risk was no greater than that with other jurors, “be

they clergymen, defence lawyers, butchers, estate agents, prostitutes, petty crooks or

judges”, who were all sitting as private individuals and were told to try the case on

the evidence before them.

Do these cases undermine the legislation aimed at widening the net for jury service?

Another of the law lords, Baroness Hale of Richmond, was unequivocal that the

answer was “no”. Because there are some cases where the “new” jurors could not

serve did not mean that they should never do so, she said. It would be inconceivable

for the Director of Public Prosecutions to sit on a case prosecuted by the Crown

Prosecution Service and the same must apply to a CPS lawyer. But it may be different

for other CPS employees — or cases brought by other prosecution authorities.

Officials are to draw up guidelines to tighten the safeguards in such cases and ensure

that a judge decides if it is fair for a juror to sit. A Ministry of Justice spokeswoman

said that the Government remained as “committed to the principle that as wide a

range of the public as possible should be liable to jury service”.

If the clock is not to be turned back, then one answer is a closer scrutiny of jurors

before a case starts. But if CPS prosecutors are in future barred from all CPS cases,

that — as Lord Carswell said as he dismissed the appeals — would frustrate the will

of Parliament, denying thousands of employees the right to sit on most trials and

deny the abilities of CPS staff, like any other member of the public, to judge on the

evidence before them.

G151 ELS

17

June 21, 2005

Q&A: abolishing juries in fraud trials Frances Gibb The Times's Legal Editor, presents the case for and against

scrapping jury trials in fraud cases.

What is the Government proposing, and why?

Lord Goldsmith today announced reforms for complex fraud cases, which would

mean that a judge sitting alone can convict defendants without the decision being

made by a jury. The Government is concerned about the cost and delays in these

trials. A series of big fraud trials has collapsed at a cost of millions to the taxpayer

in recent years. One problem is perceived to be the unviability of trials lasting

several months for jurors. Few can commit themselves to the time involved and

those who can are, by definition, felt to be unrepresentative of the public at large.

How would that improve matters?

White-collar fraudsters would not escape justice through failings in the system, it

is hoped. The judge-only trials would be shorter, more efficient and - it is believed

- more effective. The problems of handling complex fraud trials have been

highlighted over a number of years, for instance in reports by Lord Roskill and

Lord Justice Auld.

Seems reasonable. Why is it controversial?

Civil rights groups, the Law Society, Bar and others claim it is the "thin end of the

wedge", leading to the removal of juries from other trials and thereby eroding a

cornerstone of British justice which has stood since 1215. They also complain that

scrapping juries in complex fraud trials does not grapple with the central failings in

such trials - that is, unwieldy indictments and poor management of the trial

process itself.

So does this spell the end for those '12 men good and true'?

There are other cases that might benefit from being heard without a jury. Trials

involving conflicting medical experts, such as the cases involving parents accused

of killing their babies, are equally impossible for a jury to assess, and should

therefore be handled by judges sitting alone.

At the other end of the scale, the Government has tried twice to remove petty

criminal offences such as theft from the scope of jury trial in order to save time

and money, but the proposals have been thrown out by Parliament. Lord

Goldsmith QC, the Attorney General, remains insistent that if this is the thin end

of the wedge it is the 'thinnest end of the wedge there can conceivably be.' Which,

translated from legalese, means probably not.

When will it happen?

Although the legislation which would enable it to happen has already been

passed by Parliament 18 months ago, it will still need to return to both the

Commons and the Lords for approval later this year. It is expected that some of

the peers will oppose the measure, but they may not be able to prevent juries

from being shown the door by early next year.

Give me some examples of jury cases which collapsed.

2005 Jubilee Line Extension, cost £66 million (no convictions)

1994 Brent Walker, cost £40 million (one conviction, one acquittal).

1995-96 Maxwell trial, cost £30 million (no convictions).

1992 Blue Arrow, cost £40 million (four convicted, suspended sentence).

1988-93 Guinness trials, cost £30 million (four acquittals, four convictions).