The English jury has its roots in two institutions that date from before the Norman conquest in 1066. The inquest, as a means of settling a fact, had developed in Scandinavia and the Carolingian Empire while Anglo-Saxon law had used a “jury of accusation” to establish the strength of the allegation against a criminal suspect. In the latter case, the jury were not triers of fact and, if the accusation was seen as posing a case to answer, guilt or innocence were established by oath, often in the form of compurgation, or trial by ordeal. During the 11th and 12th centuries, juries were sworn to decide property disputes but it was the Roman Catholic Church’s 1215 withdrawal of support for trial by ordeal that necessitated the development of the jury in its modern form.
The jury had always been a socially exclusive institution, and historically people had to own land of a particular value in order to qualify. Until 1919, women were automatically disqualified from serving on trial juries, and even after this date local prejudices had the effect of keeping women off the jury. The fact few women satisfied the property qualifications until they were abolished in the 1970s also served to heavily restrict the number of women eligible for jury service.
Juries are summoned for criminal trials in the Crown Court where the offence is an indictable offence or an offence triable either way that has been sent to the Crown Court after examination by magistrates. Magistrates have the power to send any offence triable either way to the Crown Court but, even if they elect to try the case themselves, the accused retains the right to elect for a Crown Court trial with a jury. Summary offences are tried by magistrates and there is no right of Crown Court trial by jury. During the 21st century some exceptions to jury trial in the Crown Court have been developed.
Trial without a jury
Crown Court trial without a jury is permitted in cases of suspected jury tampering where there is evidence of a “real and present danger” and, despite the possibility of police protection, there is a substantial likelihood of tampering, and a trial without a jury is in the interests of justice. The first such prosecution application was made in February 2008. The first criminal trial in a crown court without a jury was approved in 2009.
There are also provisions under the Domestic Violence, Crime and Victims Act 2004, ss.17–20 to try defendants accused of domestic violence on sample counts and, on conviction, for the remainder of the counts to be tried by a judge alone. These provisions came into force on 8 January 2007.
If the defendant pleads autrefois, the judge now decides the matter without a jury.
Between 1973 and 2007 trials in Northern Ireland could be held without a jury in special courts known as Diplock courts.
A senior coroner may hear an inquest without a jury unless the senior coroner has reason to suspect that the death occurred in custody or otherwise in state detention and that either the cause of death was a violent or unnatural one or the cause of death is unknown; or the death resulted from the act or omission of a police officer or a member of a service police force, in the purported execution of the officer’s or member’s duty as such; or that the death was caused by a notifiable accident, poisoning or disease, as defined in the Health and Safety at Work etc. Act 1974. An inquest into a death may be held with a jury if the senior coroner thinks that there is sufficient reason for doing so.
All common law civil cases were tried by jury up to the introduction of juryless trials in the new county courts in 1846. The perceived success of this system, together with increasing recognition of the integrity of judges and the professionalisation of legal institutions, meant that, when the Common Law Procedure Act 1854 gave litigants in the Queen’s Bench the option of trial by judge alone, there was a steady uptake. Over the next eighty years, the use of juries in civil trials steadily declined.
In 1933 the Administration of Justice (Miscellaneous Provisions) Act 1933, s.6 guaranteed the right of jury trial in the Queen’s Bench Division for:
The 1933 Act also provided that: “but, save as aforesaid, any action to be tried in that Division may, in the discretion of the court or a judge, be ordered to be tried either with or without a jury.” The Act brought a de facto end to civil jury trials in England and Wales save for the causes where the right was guaranteed.
In Ward v James, Lord Denning, delivering the judgment of the Court of Appeal, held that personal injury cases were unsuitable for jury trials owing to the technical expertise and experience needed in assessing damages. In Singh v. London Underground Ltd (1990), a litigant sought a jury trial on a case arising from the King’s Cross fire but was refused owing to the technical nature of the case. In 1993, in Rantzen v Mirror Group Newspapers (1986) Ltd and others it was held that judges could substitute awards by juries in civil cases on appeal if they are deemed to be excessive. In 1998 less than 1% of civil trials in England and Wales were jury trials and these were principally defamation cases.
Section 69 of the Senior Courts Act 1981, which replaced section 6 of the 1933 Act in respect of High Court trials, provides that trial shall be by jury on the application of a party where the court is satisfied that there is in issue:
- a claim of fraud against the party; or
- a claim in respect of libel, slander, malicious prosecution or false imprisonment
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.
Libel and slander were removed from section 69 of the Senior Courts Act 1981 by section 11 of the Defamation Act 2013, meaning that defamation claims made on or after 1 January 2014 are heard without a jury unless the judge orders otherwise.