Democracy is one of the keywords around the United Kingdom. It can be termed as an institution and has many arms, one of which is the jury. The jury system has been used for over 1000 years but it was in 1215, though, when the trial by ordeal was condemned that juries became the usual method of trying criminal cases. Originally, juries were used simply to provide local knowledge and were termed as witnesses. With time, their roles were increased considerably and they became assessors of facts. In fact, nowadays, the jury of ’12 good men and true’ is quintessential to the British legal system. The latter’s legitimacy is strengthened by the fact that the jury is comprised of lay people chosen at random. This randomness has been termed as vital to ensure democracy. But, on the other hand, the jury has been victim of heavy criticisms too.
Lord Devlin illustrates the importance of the jury within the criminal justice system by stating that, ‘’It is lamp that shows freedom lives.” Lord Taylor, the former Lord Chief Justice, firmly backed Lord Devlin on this issue. Unfortunately, not everyone shares the above views. Indeed, there have been some heavy criticisms against the jury. Penny Darbyshire via the Criminal Law Review in 1991 characterised the jury of being an, ‘’anti-democratic, irrational and haphazard legislator, whose erratic and secret decisions run counter to the rule of law”. The major part of the criticism came when she stressed on the fact that juries are not at all random in its selection process. Moreover, she laid emphasis on the aspect that juries, in the pursuit of justice, do ignore the law and thus may convict the innocent or let go of the wrongdoer. On the other hand, despite this article, people still do believe in the jury system. For instance, we do have Michael Mansfield QC who is in full favour of the system and points out that it indeed is democracy in action.
Before heading to any hasty conclusion, we need to review the whole system starting by the basics, which is their role and function within the legal system. The function of the jury is to decide on matters of fact. They function in collaboration with the judges who decides on matters of law. The judges have to explain the law to the juries who simply have to apply them to the facts and give the final verdict. The juries do take an oath to perform the task with faith and to give out true verdict according to the evidence. It is to be noted that the jurors, after being sworn in, cannot refuse to reach a decision. This happened in 1997 when Judge Cooray sentenced two women to thirty days in prison after they had failed to deliver a verdict. The reasons given by the jurors for the contempt caused more than one to raise an eyebrow on the selection process and the system overall. Actually of them stated that she could not even understand the case as it was too complicated while the other explained that she had reasons based on her ethics. Some do criticise the system since it enforces people to be part of the jury. In fact, it is said that the jury service is a civic responsibility and failure to answer a jury summons leads to a criminal offence punishable by a fine. Torn between their civic duty and sometimes an extremely tough experience, the potential jurors are at a loss.
Most of those who have served on a jury have had a common word to describe the experience; vexing. In view of the description of their functions, the jurors have to deal with facts which are, sometimes, simply scaring to say the least. The worst aspect of their roles within the legal system is that they can be the target of the defendants on the case. Unsurprisingly, in 2003, two illegal immigrants were convicted of various offences under the Terrorism Act 2000. From investigations, it was deduced that these two persons were involved in collecting money for Al Qa’ida. This could have been the alarm for the jurors. The trial was taking place at Leicester Crown Court and it was reported to be nothing less than chaotic. We had jurors retiring overnight, some bursting into tears and others simply could not be themselves anymore. At the end of the day, the jury was dismissed. The jurors, indeed, have a herculean task and unfortunately, they do not get the support needed after sensitive cases.
One vital aspect of the jury system is the selection process. As we have seen above, the jury service is considered as a public duty that the general public should willingly undertake. Additionally, there is a fine for not performing the civic duty. To start with, the requirements at present via legislations provide that for someone to qualify as a juror, he has to be aged in between 18 and 70, he has to be on the electoral register and he has to live in the United Kingdom for 5 years. This is actually where the key word used over and over by academics and critics come into play. The word is randomness. It is a matter of fact that the actual juror is randomly selected by means of a ballot in open court. In response to the criticism of Penny Darbyshire as exposed above, some academics have pointed out that randomness does not equal representation and therefore it was possible, within the definition of the randomness attribute to have, for instance, all males or all females on a particular jury. There are some problems with the selection process in the sense that electoral registers tend to be inaccurate as they misreport the actual number of people in a region. Some reasons were given such as that some people tend to move to other places very often. Hence The Runciman Commission recommended that every reasonable step should be taken in order to avoid this inaccuracy.
The Criminal Justice Act 2003 which came into effect in April 2005 allowed the judiciary to serve as jurors. As expected there were major criticisms on the issue that these jurors would be biased but the courts rejected this as being false stating that the expectations placed on ordinary citizens in relation to jury service had to be extended to members of the criminal justice system. Furthermore they do take the jury oath and thus can be expected to comply with the terms of their oath and the directions of the judge. In addition to that, the maximum precautions are taken so that the jurors do not mess things up. For instance, we do have the jury vetting where the Crown checks the background of potential jurors despite the fact that this practice is against the ideal of the jury being selected at random. Is it that Penny Darbyshire was correct in her criticism? ‘Probably not’ would be the response of the Crown who would justify the vetting system on the basis that it is vital to make sure that jurors are not likely to divulge any secrets outside the juror’s room.
Juries are mostly used for criminal cases and even then, they decide the outcome of less than 1% of the total of criminal cases. A fair reason will be simply that there is a decline in the jury service. The criminal justice act 2003 also had provisions for jury tampering. The latter covers circumstances in which a jury’s independence may seem to be compromised due to actual harm or threats of harm to the jurors. Moreover, section 44 and 46 of the act provide for a trial on indictment in the crown court to be conducted without a jury where there is evidence of jury tampering. For this to happen, the courts must be satisfied that there is proof of real and present danger to the jurors.
The Roskill Committee on Fraud Trials came to some expected conclusion. In fact, the report recommended the abolition of the jury in complex fraud cases. In the latter, we do need specialists since lay persons will not be able to give a fair result. The Runciman Commission did second the report stating that juries do indeed face various difficulties in such cases. Consequently, injustice is bound to happen. Things did move on via the Green paper being issued by the Home office. However, in 1998 in the consultation paper no 155, there was no mention of any procedural issues. This was not the end though since Sir Robin Auld LJ did just that in the “Review of the criminal courts (2001)”. He recommended that we have only one trial judge in the complex cases. Finally this was incorporated in the CJA 2003.
In response to the second part of the question, it would be good to analyse the basic duty of a judge when we do have jurors in the court. In theory, judges do have the right and duty to advise the jury on legal aspects. To answer that question, we simply have to refer to two cases, Stonehouse and Wang. It was established that there was no judicial power to instruct the juries to convict. As a result, the best that the judges can do is to give the final summary in such a way to both direct the jury and also make them understand why they should convict the defendants. Judges have to be very careful here as they cannot pressurise the jury or else there would be an overturning of any conviction obtained as witnessed in the case of Mckenna where the judge compelled the jury to come to a
decision hastily or else they would be locked up for the night. Unfortunately, jurors do not have to give their reasoning as to how and why they have come to their verdict because according to the act, jurors do not have the right to share anything of what they did discuss in the jury room.
It was obvious that this could give much power to the jury with which they could reach to verdicts which are basically unjustifiable. There were criticism about that within the legal world but no one thought about a reform. As a consequence, the jury did deliver perverse decisions. To begin with, we have the case of Clive Pointing where the judge did in fact do his maximum best to direct the jury that the defendant was guilty but the jurors ignored the law while applying the facts and hence it was a wrong decision basing on the legal aspects of the case.
This situation did repeat several times in cases like Kronlid and others. Nothing could be done actually. Had there been some political courage, an act of parliament is the only way out. It never came. The best that had been done was to considerably reduce the number of cases where we do have juries. In anyways, there is a desperate need for a major reform.
1.Walker &Walker’s English Legal System, Richard Ward, Amanda Wragg, 9th edition, Oxford
2. The English Legal System, Alisdair Gillespie, 2nd edition, Oxford
3. The politics of common law, Adam Gearay, Wayne Morrison and Robert Jago, Cavendish