Jury (England and Wales)

In the legal jurisdiction of England and Wales, there is a long tradition of jury trial that has evolved over centuries.

History

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 eleventh and twelfth centuries, jurys 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. [Baker (2002) "p."72-73]

Criminal juries

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. [Sprack (2006) 18.01] 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. [Magistrates' Courts Act 1980, s.20] 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. ["Halsbury's Laws of England" Vol.11(3) 1283. When juries are required]

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. [Criminal Justice Act 2003, s.44; Criminal Justice Act 2003 (Commencement No 13 and Transitional Provision) Order 2006, SI2006/1835, art.2(b), as of 24 July 2006] The first such prosecution application was made in February 2008. [cite news | last = O'Neill | first = Sean | title = Judge may sit alone in drugs case deemed too dangerous for a jury | work = The Times | date = 11 February 2008 | url = http://business.timesonline.co.uk/tol/business/law/article3346769.ece | accessdate = 2008-03-16 ]

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. [Domestic Violence, Crime and Victims Act 2004 (Commencement No 7 and Transitional Provision) Order 2006, SI2006/3423]

If the defendant pleads autrefois, the judge now decides the matter without a jury. [Criminal Justice Act 1988, s.122]

Inquests

A coroner must summon a jury for an inquest if the death occurred in prison or in police custody, or in the execution of a police officer's duty, or if it falls under the Health and Safety at Work etc. Act 1974, or if it affects public health or safety. [Coroners Act 1988, s.8(3)] [Lord Mackay of Clashfern (ed.) (2006) "Halsbury's Laws of England", 4th ed. reissue, vol.9(2), "Coroners", 979. 'Where jury is necessary.']

Civil juries

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.Hanly (2005)] "Ward v. James" [1966] 1 QB 273, CA at 290 "per" Lord Denning] Over the next eighty years, the use of juries in civil trials steadily declined. ["Ford v. Blurton" (1922) 38 TLR 801, CA]

In 1933 the Administration of Justice (Miscellaneous Provisions) Act 1933, s.6 [Repealed by Supreme Court Act 1981, s. 152(4), Sch.7] guaranteed the right of jury trial in the Queen's Bench division for:

*Fraud;As of 2007, still guaranteed by County Courts Act 1984, s.66 and Supreme Court Act 1981, s.69.]
*Libel;
*Slander;
*Malicious prosecution;
*False imprisonment;
*Seduction;
*Breach of promise of marriage.

— "... 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" (1966), [ [1966] 1 QB 273, CA] 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), ["The Independent", 26 April 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. As of 1998, less than 1% of civil trials in England and Wales were jury trials and these were principally defamation cases.

Section 69 of the Supreme Court Act 1981, which replaced s. 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 imprisonmentunless 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.

Number of jurors

In the event of a juror being discharged for any reason, the trial can continue so long as the minimum number of jurors remain. The judge should press the jury for a unanimous verdict and not, in any event, suggest that a majority is acceptable until after 2 hours and 10 minutes. This was originally 2 hours but it was extended to allow time for the jury to settle after retiring. [Sprack (2006) 21.34-21.37]

Eligibility for jury service

A jury panel is summoned from eligible persons who are:Juries Act 1974, s.1, as amended by Criminal Justice Act 2003 s.321/ Sch.33]
*Registered electors aged 18 to 70;
*Resident in the UK for at least 5 years since age 13;
*Not mentally disordered; and
*Not disqualified for whatever reason♥.

Persons currently on bail are disqualified. Persons are disqualified for life if they have been sentenced to:
*A life sentence;
*Detention for public protection;
*An extended sentence; or
*Imprisonment or detention for 5 years or more.

Persons are disqualified for 10 years after:
*Sentence, or suspended sentence of imprisonment or detention;
*Imprisonment or detention (less than 5 years); or
*Community punishments or treatment orders.

Persons "not capable of acting effectively as a juror" may be discharged by the judge.

Empanelling and challenging jurors

As of 16 July 2007, jurors are called by a written summons from the Lord Chancellor, despite the recent reform of that office, executed in practice by a local court officer."Halsbury's Laws of England" Vol.11(3) 1286. Summoning of jurors; panels, Juries Act 1974, s.2(1)] A panel of jurors is summoned, having regard to the convenience of the jurors though there are no absolute geographical constraints. There are facilities for the parties to inspect the panel and for individual members to be examined by the judge if there are doubts about their fitness to serve because of lack of proficiency in English or because of physical disability, for example deafness.

If there are inadequate jurors on the panel then any person in the vicinity of the court can be summoned to make up the numbers, a process known as praying a tales. ["Halsbury's Laws of England" Vol.11(3) 1289. Incomplete jury]

A jury in waiting, of twenty or more jurors is selected from the panel by the clerk of the court. The jury in waiting usually listen to the defendant's plea from the back of the court, unless there is a danger that they would be biased by hearing a co-defendant's "guilty" plea.Sprack (2006) 18.19-18.22]

The clerk then calls the name of 12 of them at random, usually by drawing from a shuffled pack of cards with the names written on them. As he calls each name, the juror steps into the jury box. Once the jury box is populated with 12 jurors, the clerk says to the defendant:

The clerk then calls each juror individually to affirm or to take the oath, reading from a printed card while holding a holy book in his right hand (New Testament for Christians, Old Testament for Jews or Koran for Muslims):

Atheists and agnostics can affirm instead of swearing an oath.

A juror can only be challenged before he takes the oath and on limited grounds.

Peremptory challenges

Peremptory challenges, or challenges without cause, allowing the defence to prevent a certain number of jurors from serving without giving any reason, were formerly allowed in English courts and are still common in some other jurisdictions. At one time, the defence was allowed 25 such challenges but this was reduced to 12 in 1925, to 7 in 1948 and 3 in 1977 before total abolition in 1988. [Sprack (2006) 18.26] [Criminal Justice Act 1988, s.118(1)]

tand by

The prosecution and judge, but not the defence, have the right to prevent a juror from serving by asking them to stand by. However, prosecutors are instructed to invoke this right sparingly as the quality of the jury is primarily the responsibility of the court officer. The right should only be invoked in cases of national security or terrorism, in which case the personal authority of the Attorney General is needed, or where a juror is "obviously unsuitable", and the defence agree. ["Attorney General’s Guidelines on Exercise by the Crown of its Right of Stand-by" (1989) 88 "Criminal Appeal Reports" 123] [Sprack (2006) 18.27-18.29]

Challenge for cause

Either prosecution or defence can challenge for cause as many individual jurors as they wish on the grounds that the juror is:Sprack (2006) 18.30]
*Ineligible or disqualified; or
*Reasonably suspected of being biased.

These are the modern versions of the ancient challenges of "propter honoris respectum", "propter defectum" and "propter affectum". Challenges have been successful where a juror was employed by or related to a party, had enjoyed entertainment at a party's home, or where they had already expressed an opinion on the case or shown hostiity to the accused. During the 1969 trial of the notorious gangsters, the Kray twins, the trial judge was prepared to exclude any juror who had read some of the current lurid newspaper reporting. ["R v. Kray" (1969) 53 Cr.App.R 412] However, in a trial arising from the conduct of a picket in the bitterly contested UK miners' strike (1984–1985), a miner who had worked throughout the conflict was held to be fit to serve. ["R v. Pennington" [1985] Crim LR 394]

Challenge to the array

It is possible to challenge the whole jury panel on the grounds that the court official who selected them was biased [Juries Act 1974, s.12(6)] but such a challenge is "virtually unknown in modern times." [Sprack (2006) 18.34]

Jury vetting

Checking the criminal records of the jury panel by the police is only permitted on the authority of the Director of Public Prosecutions, and only if: ["Attorney General’s Guidelines on Exercise by the Crown of its Right of Stand-by" (1989) 88 "Criminal Appeal Reports" 123, at 125]
*It appears that a juror is disqualified, or an attempt has been made to introduce a disqualified juror;
*There is a belief of attempted interference with a jury in a previous aborted trial; or
*The nature of case entails a special effort to avoid disqualified jurors.

Checks beyond criminal records may only be made if authorised by the Attorney General and there are adequate grounds for a prosecution request to stand-by.

Discharge of jurors

Individual jurors

During a trial, an individual juror can be discharged and the trial can continue so long as the minimum number of jurors remain. Discharge is at the discretion of the judge and should be exercised in cases of "evident necessity". ["R v. Hambery" [1977] QB 924]

The test was given in "Porter v. Magill" [ [2002] AC 357] as "Would a fair-minded and informed observer conclude that there was a real possibility , or real danger (the two being the same) that the tribunal was biased?" [Sprack (2006) 18.55]

Whole jury

Where misconduct cannot be dealt with by discharge of an individual juror, or in the case of jury tampering, or where the jury cannot reach a verdict, the entire jury can be discharged. Inadvertent inadmissable evidence that may prejudice the jury will not inevitably lead to discharge of the jury and the matter lies at the discretion of the judge who may conclude that the rights of the defendant can be adequately protected by his directing the jury to ignore such evidence. [Sprack (2006) 18.59]

Conduct of jury

Once the jury is sworn, it is customary, but not mandatory, for the clerk to say: ["R v. Desai" [1973] Crim LR 36, CA]

Jury's right to stop the trial

Once all the prosecution evidence has been given, the jury may at any time, of its own motion, decide to acquit the defendant. Few juries will realise that they have this power unless advised by the judge. Such judicial intervention is deprecated by the Court of Appeal and, as of 2007, is rarely exercised. ["Halsbury's Laws of England" vol.11(3) 1313. Submission of no case to answer...]

Retirement of the jury

After the judge has summed up the case, the court usher swears to keep the jury in some "private and convenient place", to prevent them from speaking to anyone else and not to speak to them himself "except it be to ask them if they are agreed upon their verdict." The usher, then becoming the jury bailiff then stations himself outside the jury room during the deliberations. [Sprack (2006) 21.01-21.06] The jury may send a note to the judge to ask a question of law or for the judge to read to them a transcript of some of the evidence. [Sprack (2006) 21.07-21.09] It is a contempt of court for a juror to disclose, or for anyone else enquire into, the nature of the jury's deliberations. This is an effective bar on jury research in England and Wales, and on appeals on the basis of the jury's method of reaching its decision. [Contempt of Court Act 1981, s.8] [Sprack (2006) 21.12]

Verdict

The jury may return a verdict of: [Sprack (2006) 21.18-21.33]
*Not guilty;
*Guilty;
*Not guilty but guilty of a similar, but less serious, offence;
*Exceptionally, a special verdict. ["Halsbury's Law of England", vol.11(3) 1339. Special verdict]

Notes

Bibliography

Historical

* cite journal | author=Arnold, M. S. | year=1974 | title=Law and fact in the medieval jury trial | volume=18 | journal=American Journal of Legal History | pages=267–180 | doi=10.2307/845166
* cite journal | author=— | year=1985 | title=The control of the jury | journal=Selden Society | pages=x-xxxi | volume=100
* cite book | author=Baker, J. H. | authorlink=John Baker (legal historian) | title=An Introduction to English Legal History | edition=4th ed. | pages=72-76 | location=London | publisher=Butterworths | id=ISBN 0-406-93053-8 | year=2002
* cite book | author=Cairns, J. & Macleod, G. (eds) | title=The Dearest Birth Right of the People of England: The Jury in the History of the Common Law | year=2002 | location=London | publisher=Hart Publishing | id=ISBN 1841133256
* cite journal | title=The decline of civil jury trial in nineteenth-century England | author=Hanly, C. | journal=Journal of Legal History | volume=26(3) | year=2005 | pages=253–278 | doi=10.1080/01440360500347525
*Lobban, M. (2002) "The strange life of the English civil jury, 1837-1914", in Cairns and McLeod (2002), "p."173
* cite journal | volume=62 | journal=Law and Contemporary Problems | pages=7 | year=1999 | title= [http://www.law.duke.edu/shell/cite.pl?62+Law+&+Contemp.+Probs.+7+(Spring+1999) Decline of the "little parliament": juries and jury reform in England and Wales] | author=Lloyd-Bostock, S. & Thomas, C.
* cite journal | author=Mitnick, J. M. | title=From neighbor-witness to judge of proofs: the transformation of the English civil juror | year=1988 | volume=32 | journal=American Journal of Legal History | pages=201–235 | doi=10.2307/845380
* cite journal | author=Oldham, J. | title=The origins of the special jury | year=1983 | volume=50 | journal=University of Chicago Law Review | pages=137–221 | doi=10.2307/1599384
* cite journal | author=— | year=1987 | title=Special juries in England: 19th century usage and reform | volume=8 | journal=Journal of Legal History | pages=148–166 | doi=10.1080/01440368708530895
* cite journal | author=Turner, R. V. | year=1968 | title=The origins of the medieval English jury | journal=Journal of British Studies | pages=(pt ii) 1–10 | volume=7 | doi=10.1086/385549
* cite book | author=Van Caenegem, R. C. | year=1988 | edition=2nd ed. | title=The Birth of the English Common Law | pages=62-84 | location=London | publisher=Cambridge University Press | id=ISBN 0521356822
* cite journal | author=— | year=1999 | title=The origins of the jury: forum | journal=Law and History Review | volume=17 | pages=535–607

Modern practice

* cite book | author=Elliott, C. & Quinn, F. | title=English Legal System | pages=Ch.5 | ed=2nd ed. | year=1998 | id=ISBN 1405847336 | location=London | publisher=Longman | edition=8th ed.
*Lord Mackay of Clashfern (ed.) (2006) "Halsbury's Laws of England", Vol.11(3) 4th ed. 2006 reissue, "Criminal Law, Evidence and Procedure", 19(5) 'Trial of indictments: The jury'
*cite book | author=Richardson, P.J. (ed.) | title=Archbold: Criminal Pleading, Evidence and Practice | year=2006 | publisher=Sweet & Maxwell | location=London | id=ISBN 0421-909-20X , 4-199 - 4-265, 4-417 - "'4-469
* cite book | author=Sprack, J | year=2006 | edition=11th ed. | title=A Practical Approach to Criminal Procedure | publisher=Oxford University Press | location=Oxford | id=ISBN 0-19-929830-0