OneNote 27/05/2020, 4:54 PM

T6/Chapter 18
Thursday, 19 September 2019 7:06 PM

Introduction
1. Slapper: a jury of 12 good men and true lies at the heart of the British legal system
2. Presence of lay people into the legal system provides legitimacy because the jury introduces a humanising element
History
1. Used even before the Norman Conquest
2. Early juries were used to provide local knowledge and acted as witnesses rather than decision makers
3. Modern role of juries: fact finders
Independence
1. In early trials juries were often bullied by judges into reaching a certain verdict
2. Jury independence was established in Bushell's case (1670)
a. Court held that jurors could not be punished for reaching a verdict according to their conscience and judges
must respect juror independence
3. R v McKenna (1960)
a. Judge told the jury that they would be locked up all night if they did not reach their decision within another
10 minutes. Due to the judge's interference with the jury during their deliberation, the defendant was later
acquitted
b. Cassell J: a jury shall deliberate in complete freedom, uninfluenced by any promise and unintimidated in any
way
4. Contempt of Court Act 1981:
a. Criminal offence to disclose anything that occurred in the jury deliberation room
5. Judge cannot pressurize jury into reaching a guilty verdict
a. R v Wang (2005)
i. Lord Bingham HoL: no matter how inescapable a conclusion may be, in the sense that any other
decision would be wrong, it is a judge's duty to leave that decision to the jury and not to influence
them

Role of juries
1. Decide on matter of fact whilst judges decide on matter of law
2. Jury decides if a person is guilty based on their understanding of the law as explained to them by the judge
Criminal cases
1. Trial by jury in the Crown court is limited to where the accused is tried on indictment (serious offence) and has
pleaded not guilty
2. Decide whether a witness is being truthful
3. Usually deliberate the verdict at the end of the case after the Prosecution and Defence have presented their cases
4. There is an absolute rule that there can be no appeal against a jury's decision by the Prosecution
a. S36 Criminal Justice Act 1972: reference by the AG to the CA to seek advice on point of law. Usually, the case
will not be re-heard, but it is used to highlight mistakes in law that occurred in the court and seeks to remedy
this mistake for future cases
Civil cases
1. Deciding if D is liable and if so the amount of damages D should pay. Usually in cases of defamation, false
imprisonment and fraud.
2. Ward v James (1966)
a. Claimant suing for personal injuries that occurred during a motor accident. CA laid down guidelines for trial by
jury in personal injury cases:
i. Personal injury cases should be tried by a judge as he will assess damages based on precedent cases.
Juries may assess damages based on arbitrary considerations
ii. Exceptional circumstances before a jury will be permitted
3. Singh v London Underground (1990)
a. C requested trial by jury but he was denied because of the technical legal issues which were expected to arise
4. H v Ministry of Defence (1991)
a. Claimant was a soldier who received negligent medical treatment which necessitated the amputation of his
penis. It was held that this was not an exceptional case where trial by jury would be permitted
5. McDonald's Corporation v Steel and Morris
a. Case against environmental activists who published a pamphlet critical of the company. The scientific issues of
the case would make it impossible for a trial by jury

Qualifications
1. Prior to 1972, a juror had to be a property owner which excluded many women and ethnic minorities
2. Criminal Justice Act 1972: registered voters were allowed to serve as jurors
3. Juries Act 1974:
a. Aged 18-70
b. Registered on the electoral role
c. Resident in the UK for atleast 5 years since their 15th birthday
Disqualification
1. Criminal convictions:
a. Imprisonment for life
b. Imprisonment for public protection
c. An extended sentence
d. Term of imprisonment for 5 years or more
e. Anyone on bail
Lack of Capacity to serve as a Juror
1. Judge has the power to discharge any person who is unable to cope with the trial due to a lack of capacity
a. Inability to understand English adequately, blind (unable to view evidence)
2. S9B(2) Juries Act 1974: a disability does not disqualify a person from being a juror. A judge may only discharge a

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disabled juror if he satisfied that the juror's disability means that the juror cannot serve effectively
Excusal from Jury Service
1. Criminal Justice Act 2003: Doctors, nurses and other health professionals are now not able to refuse to serve on the
jury, but they may apply to court for discretionary refusal
2. Members of the armed forces may be excused if their commander certifies that their absence from duty would
affect the efficiency of the armed forces
Discretionary Excusals
1. Court has discretion to grant excusal in cases where:
a. Person too ill
b. Mother of a young child
2. Criminal Justice Act 2003: removed excusal as of right for judges and others in the legal profession.
3. Lord Woolf issued some guidelines regarding judges who are called to serve as a juror:
a. Excusal of judges from jury service is only permitted in exceptional cases
b. Up to the judge's discretion if when sitting as a juror, he decides to reveal to the other jury members that he is
a judge
c. Judges should follow the trial judge's directions to the jury and should not attempt to clear up any legal
matters for the benefit of the jurors

Jury Selection
Jury Vetting
1. Selected from the electoral register to ensure that it is random
2. R v Sheffield Crown Court exp Brownlow (1980):
a. Lord Denning: 12 persons selected at random are likely to be a cross section of the people as a whole - and
thus represent the view of a common man
3. R v Salt (1996):
a. D was convicted of burglary but appealed after it had emerged that one of the jurors was the son of the court
usher who had asked his son to serve on replacement of another juror. D's conviction was revoked.
4. Once the list of potential jurors is assembled, both Prosecution and Defence may view the list.
5. 2 types of vetting:
a. R v Mason (1988): routine police checks are made on potential jurors to eliminate unsuitable jurors.
b. Vetting for juror's backgrounds and political loyalties for cases involving national security and with the AG's
permission

Challenging the Jury

1. Potential jurors questioned by Prosecution and Defence lawyers
a. Right to challenge the jurors for suitability
2. Right to challenge:
a. Challenge to the array: whole jury challenged because it was chosen in an unrepresentative manner
i. R v Ford (1989): if jury chosen in a random manner, it cannot be challenged because it is not multi-
racial. Fairness is achieved on the principle of random selection.
b. Challenge for cause (individual jurors): indicate why a certain person is unsuitable to serve as a juror

Criticisms
1. Electoral register is not always representative of the population as some young people, women and ethnic
minorities may not register to vote
2. The racial composition of the jury has been criticised because there is no right for the Accused who belongs to a
racial minority to have a member of that minority in the jury
a. R v Danvers (1982)
i. Defence sought to challenge the array on the basis that the black defendant could not have complete
confidence in impartiality in an all white jury
b. R v Ford (1989)
c. Lord Taylor: the criminal justice system is failing blacks and Asians by allowing ethnic minorities to believe that
they are beyond the protection of the law. However, we must not introduce measures which allows the State
to start nibbling away at the principle of random selection
d. Sander v UK
i. D argued that his right under Article 6 of the ECHR: right to fair trial had been breached when racist
jokes were made before the trial ended. The judge allowed the case to continue
ii. It was held that in these circumstances the judge should have discharged the jury because there was
potential racial bias
3. Disqualified jurors often fail to disclose that they are disqualified and may be biased against the Prosecution
4. Too many discretionary excusals that results in an unrepresentative jury panel

Advantages & disadvantages

Public confidence Perverse decisions

Lord Devlin: the jury is the lamp that shows that Juries often acquit even in clear cut cases where the accused
freedom lives. should be guilty such as R v Owen.
Trial by one's peers is a fundamental right in a R v Kronlid: 3 protestors charged with criminal damage in
democracy relation to an attack on Hawk Jet. They did not deny their
responsibility. Jury acquitted them of all charges. Government
Treasury Minister stated: I find this jury's decision difficult to
understand.
Jury equity High acquittal rates
Jurors not bound by the doctrine of precedent and
makes decisions based on their conscience
R v Owen: truck driver was drunk driving and caused the
death of Owen's son. Once released and Owen found
out the driver was still driving recklessly, he shot the
truck driver. Owen was acquitted by the jury for any
wrongdoing.

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Open System of Justice Jurors Inability to understand complex cases

Legal system more open because members of the public Singh v London Underground: complex legal matters were
are involved and the whole process occurs in public expected to arise, so a trial by jury was not permitted
• Complex fraud cases require persons with accounting
experience to understand it. (see subsection below)
Secrecy of Jury Deliberations Secrecy
Jury free from outside pressure & influence when Jury may not understand the evidence which affects their
deciding their verdict. If the deliberations were open, verdict.
less people would serve because of public scrutiny R v Young: Jury used an Ouija board to communicate with the
murdered victims of the crime. When this fact became
known, the CA ordered a re-trial
Impartiality Racial bias
Juries randomly selected and represent the voice of the 1. Sander v UK: breach of Art 6 ECHR
community. They are not 'case hardened' (emotionally 2. R v Danvers
numb/loss of humanizing value) 3. R v Ford

Jury Tampering
1. Range of circumstances covered: actual harm/threats to jury members/intimidation/bribery
2. S44 Criminal Justice Act 2003:
a. Trial on indictment in Crown Court to be heard without a jury where there is a risk of jury tampering
b. Trial may continue without a jury where they have been discharged for tampering
3. R v Twomey & Others (2009)
a. Prosecution found evidence that 2 jurors had been approached. Jury discharged and CoA ordered a re-trial
without a jury.

Complex Fraud Trials

1. 1986: Roskill Committee on Fraud Trials examined the operation of the jury in complex fraud cases. Recommended
the abolition of juries in some cases.
2. 1998: Home Office issued a Green Paper entitled Juries in Serious Fraud Trials suggesting new procedure.
Alternatives suggested:
a. Special juries - made up of qualified people
b. Judge-run trials - with the help of lay experts
c. Fraud tribunals - made up of judge and qualified lay members
3. 2001: in Review of Criminal Courts, Robin Auld LJ recommended that nominated trial judge should have the power
to direct the jury himself and the two lay members
4. Part 7 of Criminal Justice Act 2003: permits Prosecution to apply for a complex fraud trial on indictment in the
Crown court to proceed without a jury.

Reforms of the Jury

Royal Commission on Criminal Justice
1. Defendants should not be able to choose their court solely on the basis that they think they will get a fairer hearing
at one level rather than another (Magistrates v Jury trial in Crown court)
2. Defendants tend to place more trust in the Crown Court

Criminal Justice (Mode of Trial) Bills

1. Sought to give magistrates rather than the accused the power to decide the mode of trial

The Auld Review

1. Sir Robin Auld LJ in Review of Criminal Court (2001) made the following recommendations for the jury:
a. Jurors should be more widely representative of the communities
b. Provision should be made for ethnic minority representation where race was relevant
c. Law should not permit more intrusive research than is possible; although in some cases judges should be
allowed to examine alleged improper behaviour in the jury room
d. Juries should not be allowed to acquit defendants in defiance of the law or in disregard of the evidence
e. Prosecution should be permitted to appeal if the verdict may be perverse/wrong
f. Defendant should no longer have an elective right to trial by judge and jury in 'either way' cases
i. Either way means either indictable (serious) offence or summary (minor/less serious) offence
g. Trial by judge and jury should remain the main form of trial for more serious offences except:
i. D should be able to opt for trial by judge alone
ii. In complex fraud cases, the nominated judge should have the power to direct the trial by himself and
the lay members
iii. A Youth Court, constituted by a judge and two youth panel magistrates should be given jurisdiction to
hear cases against young defendants
iv. Legislation should be introduced to require a judge, not the jury, to determine the issue of fitness to
plead (capacity of a defendant in criminal proceedings to comprehend the course of those proceedings)

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