Transcript Slide 1

English Legal System
Trial by Jury
Eligibility for Jury service
Selection of the Jury
Reforms to the Jury by the
Criminal Justice Act 2003
Aims
•
The aims of this lecture are:
1. To introduce the concept of trial by jury;
2. To look at the concepts of a “randomlyselected” and “unbiased” jury;
3. To examine the reforms of trial by jury made
by the Criminal Justice Act 2003;
4. To look at the concept of jury waiver;
5. To examine proposals for further reform of
the jury.
Outcomes
•
By the end of this lecture you should be able to:
1.
Describe how jurors are selected for jury service
and the deficiencies of the current system;
Explain what it meant by a randomly-selected jury
and how this differs from an unbiased jury;
Explain the rationale behind the reforms to trial by
jury introduced by the Criminal Justice Act 2003;
Critically assess the right to a multi-racial jury in
certain types of cases.
2.
3.
4.
Why study trial by jury?
• Popular perception of the legal system
• Ancient right conferred in the oldest constitutional statute, the
Magna Carta 1215
• Important democratic principle of involving the laity in one of the
branches of government
• System of full-scale trial
• The Darbyshire argument as to whether it has in fact been
demoted by the advance of the magistrates’ courts
What crimes are tried by
jury?
• Either way offences, e.g. theft
• Indictable only offences, murder,
manslaughter, rape
• The distinction between these
categories will be dealt with elsewhere
in the lectures on criminal litigation
Who are the jurors?
• Judicial pronouncements have constantly
emphasised that the jury is supposed to
reflect the views of the ‘common man’
• Jurors are selected at random, rather than
being unbiased
• English versus American concept of jury
Who are the jurors?
•
Eligibility under the Juries Act 1974:
1. 18-70 years old;
2. Registered to vote;
3. Ordinarily resident in the United
Kingdom for 5 years from the age of
13.
Random selection
• R v Sheffield Crown Court, ex parte Brownlow
[1980] QB 530, CA. Lord Denning MR:
• “Our philosophy is that the jury should be
selected at random – from a panel of persons
who are nominated at random. We believe
that 12 persons selected at random are likely
to be a cross-section of the people as a
whole – and thus represent the view of the
common man… The parties must take them
as they come…’
Criticism of random
selection
• There has been some criticism of the random
selection of jurors on the basis of the electoral roll
• Many people are not registered to vote
• The Auld Report in 2001 recommended that eligibility
for jury service should be based on the entitlement to
vote, rather than on entry on the register
• He recommended that other records could be used to
supplement the electoral register such as DVLA
records
Is there a right to a multi-racial
jury
• R v Ford [1989] QB 868, Court of Appeal, Lord
Lane CJ:
“It appears to have been suggested in some of the
cases that there is a ‘principle’ that a jury should
be racially balanced…In our judgment such a
principle cannot be correct, for it would depend on
the underlying premise that jurors of a particular
racial origin or holding particular religious beliefs
are incapable of giving an impartial verdict”
Research Exercise on MultiRacial Juries
• Locate and read the case of R v Smith
(Lance Percival) [2003] 1 WLR 2229,
[2003] Crim LR 633, Court of Appeal
• What was decided in this case?
• How does this differ from previous
judicial statements in this area?
Problems arising from the
racial prejudice of jurors
• In the cases of Quershi (2002) and Mirza (2004) allegations of
improper conduct on the part of jurors including, but not limited
to, racism were raise
• The allegations were only raised after the trials had been
concluded
• It was held in the former case that s.8 of the Contempt of Court
Act prevented the Court of Appeal from enquiring into a jury’s
deliberations
• In the more recent case the House of Lords said that s.8 did not
apply to the Appeal Courts, but that the common law rule of the
confidentiality of jury deliberations had the same effect
Sander v United Kingdom
• This was a case taken to the European Court
of Human Rights arguing that the Defendant’s
right to a fair trial had been breached under
Article 6 of the Convention
• Racist jokes had been brought to the
attention of the judge before the trial had
finished
• The judge had the option to discharge the
jury and order a retrial
Floodgates
• If the right to a multi-racial jury were allowed, what effect would
this have on other groups?
• People might claim that the jury ought to be altered to reflect
their religion, sexual orientation, disability, gender etc…
• There is a case from Canada where the male defendant’s
conviction of sexual assault was quashed by the Supreme Court
because it had been given by an all-female jury
• However, the case can be distinguished from the situation in
England and Wales because the all-female jury was created by
the prosecution’s use of challenges and peremptory
challenges
Challenges
• Abolition of the peremptory challenge
• Challenge for cause/stand by for the
Crown
Reform to eligibility for jury
service
•
The Criminal Justice Act 2003
Abolished certain categories of people who had previously been
either disqualified or entitled to automatic release from jury
service
1.
2.
3.
Those involved in the administration of justice, judges,
barristers, solicitors and the police;
The Clergy;
Doctors.
Before moving on to the next slide, can you think of any reasons
why the groups listed above were ineligible or entitled to be
excused from jury service?
The role of the jury in the
trial
• The distinction between the tribunal of
law and the tribunal of fact
The judge = the tribunal of law
The jury = the tribunal of fact
Distinction between law
and fact
• This will become clearer the more law that you study,
especially criminal law
• Essentially offences are split up into different
component parts which must be proved by the
prosecution
• Example – the definition of theft
The appropriation of property belonging to another with
the intention to permanently deprive done dishonesty
Distinction between law and
fact
•
In order for a theft to be established, the prosecution has
to prove those five elements:
1.
2.
3.
4.
5.
Appropriation;
Property;
Belonging to another;
The intention to permanently deprive;
That the action was done dishonestly.
This is a matter of law for the judge, as it would be to give the
jury directions on the meaning of a statute
Matters of fact
• This is where the jury decide that the specific
offender committed the crime as alleged on
the basis of the evidence that has been
presented to them by the prosecution
• It can be a a very subtle distinction between
the two, although in many cases it is very
clear where the dividing line is
Jury Reform
•
The jury always attracts a lot of interest
from the government of the day regarding
its reform. Some of the most recent
proposals have been:
1.
2.
3.
4.
Jury waiver;
Restriction of D’s right to elect trial by jury;
Alterations to the racial balance in a jury;
Reforms to the eligibility requirements
(partly discussed above).
Jury waiver
• Recommended in the Auld report of 2001
• Would entitle the D charged with an indictable
only offence to elect not to be tried by jury,
but by a judge sitting on his or her own
• Common system in other common law
jurisdictions, e.g. Canada, Australia
Why would a defendant want to be
tried without a jury?
• Nature of the crime
• Pre-trial publicity
• Better knowledge of the law
• Less susceptible to overestimating expert evidence
Note: this reform was not adopted by the government
Adverse pre-trial publicity
• There are major problems with jury trial if the case in question
has received prolonged and intensive media scrutiny
It is in these cases that the Defendant may opt to be tried by a
judge sitting alone
For recent cases which may be cited as examples see
R v Rosemary West [1996] 2 Cr App R 374
R v Tracey Andrews [1999] Crim LR 156; [1998] All ER (D) 454
(October)
R v Michael Stone [2001] Crim LR 465; [2001] All ER (D) 162
(February)
R v Barry George [2002] All ER (D) 441 (July)
Exclusion of the Jury from
certain cases
•
The Criminal Justice Act 2003 allowed juries
to be excluded from certain types of cases.
These are:
1. Serious fraud trials;
2. Trials where jury tampering has occurred.
Instead of trial by judge and jury, the judge will
sit on his own
s.43 CJA 2003
• This is the section which governs serious
fraud trials
It provides that the judge must be satisfied that
‘the complexity of the trial or the length of it
(or both) is likely to make the trial so
burdensome to the members of the jury …
that the interests of justice require that
serious consideration should be given to the
question of whether the trial should be
conducted without a jury’
Other proposals for use in
serious fraud cases
•
There have been various other
recommendations for a substitute of trial by
jury in serious fraud cases. These included:
1. Specially-screened jurors or ‘an entirely
separate pool of jurors to be summoned
exclusively to sit on serious fraud trials’;
2. A judge sitting with 2 lay members from a
panel;
3. A judge sitting on his own.
s.44 of CJA 2003
•
This is the section governing jury tampering
•
The section provides the that judge has to be satisfied
that two conditions are met:
1. There is ‘evidence of real and present danger that jury
tampering could take place’;
2. The ‘likelihood that it would take place’ is ‘so substantial
as to make it necessary in the interests of justice for the
trial to be conducted without a jury’
Judge-only courts were used in Northern Ireland from 1973
onwards, known as Diplock Courts
Advantages of Jury Trial
•
The advantages of jury trial may be summarised as
follows:
1.
2.
3.
Public participation in the criminal justice system;
Juries are the best judges of fact;
Clear separation of responsibility – for example the
voir dire;
Encourages openness and intelligibility;
The Jury is a ‘Bastion of Liberty’.
4.
5.
We are going to look at the last one in more depth
The Jury as a ‘Bastion of
Liberty’
• The idea here is that the jury can exercise its power
to acquit a Defendant in defiance of the law, to show
its disapproval of that particular law
R v Ponting [1985] Crim LR 318, Central Criminal Court
R v Kronlid & Others (1996) The Times 31 July,
Liverpool Crown Court
R v Lord Melchett & Others (2000)
R v Gibson (2000)
R v Shayler (2002) The Guardian and the The Times, 5
November, Central Criminal Court
Disadvantages of Jury Trial
•
The main disadvantages of jury trial:
1. Cost and delay;
2. The risk of perverse verdicts;
3. Secrecy.
For a critique of jury trial see Penny Darbyshire
on the English Legal System
Summary of Lecture
•
You should now be able to:
1. State what is meant by a randomly-selected
as opposed to an unbiased jury;
2. Describe how the courts have approached
the question of whether there is a right to a
multi-racial jury;
3. State what reforms have been made to
eligibility for jury service;
4. Describe the advantages/disadvantages of
trial by jury.
Further reading on the Jury
• For the mechanics of jury trial in this country see
Ingman, T., ‘The English Legal Process’ (Oxford:
Oxford University Press, 2004, 10th edition)
• See also Slapper & Kelly for an overview of the
history of jury trial, how the jury was originally used in
the investigation of crime, rather than the
determination of guilt or innocence
• See also Darbyshire’s article and the cases
mentioned in the lecture