The criminal justice system

The jury has been an integral part of our legal system since at least the 13th century if not, as some commentators suggest, for nearly a thousand years. Many regard it as the institution which best expresses the philosophy of the English legal system. The concept of the jury excites great passions, both among its supporters and its critics. The jury is concerned only with questions of fact. It is never concerned with questions of law. Currently in most criminal cases the charge is first considered by a grand jury with between 12 and 23 members.

Fine-tuning Jury's qualification The Criminal Justice Act 2003 also amended the Juries Act 1974 by abolishing certain categories of ineligibility (excluding mental disorder), and excusal as of right. The bar on judges, clergy, etc is lifted. MPs, etc are no longer entitled to refuse to serve. These groups now must do jury service unless they can show good reason not to do. They only limitation now is disqualified and mentally disordered individuals: no-one is excused as of right.

Pros and Cons of Jury Jury has been variously described as the safeguard of liberty; an essential check upon unpopular laws; the best means for establishing truth. Equally enthusiastically, opponents complain that the jury has never provided any protection against oppressive government; it sometimes shows a willful disregard for the law; it lacks practical expertise; and it introduces as much prejudice as good sense into its decisions. The value of juries in civil trials is disputed in the UK.

Opponents of juries argue that they are ineffective, irrational and cause delay; proponents argue that juries bring community standards to bear, can moderate the effects of harsh laws, and are a protection against incompetent judges. Although the use of juries is declining for various reasons, common-law countries have a clear symbolic regard for the jury and show great care in the selection of jurors. The strengths or weaknesses of the jury system are very much a matter of perception.

Forming an objective view upon the competence of laypersons to understand and apply legal principles appropriately is made more difficult by the existence of s8 Contempt of Court Act 1981 which prohibits any research into jury deliberations. On that basis there is no way of discovering precisely why jurors have reached the verdict they have in a specific case or whether they have understood the legal issues and applied the law as directed by the judge. Those who oppose the use of the jury in criminal cases suggest that these verdicts were perverse, and provide ammunition to their demands that trial by jury be phased out.

One major problem in identifying perverse verdicts is the existence of s8 Contempt of Court Act 1981: "It is a contempt of court to obtain, disclose or solicit any particulars of statement made, opinions expressed, arguments advanced or votes cast by members of a jury in the course of their deliberations in any legal proceedings. " Don't disturb the Jury! S8 prevents any investigation into events which might have occurred within the jury's retiring room.

In the absence of effective research into the reasoning process behind jury verdicts, it is difficult to gauge with any certainty the extent to which the average juror is capable of understanding and applying sometimes complex legal principles. The principle that jurors can never be impugned for their verdict has existed for hundreds of years. In Bushell's Case 1670 a jury had been fined for returning a verdict deemed to be contrary to the evidence. Bushell refused to pay and was committed to prison. He applied for habeas corpus and it was held by the Chief Justice Vaughan that both the fine and the committal were unlawful.

Jurors bring to their consideration of the evidence their own unique judgement and knowledge, and consequently a judge can never be in a position to conclude that their verdict was against the evidence. Tension between Judge's Legal direction and Juror's Lay Decision In Ponting 1985, the trial judge directed the jury that the defendant's defence had no legal foundation, yet the jury went on to acquit the defendant. In other widely reported cases, jurors have acquitted defendants who, according to strict legal principles have no defence, seemingly for non-legal reasons.

Stephen Owen was acquitted when he shot at the lorry driver who had killed his child, presumably because of jury sympathy. In September 2000, a number of Green peace activities who had damaged a field of genetically modified wheat were acquitted by a jury despite a direction from the trial judge in the following terms: "It is not about whether GM crops are a good thing for the environment or a bad thing. It is for you to listen to the evidence and reach honest conclusions as to the facts. " The jury appears to have ignored that clear direction. Is Jury always correct?

In one case, the Court of Appeal was able to intervene to quash a clearly unacceptable jury verdict, reached following a conversation with the deceased victim by means of an ouija board. In Young 1995 the Court of Appeal was able to intervene because the offensive part of the jury's deliberation had taken place at a hotel rather than in the jury retiring room. In Tharakan 1995 it was held that it was important for discussions to take place only in the presence of all 12 jurors, and on that basis the appeal was allowed. Should the Judge intervene the Jury?

S8 Contempt of Court Act 1981 restricts the investigations that can be conducted by judges into alleged misconduct within the jury retiring room, but if judges were allowed to investigate the manner in which a verdict was reached, different problems would be created. Jurors who reluctantly went along with the views of the majority would have the opportunity to belatedly reopen the case by alleging impropriety, and convicted defendants or their lawyers might be tempted to pressurize jurors in an attempt to identify possible improprieties on which to base an appeal.

Is the Jury professional enough to maintain Justice? The issue of jury bias was considered by the European Court of Human Rights in the case of Sander v United Kingdom 2001. The applicant had been convicted by a jury which, he argued, had demonstrated racial bias. His application was based upon breach of Article 6 European Court of Human Rights, the right to a fair trial. During the course of the trial a sealed letter was sent to the judge by a juror expressing concern that 2 fellow jurors had been overheard telling racist jokes.

The applicant and his co-accused were both Asian. The trial judge invited the jurors to examine their consciences overnight. The following morning he received 2 letters, one of which was signed by all members of the jury strenuously refuting any suggestion of racial bias, and the second from one member of the jury apologizing for earlier comments which might well have been overheard, and declaring that he was not racially biased. The judge decided not to discharge the jury, which eventually convicted the applicant and acquitted his co-accused.

It was held by the European Court of Human Rights that the trial judge had not taken sufficient steps to remove doubts as to the jury's impartiality. An appeal against conviction based on Article 6 European Court of Human Rights was dismissed by the Court of Appeal in Smith (Lance Percival) 2003. The grounds of appeal were that the evidence of the black defendant conflicted with that of the white witness, and that all the jurors were white. It was held that since the offence arose from the common event of violence outside a nightclub, the jury was capable of trying the issues fairly and impartially.

Considerable reservations exist as to the ability of juries to deal with prosecutions involving complicated allegations of fraud. "Special juries" made up of persons experienced in dealing with commercial or financial matters were abolished by s18 Juries Act 1949. In more recent times, the emphasis has been on providing for pre-trial hearings before a judge to identify the contentious issues in complicated cases, in equipping courts with new technology to make the visual display of documents on video screens a possibility, and permitting the use of glossaries and the reception of complex or technical evidence in a simplified form.

How to overcome the shortcoming The Frauds Trial Committee in 1986 recommended that juries be replaced in serious fraud cases by a fraud trial tribunal comprising a judge sitting with 2 lay assessors. The Committee concluded that long fraud trials are so complex that it is unreasonable to expect lay jurors to cope with such evidence. Lord Auld concurred with those views and CJA 2003 includes provision allowing for trial by judge alone in complex fraud trials.