In the 12th century Henry II took a major step to developing the jury system by setting up a system to resolve land disputes using juries. Twelve unpaid men were given the responsibility of uncovering the facts of a certain case on their own, rather than by listening to arguments from both the prosecution and defence. The church banned participation of the clergy in trial by ordeal in 1215 and in the same year, trial by jury became a reasonably definite right in one of the most influential articles of Magna Carta. Article 39 of the Magna Carta contained the principle ‘trial by peers’, which is still used today in modern day cases.
Today the jury is considered a fundamental part of the English legal system, despite only a minority of cases actually being tried by jury. The jury is composed of twelve unpaid lay members of the public, that is, ordinary people from society with no legal qualifications, who are randomly selected from the electoral role and called to court by means of summons. Since the Bushell’s case of 1670, juries have often been referred to as the deciders of fact, as this case gave jurors the right to give a verdict according to their conscience, regardless of the opinion of the judge.
An important turning point in the history of the jury was the Bushell’s Case (1670). In August 1670 two preachers, William Penn and William Mead, who had non-conformist views of the Christian religion were arrested for holding a religious meeting in Gracechurch Street, London. Their trial took place in September 1670 and was to be heard before the mayor of London, the recorder for London and a panel of twelve jurors. From the beginning of the trial, the defendants were treated unfairly and given the irrational nature of the trial, the verdict seemed predictable.
However the jurors, led by Edward Bushell, refused to comply with the court and found Penn and Mead only guilty of speaking in Gracechurch Street. The recorder lost his temper with the jury and the jurors were locked up until they returned a verdict the court could accept, however the jurors held firm and refused to change their decision. The recorder fined the jurors and imprisoned them, and also imprisoned Penn and Mead for non-payment of their fines. Nevertheless, Bushell did not let the matter lie and triumphantly applied for a writ of habeas corpus in the Court of Common Pleas and, along with his fellow jurors, was released.
Ever since this case it has been established that the jury were the sole deciders of fact, with the right to give a verdict according to their conscience, and could not be penalised for taking a view of the facts opposed to that of the judge. Until 1972, juries were selected on the basis of a property qualification, which resulted in juries, according to Lord Devlin, being ‘predominantly male, middle-aged, middle-minded and middle-class’.
This qualification resulted in millions of people being excluded from jury service, which contrasted the idea that jurors should be widely representative of society in terms of age, gender, ethnicity and occupational backgrounds. In 1965, the Morris Committee recommended that the right to do jury service should correspond with the right to vote, and this reform was introduced in 1972, where jurors would be randomly selected from the electoral register. However, the new system still excluded a large number of people from society.
The Juries Act 1974 set out the qualifications for jury service in criminal and civil cases. The selection rules identified three categories of people who would not have to serve on a jury. Firstly, those disqualified by prior conduct, such as those who had served custodial sentences, could not be on the jury. Secondly, those ineligible by occupation, such as members of the clergy, judges, professional lawyers, police officers and other members of the criminal justice system, or who was suffering from a mental illness, could not be on the jury.
Lastly, those excused as of right by virtue of their public service, such as MPs, armed forces personal and medical professionals could not be on the jury. Following the inspection of these categories, the Auld Review of Criminal Justice (2001) recommended widening the pool of potential jurors in order for the system to be more representative of society. The Government responded to the recommendation with its 2002 White Paper which proposed reforms to jury selection in order to cut down on the number of exceptions in the 1974 Act. The reforms brought by the Criminal Justice Act 2003, contained within s.
321 in conjunction with schedule 33, amends s. 1 of the Juries Act 1974. This act now provides that potential jury members must be: aged 18 to 70, on the electoral role, a resident in the UK for at least five years since the age of 13, not a mentally disordered person and not disqualified from jury service. The Act also introduced the presumption that all people will undertake jury service and no occupations are exempt, making juries more representative of society. However despite this, cases have been brought forward arguing that having police officers or prosecutors sitting as jurors creates the risk of bias.
This is exemplified in the case of R v Abdroikof (2007) which established that people will not be allowed to sit as a juror if their ordinary employment would lead a fair-minded and informed observer to conclude that there was a real possibility that they would be biased. Since 2001, jurors have been selected by the Jury Central Summoning Bureau, which randomly selects jurors by computer using the electoral register. Jurors are then summoned to attend court on a specified date and have 7 days to complete and return the summons document. Once all jurors arrive at court, twelve names are selected to sit on the jury for a certain case.
The jurors must then take an oath which provides that jurors will base their verdict on the evidence presented in court with no external influences. It is at this stage that jury vetting may take place. Jury vetting is the process of checking that a potential juror does not hold extremist views which some feel would make them unsuitable for hearing a case. Vetting includes checking police, Special Branch and security service records of potential jurors and is only permitted under the authority of the Director of Public Prosecutions (DPP).
The DPP can only order the vetting of the jury if, firstly, it appears that a juror is disqualified, or an attempt has been made to introduce a disqualified juror. Secondly, if there is a belief of attempted interference with a jury in a previous aborted trial or, thirdly, the nature of the case entails a special effort to avoid disqualified jurors. This type of practice first came to light in the trial of R v Aubrey Berry and Campbell (1978), where two journalists and a soldier were accused of collecting secret information, in breach of the Official Secrets Act.
During the trial it became known that the jury had been vetted to check their ‘loyalty’, under guidelines laid down by the Attorney General, and a new trial was ordered. This led to the publication of the Attorney General’s guidelines, which it was revealed had been used since 1974. These guidelines were revised in 1988 and it was found that they confirm that juries should be chosen at random, with people being excluded only under the statutory exceptions, and the proper way for the prosecution to exclude a juror was challenge for cause in open courts.
Challenge for cause is one of the two ways the jury may be challenged. Before jurors are sworn in to the jury, they may be challenged. Both the prosecution and the defence can challenge a juror for cause on the grounds of privilege or peerage, disqualification, ineligibility or assumed bias. Because jurors cannot be questioned prior to potential challenging, a challenge for cause is only likely to succeed if a juror is personally known by anyone involved in the trial, or if jury vetting has taken place. Another form of challenging is stand by.
The prosecutor also has the power to ask a juror to ‘stand by for the Crown’, meaning that they may only serve if no other juror is available, but this power is only exercised in very rare circumstances or in cases affecting state security. Standing a juror is slightly different from challenging a juror for cause because no reason is required. It also differs in the sense that the juror is not conclusively removed from the jury but will be re-called to the jury-box should the entire jury panel be exhausted without a full jury being obtained.
At this stage the prosecution must either accept the juror or show cause why the juror should not serve. It is also at the summoning stage that the potential jurors can indicate whether they are disqualified, seek deferral or excusal, or are exempt on the basis that they have carried out jury service in the last 2 years. A person is disqualified from jury service for life if they have seen sentenced to a term of five or more years’ imprisonment, or for 10 years if the person has served any term of imprisonment or community sentence. Those on bail are also disqualified, as are those with certain conditions under the Mental Health Act 1983.
If a person is unable to fulfil the duty due to exams, pre-paid holidays, etc. then they must seek a deferral. A deferral is a postponement of jury service where applicants can show good reason why they cannot do jury service on the date specified. Jury service must then be carried out within 12 months of the deferral being granted. If a potential juror can show good reason why they cannot do jury service within the next 12 months, an excusal may be granted. In this situation, the applicant will not have to do jury service on this occasion, but could be called again in the future.
A small number of jurors are also discharged by the judge at court on the grounds of insufficient understanding of English or physical disability, which often includes those with significant visual or hearing impairments. This is demonstrated in the case of R v A Juror (Jeffrey McWhinney) (1999), where a deaf juror unsuccessfully appealed against his discharge by the judge. The jury have the responsibility of reviewing evidence in court and deciding upon the true facts of the case. The judge may advise them on points of law, but it is the jury that must apply the law to the facts that they have found and thereby reach a verdict.
If the jury are summoned for a criminal case and their final verdict is that the defendant is guilty, the judge will decide on the appropriate sentence. However if the jury is called for a civil case, which happens only very rarely, the jury also have to decide on how much money should be rewarded in damages. Once the evidence has been reviewed, the jury retire to a private room where they will discuss with their fellow jurors on what the verdict should be and the foreman of the jury will conduct a vote.
It is required that the jury come to a unanimous decision on what the verdict should be, however if after the 2 hours allocated to the jury they have yet to reach a unanimous decision, they can ask the judge if he will accept a majority vote. If the judge refuses, the discussion will continue. However if the judge accepts the majority verdict, it must be 11-1 or 10-2, until that verdict is reached the discussion must continue. When deciding their verdict, the jury are only allowed to consider evidence that arose in court.
Any evidence that has not been introduced in court cannot be considered by the jury. A case where this issue arose is R v Marshall and Crump (2007), where two defendants had been convicted of offences including robbery and manslaughter. After their conviction, material printed off the internet was found in the jury room. The defendants appealed on the basis that their convictions were unsafe, however as the evidence had been printed off legitimate websites to which the public had general access and only concerned issues as to sentencing, the convictions were found to have been completely safe.
Once the verdict has been reached, the jury returns to the court room and the judge will firstly ask the foreman to stand, and then ask the foreman if a unanimous vote has been reached. If the answer is no, the judge will then proceed to ask if a majority vote has been reached. The foreman of the jury will deliver the verdict and if the final verdict sees the defendant to be not guilty, the defendant is acquitted. If the verdict is guilty, then the judge will move onto sentencing. Although the jury mainly appear in the Crown Court, they also appear, though very rarely, in civil cases.
Today, the law on the matter of juries in civil cases is contained within s. 69 of the Supreme Court Act 1981. Under the Act, jury trial in the High (12 jurors on the jury) and County (8 jurors on the jury) Court is optional, and now limited to cases of fraud, defamation, malicious prosecution and false imprisonment. If a jury is summoned for a civil case, the jury must listen to evidence, ask the judge on points of law and decide the facts of the case. They must then retire and discuss the verdict with the rest of the jury.
On their return to the court room they must give their verdict of liable or not liable, and if the verdict is liable, they must decide upon the amount of compensation to give out. Juries also appear in the Coroner’s Court, where they must identify the person who has died and decide when and where the person died. To conclude, the jury is composed of 12 lay people with no legal qualifications who are called up for jury service by means of summons. Those called upon must attend court if they’re not disqualified.
If potential jurors are unable to fulfil their jury duty, they can ask for a deferral or an excusal. They can also ask to be discharged, but only people who are not physically capable of sitting in court for various reasons will be granted this. The main function of the jury is to decide upon the facts of a case. If they do not understand something, they may ask the judge on points of law, but the overall verdict is the jury’s responsibility. Although the jury mainly appear in the Crown Court, they also appear in civil cases and in the coroner’s court.