ESSAY - THE JURY SYSTEM

OVERVIEW

It is generally accepted that the jury of the ’12 good men and true’ lies at the heart of the British legal system. It introduced democratic humanising element into an abstract impersonal trial process, thereby reducing the exclusive power of the legal professionals who would otherwise command legal procedure without reference to the opinion of the majority. The jury stand between the crown and the subject, one of the main defences of personal liberty. It is generally accepted that the function of the jury is to decide matter of fact and that matter of law is the province of the judge, but most of the time the jury decision is based on a consideration of a mixture of fact and law. It is a contempt of court to fail to give a verdict. In 1977 Judge Aniwa Cooray sentenced two women to 30 days in prison for contempt of court for their failure to deliver a verdict. The women only spend one night in court because of the uproar generated by Cooray’s action led to their release and subsequent overturning of his sentence on them. bServing on a jury can be a harrowing experience for reasons of phonographic context of cases, violence, complexity, terrorism, fear for their life, lack of adequate protection. Many argued juries received inadequate protection and support. The only recognition available is that the judge can exempt them from further jury services for a particular period. In May 2005 a fraud trial collapsed after jurors had spend almost two years at Oil Bailey London due to the complexity of the case.

The judges have power to direct juries to acquit the accused where there is insufficient evidence to convict them. There is however no corresponding judicial power to instruct juries to convict (DPP v Stonehouse (1998); R v Wanage (2005). The judge must not put pressures in jury to reach a verdict, finding such pressure lead to overturning the conviction In R v McKenna (1960). Juries do not have to justify, explain or even give reasons for their decisions s.8 of the Contempt of Court Act 1981. Juries can seek advice of their judge and such advice must be given in the open court R v Townsend (1982). In Attorney General v Associated Newspapers (1994) House of Lords ruled that it was contempt of court for a newspaper to publish disclosures by jurors of what took place in the jury room while considering verdict. The factors place juries in a very strong position to take decisions that are unjustifiable in accordance with the law for the simple reason that they do not have to justify the decision.

In R v Clive Pointing (1985) and Pat Pottle and Michael Blake The jury reached a not guilty verdict in open defiance of the laws. In R v Kromlict (1996) 4 protestors did not deny damaging Hawk Jet planes valued at £1.5 million but the jury returned verdict of no guilty because they claimed they were trying to avoid genocide by the use of the jets by the Indonesian government against the people of East Timor. Juries continue to reach perverse decisions where they are sympathetic to the cause pursued by the defendants. In September 2000 28 Greenpeace Volunteers, including its Executive Director, Lord Melchet, were found not guilty of criminal damage after they had destroyed a field containing genetically modified maize. It was fear of inability to secure conviction that led the government to abandon prosecuting Katherine Gum who leaked official secret on spying on members of the United Nations in breach of Official Secret Act. The jury refused to find Stephen Owen guilty of any offence after he had discharged a shotgun at a lorry driver that has killed his son. In September 2000 a jury found Lezley Gibson not guilty on a charge of possession of cannabis after she told the court that she needed it to relief the symptoms of multiple sclerosis.

In criminal law it is an absolute rule that there can be no appeal against a jury’s decision to acquit. The Attorney General can however refer the case to the Court o Appeal on point of law provided for under Criminal Justice Act 1972. There is no possibility of the actual case being retried or the acquittal decision being reversed, but the procedure can highlight mistake made permit the Court of Appeal to remedy the defect for the future Attorney General’s Reference (No.1) (1988) and Attorney General’s Reference (No.3) (1999). In civil laws cases there is a possibility of jury verdict being overturned but only in circumstances where the original verdict was perverse.

The possibility of a jury deciding a case on the basis of majority was introduced by CJA 1967 unlike unanimous decision previously required. In R v Barry (1975) failure of a jury to say in open court the numbers of members that agreed and the number that disagree with the verdict led to a conviction being overturned. In R v Pigg (1983) HL held that it was unnecessary to state the number who voted against where the foreman stated the number in favour because determination of the minority is a matter of simple arithmetic. In R v Millward (1999) the foreman of the jury said in open court that majority of all of us agreed but informed the judge after the verdict that the verdict was a majority of 10:2. On appeal the court of appeal exercised sophisticated reasoning s.17 of the CJA was not used, but s.8 of the Contempt Act 1981 discourage disclosure of what happened in jury and would set a dangerous precedent to re-open the case.

The trial judge may discharge a whole jury if certain irregularities occur s.16(k) of Justice Act (1974). CJAs 1971, 1988 and 2003 provides that any person between the ages of 18-70 who is on the Voters Register and who has lived in the UK for at least 5 years is qualified to serve as a juror.

Procedures

An officer of the court summons a randomly selected numbers of individuals, panel of possible jurors drawn up actual jury are then randomly selected by means of a ballot. There is the view that randomness does not equal representation. In addition Voters Register is not accurate as young people tend to move, members of the ethnic majority under reported as many of them do not register for various reasons and many people disappeared from the registers when it was being used for Poll tax.. CJA 2001 removed all eligibility exemption with the exception of those with mental cases and some categories of ex-convicted. In addition, people with disability, especially the deaf were exempted because non-members are not allowed into the jury room. With the abolition of ineligibility and availability of excusal and deferral as of right, it is expected that there will be application for excusal or deferral. Both prosecution and the defence have a right to challenge the composition of a jury. Challenge on racial ground not be successful, while selection outside the approved criteria would be frowned at by the courts.

In respect of civil law, the use of juries has diminished considerable and automatic recourse to trail by jury is restricted to small number of areas. Prior to 1854 all common law cases were decided by jury. The Common Law Procedure Act 1854 provided that cases could be settled without jury if the parties agreed. Since then the role of the jury has gradually reduced. Supreme Court Act 1981 limit right of jury trial to fraud, defamation, malicious prosecution, false imprisonment but prolonged cases are excluded. For example libel case involving McDonald and London Green Peace was rule to be beyond jury because of the complexity.

Review of Jury’s Verdict on Award of Damages

One of the areas of problem with jury verdicts is the amount of huge value of award they give for damages. This has been a major concern to the Higher courts. In Aldington v Watts and Tolstoy (1990) damages of £1.5 million were awarded. ECtHR subsequently held that the award was disproportionate to Tolstoy rights under Art. 10 of ECHR. (In the UK Tolstoy Miloslavsky v Uk (1995). S.8 of CLBA 1990 gave the appeal court the power to alter damage by jury to a level they felt proper. In Rantzen v Mirror Group Newspaper (1993) CA stated that the judges should advise juries in making award to consider purchasing power of the award and its proportionality to the damage suffered to the reputation of the plaintiff and should refer to the award made in court under s.8 of CLSA 1990 (£250,000 award was reduced to £110,000). In person injury cases judges could indicate what sort of level would be appropriate (John’s award of £350,000 for libel and £275,000 in exemplary damages was reduced to $75,000 and £50,000 respectively.

In 1995, Defamation Act (1995) was designed to simplify the procedure for defamation. One year limitation was placed on bringing claims, statutory defence based on responsibility for publication, the defences was updated, more streamline procedures for defendant who has offered to make amend and power for judge to deal with cases without jury. Court of Appeal Grobbelar v News Group Newspapers (2001) the court of Appeal used its power to completely overturned the award of damages, House of Lords further reduced the award from £85,000.00 to £1 nominal damages with no cost. Awards against police coming from public purse – Thomson and Another v Commissioner of Police (1997) the CA reduced the damages from £50,000 and £220,000 to £25,000 and £15,000 respectively. Hill v Commissioner of Police fro the Metropolitan (1998) £45,600 was reduced to

Public funding is not available for defamation of character cases and this makes such cases a rich man case. People without the necessary means are finding it extremely difficult to gain redress for negative communication. It is hope that the summary procedure under the Defamation Act 1996 would take care of this.

CRIMINAL JURY TRIAL

Criminal Jury trial is essential the creation of the crown court. Magistrates deal with at least 95% of criminal cases. In practice juries deals with 1% of all cases that are decided at the crown court. 60% of defendants plead guilty on all count and therefore have no need for jury. In absolute and proportional term, jury does not play a significant role in the determination of criminal cases. The right to jury trial has been abolished in Northern Ireland since 1973.

Provisions of Criminal Justice Act (2003) in relation to Trial by Jury

The Criminal Justice Act (2003) included a provision abolishing juries in complex fraud trials. In June 2005 following the collapse of the London Underground Jubilee Line Case, the Attorney General indicated that the Government would be seeking to implement this provision owing to the inability of the Jury to deal effectively with complex trials. Another important issue with the system is Jury tampering which covers a ranges of circumstances in which jury independence is or may appear to be compromised. Ss. 44 and 46 of the CJA 2003 provides for a trial on crown court without jury where there is evidence of tampering or continue trial where a jury has been discharged for tampering. Jury has been excused in case of complex fraud cases arising from George Walker trial. Either way offences are not summary offences but those that could go either way. CJA 2003 did not address either way offences.

R v Smith (Patrick) 2005) - A member of the jury informed the judge and a members admitted but the judge did not discharged and the jury who went to convict. HL allowed an appeal against conviction on the ground that the jury were disregarding direction and showing bias.

R v Young (1995), court of appeal order the retrial of a man on the ground that four of the jury attempted to contact the alleged victim using a Ouija Board (drunken experiment). In another case the jury clubbed together and spend £150 after being sent to an hotel for not being able to reach verdict. In December 2000 a trial costing £1.5 million was aborted because a female member of the jury was conducting an improper relationship with a male member of the jury protection team. In another instance a jury was discharged because 4 members were playing card during jury time.

THE HISTORICAL PERSPECTIVE

According to historian Maitland, the jury began as a body of neighbour summoned by some public officer to give upon oath a true answer to some question. It was a procedure that was brought to England by William Normandy after the conquest of 1066. It began as a royal prerogative or procedure. The earliest recorded juries were employed to discover the present facts in answer to enquiries addressed to them by Royal officials. . The duty of this jury of presentment was originally to bring criminal cases to the judges’ notice and it did not adjudicate in the matter. The suspect could be either confessed or be manifestly guilty, in all other cases were the accused denied, proof would be by ordeal e.g. Judgement of water. There were a number of famous instances where the grand jury prevented the powerful from bringing malicious and unfounded accusations. The grand jury was useful in calling attention to infringements of the laws by officials and to abuse in the administration of the government. The influence of the grand jury started dwindling as local government developed in the Middle Ages down to the 17th century.

The petty jury does not present the reputation of criminality but decides in fact whether the accused is guilty of the offence alleged. It originated through the abolition of the ordeal as a mode of proof after the Lateran Council of 1215. At first judges like Pateshull and Raleigh were inclined to compelled the accused to go to trial by jury, but later this give place to an alternative – either such trial or the peine forte et dure a form of torture legalised by Edw 1. The object of the torture was to compel the prisoner to submit to the common law trial by jury. As late as 1658 a prisoner was pressed to death. The advantage gained was he died without being convicted and so avoided forfeiture. In 1772 the peine forte et dure was replaced by a plea of guilty and in 1927 this was again replaced by a provision that if the prisoner remains a mute a plea of not guilty shall be entered.

Star Chamber (Administrative Court) took it upon itself the task of controlling the jury and punishing those who seemed to make wrongful decisions or act improperly with fine and imprisonment. The severity of the penalties may have led to it failing into disuse. The Star Chamber was subsequently abolished in 1641. Before then Judges had arrogated to themselves the power of dealing out fines and imprisonment to jurors who gave perverse verdicts. In 1670 the practice of judges was held to be illegal in Bushell’s Case (1670) and since that date juries are controlled by the power vested in the Judge to discharge a jury which disagrees and by the power in an appellate court to grant a new trial where the verdict is against the weight of evidence.

Scholars are not united in their opinions on whether the jury was the light that shows that freedom lives or was it of symbolic value but little real protection of liberties. J. M. Beatie (London Juries in the 1690s; in Cockburn and Green (eds) (1988), extract p. 24. Trial by jury emerged as the principal defence of English liberties. The grand jury that refused to indict the earl of Shafrebury and the trial jury of twelve citizens who acquired seven bishops were to be celebrated as saviours who had prevented the establishment of tyrannical government and had confirmed the jury as the ‘sacred bulwark of the nation’…… The jury was also seen as protecting ordinary individuals from arbitrary power and from malicious and unfounded charges, and as supporting a form of trial that gave English subjects a much fairer hearing when they were brought before a criminal court than the subject of less happy regimes across the Channel. It was also crucial to the defence of the most basic and fundamental of English liberties. The role of the jury was seen as being unfairly limited and restricted, as in trials for seditious libel. Marxist Douglas Hay view the property qualification as a tactic to ensure that the juries the radically unjust criminal law. The property requirement meant that the jurors were not representative of the people generally (in addition they were all men. It was argued that jurors would feel sympathetic towards certain types of accused but be distanced from the masses of the people brought to trial. A single jury was empanelled to hear a large number of cases – typically there were only two 12-man juries for the whole sessions. The session lasted several days and processed 50-100 felony cases. A mid-eighteen century assize judge would preside over more felony trials in a day or so more than a modern judge would see in a whole year. It was common for the cases to be tried and decided in batches. In December 1678 Middlesex jury dealt with 21 cases but deliberated only three times, the first batch consisted of 7 cases, second of eight cases, and last of six cases.

The jurors were usually veterans of earlier sessions. Trials took place at amazing speed. Most cases were not-guilty pleas but they were disposed of in short order. Typically a jury heard 12-20 cases in a day. The trial looked very different from today because without lawyers, there was no opening and closing speech, no examination or cross-examination of witnesses and no motions on points of evidence. Questioning of witnesses was done by the judge himself or by the accused. In some instances the judge rejected a verdict, probed the jury’s reasoning, argued with the jury, gave further instructions, and told it to go away to deliberate afresh. Hearsay evidence seemed to be admitted quite commonly. Evidence of previous convictions was frequently considered by the jury as part of the evidence. The rise of lawyers cost the judges their commanding role and thereby made the jury more dangerous, since the judge could not control it so well.

The rule that the accused could not have a lawyer started to break down in about 1730s. Prior to this the trial judge was supposed to serves as defence counsel and the requirement of high degree of proof was regarded as safeguard. When the accused or somebody in his or her behalf take the stand, more often than not they did not offer a spirited defence, but offered perfunctory excuses or defences, plea for mercy or in case of witnesses, offered testimony as to good character or mitigating factors. Lawyers were allowed for misdemeanour case though not normally for felonies. Lawyers were also permitted if there was point of law to argue. The accused lacked the safeguards both of the inquisitorial and of the adversarial systems.

The criminal law at that time clearly defended the interests of the property owners and was responsive of the interests of the statute-makers in a parliament elected only by the people with property. Jury deliberations were casual to a high degree allowing judges to bullied juries thus coercing them into following his line of reasoning. The judges ignore jury recommendations to mercy when it suited them.

Bushel’s case in 1670 and Fox’s Libel act of 1972 gave freedom from judicial coercion while increasingly systematic presentation of trial evidence facilitated independent decision making too. 18th century Essex juries were more experienced in law than hitherto, and more independent.

CONCLUSION

From the 11th century to the modern day jury, the jury system has gone a long way. That the system survives up to the present moment is an indication of its resilience. Opponents of juries argue that they are ineffective, irrational, anti-democratic who secret decision making process runs counter to the rule of law and should be discarded for its insignificant contribution to the justice system. On the other hand the proponents argue that juries bring community standard to bear, can moderate the effects of harsh laws, and are a protection against incompetent judges. The tendency of the jury to occasionally ignore legal formality in favour of substantive justices is one the major points in favour of their retention by proponents. The Jury system command support, they are seen as essential components of fair and just trial process. It represents the ordinary person inputs into the legal system and provides the whole system with a sense of legitimacy. Most jurors seem to be reasonably happy with the system despite the stress and inconvenience it can impose. Research by the Court Services carried out in 2000 revealed that 95% of the jury were satisfied. The impact of the jury system might not be significant to justice delivery systems in term of quantity, but the ideological power of the jury should not be under-estimated. Moreover, researches have shown that defendants do not trust magistrate court and they belief that the do offer more protection that magistrates. The question is why this extra protection is not open to all or a significant majority of defendants? It may however be necessary to explore ways of allowing access to the operation of the jury for research purpose. Such process would only improve the system. I am of the view that the jury system is major significant tool for getting feedback on what the rest of the society feel about the legal system. It is an important institution in the legal system that should be cherished and preserved.