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 balancedIn 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 jurys
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 Defendants
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 defendants

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 prosecutions 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 Ds 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 Darbyshires article and the cases
mentioned in the lecture