Trial by Jury – Should They Exist?

During the Viking occupation of England, it seems that the Scandinavians, when not on the warpath, were a litigious people and loved to get together and hear legal argument. Each to their own, I suppose; nowadays, you couldn’t pay people to sit and listen to … wait, what am I saying? Of course you could; they’re called lawyers.

Anyway, the Vikings didn’t have professional lawyers, but many of their farmer-warriors were learned in folk custom and in its intricate judicial procedure. A Danish town in England often had, as its main officers, twelve hereditary ‘law men.’ The English king Æthelred the Unready set up an early legal system through the Wantage Code, one provision of which stated that the twelve leading thegns (minor nobles) of each wapentake (a small district) were required to swear that they would investigate crimes without a bias. These juries differed from the modern sort by being self-informing; instead of getting information through a trial, the jurors were required to investigate the case themselves.

In the 12th century, Henry II took a major step in developing the jury system. A jury of twelve free men were assigned to arbitrate in land disputes. As with the Saxon system, these men were charged with uncovering the facts of the case on their own rather than listening to arguments in court. Henry II also introduced what is now known as the “grand jury” through his Assize of Clarendon. Under the assize, a jury of free men was charged with reporting any crimes that they knew of to a “justice in eyre,” a judge who moved between villages on a circuit.

The Church banned participation of clergy in trial by ordeal in 1215. Without the legitimacy of religion, trial by ordeal collapsed. The juries under the assizes began deciding guilt as well as providing accusations. The same year, trial by jury became an explicit right in one of the most influential clauses of Magna Carta. Article 39 read: “No free man shall be captured or imprisoned, or stripped of his freehold, or of his liberties, or of his free customs, or be outlawed, or exiled, or in any way destroyed, nor will we proceed against him by force or proceed against him by arms, but by the lawful judgment of his peers, and or by the law of the land.”

In 1670 two Quakers charged with unlawful assembly, William Penn and William Mead, were found not guilty by a jury. The judge then fined the jury for contempt of court for returning a verdict contrary to their own findings of fact, and removed them to prison until the fine was paid. Edward Bushel, a member of the jury, nonetheless refused to pay the fine, and a judge ruled that a jury could not be punished simply on account of the verdict it returned.

Juries are summoned for criminal trials in the Crown Court, where the offence is an indictable offence. or an offence triable either way that has been sent to the Crown Court after examination by magistrates. Magistrates have the power to send any offence triable either way to the Crown Court but, even if they elect to try the case themselves, the accused retains the right to elect for a Crown Court trial with a jury. Summary offences are tried by magistrates and there is no right of Crown Court trial by jury.

Crown Court trial without a jury is permitted in cases of suspected jury tampering where there is evidence of a “real and present danger” and, despite the possibility of police protection, there is a substantial likelihood of tampering, and a trial without a jury is in the interests of justice. The first criminal trial in a crown court without a jury was approved in 2009.

Since 1925, a jury has been able to continue hearing a case after a member has died or been discharged. Now the trial can continue so long as the minimum number of jurors remain. In those cases, the judge should press the jury for a unanimous verdict. In the Crown Court the judge must not, in any event, suggest that a majority is acceptable until after 2 hours and 10 minutes. This was originally 2 hours but it was extended to allow time for the jury to settle after retiring. Unanimous verdicts were required until the Criminal Justice Act 1967.

A jury panel is summoned from eligible persons who are:

  • Registered electors aged 18 to 75
  • Resident in the UK for at least 5 years since age 13;
  • Not mentally disordered; and
  • Not disqualified for whatever reason.

Persons currently on bail are disqualified. Persons are disqualified for life if they have been sentenced to:

  • A life sentence;
  • Detention for public protection;
  • An extended sentence; or
  • Imprisonment or detention for 5 years or more.

Persons are disqualified for 10 years after:

  • Sentence, or suspended sentence of imprisonment or detention (less than 5 years); or
  • Community punishments or treatment orders.

Persons “not capable of acting effectively as a juror” may be discharged by the judge.

People are excused from jury service if:

  • they are currently a resident in a hospital or other similar institution, due to attend a hospital appointment or operation or recovering from an operation;
  • they regularly visit a medical practitioner for treatment;
  • they are in guardianship under section 7 of the Mental Health Act 1983;
  • a judge has decided they are not capable of managing and administering property or affairs because of mental disorder/mental health problem;
  • other medical reasons preclude their service. Medical certificates are only required if the Jury Central Summoning Bureau asks for one;
  • they have already booked and paid for an important family event such as a wedding or a holiday;
  • they have urgent work commitments which, if not completed on time, would have a detrimental effect to their business;
  • they have been on jury service in the past two years (except coroner’s juries), or the individual has been exempted from jury service for a period of time that has not yet ended. For example, the judge presiding over the Harold Shipman murder trial excused jurors from serving again for life.
  • they are a full-time member of Her Majesty’s naval, military or air forces and their commanding officer certifies that their absence would prejudice the efficiency of the service.

If there are not enough jurors on the panel then any person in the vicinity of the court can be summoned to make up the numbers, a process known as “praying a tales”. Jurors so summoned are called talesmen. This rare procedure was used by Judge Andrew Barnett at Salisbury Crown Court in June 2016 after realising that he was three jurors short. Rather than delay the start of the trial the judge dispatched his court clerk and usher to look for people to make up the numbers. An elderly woman with her shopping and a man on his bicycle were among those who politely declined the offer to spare a week of their time listening to the case. Eventually the judge’s strategy paid off and the trial was able to go ahead after one passer-by was recruited from the street and two other jurors were transferred from Winchester.

The clerk then calls the name of 12 of them at random, usually by drawing from a shuffled pack of cards with the names written on them. As each name is called, the juror steps into the jury box. Once the jury box is populated with 12 jurors, the clerk says to the defendant:

[John Smith], the names that you are about to hear called are the names of the jurors who are to try you. If therefore you wish to object to them or to any of them, you must do so as they come to the book to be sworn, and before they are sworn, and your objection will be heard.

The clerk then calls each juror individually to either affirm or to take the oath, reading from a printed card whilst, if taking an oath, holding a holy book in his right hand (New Testament for those Christians who will swear an oath; Old Testament for Jews; or Qur’an for Muslims). Some Christians (notably Quakers, Moravians and Jehovah’s Witnesses) will not take an oath because they believe it is prohibited by Matthew 5:33-37 and James 5:12. The right of Quakers and Moravians to affirm, rather than swear, when joining a jury was introduced under the Quakers and Moravians Act 1833, and later extended to those who were formerly Quakers or formerly Moravians under the Quakers and Moravians Act 1838. Since then the right to affirm has been extended to anyone who chooses to do so, and no reason for choosing to affirm has to be given. The option to affirm is now commonly used by Quakers, Moravians, Jehovah’s Witnesses, and some other Christians, as well as by atheists and agnostics.

Juries are often seen as an important check against state power. Other benefits of trial by jury are that it provides a means of interjecting community norms and values into judicial proceedings, and that it legitimises the law by having your peers interpret your guilt. Alexis de Tocqueville also claimed that jury trials educate citizens about self-government. Many also believe that a jury is likely to provide a more sympathetic hearing, or a fairer one, to a party who is not part of the government – or other establishment interest – than would representatives of the state.

This last point may be disputed. For example, in highly emotional cases, such as child rape, the jury may be tempted to convict based on personal feelings rather than on conviction beyond reasonable doubt. In France, former attorney, then later minister of Justice Robert Badinter, remarked about jury trials in France that they were like “riding a ship into a storm,” because they are much less predictable than bench trials.

Another issue with jury trials is the potential for jurors to be swayed by prejudice, including racial considerations. An infamous case was the 1992 trial in the Rodney King case in California, in which white police officers were acquitted of excessive force in the violent beating of a black man by a jury consisting mostly of whites without any black jurors.

The positive belief about jury trials in the U.K. and the U.S. contrasts with popular belief in many other nations, in which it’s considered bizarre and risky for a person’s fate to be put into the hands of untrained laymen. Consider Japan, for instance, which used to have optional jury trials for capital or other serious crimes between 1928 and 1943. The defendant could freely choose whether to have a jury or trial by judges, and the decisions of the jury were non-binding. During the Tōjō regime this was suspended, arguably stemming from the popular belief that any defendant who risks his fate on the opinions of untrained laymen is almost certainly guilty. Similarly, jury trials were abolished by the government of India in 1960 (this was followed by Pakistan soon afterwards) on the grounds that they would be susceptible to media and public influence. One Pakistani judge called a trial by jury “amateur justice.” Malaysia abolished its jury system on 1 January 1995, citing inter alia the danger of jurors untrained in the legal profession delivering verdicts colored by emotions or popular perception. One of the last trials-by-jury in Malaysia was the notorious Mona Fandey case in 1994.

Jury trials in multi-cultural countries with a history of ethnic tensions may be problematic, and lead to juries being unduly biased and partial. This is one of the reasons why both India and Pakistan abolished jury trials soon after independence. Indeed, in these countries, a jury trial is seen as a failing of some foreign legal system rather than an advantage; this is despite the fact that both nations are common law countries.

A major issue in jury trials is the secretive nature of the process. While proponents may say that secrecy allows the jury to remain impartial by protecting it from undue pressure or attention, opponents contend that this prevents there from being a transparent trial. The fact that juries do not often have to give a reason for their verdict is also criticised, since opponents argue it is unfair for a person to be deprived of life, liberty or property without being told why it is being done so. In contrast where there is a decision by a judge or judges, they are required to provide often detailed reasons of both fact and law as to why their decision was made.

Juries in England and Wales convict almost two-thirds of those they try, they convict more than they acquit in rape, they do not exhibit any racial bias, and they only fail to reach verdicts in fewer than 1% of cases. So juries do a good job and now we have the facts and figures to prove it. Plainly that must be the first requirement of jury trial, whatever else may be its value.

But that they work well is not the only reason to support trial by jury. Equally important is the fact that juries are one of the most democratic aspects of our unwritten constitution; they are democracy in action every day of the week, not just once every four or five years. There is no other part of the constitution that is so open to the public, where ordinary people participate in decisions of such immediate importance, and wield real power. There are jurors settling the fates of their fellow citizens in crown courts up and down the country every day of the week, determining by their verdicts whether or not defendants are guilty of the most serious crimes of violence and dishonesty such as murder, rape, robbery and fraud.

The advantage of a jury of 12 is that it reduces the chance of a mistake being made. It may be that one or two on the jury don’t believe the witness or the defendant, but that all 12 will be wrong is unlikely. Those who argue for trial by judge will have to accept that judges make mistakes and they are not infallible. But what if the judge makes a mistake of fact, chooses to believe the wrong witness, one that only a minority of the jurors would have believed? There is no remedy for that kind of mistake.

There is another powerful reason why trial by jury is necessary. In this age of mass media, most people derive their knowledge of what goes on in a court from what they read in the paper and see on television. But no newspaper report or TV item can ­possibly convey all the detail and subtlety of the hours of evidence given in court. An ­editing process is taking place: even the most impartial reporter has to filter the ­evidence. If all that citizens know of the criminal justice system is what they read in the papers and see on TV, they are going to get a misleading impression of how it works and that misleading impression can corrode their faith in the system.

By bringing ordinary citizens into the system and placing them at the very heart of the decision-making process, trial by jury exposes the criminal justice system to their scrutiny while ensuring they gain first-hand experience of how that system works. Trial by jury helps the criminal justice system reflect the values and standards of the general public. It’s vital for the health of the criminal justice system that citizens ­participate in it, and it is vital for democracy that they do, which might explain why politicians are always seeking to limit that participation.

Let’s make sure that never happens.

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