“The jury system is often described as “the jewel in the Crown” or “the corner-stone” of the British criminal justice system. It is a hallowed institution which, because of its ancient origin and involvement of 12 randomly selected lay people in the criminal process, commands much public confidence.” – Lord Justice Auld (1999) Review of the Criminal courts of England and Wales, Chapter 5, paragraph 1
Trial by jury is the idea that 12 ordinary randomly selected people are chosen through a process called voire dire and are asked to be the arbiter of facts in a criminal trial. Under the Juries Act of 1974, in order to be eligible for jury service, one must be a) between the ages of 18-70, b) registered on the electoral roll, c) lived in the United Kingdom for the last 5 years, d) not been disqualified according to parts I & II of s.1. This essay will seek to argue that although several merits have been attributed to the institution in that it prevents the application of unpopular laws and allows for the facilitation of deliberate democracy, in recent times the role that juries play have cast a shadow on its true original function. My argument will focus on four main aspects; namely public participation and how this affects the nature of perverse verdicts, and the concept of the model jury in which it is so highly regarded upon, and the issues regarding impropriety which run counter to it. I will be using a range of cases and evidence to illustrate and highlight the most serious questions that the future of trial by jury poses. Essentially, how the notion of confidence is in jeopardy and shows no real sign of improving.
In essence, trial by jury in England and Wales effectively encourages public participation and deliberative democracy. Lord Denning describes the process of jury service as giving ‘ordinary folk their finest lesson in citizenship.’ (Elliot & Quinn: 2008, 251) This can certainly be the case. Twelve ordinary lay persons that belong to various walks in life, drawn into the trial procedure, without any formal training and are asked to be the arbiters of the facts of the case, can provide a fresh innovative and legitimate approach. Their relative diversity of experience and their knowledge of common people, combined with their means of thought and conduct can outweigh a judge or a bench of judges. They help to assist and decide upon the rights of their fellow-citizens, and therefore their verdict paves the way forward towards the justification of those rights. Clearly, such participation offers the public insight into the mechanics of the judicial system; it successfully enhances a solid sense and sobriety of judgement and encourages serious responsibility in matters of important affairs. With participation comes the ability to judge according to conscience. This is due to the fact they can ultimately decide whether a person is guilty or not, and as a result Elliot and Quinn note that ‘where the law requires a guilty verdict, genuine justice does not.’ (Ibid) Hence, Juries offer a bulwark against strict state prosecutions. However, one can express reservations in relation to a jury finding its way through the maze of complex and conflicting facts. The Roskill Committee claimed that many juries had expressed some trouble in trying to comprehend the evidence, and so were more likely to acquit. This seems to correlate with research carried out by Baldwin & McConville. They examined 500 cases consisting of both convictions and acquittals, and found that 25 per cent of acquittals posed serious questions. (Baldwin & McConville: 1979, 70) This demonstrates that juries will not base their decisions on facts or even the law, because they very often allow their conscience to obstruct the administration of justice. A jury that has difficulty in comprehending the evidence and the application of legal rules provides no suitable protection against wrong decisions. It is this argument that leads to the problem of ‘perverse verdicts. A perverse verdict of a jury is that which is ‘either entirely against the weight of the evidence or contrary to the judges direction on a question of law.’ (Oxford: 2009, 406) In R v Wang  UKHL 9, under s. 2, a question was raised by the Court of Appeal to the House of Lords. ‘In what circumstances, if any, is a judge entitled to direct a jury to return a verdict of guilty?’ the House of Lords stated that the duty of the judge is to direct the jury to acquit when there is no evidence on which a reasonable jury could convict. However, this does mean that a judge can direct the jury to convict where it is evident that the defendant has no defence. Thus, a judge cannot dictate a verdict. Under the Criminal Justice Act of 2003, s.43 discusses the subject of complex fraud trials. This was a measure by the government to curb the right to trial by jury. However, after much controversy it was eventually removed. Consequently, to a defendant, the main effect of withdrawing a case from the jury’s deliberations and directing a conviction is that the judge is depriving the defendant of a possibility of receiving a perverse verdict. However, it is the ability to give perverse verdicts which is the cause of such controversy. In the case of R v Ponting  Crim LR 318, a senior Ministry of Defence official had violated the Official Secrets Act of 1911, as he considered it be a matter of public interest, whereby the government had lied. He was also acquitted by the jury. As a result of this, the Official Secrets Act of 1911 was amended. On one hand, juries allow ordinary people to insert moral guidance into the legal system. Where there is such a strong strength of feeling, it is a key indication that a cross-section of society is deeply discontented with a facet of criminal law or justice. In this respect, such acquittals are a vital reform indicator, which helps make the system more democratic. Nevertheless, juries are not constrained by the laws or by judicial precedent. They need not justify their verdicts, in contrast to a judge who has to give a comprehensive explanation of their verdict, and the legal principles they base it on. Hence, juries can convict a defendant for any reason necessary, and due to the secrecy of the court it is difficult to tell whether that decision is justifiable. This can be seen as a downside to jury-equity. Lord Justice Auld concluded that ‘juries have no right to acquit defendants in defiance of the law or in disregard of the evidence’. (Auld: 2001, 176) In September 2000, 27 Green peace volunteers and the executive Lord Melchett, were found not guilty of criminal damage after they had destroyed a field of genetically modified maize in Norfolk. Their defence was that they were trying to prevent the contamination of close organic crops. The Criminal Damage Act of 1971 s. 2 (b) states that if any person has damaged or threatened to destroy the property in question on the grounds of protection then they have a valid defence. Perhaps the jury in this case, believed that the actions of Greenpeace were justifiable on the grounds that many citizens are against the idea of genetically modified crops, and the uprooting of these crops would contaminate the organic crops. The Guardian newspaper quoted Scimac, a company that represented GM crops. ‘This verdict creates “fundamental questions about the ability of our legal system to cope with the gradual erosion of respect for public rights and authority.” (Guardian: 2001) Based on this it can be claimed that although jurors pledge an oath to give a true judgment according to the evidence presented before them, such verdicts can prove to be politically undesirable. The criminal standard of proof is ‘beyond reasonable doubt’, and an unrealistic standard of 100 per cent certainty is attached. This may be why juries are so inclined to acquit defendants.
However, it should be remembered that the jury system is a sacred institution that helps to secure substantial justice and although it may seldom depart from the stern application of logical rules, they do help to break down some of these rules and create an understanding. Within Adam Smith’s moral and legal philosophy, the role of the ‘impartial spectator’ is greatly illustrated. According to Smith, ‘the impartial spectator is an imagined man within the breast whose approbation or disapproval makes up our awareness of the nature of our own conduct.’ (Smith: 1759, 33) Smith therefore, tries to portray the voice of conscience. Holler & Leroch have utilized this concept and applied it to the position of the jury. They contend that legal rules tend to be very abstract and vague, and thus the application of such rules to a given case can prove to be of a problematic nature. Juries therefore have a democratic role to play. They can approximate what society as a whole considers as the social norms for the case under review. ‘In a (legal) judgment process, each juror has to individually and impartially sympathise with both parties within the court and as a result of this an impartial position can be approximated.’ (Holler & Leroch: 2010, 10) In this way, the jury can be seen as representing community values and raising confidence within the legal system. Public participation enables justice not only to be done, but seen to be done. In this light the public perception is respected. However, as Holler & Leroch state, achieving impartiality, is not as straightforward as one may claim. The difficulty in trying to give equal weighting to each party can alter their personal verdict. It is this argument which has lead to the issue of impropriety within the jury system. The notion of confidentiality that encircles jury deliberations, implies that little is known about how juries within England and Wales, function in practice. The presumption is that confidence in the jury system is strongly allied with the perceived fairness of the process, ultimate respect for the rights of the defendants and primarily, the diversity of the jury and its ability to consider evidence from various perspectives. This is enforced under s. 8 (1) of the Contempt of Court Act 1981. It is strictly forbidden ‘to obtain, disclose or solicit any particulars of statements made, opinions expressed, arguments advanced or votes cast by members of a jury in the course of their deliberation.’ This is upheld by the European Court of Human Rights who argue that secrecy preserves the finality of the verdict and protects jurors from threats, and ultimately allows for open discussions, and more importantly for the potential acquittal of the accused. Hence, the sanctity of jury deliberations is vital to the criminal justice system as it helps to preserve the traditional values which keep the juries within lawful bounds, and helps to facilitate a healthy democracy. This can also be seen alongside the concept of the ‘reasonable man.’ The reasonable man is a legal fiction within the field of jurisprudence that conveys an anthropomorphic image. He represents an objective standard in society against which an individual’s conduct can be measured against. Therefore, the reasonable man reveals whether there has been a breach of standard of care. However, it can be seen that in the following cases, the jury who help to form the concept of the ‘reasonable man’, have themselves fallen below standards of lawful and moral conduct. In R v Mirza  UKHL 2, it had been claimed that the jurors had ignored the judge’s directions concerning the defendant’s assistance of a personal interpreter. Some of the jurors were very apprehensive about this, and it was alleged that as a result of this mistrust, it lead to a guilty verdict on the basis of perverse racial grounds. An argument about the possible inquiry into jury deliberations was put forward by Lord Slynn. He stated that ‘it seems plain that discussion and disagreement in public as to what happened in the jury room is likely to undermine public confidence in the jury system.’ (R v Armstrong  2 KB 555, at 568.)This justification reveals something more sinister, that ignorance is bliss. This view was shared by Lord Steyn. ‘Injustice can be tolerated as the price for protecting the jury system.’  UKHL 2 at  Thus, despite the presumption that jurors abide by their oaths, the concept of a ‘model jury’ can prove problematic, not only in terms of the rigidity of the law, but in terms of juror accountability and this does little to embolden propriety. Moreover, in the case of Pullar v United Kingdom  22 EHRR 391, one of the members of the jury was an employee of a prime prosecution witness. The ECHR claimed that within a democratic society, the convention of impartiality is a vital ingredient; however there was no real indication to state that although there was some degree of proximity that it would automatically result in some form of bias towards the prosecution’s witness testimony. ‘In each individual case it must be decided whether the familiarity in question is of such a nature and degree as to indicate a lack of impartiality on the part of the tribunal’. (Ibid, at para. 38) The question here was not if the trial judge presiding would have dismissed the juror due to the connection between the juror and the witness, but whether their presence on the jury would have fatally influenced the verdict for the wrong reasons. What this demonstrates is that sometimes there can be no real attempt to ensure that deliberations are not tainted with prejudice, since the secrecy principle is at odds with common law. Such heavy dependence of propriety presents a very thorny issue within the world of jury deliberations. It can be extremely difficult for the appellants to show that there has been gross misconduct. Consequently, the judgments are anything, but an endorsement of a utilitarian view, such that maintenance of public confidence within the jury system is at the expense of allegations of a miscarriage of justice. Thus, this utilitarian method is incompatible with Article 6 of the ECHR (the right to a fair trial) and the Criminal Procedural Rules, which assert that the principal objective of any criminal trial is to exonerate the innocent and convict the guilty. Corker & Johnson argue that complaints of impropriety are usually ‘deterred, especially when juries have disbanded.’ (Corker & Johnson: 2005, 4) It can therefore be argued, whether the efforts trying to uphold the overriding principle of the secrecy of jury deliberations actually sustains confidence in the role of the jury, or whether additional challenges to verdicts, due to both ‘lawful and unlawful disclosures of misconduct’ (Ibid, 4) will encourage those who try to weaken the link between the public and the judicial process. I  declare that this piece of work contains [2,493] words.
Pullar v United Kingdom  22 EHRR 391 R v Armstrong  2 KB 555 R v Mirza  UKHL 2 R v Ponting  Crim LR 318 R v Wang  UKHL 9
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