Is Jury Nullification Essential Power or Serious Shortcoming

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A key feature of the jury is that it must have impartiality and there is an argument that an accused person has the right to expect that the trial will be conducted by an impartial jury. [1] This is evidentially accurate as the whole concept of jury nullification would be severely undermined if there was a lack of impartiality, as a bias could lead to a dubious non guilty verdict even when all the evidence points to a guilty verdict or vice versa, and the argument, although it lacks any factual evidence, is still crucial as it is a fundamental principle of the jury, and is therefore an assumption that could not be doubted. The idea of jury nobbling is a critical threat to the impartiality of the jury, as, for example, offering bribes or putting a juror in fear of physical harm, could potentially create an unjust bias and produce gross injustice by acquittals of the guilty. [2] In addition, there is an emphasis on that the concept of majority verdicts should not be allowed to affect any individual’s decision, and in the event of not being able to decide a verdict, then that is what the verdict should indeed be. [3] Again, this is a furthering of the idea that a jury should be impartial and each juror having their own individual opinion and the argument so far strongly suggests that jury nullification is possibly a serious shortcoming of the system of jury trial as the potential for unjustness is high. A historical example of this is the majority view of the public post 1832 Reform Act, where the jury was viewed to have to the potential to be undemocratic and that they were a threat to the subject’s right to be tried by a law which in nature was predictable and certain. [4] The argument that one of the defining features is that the jury sits in judgment not only upon the defendant but upon the law itself is threatened by this view as the jury is obviously not certain and predictable, so by the jury sitting upon the law which is supposed to be certain and predictable, with the added possibility of the jury being able to contradict the law through nullification, it does begin to amount to something which may well be drawn to be questionable. Furthermore, the selection process in the United Kingdom demonstrates how jury nullification could be a shortcoming of our system, although to demonstrate this shortcoming there is need for comparison with the system in the United States. Before the jurors are called for service, first through random selection, they are obliged to fill in a questionnaire, highlighting any potential bias towards the case in hand, and making sure that there is a cross-selection of people, eliminating any potential discrimination and thus attempting to create a just jury. [5] This is of great importance in making sure that the end result given is fair and is significantly different to the United Kingdom’s selection where it is random with just some exceptions, but all in all is a much more anonymous affair than the United States’ selection process. [6] This selection could be said to be undermining the Human Rights Act 1998, with the right to a fair trial, with the right to an impartial and unbiased judiciary free from any pressures being given in article 6 of the European Convention on Human Rights 1950. [7] 8If the United States’ system could be applied to this then it would confirm these rights, but in the United Kingdom the lack of inquisition into the jury prior to the confirmation of selection undermines them and could potentially neglect some of the deeper prejudices and biases amongst the 12 people. Another major feature in the jury is propriety, and it can be said that impropriety in a jury could lead to biased results occurring and in the article The Criminal Jury in England and Scotland: the Confidentiality Principle and the Investigation of Impropriety there is a study about whether deliberations should be recorded or not. [9] ‘One cannot have a rule that operates in one way where the jury acquits but operates differently where they convict’ [10] is a statement made by Lord Hope in the case R v Mirza is raising the argument of consistency in the jury, that if there was the review of deliberations in acquittals then why not in convictions. [11] Although it is against the argument so far, is a pretty valuable addition to the argument against jury nullification as it is coming from a judge, and therefore obviously has a great precedence behind it due to the nature of the job and from the point of common sense, it most definitely is a reasonable point to make. His quote is scrutinised in the article, and it is argued that if the legislation in Britain was changed and video recordings of juries’ deliberations could be reviewed in the event of an acquittal then they would be able to monitor the reasoning for an acquittal and stop acquittals in the event, for example, that a jury or juror openly dismisses the evidence given and decides to acquit a defendant dishonestly or unjustly. [12] Although Lord Hope’s statement is completely just and valid, the argument against his statement is also a valid idea, even though the argument could have been strengthened by evidence given in support of P. Ferguson’s idea that legislation could be enforced as to video recordings only being used in cases of acquittal. Evidence which supports this argument is the procedure of the jury in court, that if a jury gives a not guilty verdict then they will not be asked whether it is unanimous or by a majority, but if a guilty verdict is given then they must say whether it was unanimous or by a eleven to one or ten to two majority. [13] This evidence shows that there can be, in jury trials, one rule for one outcome, and another for the opposite and if this was to be applied to the issue of the review of deliberations then it could be said that there could indeed be one rule for acquittals and another rule for convictions, as convictions are based on the evidence given whilst nullifications ignore the evidence and the letter of the law and acquit a defendant anyways – the deliberations into acquittals would therefore be able to weigh up the justness of the ignorance. However, although so far only the shortcomings of jury nullification have been commented upon, the idea cannot simply be dismissed as it does have some importance and significance in the United Kingdom’s system. An argument for this is given with the hypothetical situation of removing the jury and allowing the judge to enact this power himself. [14] In this, it is argued that the judge doesn’t have as much social conscience as a jury, and although the social conscience could lead to some prejudice, it is a risk that must be taken to ensure a fair trial and that the power given to a jury that puts them above the law should not be given to a single person or institution as absolute power absolutely corrupts, but with the power lying beneath the jury they tread so swiftly they don’t burn their feet. [15] This first point referring to social conscience is undoubtedly true as the 12 people on a jury obviously would have more of a diverse range of social ideas than a single judge, however the argument of prejudice can be questioned. If, as article 6 the European Convention on Human Rights 1950 states, that the defendant has the right to a trial “by an independent and impartial tribunal established by law” [16] , then there is absolutely no manoeuvrability in the fact that there should be no prejudice, otherwise the term impartial would become utterly undermined, and therefore a breach of the European Convention on Human Rights 1950, and thus the Human Rights Act 1998, would occur. Also, the idea that absolute power absolutely corrupts and therefore the power to ignore evidence should not be given to a single person is unfounded as there is no reasoning or consideration behind it, for example, to why this power should not be given to someone with a higher knowledge base than to 12 people with a much lower knowledge of the subject. Of course there is need for social conscience, but the inference from this argument that social conscience comes above the law is unreservedly absurd and furthers the idea that jury nullification is a shortcoming of our system. Overall, in the United Kingdom’s system of juries there is one fatal flaw running through the idea of nullification – bias. It may be argued that the jury sits above the law as the absolute power given to them is just, due to their greater social conscience but this furthers the idea of prejudice. [17] With impartiality being key to a jury, this idea threatens the impartiality and undermines nullification as there is a strong need to make sure any acquittals are fair and just so that a guilty man is not wrongly acquitted, and many features of the jury, such as the anonymous selection without a great deal of questioning, could actually promote bias amongst juries. This is not to say the idea of nullification is a complete shortcoming as there is some significance attached to the fact that people have the right to a fair trial, meaning that nullification could provide the person with the trial being fair, and therefore jury nullification indeed has some importance. [18] However, legislation could be put into place to monitor and review acquittals, such as the recording of deliberations and consequently the reviewing in the event of an acquittal, to reinforce the acquittal being just and preventing any bias or prejudice affecting the outcome of the trial. [19] In conclusion, it is submitted that whilst jury nullification is a necessary function in the United Kingdom’s system of jury trial, at the moment the flaws outweigh the advantages making it a shortcoming unless action is taken. Word count: 1961.

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