Legal System and Method

The Jury System

Paul Dale
Learning Outcomes
• Understand the functioning of the jury system
• Analyse how juries are selected
• Assess misconduct issues as they relate to the jury
• Evaluate issues around jury bias
Agenda
1. Overview of the jury system
2. Selection of the jury
3. Juror misconduct
4. Jury bias
Part 1: Overview of the jury system
Use of the jury
• The jury system is not used in all legal trials.

• Juries are used predominantly in criminal law at Crown Court, in civil trials at
the County Court and High Court (rare defamation cases, false
imprisonment and malicious prosecution by police) and at Coroners’ Court
(sudden death in police custody, or certain accidents)

• Juries are not used in criminal trials at the Magistrates’ Court (which
encompasses 95% of all criminal trials), nor in most civil law cases -County
Court or High Court.
History of the jury system
• Prior to the Norman Conquest (1066) juries used in inquests as settlement of fact (rooted
in Scandinavian law) or as juries of accusation (rooted in Anglo-Saxon law) – trial by oath
or trial by ordeal.

• During 11th and 12th centuries juries were used for property disputes.

• Magna Carta 1215 – a person could only be tried by ‘the lawful judgment of his peers’

• Role of juror between 13th and 15th century to provide local knowledge and information,
rather than decide guilt or innocence.

• By 15th Century – role had evolved into ‘deciders of fact’

Non-jury trials?
• Non-jury trials were used in Northern Ireland in the 1970s during an extended period of civil conflict when there were fears of jury
intimidation (‘Diplock Courts’)

• S44 to 50 (Part 7) of the Criminal Justice Act (CJA) 2003, which came into force in 2007, provide for non-jury trial in cases where there
is danger of jury tampering or where jury tampering has taken place.

• First Crown Court non-jury trial in 2009, appealed at R v Twomey, Blake, Hibberd and Cameron [2011] EWCA Crim - In the case of J, S,
M v R [2010] EWCA Crim 1755 the Court of Appeal held that non-jury trials would only be permitted in ‘extreme’ cases and must be
the last resort

• Defamation Act 2013, s11 – abolished the automatic right to a jury for defamation and libel trials.

• All jury trials in England and Wales were temporarily suspended on 23 March 2020. This was due to the risk posed by the Covid-19
pandemic. Recovery plan opened up in July 2020 – creation of 10 ‘Nightingale Courts’ – serious backlog in criminal justice system –
some crimes from 2020 will not go before a jury until 2022

• Zoom (or alternative platform) has been considered, though not yet occurred – (first Zoom trial in US on August 11 2020)
Independence of the jury
• Bushell’s Case (1670) concerned rights of Quakers to practise their
religion. Trail judge urged jury to reach guilty verdict – refused
deciding not guilty. Trial judge imprisoned and fined them.

• Edward Bushell, appeals to Court of Common Pleas, who held that the
jury cannot be punished and must be free from coercion, independent
from intimation or pressure from government or a court.

• Re-iterated in R v Wang [2005] UKHL 9

Confidentiality
• R v Mirza [2004] UKHL 2 – after trial one jury had made the court aware of the
potential for racial prejudice. Court of Appeal asked the House of Lords to consider
whether jury discussion could be used as evidence for appeal and contempt of
court. Held that jury deliberations were inadmissible.

• R v Young (1995) QB 324 – four jurors had used a Ouija board in an overnight hotel
to contact the dead victim in a murder trial, who had (apparently) told them that
the defendant was guilty. Held that the hotel room did not form part of the
deliberations and so conviction quashed.

• Taxquet v Belgium (2012) 54 EHRR 26 – the ECtHR held that Article 6 does not
require reasons to be given for verdict.
Philosophy
• Juries performs a social as well as a judicial function.

• The judicial function is one of deciding fact, solely on the basis of the evidence
heard, whether the defendant is guilty or not guilty.

• The broader social function of juries –to increase public confidence in the fairness
of the criminal justice system, to provide an independent buffer between the
citizen and the state, and to provide protection against laws regarded as
oppressive.

• To this extent, the jury has been regarded as a democratic institution which
supports the rule of law.
Part 2: Selection of the jury
Composition of the jury
Court Number at start of trial Minimum number Majority decision?
required at end of trial

Crown Court 12 9 11-1, 10-2, 10-1, 9-1

High Court 12 9 11-1, 10-2, 10-1, 9-1

County Court 8 7

Coroners’ Court 7-11 Minority should be no

more that 2
Composition of the jury
• Juries are selected at random from the electoral register by the Jury Central Summoning Bureau.
The Criminal Justice Act 2003 abolished certain professional exceptions (doctors, members of legal
profession, police, judiciary)

• No payment made to jurors (other than expenses and loss of earnings)

• Jury service is compulsory (if called), though may be ‘excused’ if it would cause person difficulties,
or could be postponed until a later date.

• Once called the clerk will select 12 from 15 at random. Brought before judge who will explain the
trial and ask if a juror may have any knowledge of the persons involved. An oath or affirmation is
sworn that you will consider issues faithfully, according to the evidence presented..

• Once the evidence has been presented at trial, judge will direct the jury and then jurors will retire
and reach a verdict
Part 3: Juror misconduct
Criminal Justice and Courts Act 2015
• Range of new indictable offences inserted into Juries Act 1974

• Research by jurors
• Sharing research with jurors
• Engaging in other prohibited conduct
• Disclosing jury deliberations
• Judges have power to order surrender of electronic devices
• Failing to attend

(maximum sentence two years imprisonment and/or fine)

Fuelled by the philosophy that only evidence presented in the trial should be considered
Notable cases
• Joanne Frail (2011) caused £6m drug trial to collapse, by contacting
defendant via Facebook – sentence eight months
• Theodora Dallas (2013) researched defendant on trial for rape and told other
jurors he had previously been accused of rape – sentenced to six months in
prison (suspended for three months).
• Deborah Dean (2014) wrote letters to two defendants (rape, sexual
exploitation, child trafficking) disclosing jury deliberations. Suspended three
month sentence
• James Smith (2014) disclosing results of internet search (drug trial).
Suspended nine month sentence
Part 4: Jury bias
Racial bias
Calls for reform of jury selection, based on multiracial diversity has been
rejected. Argued centred on ‘trial by one’s peers’
• Runciman Commission (1993) – recommended up to three jurors from
ethnic minorities (rejected)
• R v Ford [1989] – judges not under an obligation to empanel a
multiracial jury. Reiterated in R v Smith [2003] EWCA Crim 283 that
Article 6 of the ECHR does not change the law, as laid down in Ford.
Racial bias
• Research suggests that racial bias within jury is a myth - Cheryl
Thomas, Diversity and Fairness in the Jury System (2007)
• Lammy Review (2017: pp31-33) found that conviction rates by jury of
ethnic minorities are the same as their white counterparts.
• Cases where racial issues have come to light are seen as exceptions.
However, the issue of the confidentiality of the jury room is
contentious in these cases.
Arguments against multi-racial juries
• Research suggests that there is not a disparity issue
• Juries being selected at random works – uncertainty as to how it
would be replaced
• Puts focus of deliberation on any ethnic minorities within the jury, who
may not want that attention
• Shifts focus away from other areas of the criminal justice system, which
do have systematic racial issues to address
Bias in rape trials
• Ann Coffrey MP suggests that stereotypical ‘rape myths’ and low
conviction rates means that rape trials are not suitable for trial by jury.
• See speech by Brian Leveson, ‘Criminal Trials: The Human Experience’
2019
• Cheryl Thomas (2020) conducted a study instigated by Leveson
between 2017-19 and found that jurors do not believe in ‘rape myths’,
contrary to this opinion.
Summary
• Overview of jury system
• History, Independence, Confidentiality
• Jury selection
• How juries are selected at random and appointed for trials
• Misconduct of jurors
• Some notable cases of misconduct, around internet research and use of social media
• Bias in the jury system
• Potential bias within juries, which are currently viewed as the ‘exception’ rather than
the rule