The Jewel in the Crown

‘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

Is such confidence in the jury system justified?

The English and Welsh jury system is in fact a long established method within the English legal system. Throughout the 800 and more years that some form of a jury has operated, it has come under much criticism and reform. It has been debated in many reports on whether or not the system is defensible to still exist as part of the legal system in operation today. This essay will look to a brief history of the jury system, and where the idea stems from, after that, how confidence is achieved through the juries’ involvement within the community by means of helping to administer justice, then the confidence drawn from the partnership of judge and jury.

In the last part of this essay, doubt in the system will be debated by casting a look to the criteria that needs to be met to qualify for jury service and how this affects the variety of jurors selected, followed by to the conviction rates that juries achieve. At long last to come to a conclusion if confidence in the current jury system is in fact justified.

A brief history

The history of the current belief that a person has the right to a trial by jury was born before the Magna Carta was issued in 1215; the document that could be interpreted as our basic constitutional rights. Prior to this there are links to Normandy and Anglo-Saxon roots. An early reference to a jury type group in England is in a decree issued by Aethelred at Wantage( 999), which enacted that in every Hundred “the twelve leading thegns together with the reeve shall go out and swear on the relics which are given into their hands, that they will not accuse any innocent man nor shield a guilty one’’. [1] This clearly is not the method that is in use today, whereby twelve strangers are selected at random, nevertheless the essence of today’s system can be found within it. Throughout the eleventh and twelfth centuries, juries were sworn to decide property disputes, but it was the Roman Catholic Church’s 1215 retraction of support for trial by ordeal that necessitated the improvement of the jury in its modern form [2] . The form of jury trial has gladly changed since, formally trial by ordeal of fire or water, reformed under Henry II, to a jury of twelve persons, who swore to the truth of what they knew. Lord Auld in his report states that the Magna Carta did not reference a trial by jury, but to a free man’s right to the lawful judgement of his ‘peer’s [3] , therefore not precisely qualifying the common belief of trial by jury. The incorporation of the Human Rights Act 1998, Article 6, the right to a fair trial, did not even give the claimed ‘right’ to a jury trial. Despite the lack of a factual constitution, it has lead to a common belief of a ‘right’ to a trial by jury, which evidently has founded confidence by the public in the system throughout history.

Citizenship and sense of duty

There is evidence to suggest that jury service is perceived as part of a national identity and that participation is regarded as privileged [4] . Lord Justice Auld’s review of the criminal justice system includes a quote to support this: ’’… jury tradition is not only about the right of the citizen to elect trial but also about the juror’s duty of citizenship. It gives people an important role as jurors – as stakeholders – in the criminal justice system. Seeing the courts in action and participating in that process maintains public trust and confidence in the law’’ – Baroness Kennedy of the Shaws [5] . The Home Office published a report that goes further to explain this sensation; they found that ninety-five per cent of jurors interviewed considered the jury a very important or essential, or quite important, or necessary part of our system of justice, and over fifty per cent of those interviewed would participate again in the future [6] . It was also found that jury trial verdicts are more often accepted that bench judge trials. Some form of scrutiny has to be taken when reviewing the Home Office report as to the willingness to participate in the study was most likely from those who had the most positive outlook on participation in jury service to begin with. In paragraph twelve of Lord Justice Auld’s report he included figures which would oppose his quote by Baroness Kennedy of the Shaws. He states: ‘’A recent Home Office research project shows that, in a sample of 50,000 people summoned for jury service in June and July 1999, only one-third was available for service, about half of whom were allowed to defer their service until a later date. Of the remaining two-thirds, 13% were ineligible, disqualified or excused as of right, 15% either failed to attend on the day or their summonses were returned as ‘undelivered’ and 38% were excused’’. Of this figure, it is unknown the reasoning behind the deferrals, but the context he uses this information relates to the jury selection process, therefore, the general perception of social responsibility in helping to administer justice can be founded and for that reason confidence can be assumed in this area.

Relationship of judge and jury

It is often forgotten that the trial is by jury and judge. The jury are finders in fact and the judge a finder in law, the judge will advise the jury on points of law, but the jury must select the applicable evidence for proof of guilt. It can be shown from the Home Office report that there is a positive influence on the relationship between judge and jury. Those who observe the judges performance in the Crown Court are generally impressed, with two thirds of jurors completing jury service with a greater than before positive view of the court process. A further more recent research study involving a case simulation found that most jurors thought the judges legal instructions were easy to understand, but a majority did not completely understand them in the terms used by the judge in his instructions [7] , this could lead to miscomprehension of the point of law to be decided, that ultimately could affect the verdict. The same report goes on to conclude that the majority of jurors required more information on how to carry out their deliberations. Subsequently, it can be found that there is an improvement of the juror’s perception of the judge’s role and the criminal court system in general, which in the end increases the confidence in the system; however reform of the deliberation process should be made.

The selection and community representation of the jury

The current criterion that excludes an individual from participating in jury service has changed since Lord Auld’s report, since the enactment of s.321 of the Criminal Justice Act 2003 the judiciary, the clergy and other persons concerned with the administration of justice are now eligible for jury service. Therefore at the time of Lord Auld’s report where evidence produced by the Home Office Research project suggested that from a quarter of a million people summoned for jury service every year, about a third are available, this proportion available now, may have increased.

He goes on to declare that many who do qualify try to avoid it at any length. It can be construed that evasion of jury service creates the impression that jury service is for those who are not important and intelligent enough to get out of it [8] which would have a negative impact onto the jurors who do attend. Further ineligibility is to those on bail. Permanent disqualification can be made of persons who have been sentenced to prison for a period over five years, and ten year disqualification is made for sentences up to five years.

The liability to serve can be summarised as those registered as an elector, aged between eighteen and seventy years, and a resident in the UK for at least five years since the age of thirteen. It can be viewed that the scope for selection is not wide enough to provide a fair representation of society. Social economic groups such as, students, young people and members of ethnic minority groups tend to be under-represented on the electoral register, thus on juries too. Lord Auld considered that potential jurors should be identified by a number of public registers and lists to generate a fairer representation of the community. This idea was further developed by the Ministry of Justice (MOJ) Research Studies of 2010 Are juries fair? In which investigation was held into the Black and Minority Ethnic (BME) populations being represented and discriminated against in trials due to the lack of reach when it came to jury selection. The results found that there was actually limited or no prejudice or stereotyping of both White and BME groups of jurors, or any participant in court. As a result of these findings, it can be confirmed that the scope for selection needs amendment, however despite this; racial or ethnic prejudice has not been flagged to be a severe issue, hence it could be assumed that it has little affect on the effectiveness and confidence in a jury.

Conviction rates

The conviction rates of juries have somehow been perceived as lower than those of the Magistrates court, or convictions before a judge only. Lord Justice Auld in his report included the quote: “Juries are not specifically mentioned in our terms of reference. This may seem an anomaly since convictions of the innocent [sic] and acquittals of the guilty [sic] in serious cases are always jury decisions. But we are conscious that the jury system is widely and firmly believed to be one of the cornerstones of our system of justice. We have received no evidence which would lead us to argue that an alternative method of arriving at a verdict in criminal trials would make the risk of a mistake significantly less” [9] . This statement receives further justification from the MOJ study in 2010 Are juries fair? Their research found that between 2006 and 2008 once sworn, juries almost always reach a verdict: 89% of charges initially presented to a sworn jury were decided by jury deliberation. Those juries that have been sworn but do not deliberate are ones directed to reach a verdict by the judge (11%). Where juries do deliberate, they convict defendants more often than they acquit. Juries returned guilty verdicts by deliberation on almost two-thirds (64%) of all charges. Consequently from their findings the assumption is made that juries are efficient and that they reach a verdict more than 99 per cent of the time. It must also be remembered that the verdict is a product of a ‘partnership’ between judge and jury.

Conclusions

Although only one per cent of criminal cases conclude in a Crown Court trial, the jury trial is commonly seen as a cornerstone of the criminal justice system [10] . For many it embodies the time-honoured ‘right’ of offenders to be tried by their peers, while at the same time encouraging active citizenship and social responsibility. It can be found that there is an improvement of the juror’s perception of the judge’s role and the criminal court system through jury service, which increases the confidence in the system; however reform of the deliberation process should be made and suggestions of written guidelines could help reduce any confusion on the process. It can be confirmed that the system for selection needs revision, however despite this, in recent reports; racial or ethnic prejudice has not been flagged to be an issue, hence it could be understood that it has little affect on the efficiency of a jury. The MOJ research studies have found that juries are efficient and that they reach a verdict more than 99 per cent of the time [11] . It must also be remembered that the verdict is a result of involving the legally qualified judge and jury. Therefore, it is fair to say that confidence in the jury system is justified.

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