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Incompetence and Impressionability: The English Jury System

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About The Author

Connor Griffith (Consulting Editor)

Connor is a law graduate from the University of Nottingham with a particular interest in intellectual property and corporate law. He is currently a trainee solicitor at a large national firm, sitting in the Real Estate department. Outside the law, he enjoys stand-up comedy and moaning about Brexit.

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A court is only as sound as its jury, and a jury is only as sound as the men who make it up

Atticus Finch

The role of the jury at trial is widely known: they are to evaluate the evidence presented to them by both the defence and the prosecution, from which they are to make a decision on whether they believe that the defendant was either guilty or not guilty. They must do so after having given an oath swearing that they will ‘try the defendant and give a true verdict according to the evidence’.

However, questions can be raised as to the extent to which jurors can uphold this promise and deliver this ‘true verdict’ if they do not understand the evidence demonstrated to them. While some cases involve consideration of simple offences such as theft, the likelihood that the average juror would be able to follow the facts of an extremely complex case of, say, fraud – trials for which can last months and months – is unsatisfactorily low.

Instead, it appears to be the case that jurors will often, in times of intellectual struggle, retreat back to what they feel comfortable with, either in relation to previous prejudices or simply allowing another juror to impression an opinion upon them. Indeed, the atmosphere masterfully depicted by Sidney Lumet in 12 Angry Men  in which the jurors allowed 'the facts of the case [to] mean what they [needed] them to mean’ so as to align with their own personal pre-conceived intolerances  sadly seems to not be too far from the truth.

It follows, as this article suggests, that further consideration should be given to whether the use of the jury is the most appropriate method of trial, particularly in relation to cases of substantial complexity.

Brief History of the Jury System

A key attraction of the jury system is found in its history: the venerable process of being tried by one’s peers carries with it societal and moral dignity. It removes the concept of the poor, defenceless defendant being unjustly tried by a cruel, aristocratic government representative. Such a system has encouraged trust and belief in democracy as a whole, granting the 'average Joe' the chance to take up the duty of weighing in on how to handle the more challenging members of society.

Whether juries were used before 1066 is uncertain, though it is clear that William the Conqueror ‘brought to England from Normandy a system of having witnesses who knew about a matter to tell a court of law what they knew’. This system gained further legitimacy through the implementation of the Magna Carta in 1215, Article 39 of which forbade the punishment of a free man nisi per legale judicium parium snorum vel per legem terrae – that is, unless convicted through the legal judgment of his peers.

However, as Harry Mount has argued, it can hardly be said that simply the fact the jury system sounds like a ‘wonderful democratic instrument’ can give reason to ignore the worrying facts of the inadequacy of many jurors.

The Statistics

Though statistics show that juries only consider approximately 1-2% of cases in English courts, this still provides for the real possibility of a sizeable proportion of questionable decisions. Indeed, research conducted by Darbyshire, Maughan and Stewart discovered that  in accordance with the 1999 English Court Service statistics  trial by jury results in approximately 225 convictions and 4,000 acquittals every year that are disapproved of by the judge in that case. Of course, there is no guarantee that these judges would have provided universally acclaimed judgments in these cases, but it is generally accepted that they – being more skilled in fact finding and having a greater understanding of the law – are certainly more suited for the role of considering the guilt of a defendant.

Consideration was given to this subject by Cheryl Thomas, who conducted case simulations in Nottingham, Winchester and Blackfriars in order to see how many of the faux-jurors properly understood the case that they were hearing. It was found that 51% of the Nottingham jurors, 32% of the Winchester jurors and 31% of the Blackfriars jurors found the directions from the judge hard to follow and, thus, did not understand the case.

Further research conducted in Winchester, again by Thomas – in which subjects were asked whether they could identify the two key points that the judge told them to consider when deliberating in the jury room – saw only 31% able to correctly identify both and 20% unable to identify any. These facts are made more worrying through the finding that 68% of the jurors in Winchester perceived the judge’s directions as easy to understand, demonstrating a clear overestimation of ability by many of the participants.

In his book ‘What Next in the Law’, the late Lord Denning focused on the intellectual ability of jurors and whether the average juror was of a sufficient intelligence to be able to comprehend the case that they are evaluating. His Lordship found that, as the jury selection is random, there is no guarantee that a case will be dealt with by enough jurors of suitable comprehensive abilities to reach a reasonable verdict. He suggested that, due to this inability to understand the case, many jurors may simply make decisions based off of the influence of other, stronger jurors.

While many cases do not necessarily need a flawless understanding of the law in order for jurors to be able to do a successful job  moral guidance can often lead the jurors to make the correct decision – it should be noted that moral guidance can only carry a juror so far and can even result in the making of incorrect decisions. For example, it is not impossible for a juror to be so disgusted by what the defendant had allegedly done that they have difficulty separating this depiction of the defendant from the actual defendant that is to be supposed to be presumed innocent unless and until they are found guilty.

What Has the Criminal Justice System Done to Resolve This?

Two suggestions were made in a report by Lord Justice Auld as to how these issues should be tackled. The first – and somewhat less radical – view proposed that, at the start of every case, the judge should provide the jury with a non-biased summary of the events of the case (in order to ensure that the jury are aware of the chain of events that are being evaluated) before the prosecution and defence are provided with the opportunity to try and twist the facts in the favour of their clients. Further suggestions were made that judges should no longer direct juries on points of law, but should instead just demonstrate to the jury what it is that they should be figuring out and make it known that, if they identify certain facts, the defendant should be found guilty or not guilty. This should avoid any confusion caused through the potentially cryptic wording of certain statutes and allow for a more accurate and understood judgment by the jury.

Lord Justice Auld’s second suggestion is similar to that of Lord Denning’s; namely, that there should be a panel of ‘special jurors’ for cases of challenging intellectual requirements. Lord Denning made suggestions that such a panel could be put together by elected members from businesses, trade unions and local authorities, though this proposal is subject to the criticism that CEOs and trade-union leaders may elect certain persons under their employment that mimic their personal views in order to try and influence the findings in trials.

Following these suggestions, Section 44 of the Criminal Justice Act 2003 (CJA 2003) was passed so as to enable the prosecution in cases of ‘serious or complex fraud’ to apply to a judge of the Crown Court for a trial on indictment to ‘take place before a judge without a jury’. Such applications would only be accepted where the judge is satisfied that the ‘complexity or length’ of the trial was likely to make the trial so ‘burdensome’ to the jury that justice required that serious consideration be given to conducting the trial without a jury. This was a step in the right direction, providing for an alternate solution where it would be highly anticipated that the jurors would struggle to follow all aspects of the case. Disappointingly, however, this provision was never brought into force and was ultimately repealed by Section 113 of the Protection of Freedoms Act 2012

Internal Struggles

Further problems with the jury system arise through the ways that jurors deliberate and decide on their verdicts. For example, the way that jurors arrive at their decisions is to be kept secret, to the point that the act of telling outsiders how they came to a decision could result in prosecution under Section 20D of the Juries Act 1974, as supported by the right to fair trial under Article 6 of the European Convention on Human Rights. Policy reasons behind this include the simple and justifiable intention to not have single jurors be held accountable for the group verdict: if, for example, a member of a very dangerous gang is convicted of a crime, a juror that fought valiantly for the imprisonment of that person would potentially face great danger at the hands of the other members of that gang.

Despite pursuit of this policy reason being completely justified, such confidentiality could lead to the possibility of impressionability and bullying, as suggested above. Further, it is evident that some truly ridiculous methods have been adopted by juries when determining whether or not a defendant is guilty.

An example can be seen in R v Connor and Rollock [2004], where one juror wrote to the Crown Court several days after trial to complain that, as the jurors could not decide who it was out of the two defendants that had stabbed the victim, they had decided to simply convict both in order to ‘teach them a lesson’, convicting a potentially innocent man of a crime as serious as grievous bodily harm with intent.  Perhaps even more unbelievable are the facts in R v Young (Stephen) [1995] QB 324, where the jury used a Ouija board to decide who it was that had killed the victims: the only reason that this came to light was that the activity had taken place in a hotel room and not a court room (removing the requirement of secrecy over deliberations), creating the worrying possibility that similar methods may have unknowingly occurred in other cases.

A solution enacted in other jurisdictions has involved the complete removal of jury trials from the legal system. Singapore, for example, abolished jury trials except for capital offences in 1959 and then completely removed the procedure in 1969. This had the effect that judicial matters are left entirely to the appointed judges, for which there seem to be clear benefits due to their generally superior aptitude for the role. The late Lee Kuan Yew, the first Prime Minister of Singapore, explained this decision by stating that he had ‘no faith’ in a system that allowed the ‘superstition, ignorance, biases, and prejudices of … jurymen to determine guilt or innocence’.

This, however, seems like a fairly radical position to take. Warts and all, jurors represent the everyman, providing an apparent democratic and transparent aspect to the legal procedure. Rather than abolishing the jury system, it is submitted that greater care should be taken in regards to its operation. It is suggested that a court official – potentially the clerk, potentially others – should accompany the jury during their deliberations or, at the very least, spend sufficient time with the jury to ensure that they are reaching the deliberation in a manner that is appropriate.

Of course, this suggestion is rife with controversies: while any such official would have to refrain from communicating with the jury (so as to not influence decision-making), to require that the official should just sit there silently if it has become apparent that a great error of law has occurred (distinguishable from an error of conduct, i.e. one juror bullying others into agreement, which would, of course, have to be reported as inappropriate) would be ridiculous as the entire verdict may hinge on a mistake.

Conclusion

While Section 44 of the CJA 2003 demonstrated a much-needed acknowledgement by Parliament that trial by jury is far from a flawless system, its lack of implementation is concerning. Furthermore, the fact that juries are still required to deliberate in privacy is a major issue.

In providing a resolution for these issues, a delicate balance must be struck between a lack of interference with the deliberation undertaken by the jurors and a stern hand that will ensure that the jurors stay on track. A further balance must be reached between respect for a system of almost 1,000 years old and acknowledgement that sentimentality should not get in the way where progress is required. 

Reaching such an equilibrium will, of course, prove a difficult task. It is therefore hoped that the wider legal community continues its discussion on the matter; the resolution of the issues discussed above could be of a real benefit to society as a whole.

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Tagged: Courts, Criminal Law, Human Rights, Justice

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