English Legal System 10

8/10/2019 English Legal System 10

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Aims

The aims of this lecture are:

1. To introduce the concept of trial by jury;

2. To look at the concepts of a randomly-selected and unbiased jury;

3. To examine the reforms of trial by jury madeby the Criminal Justice Act 2003;

4. To look at the concept of jury waiver;

5. To examine proposals for further reform ofthe jury.


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Outcomes

By the end of this lecture you should be able to:

1. Describe how jurors are selected for jury serviceand the deficiencies of the current system;

2. Explain what it meant by a randomly-selected jury

and how this differs from an unbiased jury;

3. Explain the rationale behind the reforms to trial byjury introduced by the Criminal Justice Act 2003;

4. Critically assess the right to a multi-racial jury in

certain types of cases.


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Why study trial by jury?

Popular perception of the legal system

Ancient right conferred in the oldest constitutional statute, the

Magna Carta 1215

Important democratic principle of involving the laity in one of thebranches of government

System of full-scale trial

The Darbyshire argument as to whether it has in fact beendemoted by the advance of the magistrates courts


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What crimes are tried by jury?

Either way offences, e.g. theft

Indictable only offences, murder,manslaughter, rape

The distinction between thesecategories will be dealt with elsewherein the lectures on criminal litigation


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Who are the jurors?

Judicial pronouncements have constantly

emphasised that the jury is supposed to

reflect the views of the common man

Jurors are selected at random, rather than

being unbiased

English versus American concept of jury


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Who are the jurors?

Eligibility under the Juries Act 1974:

1. 18-70 years old;

2. Registered to vote;

3. Ordinarily resident in the UnitedKingdom for 5 years from the age of

13.


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Random selection

R v Sheffield Crown Court, ex parte Brownlow[1980] QB 530, CA. Lord Denning MR:

Our philosophy is that the jury should beselected at randomfrom a panel of personswho are nominated at random. We believethat 12 persons selected at random are likely

to be a cross-section of the people as awholeand thus represent the view of thecommon man The parties must take themas they come


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Criticism of random selection

There has been some criticism of the randomselection of jurors on the basis of the electoral roll

Many people are not registered to vote

The Auld Report in 2001 recommended that eligibilityfor jury service should be based on the entitlement tovote, rather than on entry on the register

He recommended that other records could be used tosupplement the electoral register such as DVLArecords


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Is there a right to a multi-racial jury

R v Ford[1989] QB 868, Court of Appeal, LordLane CJ:

It appears to have been suggested in some of thecases that there is a principle that a jury shouldbe racially balancedIn our judgment such aprinciple cannot be correct, for it would depend on

the underlying premise that jurors of a particularracial origin or holding particular religious beliefsare incapable of giving an impartial verdict


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Research Exercise on Multi-

Racial Juries Locate and read the case of R v Smith

(Lance Percival)[2003] 1 WLR 2229,

[2003] Crim LR 633, Court of Appeal

What was decided in this case?

How does this differ from previous

judicial statements in this area?


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Sander v United Kingdom

This was a case taken to the European Courtof Human Rights arguing that the Defendantsright to a fair trial had been breached under

Article 6 of the Convention

Racist jokes had been brought to theattention of the judge before the trial hadfinished

The judge had the option to discharge thejury and order a retrial


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Floodgates

If the right to a multi-racial jury were allowed, what effect wouldthis have on other groups?

People might claim that the jury ought to be altered to reflecttheir religion, sexual orientation, disability, gender etc

There is a case from Canada where the male defendantsconviction of sexual assault was quashed by the Supreme Courtbecause it had been given by an all-female jury

However, the case can be distinguished from the situation inEngland and Wales because the all-female jury was created by

the prosecutions use of challenges and peremptorychallenges


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Challenges

Abolition of the peremptory challenge

Challenge for cause/stand by for the

Crown


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Reform to eligibility for jury

service The Criminal Justice Act 2003

Abolished certain categories of people who had previously beeneither disqualified or entitled to automatic release from juryservice

1. Those involved in the administration of justice, judges,barristers, solicitors and the police;

2. The Clergy;

3. Doctors.

Before moving on to the next slide, can you think of any reasonswhy the groups listed above were ineligible or entitled to beexcused from jury service?


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The role of the jury in the trial

The distinction between the tribunal of

law and the tribunal of fact

The judge = the tribunal of law

The jury = the tribunal of fact


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Distinction between law and

fact This will become clearer the more law that you study,

especially criminal law

Essentially offences are split up into different

component parts which must be proved by theprosecution

Examplethe definition of theft

The appropriation of property belonging to another withthe intention to permanently deprive done dishonesty


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Distinction between law and fact

In order for a theft to be established, the prosecution hasto prove those five elements:

1. Appropriation;

2. Property;3. Belonging to another;

4. The intention to permanently deprive;

5. That the action was done dishonestly.

This is a matter of law for the judge, as it would be to give thejury directions on the meaning of a statute


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Matters of fact

This is where the jury decide that the specific

offender committed the crime as alleged on

the basis of the evidence that has beenpresented to them by the prosecution

It can be a a very subtle distinction between

the two, although in many cases it is very

clear where the dividing line is


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Jury Reform

The jury always attracts a lot of interestfrom the government of the day regardingits reform. Some of the most recent

proposals have been:

1. Jury waiver;

2. Restriction of Ds right to elect trial by jury;

3. Alterations to the racial balance in a jury;4. Reforms to the eligibility requirements

(partly discussed above).


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Jury waiver

Recommended in the Auld report of 2001

Would entitle the D charged with an indictableonly offence to elect not to be tried by jury,

but by a judge sitting on his or her own

Common system in other common law

jurisdictions, e.g. Canada, Australia


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Why would a defendant want to be tried

without a jury?

Nature of the crime

Pre-trial publicity

Better knowledge of the law

Less susceptible to overestimating expert evidence

Note: this reform was not adopted by the government


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Adverse pre-trial publicity

There are major problems with jury trial if the case in questionhas received prolonged and intensive media scrutiny

It is in these cases that the Defendant may opt to be tried by ajudge sitting alone

For recent cases which may be cited as examples see

R v Rosemary West[1996] 2 Cr App R 374

R v Tracey Andrews[1999] Crim LR 156; [1998] All ER (D) 454(October)

R v Michael Stone[2001] Crim LR 465; [2001] All ER (D) 162(February)

R v Barry George[2002] All ER (D) 441 (July)


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Exclusion of the Jury from

certain cases The Criminal Justice Act 2003 allowed

juries to be excluded from certain types ofcases. These are:

1. Serious fraud trials;

2. Trials where jury tampering has occurred.

Instead of trial by judge and jury, the judge willsit on his own


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s.43 CJA 2003

This is the section which governs seriousfraud trials

It provides that the judge must be satisfied thatthe complexity of the trial or the length of it(or both) is likely to make the trial soburdensome to the members of the jury

that the interests of justice require thatserious consideration should be given to thequestion of whether the trial should beconducted without a jury


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Other proposals for use in

serious fraud cases There have been various other

recommendations for a substitute of trial byjury in serious fraud cases. These included:

1. Specially-screened jurors or an entirelyseparate pool of jurors to be summoned

exclusively to sit on serious fraud trials;2. A judge sitting with 2 lay members from apanel;

3. A judge sitting on his own.


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s.44 of CJA 2003

This is the section governing jury tampering

The section provides the that judge has to be satisfiedthat two conditions are met:

1. There is evidence of real and present danger that jurytampering could take place;

2. The likelihood that it would take place is so substantialas to make it necessary in the interests of justice for the

trial to be conducted without a jury

Judge-only courts were used in Northern Ireland from 1973onwards, known as Diplock Courts


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Advantages of Jury Trial

The advantages of jury trial may be summarised asfollows:

1. Public participation in the criminal justice system;

2. Juries are the best judges of fact;3. Clear separation of responsibilityfor example the

voir dire;

4. Encourages openness and intelligibility;

5. The Jury is a Bastion of Liberty.

We are going to look at the last one in more depth


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The Jury as a Bastion of

Liberty The idea here is that the jury can exercise its power

to acquit a Defendant in defiance of the law, to showits disapproval of that particular law

R v Ponting[1985] Crim LR 318, Central Criminal Court

R v Kronlid & Others(1996) The Times 31 July,Liverpool Crown Court

R v Lord Melchett & Others(2000)R v Gibson(2000)

R v Shayler(2002) The Guardian and the The Times, 5November, Central Criminal Court


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Disadvantages of Jury Trial

The main disadvantages of jury trial:

1. Cost and delay;2. The risk of perverse verdicts;

3. Secrecy.

For a critique of jury trial see Penny Darbyshire

on the English Legal System


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Summary of Lecture

You should now be able to:

1. State what is meant by a randomly-selectedas opposed to an unbiased jury;

2. Describe how the courts have approachedthe question of whether there is a right to amulti-racial jury;

3. State what reforms have been made toeligibility for jury service;

4. Describe the advantages/disadvantages oftrial by jury.


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Further reading on the Jury

For the mechanics of jury trial in this country seeIngman, T., The English Legal Process (Oxford:Oxford University Press, 2004, 10thedition)

See also Slapper & Kelly for an overview of thehistory of jury trial, how the jury was originally used inthe investigation of crime, rather than thedetermination of guilt or innocence

See also Darbyshires article and the casesmentioned in the lecture

Documents

English Legal System 10