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1. The origins of the jury system
The original concept of the jury was precisely the opposite of what it later became.
The members of the jury were chosen as persons who were likely to know what
had happened or, if not, they were supposed to ¬nd out before the trial. In the
thirteenth century it was ˜the duty of the jurors, so soon as they have been sum-
moned, to make inquiries about the facts of which they will have to speak when
they come before the court. They must collect testimony; they must weigh it and
state the net result in a verdict™.1 Medieval juries came more to speak than to listen.
The transformation of the medieval active jury into the passive courtroom
triers of fact is not well understood either in its timing or its causes. Probably in
the later ¬fteenth century, but certainly by the sixteenth, it had become expected
that the jury would be ignorant of the facts of the case.


2. Eligibility for jury service
Until 1974 eligibility for jury service was governed largely by wholly out-of-date
property quali¬cations. This was the subject of inquiry by the Morris
Committee, which reported in 1965 and whose report was implemented by the
Juries Act 1974.


Composition of the jury list
Report of the (Morris) Departmental Committee on Jury Service, 1965,
Cmnd. 2627, paras. 38“42
38. Under the present quali¬cations eligibility is in practice con¬ned to ˜house-
holders™. In general, this is taken to mean the person who is liable to pay the rates
in respect of separately rated accommodation. In most families this is the
husband (which is why, as will be seen later, only a relatively small proportion
of jurors are women).

1
F. Pollock and F.W. Maitland, The History of English Law (2nd edn, 1898) pp. 624“5. See also
Miriam Peck, ˜Origins and History of Trial by Jury™ in Fraud (Trials Without a Jury) Bill
2006“07, House of Commons, Research Paper 06/57, 23 November 2006, pp. 36“39.
487 Eligibility for jury service


39. Another restriction on the householder™s eligibility is that his premises
must be rated at not less than £30 in the counties of London and Middlesex and
not less than £20 elsewhere. At the time the Juries Act 1825 was passed, there
must have been relatively few houses with the necessary rateable value.
Successive revaluations have enormously increased the number of houses rated
at the qualifying value, and we were informed by the Government Social Survey
that 81 per cent of domestic hereditaments in England and Wales are at present
rated at £30 or more; no ¬gure is readily available for those rated at £20 or more,
but we have been told that for the country as a whole the proportion excluded
by the rateable value limitation is now unlikely to exceed 10 per cent . . .
42. It is estimated that there are 7.15 million names marked as eligible for jury
service on the 1964 electoral registers for England and Wales, which is 22.5 per
cent of the 31.77 million names on the registers.
The Morris Committee recommended that, subject to certain exempted cate-
gories, juries ought to be selected from all those on the electoral register. This
was eventually implemented in the Juries Act 1974. Under this Act a person is
eligible for jury service who is between eighteen and seventy,2 on the register of
electors3 and has been resident in the UK for at least ¬ve years since the age of
thirteen.


Those ineligible, disqualified or excused
Certain persons, however, have been ˜ineligible™, ˜disquali¬ed™ or ˜excused™. Those
ineligible were mainly persons who it was thought would exercise undue in¬‚u-
ence in the jury room by virtue of their professional knowledge about the justice
business “ judges, lawyers, other fee earners in solicitors™ o¬ces, court sta¬, police
o¬cers, prison o¬cers, probation o¬cers and the like.4
The list of those ineligible also includes clergymen of any religious denomina-
tion on the ground that they might exert undue in¬‚uence in the jury room by
virtue of their o¬ce. The Runciman Royal Commission on Criminal Justice rec-
ommended that this last category of exclusion from jury service be abolished.
(˜We do not see why clergymen and members of religious orders should not be
eligible for jury service™.5)

2
Until 1988 the age limit was sixty-¬ve but the Criminal Justice Act 1988, s. 119 provided that a
person who is between sixty-¬ve and seventy is eligible though he cannot be required to serve.
3
Lord Justice Auld™s report (Ch. 5, para. 23, p. 144) recommended that this should be
broadened to include persons on other speci¬ed publicly maintained lists or directories, for
instance, by the Driver and Vehicle Licensing Authority, the Department for Work and
Pensions, the Inland Revenue and telephone directories. The proposal was intended to address
the ¬nding of Home O¬ce research that close to 10 per cent of those eligible to register on the
electoral roll are not registered. This proposal was not adopted by the Government.
4
In R v. Salt [1996] Crim LR 517 the Court of Appeal quashed the conviction when the
supervising usher in the court, not for the ¬rst time, contacted his son when there were
insu¬cient numbers to serve on a jury. The court held that the selection of the son of an
usher who regularly attended as a juror fell within the spirit of the disquali¬cation in Sch. 1 of
5
the Juries Act. Runciman, p. 132, para. 57.
488 The jury


Lord Justice Auld took a much more radical approach. He urged that we
follow the example of several American states of abolishing this form of ineli-
gibility. (˜In my view, no one should be automatically ineligible or excusable
from jury service simply because he or she is a member of a certain profession
or holds a particular o¬ce or job™.6)
This recommendation was adopted in the Criminal Justice Act 2003.
Schedule 33 of the Act removes the status of ˜ineligibility™ for jury service except
for persons who are ˜mentally disordered™7 or disquali¬ed. Those eligible for
jury service therefore now include judges, lawyers and police o¬cers!8 Anyone
who previously was ineligible who does not wish to serve must now apply for
excusal or deferral (on which see below).
The Bar Council issued advice to barristers as to how they should act as
jurors:
If selected to serve on a jury, it is axiomatic that a member of the Bar does so as
part of his/her duty as a private citizen. It is neither necessary or appropriate to
conceal his/her profession from other jurors, but it is not necessary to volunteer
such information immediately. Members of the Bar should expect to be treated
as equal members of the jury, and should insist that they are not accorded any
special status.
The most important thing for barristers to note is that they are sitting on the
jury as part of the tribunal of fact, and not in their capacity as barristers.
Where a jury is required to leave court during the trial, a member of the Bar
on the jury should not o¬er any explanation as to the reason, and should not
give any explanation beyond what the judge has told the jury, even if asked.
A member of the Bar should not express any advice or opinion as to the law, or
as to any direction of law given by the judge, any time. A barrister may, like any other
jury member, send a note to the judge asking any relevant question of fact or law.
However, also like every other member of the jury, he must accept that it is for the
judge, not the jury, to decide issues of law. The barrister must, therefore, accept the
judge™s directions as to any issue of the law, even if he considers it to be incorrect.9
Guidance issued to solicitors was in virtually identical terms.10 Judges received
guidance in the form of a letter from the Lord Chief Justice.11 It warns that
judges acting as jurors should ˜avoid the temptation to correct guidance [from
the trial judge] they perceive to be inaccurate as this is outside the scope of their
role as jurors™, but nothing in the guidance, it states, ˜detracts from the ability of
judges sitting as jurors to bring their general knowledge of life to bear on the
deliberations of the jury™.

6
Auld, Ch. 5, para. 14, p. 140.
7
De¬ned in new Sch. 1, Part 1 of the Juries Act 1974 inserted by Sch. 33, para. 15 of the Act.
8
In Abdroikov [2005] EWCA Crim 1986, [2005] 4 All ER 869 the Court of Appeal held that
having a police o¬cer or a CPS employee on the jury did not in itself o¬end the principles of
9
fairness. Counsel, August 2004, p. iv.
10
www.lawsociety.org.uk “ search “ jury service “ 29 September 2005.
11
For the text see the judiciary Website “ www.judiciary.gov.uk “ search “ jury service “ 15 June
2004.
489 Eligibility for jury service


Disquali¬ed The Juries Act 1974 (Sch. 1, Part 2) has a list of categories of
persons disquali¬ed from jury service by reason of their criminal convictions.
Lord Justice Auld did not propose any change in this category of exclusion from
jury service but the Criminal Justice Act 2003 brings the list up to date.12
The Runciman Royal Commission13 said that research might show that ˜con-
trary to general belief, the role played by jurors with prior criminal convictions
is indistinguishable from the role played by any other category of juror™. It rec-
ommended that s. 8 of the Contempt of Court Act be amended to permit
research on juries to be done. This has not been implemented. (On the issue of
such research, see p. 513 below.)
In R v. Mason14 the Court of Appeal held that it was lawful for the police to scru-
tinise jury panels. If names showed up with disqualifying criminal convictions the
information could be passed to prosecuting counsel who could eliminate such
people from a case by using the procedure known as ˜stand by for the Crown™ “
see p. 498 below.15 In 1987 the Home Secretary announced that the police would
in future make random checks of would-be jurors to see whether any were dis-
quali¬ed. An unpublished Home O¬ce study had shown that one in every
twenty-four juries had on it a disquali¬ed person. The checks would be made
between the time that the jury was summoned and the date of jury service.16 The
system was instituted in 1988. Each Crown Court Centre outside London was
supposed to provide the police quarterly with a batch of names for checking.
The Runciman Royal Commission said however that the Association of Chief
Police O¬cers had told it that often courts did not ful¬l this requirement and
frequently the information given was insu¬cient to enable a search of the
records to be made.17 No doubt also sometimes the police failed to make the
checks. It has been held that it is not correct for the judge to institute inquiries
as to whether a particular juror was disquali¬ed.18 However, either the chief
constable or the DPP can require a Criminal Records O¬ce check in any case
in which they consider it would be in the interests of justice.19

12
It provides that those disquali¬ed include: (1) persons who have ever been sentenced to life
imprisonment or to a term of youth custody or detention of more than ¬ve years or to be
detained during Her Majesty™s pleasure; (2) anyone who in the previous ten years has served
any part of a prison sentence, youth custody or detention or has been detained in a young
o¬ender institution or has had a suspended sentence of imprisonment or has been the subject
of a community service order, community punishment order or community order as de¬ned
in the Criminal Justice Act 2003; and (3) anyone who in the previous ¬ve years has been
subject to a probation order or a community rehabilitation order. (Sch. 1, Part 2 of the Juries
13
Act 1974 inserted by Sch. 33, para. 15 of the 2003 Act.) Runciman, p.132, para. 59.
14
[1980] 3 All ER 777.
15
See also the Annex to the Attorney General Guidelines on Jury Checks: Recommendations of the
Association of Chief Police O¬cers [1988] 3 All ER 1086 authorising checks in cases where the
police thought it particularly important that disquali¬ed persons should not serve on the jury.
16 17
The Times and The Guardian, 26 September 1987. Report, p. 133, para. 60.
18
In Obellin, Williams and Martin [1997] 1 Cr App Rep 355 the Court of Appeal quashed
convictions for robbery because the judge asked the prosecution to carry out a Criminal
Records O¬ce check on one juror after they had begun their deliberations.
19
Annex to the Attorney General™s Guidelines on Jury Checks “ 88 Cr App R 123 at 125.
490 The jury


As will be seen (p. 492 below), jury summoning is now done centrally for the
whole country by the Central Summoning Bureau. Lord Justice Auld™s report
said that one of the ¬rst things the Bureau should do was to establish an elec-
tronic link with the police criminal records system ˜to enable automatic checks
on any previous convictions of potential jurors™.20 That has now been achieved.
The handling of the checks for disqualifying criminal convictions is now an
automatic electronic process.21
Excusals Some persons were formerly excused as of right being persons
deemed to have more important business elsewhere, such as MPs, members of
the House of Lords, full-time members of the forces, and doctors, dentists and
others in the medical profession.
Lord Justice Auld recommended that excusal as of right be abolished.22 The
Government accepted the recommendation23 and it was implemented in the
Criminal Justice Act 2003.24 As was seen above, the new principle is that no one
is excusable from jury service unless they can show good reason, in which case
jury service should normally be deferred to another date.
The Solicitor General told the House of Commons that it was estimated that
removing the categories of ˜ineligible™ and ˜excused as of right™ would add some
four million names to the pool from which jurors are drawn.25
It has always been possible to request excusal on an individual ad hoc basis
and this is very common. Something like a quarter of a million persons are sum-
moned for jury service per year. A 1999 Home O¬ce research study, based on
a sample of 50,000 people summoned for jury service, found that only about a
third (34 per cent) were actually available for service. Those who were ineligi-
ble, excused as of right or disquali¬ed accounted for 13 per cent of the sample.
Some 8 per cent had moved from their address and another 7 per cent simply
failed to attend.26 No fewer than 38 per cent of the Home O¬ce sample were
excused ad hoc on an individual basis.27 Lord Justice Auld™s report said of this
category that ˜it is taken up in the main by those who are self-employed or in
full-time employment who can make out a case for economic or other hardship
for themselves or others if they have to give up their work for even a short period
and also by parents who are unable to make alternative arrangements for the
care of their children™.28


20
Chapter 5, para. 16, p. 141.
21
Information provided to the writer by the Central Summoning Bureau, 24 September 2006.
22
Auld, Ch. 5, para. 37, p. 150.
23
White Paper, Justice for All, Cm. 5563, July 2001, para. 7.27.
24
Schedule 33, para. 3 repealing the Juries Act 1974, s. 9(1) which gave persons listed in Sch. 1,
Part 3 of the Act excusal as of right.
25
House of Commons, Standing Committee B, 13 February 2003, cols. 1057“8.
26
One of Auld™s recommendations was that there should be ˜rigorous and well-publicised
enforcement of the obligation to undertake jury service™ with ¬xed penalties, subject to a right
of appeal. (Auld, Ch. 5, para. 26, p. 145.)
27
J. Airs and A. Shaw, Jury Excusal and Deferral (Home O¬ce Research and Statistics, Research
28
Findings No. 102, 1999). Auld, Ch. 5, para. 39, p. 151.
491 Eligibility for jury service


In fact, however, the Home O¬ce research study on which this statement was
based showed a di¬erent picture. The most common reason for excusal (not
mentioned by Auld) was medical “ accounting for no less than 40 per cent of the
total excused. Care of children and the elderly accounted for another 20 per cent.
The juror being an essential worker or ¬nancial reasons accounted for another
20 per cent. The great variety of miscellaneous other reasons included not being
a resident (9 per cent), being a student (6 per cent) and transport problems
(overall only 1 per cent but in some rural areas as much as 30 per cent).
The Home O¬ce study found that of the 34 per cent of the sample who were
available for jury service, nearly half had had their jury service deferred, in quite
a few cases more than once. Reasons for deferral were similar to those for
excusal but prior holiday arrangements accounted for a third (34 per cent).
Applications for excusal which formerly went to the court™s summoning
o¬cer now have to be made to the national Central Summoning Bureau (see
p. 492 below) but there is a right of appeal against refusal to the judge. The latest
Practice Direction on excusal recognises that the Criminal Justice Act 2003 has
led to an increase ˜in the number of jurors with professional and public service
commitments™. Applications for excusal should be ˜considered with common
sense and according to the interests of justice™.29
The court has power to discharge a jury summons if it considers that the
person will not be able to act e¬ectively as a juror on account of disability30 or
˜insu¬cient understanding of English™.31
There is no formal literacy test for jury service. The Runciman Royal
Commission said with regard to the question whether there should be such a
test, that the Crown Court Study carried out for the Commission32 showed that
jurors and jury foremen broadly claimed to understand the issues they were
trying. Inevitably, this was a subjective judgment and moreover there were some
jurors and even some whole juries who were confused. The matter, it said,
should be the subject of research.33 (On jury research see p. 513 below.)
Lord Justice Auld said that it was becoming increasingly necessary for jurors
to have a reasonable command of written English. Even in simple cases there
were usually documents that they must be capable of understanding, but there
was no obvious solution to the problem. The present system of leaving the judge
as the ¬nal ¬lter during the process of jury selection was ˜probably the best that
can be achieved™.34 The judge should give the panel ˜an ample and tactfully
expressed warning of what they are in for, and o¬er them a formula that would
enable them to seek excusal without embarrassment™.35 If all else failed, the
prosecution had its right to ˜stand by™ (p. 498 below).

29
Consolidated Criminal Practice Direction [2002] 3 All ER 904, para. IV 42.1 as amended by
30 31
[2005] 3 All ER 89. Juries Act 1974, s. 9B. Juries Act 1974, s. 10.
32
M. Zander and P. Henderson, Crown Court Study (Royal Commission on Criminal Justice,
33
Research Study No. 19, 1993). Auld, p. 135, para. 72.
34
Auld, Ch. 5, para. 50, p. 155. The Court Service Guidance on Jury Summoning states that a
35
person who has inadequate English should be excused. Auld, Ch. 5, para. 50, p. 155.
492 The jury


3. The process of jury selection
The random nature of jury selection has been described as the essence of the
jury system: see R v. She¬eld Crown Court, ex p Brownlow.36 The trial judge dis-
charged the ¬rst jury selected and ordered a jury to be drawn from a di¬erent
area because it was thought there was a danger of intimidation. The Court of
Appeal quashed the conviction on the ground that the judge had improperly
interfered with the jury selection process which was basically an administrative
rather than a judicial function. The judge had the power to discharge individ-
ual potential jurors on the ground that they might not be able to perform their
duties but he could not interfere with the composition of the jury panel or of
an individual jury.
The actual process of selecting the names for the panel used to be somewhat
haphazard. Each summoning o¬cer had his own method and many were
hardly ˜random™ in any sense recognisable by a statistician. In 1981 a new
system, developed by the Lord Chancellor™s Department in consultation with
the Royal Statistical Society, was introduced nationally. Even then, however,
the system as it was actually operated was less than completely random. An
article in The Law Magazine37 pointed out that the electoral register was not
wholly representative of the population. Nearly 7 per cent were on the register
wrongly because they had moved or died, about one-¬fth of those from the
new Commonwealth were not registered, and nearly one-¬fth of those between
the ages of twenty-one and twenty-four were not registered because of their
mobility.
In 2001 a single Central Summoning Bureau operating a computerised
system was established for the whole country. (www.courts-service.gov.uk. See
also www.juror.cjsonline.org.)
The summons comes with an explanatory lea¬‚et about jury service, a lea¬‚et
on jurors™ expenses including a form regarding claims for loss of earnings, and
a reply envelope to return a form stating that the person concerned is either
quali¬ed to serve or is not quali¬ed, with the reason. Failure to give this infor-
mation or giving false information is an o¬ence.
The method of determining the composition of the jury for the particular
case varies somewhat from court to court. Ballotting is supposed to be done by
putting the appropriate number of cards into the ballot box and drawing them
in such a way that the jury baili¬ cannot see the names on the cards. The cards
are then transferred to the courtroom ballot box for the ¬nal ballot.
Usually about twenty or so names are drawn and these individuals are
brought into the back of the court. (They are often called ˜the jury in waiting™.)
The clerk of the court is given cards, each of which has the name and address of
a juror in waiting. He reads out twelve names and those persons go into the jury
box.

36 37
[1980] QB 530. In Tarrant [1998] Crim LR 342. 30 October 1987, p. 20.
493 Challenging of jurors


4. Challenging of jurors
At common law, either party can challenge the whole panel on the ground that
the person conducting the summoning acted improperly or was biased. This form
of challenge (˜challenge to the array™) is nowadays virtually unheard of, but the
parties also have the right to challenge individual jurors (˜challenge to the polls™).
The position of the parties with regard to selection of the jury was histori-
cally somewhat di¬erent. The prosecution could only challenge jurors if they
had some reason (˜challenge for cause™, see below), but they could also exercise
a right known as ˜stand by for the Crown™ or simply ˜stand by™, which means that
the prospective juror stands to one side. If a jury can be empanelled without him
(as would almost always be the case), he is not required. If not, he must be
accepted unless the prosecution can show cause why he should not be a juror in
that case.38 In practice, the prosecution only rarely exercise their right either of
stand by or of challenge for cause.


Peremptory challenge
The defence in a criminal case have traditionally had the right to challenge
numbers of prospective jurors without giving any reason “ the so-called right
of ˜peremptory challenge™. Originally the number of such challenges permitted
was thirty-¬ve. In 1509 this was reduced to twenty; in 1948 it was reduced to
seven and in 1977 to three. After all peremptory challenges had been exhausted,
the defence had only a right of challenge for cause “ with no limit to the
numbers that could be challenged in that way, but from the mid-1980s the right
of peremptory challenge became highly controversial.
It was suggested that the right was being ˜abused™ by defence lawyers who
would use it, especially in London, to eliminate from the jury persons who were
educated or looked intelligent or middle class. There was no hard evidence to
support the allegation but it gained some currency.
In January 1986 great impetus was given to the campaign to abolish the right
of peremptory challenge in the Report of the Roskill Committee on Fraud
Trials. The Committee was divided on the issue but by a majority of seven to
one it recommended that the right should be abolished. It thought that the
interests of the accused could be adequately safeguarded by the right of chal-
lenge for cause.
The majority said that the right con¬‚icted with the principle that the jury
should be selected randomly. Since co-accused could each exercise three such
challenges, the panel might be reduced by a considerable number. It concluded:
We have considerable sympathy with the exercise of the right of peremptory
challenge in pursuit of an aim of securing a better racial or sexual balance on a

38
See J.F. McEldowney, ˜Stand by the Crown: An Historical Analysis™, Criminal Law Review,
1979, p. 272.
494 The jury


jury, but we have no sympathy with its exercise where that exercise is, as the evi-
dence suggests is too often the case, largely tactical. The aim of the jury is to
secure a verdict which is just to prosecution and defence alike after a proper
appraisal of the evidence. That aim ought not to be hampered by the use of the
right of peremptory challenge in the hope of replacing a juror whose appear-
ance and address may suggest a capacity to understand the real issues or a bias
in favour of the prosecution by one whom it is hoped may be less able to under-
stand or may be more likely to be biased in favour of the defence [para. 7.29] . . .
Our evidence shows that the public, the press and many legal practitioners now
believe that this ancient right is abused cynically and systematically to manipu-
late cases toward a desired result. The current situation bids fair to bring the
whole system into disrepute. We conclude that in respect of fraud trials such
manipulation is wholly unacceptable and must be stopped [para. 7.37].
In a White Paper published in March 1986 the Home O¬ce said that it was con-
trary to the interests of justice that persons should be removed from the jury
because they were thought to have insight or respect for the law which was inim-
ical to the defence. The problem was most acute in cases involving several defen-
dants if they pooled their challenges. The Government had no wish to interfere
unnecessarily with a long-standing right that could be used in ways that were
consistent with justice, but as far as practicable, and providing it did not seri-
ously prejudice a defendant™s right to a fair trial, juries should be composed of
a random selection of those who were neither ineligible nor disquali¬ed.39 The
1986 White Paper was followed by legislation in the Criminal Justice Act 1988,
s. 118 of which provided simply: ˜The right to challenge without cause in pro-
ceedings for the trial of a person on indictment is abolished™.
Empirical evidence published by the Home O¬ce at the time when the
Criminal Justice Bill was going through Parliament did not support the view
that the use of peremptory challenge a¬ected the outcome of trials,40 but that
did not stop the legislation going forward.


Challenge for cause
In the United States prospective jurors can be asked questions to establish
whether they are biased.41 Sometimes this process can take hours and even days
or weeks. Selection of the jury in the celebrated trial of O.J. Simpson in 1994
took forty days.
In England, by contrast, questions may not be put unless a foundation of fact
has ¬rst been laid.42 This means that in practice challenges for cause are

39
Criminal Justice: Plans for Legislation, March 1986, Cmnd. 9658, para. 35.
40
See J. Vennard and D. Riley, ˜The Use of Peremptory Challenge and Stand By of Jurors and
Their Relationship to Final Outcome™, Criminal Law Review, 1988, p. 731.
41
For a description see M. George, ˜Jury Selection, Texas Style™, 138 New Law Journal, 24 June
1988, p. 438 and R. May, ˜Jury Selection in the United States: Are there Lessons to be
Learned?™, Criminal Law Review, 1998, pp. 270“3.
42
Chandler (No 2) [1964] 1 All ER 761.
495 Challenging of jurors


extremely rare and the jury selection process typically takes only minutes. Since
normally nothing is known about the prospective jurors other than their names
and addresses, there is usually no basis on which a challenge for cause can be
launched. At one time, the lists available to the parties at least showed the jurors™
occupations, but that was ended in 1973.
Those entitled to inspect the list of names on the panel include the defendant,
solicitor and counsel for any party, and police o¬cers involved in the case.
Instructions to Crown Court sta¬ state that requests from anyone else, or if the
o¬cial is in any doubt, should be referred to a superior o¬cer. A record of any
request to inspect the panel list must be kept. Concern about jury intimidation
has increased in recent years,43 but it has not reached the point where it has been
thought that the right to look at the panel should be withheld.
The American approach is based on the attempt to eliminate bias by asking
potential jurors questions about their views and experience. The English
approach is to take the jury ˜warts and all™. The English approach was set out in
a Practice Note in 1973 as a result of what happened in the so-called Angry
Brigade case. Alleged anarchists were being tried for attempts to bomb the
homes of prominent Conservative politicians. The judge acceded to a defence
request that he put questions to prospective jurors. He asked them to exclude
themselves for a variety of reasons, for instance if they were subscribing
members of the Conservative Party, if they had relatives in the police force or
serving in the armed forces in Northern Ireland, or if they were constituents of
any of several prominent persons whose homes were alleged to have been the
subject of actual or projected bombings. As a result, thirty-nine people were
challenged on behalf of the eight defendants and another nineteen admitted
they fell into one or other of the judge™s categories.44
Shortly after the case was concluded, however, the Lord Chief Justice issued
the Practice Note to stop such questions.45 The text has been renewed and
slightly revised from time to time “ most recently in 2005:46 ˜It may be appro-
priate for a judge to excuse the juror from that particular case where the poten-
tial juror is personally concerned with the facts of the particular case or is closely
connected with a prospective witness™.
The previous version of the Practice Note went on: ˜He or she may also be
excused on grounds of personal hardship or conscientious objection to jury
service™, but this sentence was dropped in 2005. The 2005 version does however
recognise di¬culties for potential jurors created by very long cases.


43
The Runciman Royal Commission recommended that an acquittal should be cancelled and a
retrial be instituted where it was subsequently established that jurors had been bribed or
intimidated (p. 177, para. 74). This was implemented in the Criminal Procedure and
Investigations Act 1996, s. 54. As will be seen, p. 548 below, the Criminal Justice Act 2003,
s. 46 provides that where jury tampering appears to have taken place the judge can decide
either to discharge the jury and continue without one or to terminate the trial. The section is
44 45
not yet in force. The Guardian, 31 May 1972. [1973] 1 All ER 240.
46
Amendment to the Consolidated Criminal Practice Direction (Jury Service) [2005] 3 All ER 89.
496 The jury


It also refers to unexpected di¬culties arising in the course of a case through
˜professional or personal circumstances™ “ mentioning a breakdown in childcare
arrangements or urgent parliamentary business for an MP which might lead the
judge to adjourn the case or to discharge that juror and continue with a reduced
number of jurors.

The judge™s discretion
In R v. Ford 47 Lord Chief Justice Lane said that the trial judge has a residual dis-
cretion to discharge a juror who ought not to be serving even in the absence of
any objection by any party. ˜The basic position is that a juror may be discharged
on grounds that would found a challenge for cause. In addition jurors who are
not likely to be willing or able properly to perform their duties may also be dis-
charged™.
The question of conscientious objection to jury service was considered in R
v. Crown Court at Guildford, ex p Sider¬n48 in which the Divisional Court held
that a member of the Plymouth Brethren could be entitled to excusal not
because of her beliefs as such but because they prevented her from taking part
in the jury™s deliberations. Since ˜she would not participate at all in the usual
discussion between jurors which is an integral part of the jury system™, she
would be unable to perform her duties as a juror. (The court also held that a
judge hearing an appeal from a chief clerk™s refusal of such an application to be
excused jury service should consider sympathetically any request for the person
to be legally represented.)

Questionnaires for jury selection
The trial in 1995 of Kevin and Ian Maxwell, sons of the notorious business
magnate Robert Maxwell, was scheduled to last some six months. The trial
judge, Mr Justice Phillips (now Lord Chief Justice Phillips), adopted a highly
unusual method of selecting the jury. First, two groups of 400 potential jurors
were summoned to the Old Bailey. Of these, 650 were immediately excused for
reasons of personal non-availability including holiday plans, child-minding
responsibilities, work commitments and the like. The remaining 150 were
invited to complete a twenty page questionnaire with some forty questions
speci¬cally relating to the Maxwell trial. This was designed to test their avail-
ability for an unusually long case and was also directed to their knowledge of
the case and possible resulting prejudice. The judge and counsel in open court
then went through the list of these 150 questionnaires classifying them as A (no
reason to exclude), C (should be excluded for any reason, including illiteracy)
and B (uncertain). There were ¬fty-two Cs. The jury was then selected by ballot
drawn from the remaining hundred or so jurors. As each name was drawn, if
counsel or the judge had any queries on the basis of the questionnaire or the
classi¬cation, the juror was asked to come into the court room and they were

47 48
(1989) 89 Cr App Rep 278 at 280. [1989] 3 All ER 7.
497 Challenging of jurors


asked questions by the judge to clarify the issue. The individual then left the
court room and the judge and counsel together decided whether that person
should or should not serve as a juror.
In R v. Tracey Andrews 49 the Court of Appeal said that the use of a question-
naire to establish whether potential jurors were biased should be avoided save
in most exceptional circumstances.

Jury selection and pre-trial publicity
It is not a valid ground of objection that the juror has previous knowledge of
the case from the media. In R v. Maxwell Phillips J said that because the minds
of potential jurors might have become ˜clogged with prejudice™ by pre-trial pub-
licity about the case he would permit questions to be put in the jury question-
naire and further questions to be posed when he questioned potential jurors in
open court (see above). But in a ruling on jury selection given on 27 April 1995
he said: ˜The fact that a juror may have read or heard prejudicial matter about
a defendant, and even formed an adverse opinion of him on the basis of it, does not
of itself disqualify the juror on the ground of bias™ (emphasis supplied). He cited
a dictum of the Ontario Court of Appeal:
In this era of rapid dissemination of news by the various media, it would be
naive to think that in the case of a crime involving considerable notoriety, it
would be possible to select twelve jurors who had not heard anything about the
case. Prior information about a case and even the holding of a tentative opinion
about it, does not make partial a juror sworn to render a true verdict according
to the evidence.50
Phillips J cited with approval the observation of the High Court of Australia: ˜in
the past too little weight may have been given to the capacity of jurors to assess
critically what they see and hear and their ability to reach their decisions by ref-
erence to the evidence before them™.51

Procedure for challenge for cause
In 1989 the Judicial Studies Board published a recommended procedure for
challenge for cause based on recommendations of the Law Commission. If
counsel can state the ground of challenge without prejudicing his client in the
eyes of the jury or embarrassing the juror, the matter can be dealt with in open
court. If not, the sworn jurors should be sent to the jury room and the rest of
the panel, including the challenged juror, should leave the court. The judge
should then decide whether to exclude the press and the public. Challenges
should never be heard in the judge™s room.

49
[1999] Crim LR 156 and commentary at 157; 148 New Law Journal, 4 December 1998, p. 1812.
50
R v. Hubbert (1975) 29 CCC (2d) 279 at 291.
51
R v. Glennon (1992) 173 CLR 592. The study carried out for the New Zealand Law
Commission (p. 376 above) suggests that pre-trial publicity is probably not the threat to the
jury™s decision-making that has been feared.
498 The jury


Stand by for the Crown
When the defence right of peremptory challenge was abolished in 1988, the
Attorney General issued guidelines as to how the prosecution™s right to ˜stand
by for the Crown™ was to be used:52

Attorney General™s guidelines on the exercise by the Crown of its right
of stand by
1. Although the law has long recognised the right of the Crown to exclude a
member of a jury panel from sitting as a juror by the exercise in open court of
the right to request a stand by or, if necessary, by challenge for cause, it has been
customary for those instructed to prosecute on behalf of the Crown to assert
that right only sparingly and in exceptional circumstances. It is generally
accepted that the prosecution should not use its right in order to in¬‚uence the
overall composition of a jury or with a view to tactical advantage . . .
5. The circumstances in which it would be proper for the Crown to exercise
its right to stand by a member of a jury panel are: (a) where a jury check autho-
rised in accordance with the Attorney General™s Guidelines on Jury Checks
reveals information justifying exercise of the right to stand by in accordance
with para. 9 of the guidelines and the Attorney General personally authorises the
exercise of the right to stand by; or (b) where a person is about to be sworn as a
juror who is manifestly unsuitable and the defence agree that, accordingly, the
exercise by the prosecution of the right to stand by would be appropriate. An
example of the sort of exceptional circumstances which might justify stand by
is where it becomes apparent that . . . a juror selected for service to try a complex
case is in fact illiterate.


Juries and the problem of race
The question whether the courts have any way of achieving a racial mix in a case
where that seems to be desirable was the subject of a number of con¬‚icting
court decisions in the 1980s.53
In Ford54 the trial judge refused an application for a multi-racial jury in a case
where the defendant was accused of reckless driving and driving a vehicle
without authority. Lord Lane, the Lord Chief Justice, giving the judgment of the
Court of Appeal, said that the judge had a discretion to discharge a particular
juror who was un¬t to serve, for instance because he was deaf or blind or oth-
erwise incompetent to serve, but this discretion did not extend to discharging a
competent juror in order to secure a jury drawn from a particular section of the
community nor otherwise to in¬‚uence the overall composition of the jury. ˜For

52
Practice Note [1988] 3 All ER 1086.
53
Binns [1982] Crim LR 522 and 823; Danvers [1982] Crim LR 680; Newton Rose (1981) Times,
11 November; Bansall, Bir, Mahio and Singh [1985] Crim LR 151; McCalla [1986] Crim LR
335; Frazer [1987] Crim LR 418; Thomas (1989) 88 Cr App Rep 370.
54
[1989] 3 All ER 445.
499 Challenging of jurors


this latter purpose the law provides that “fairness” is achieved by the principle
of random selection™.55
The court disapproved suggestions to the contrary in earlier cases such as
Binns, Bansall and Thomas (n. 53 above). Lord Lane said that there was no prin-
ciple that juries should be racially balanced “ for that would depend on an
underlying premise that jurors of a particular racial origin were incapable of
giving an impartial verdict in accordance with the evidence.
In its evidence to the Runciman Royal Commission on Criminal Justice, the
Commission for Racial Equality (CRE) argued that something had to be done
to ensure that a jury be racially mixed where this seemed relevant. Restoration
of the right of peremptory challenge (above) would help, but on its own it
would not be su¬cient. One way would be to give the trial judge a statutory
right to stand by jurors in order to achieve a racially mixed jury. If the judge
refused to exercise this power, the CRE proposed that the defence counsel
should have the right to stand by unlimited numbers of jurors until an accept-
able racial mix was achieved “ the equivalent right to the prosecution™s right of
˜stand by for the Crown™.
The Runciman Royal Commission was persuaded by the CRE that in a small
number of racially sensitive cases something needed to be done to secure that
the jury should be racially balanced.56
The Commission unanimously proposed that in such a case either side could
ask the judge to authorise a special procedure so as to ensure that the jury con-
tains up to three members of ethnic minority communities. If the judge agreed,
the jury baili¬ would continue drawing names randomly until three such
people were drawn. This procedure should not apply, as the CRE had proposed,
merely because the defendant thought that he could not get a fair trial from an
all-white jury. The judge would have to be persuaded that it was reasonable
because of the special and unusual features of the case. Thus, a black defendant
charged with burglary would not normally succeed with such an application,
but black people accused of violence against a member of an extremist organi-
sation who had been making racial taunts against them and their friends might
succeed.57
The CRE thought it would be impracticable to provide that the ethnic minor-
ity members of the jury should be drawn from the same ethnic minority group
as the defendant. The Royal Commission thought that this should be an issue
that the judge could be asked to consider.

55
At 449. Ford was applied in Smith (Lance Percival) [2003] EWCA Crim 283, [2003] Crim LR
633 where the Court of Appeal held that a trial judge had no power to empanel a jury, let alone
discretion as to how the jury was composed. The defendant, who was black, appealed on the
ground, inter alia, that he had been convicted by an all-white jury. The court held that there
was nothing in the ECHR jurisprudence that impugned the way that juries were selected.
56
˜The Court of Appeal in Ford held that race should not be taken into account in selecting
juries. Although we agree with the court™s position with regard to most cases, we believe that
there are some exceptional cases where race should be taken into account™. (Runciman, p. 133,
57
para. 62.) Runciman, p. 133, para. 63.
500 The jury


The Royal Commission™s proposal proved controversial. Lord Taylor, the
Lord Chief Justice at the time, was against it. Speaking to the Leeds Race Issues
Advisory Council he said: ˜Though put forward for the best of motives, this pro-
posal seems to me the thin edge of a particularly insidious wedge. The jury is
the foundation of our system. It is drawn at random from the law-abiding
inhabitants of the locality in which a case is tried. We must on no account intro-
duce measures which allow the state to start nibbling away at the principle of
random selection of jurors™. Jurors must not be seen as ˜representing the views
of the community, or of discrete parts of it, nor indeed of representing either
the complainant or the victim™.58
Lord Justice Auld in his report made the same recommendation as the
Runciman Royal Commission. Juries, he admitted, were clearly at risk of one or
more of their number bringing prejudice of one sort or another to their task,
but such prejudice was usually invisible and ˜we are content to assume that
it will be overcome or cancelled by di¬ering views of other members™.59
Membership of a race is usually visible and, he argued, ˜it is this quality of visible
di¬erence and the prejudice that it may engender that singles out race for
di¬erent treatment from other special interest groups in the courtroom™.60
The Government rejected the proposal. In its White Paper Justice for All it
gave six reasons. Implementing the proposal, it said,61 would potentially:
• Undermine the fundamental principle of random selection and would not
achieve a truly representative jury of peers.
• Assume bias on the part of the excluded jurors when no prejudice had been
proved.
• Place the selected minority ethnic jurors in a di¬cult position “ as if they were
expected to represent the interests of the defendant or the victim.
• Generate tensions and divisions in the jury room.
• Place undue weight on the views of the specially selected jurors.
• Place a new burden on the court to determine which cases should attract an
ethnic minority quota and provide a ground for unmeritorous appeals.
As a member of the Runciman Royal Commission, the writer was party to its
unanimous recommendation on ethnic minority representation. This is one of
the two of its 352 recommendations on which he later changed his mind.62


Jury vetting
In 1978, during the so-called ˜ABC™ trial of a soldier and two journalists under
the O¬cial Secrets Act, it was revealed that in some cases the prosecution vet


58 59 60
The Times, 1 July 1995. Auld, Ch. 5, para. 59, p. 158. Ibid.
61
White Paper, Justice for All, July 2001, para. 7.29.
62
See M. Zander™s response to the Auld Review, www.criminal-courts-review “ Major
Reports/Comments, p. 13.
501 Challenging of jurors


the jury panel. On the ¬rst day of the trial, counsel for one of the defendants
learned from the clerk of the court that prosecution counsel had had a list of the
potential jurors. ˜Anyone who is known to be disloyal would obviously be dis-
quali¬ed™, said Mr John Leonard QC for the prosecution. (In fact the Crown had
not taken objection to anyone on the list.)
During the trial it emerged that the foreman of the jury had been a member
of the elite Special Air Service Regiment (the SAS). When this fact was made
known on television, the trial judge discharged the jury. As a direct result, in
October 1978 the Attorney General, Mr Sam Silkin QC, published guidelines
for vetting of jury panels which he had actually established three years earlier
but which had not previously been published.63 These guidelines have subse-
quently been redrafted several times. They identify two categories of case in
which additional checks are required “ cases involving national security and
terrorist cases:64
5. The particular aspects of these cases which may make it desirable to seek extra
precautions are (a) in security cases a danger that a juror, either voluntarily or
under pressure, may make an improper use of evidence which, because of its
sensitivity, has been given in camera, (b) in both security and terrorist cases the
danger that a juror™s political beliefs are so biased as to go beyond normally
re¬‚ecting the broad spectrum of views and interests in the community to re¬‚ect
the extreme views of sectarian interest or pressure groups to a degree which
might interfere with his fair assessment of the facts of the case or lead him to
exert improper pressure on his fellow jurors.
6. In order to ascertain whether in exceptional circumstances of the above
nature either of these factors might seriously in¬‚uence a potential juror™s
impartial performance of his duties or his respecting the secrecy of evidence
given in camera, it may be necessary to conduct a limited investigation of the
panel. In general, such further investigation beyond one of criminal records
made for disquali¬cations may only be made with the records of police Special
Branches. However, in security cases, the investigation may, additionally,
involve the security services. No checks other than on these sources and no
general inquiries are to be made save to the limited extent that they may be
needed to con¬rm the identity of a juror about whom the initial check has
raised serious doubts.
Such checks require the personal approval of the Attorney General. If the check
shows that any juror should be excluded from the trial it is done by telling pros-
ecution counsel who would ask that juror to ˜stand by for the Crown™.

Use made of jury vetting
There is virtually no information about the use of jury vetting. In his original
statement in 1978 the Attorney General said that in the three years since he had
laid down his guidelines jury vetting had occurred in 25 cases. At that time the

63
See The Times, 11 October 1978.
64
The latest version is (1989) 88 Cr App Rep 123, [1988] 3 All ER 1086.
502 The jury


categories of cases in which jury vetting was permitted included organised
crime which was later withdrawn. The authorities know that such cases are
likely to provoke a row.65 The number of such cases is probably even fewer today
than in the late 1970s.66


5. The size of the jury
As Lord Justice Auld™s report said, the fact that the English jury consists of twelve
persons is ˜a matter of tradition rather than logic™.67 In Scotland the number is
¬fteen. Auld made no recommendation for a change in this regard, but he did
suggest that in long cases, where they consider it appropriate, judges should
have a right to swear alternate or reserve jurors, to meet the contingency of the
jury being reduced in number by illness or any other reason of necessity.68 This
recommendation was not adopted by the Government.


6. Who serves on juries?
There has for many years been debate as to whether those who served on juries
were drawn disproportionately from certain social groups and whether some
elements of society avoided jury duty. In fact a very large national study of jury
membership (the Crown Court Study) showed that this was not so.69 The study
had returns from some 8,300 jurors in over 800 trials.
Sex Males were slightly over-represented “ 53 per cent as against 48 per cent
in the whole population, but foremen were much more disproportionately
male “ 78 per cent.70
Social class The social class measures were somewhat crude but it appeared
that 19 per cent were skilled manual (compared with 23 per cent in the general
population), 7 per cent were unskilled manual (exactly the same as the general
population) and 29 per cent were professional/managerial (compared with 31
per cent in the general population).71
Work status The great majority of the jurors were working (69 per cent full-
time, 13 per cent part-time). Only 2 per cent had been unemployed for over two
years. 6 per cent were retired persons.72

65
As occurred in 1979 when The Guardian (20 September) printed details of information
obtained through jury vetting from the police computer in relation to the trial of six
anarchists.
66
This issue has not been raised for debate for many years. For strong criticism of the practice of
vetting, see H. Harman and J. Gri¬th, Justice Deserted (National Council for Civil Liberties,
1979); P. Du¬ and M. Findlay, ˜Jury Vetting “ the Jury Under Attack™, Legal Studies, 1983,
p. 159. See also R.J. East, ˜Jury Packing: A Thing of the Past?™, 48 Modern Law Review, 1985,
p. 518. East took an even more serious view of jury vetting, seeing it as part of a general
67
erosion of civil liberties. Auld, Ch. 5, para. 17, p. 142.
68
Auld, Ch. 5, para. 20, p. 143.
69
M. Zander and P. Henderson, The Crown Court Study (Royal Commission on Criminal
70
Justice, Research Study No. 19, 1993). Ibid, section 8.13.1, p. 234.
71 72
Ibid, Table 8.41, p. 238. Ibid, Table 8.40, p. 237.
503 The extent to which juries are used


However, now that the categories of ˜ineligible™ for jury service and ˜excused
as of right™ have e¬ectively been eliminated, the whole controversy about the
composition of juries has presumably ceased to be of interest or concern.


7. The extent to which juries are used

Civil cases
There is a right to have trial by jury only in the following civil cases: libel,
slander, malicious prosecution, false imprisonment and allegations of fraud.
Since the Supreme Court Act 1981, the right to trial by jury in the categories
listed above has been subject to the proviso in s. 69(1) that the court can refuse
jury trial if it is of the opinion that ˜the trial requires prolonged examination of
documents or accounts or any scienti¬c or local investigation which cannot
conveniently be made with a jury™.73 One advantage of trial by judge as against
trial by jury is that it results in a reasoned judgment. (Both parties in the
˜Holocaust denial™ libel action brought by David Irving against Penguin Books
and Professor Deborah Lipstadt agreed that the case was too complex for a jury.
The trial, which lasted from January to April 2000, ended with a devastating 150
page judgment by Mr Justice Gray demolishing Irving™s arguments.74)
In other cases trial is without a jury unless the court ˜in its discretion orders
it to be tried with a jury™.75
Prior to the 1981 Act the judges had what appeared to be a complete statu-
tory discretion as to whether to order trial by jury. The Administration of Justice
Act 1933 provided that ˜Any action to be tried in the Queen™s Bench Division
could, in the discretion of the court or judge, be ordered to be tried either with
or without a jury™.
In 1937, the Court of Appeal sitting with ¬ve judges, said that the question of
trial by jury was really one for the discretion of the court.76 Lord Wright said the
discretion of the judge was ˜completely untrammelled™.77 The Annual Practice,
the practitioners™ bible, in interpreting the decision said ˜the discretion of the
judge is absolute™. When the Rules of the Supreme Court were revised in 1958,
RSC Order 36, r. 1(3) was amended to read: ˜the discretion of a court or judge


73
In 1994 the Court of Appeal denied an application from two unemployed environmental
campaigners that the libel action brought against them in respect of a lea¬‚et by McDonald™s
fast food chain should be heard by a jury. The Court of Appeal said that the scienti¬c issues
would make it impossible for the case to be tried satisfactorily by a jury. The two campaigners
conducted their own case “ which went on for over a year and became the longest libel action
in recorded history. (See national newspapers 26 March 1994 and a year later D. Mills,
˜“McLibel 2” bite back against Big Mac™, Legal Action, April 1995, p. 9.) In Racz v. Home O¬ce
[1994] 1 All ER 97 the House of Lords upheld the Court of Appeal™s denial of jury trial even
though the action could have raised the issue of an award of exemplary damages.
74
For an account of the case see R. Evans, Telling Lies About Hitler (Verso, 2002).
75
Supreme Court Act, 1981, s. 69(3). For a brief review of the cases see 14 Civil Justice Quarterly,
76 77
1995, p. 152. Hope v. Great Western Rly Co [1937] 2 KB 130. At p. 138.
504 The jury


in making or varying any order under this rule is an absolute one™. Nothing
could be clearer.
In 1966 the issue came again before the Court of Appeal sitting again with
¬ve judges in a case where jury trial had been allowed for a claim for damages
in a road accident which left the plainti¬ a permanent quadriplegic. Lord
Denning, giving the judgment of the court, explained why trial by jury was
normally not appropriate for personal injury cases:

Ward v. James [1966] 1 QB 273, [1965] 1 All ER 563, Court of Appeal,
Civil Division
Lord Denning MR:

Relevant considerations today
Let it not be supposed that this court is in any way opposed to trial by jury. It
has been the bulwark for our liberties too long for any of us to seek to alter it.
Whenever a man is on trial for serious crime, or when in a civil case a man™s
honour or integrity is at stake, or when one or other party must be deliberately
lying, then trial by jury has no equal, but in personal injury cases trial by jury
has given place of late to trial by judge alone, the reason being simply this, that
in these cases trial by judge alone is more acceptable to the great majority of
people. Rarely does a party ask in these cases for a jury. When a solicitor gives
advice, it runs in this way: ˜if I were you, I should not ask for a jury. I should have
a judge alone. You do know where you stand with a judge, and if he goes wrong,
you can always go to the Court of Appeal, but as for a jury, you never know what
they will do, and if they do go wrong, there is no putting them right. The Court
of Appeal hardly ever interferes with the verdict of a jury™. So the client decides
on judge alone. That is why jury trials have declined. It is because they are not
asked for . . . This important consequence follows: the judges alone, and not
juries, in the great majority of cases, decide whether there is negligence or not.
They set the standard of care to be expected of the reasonable man. They also
assess the damages. They see, so far as they can, that like sums are given for like
injuries. They set the standards for awards. Hence there is a uniformity of deci-
sion. This has its impact on decisions as to the mode of trial. If a party asks for
a jury in an ordinary personal injury case, the court naturally asks: ˜Why do you
want a jury when nearly everyone else is content with judge alone?™ I am afraid
it is often because he has a weak case, or desires to appeal to sympathy. If no good
reason is given, then the court orders trial by judge alone. Hence we ¬nd that
nowadays the discretion in the ordinary run of personal injury cases is in favour
of judge alone . . .

Lessons of recent cases
. . . Recent cases show the desirability of three things: ¬rst, assessability: in cases
of grave injury, where the body is wrecked or the brain destroyed, it is very
di¬cult to assess a fair compensation in money, so di¬cult that the award
must basically be a conventional ¬gure, derived from experience or from awards
in comparable cases. Secondly, uniformity: there should be some measure of
505 The extent to which juries are used


uniformity in awards so that similar decisions are given in similar cases; other-
wise there will be great dissatisfaction in the community, and much criticism of
the administration of justice. Thirdly, predictability: parties should be able to
predict with some measure of accuracy the sum which is likely to be awarded in
a particular case, for by this means cases can be settled peaceably and not
brought to court, a thing very much to the public good. None of these three is
achieved when the damages are left at large to the jury. Under the present prac-
tice the judge does not give them any help at all to assess the ¬gure. The result is
that awards may vary greatly, from being much too high to much too low. There
is no uniformity and no predictability . . .
The case caused a great hullabaloo. The Court of Appeal, it was said, had struck
down one of the sacred rights of an Englishman “ the right to trial by jury. This
was in fact not the case as the civil jury had already virtually ceased to exist even
before the decision. In 1963, three years before Ward v. James, the number of
jury trials in London in the Queen™s Bench Division was twenty-seven out of a
total of 962 (2.8 per cent).78 Nevertheless, the Court of Appeal was obviously
concerned to allay public disquiet and within a month it found a case79 in which
it disclaimed any intention to abolish civil juries:

Hodges v. Harland and Wolff Ltd [1965] 1 All ER 1086, Court of Appeal,
Civil Division
[The plainti¬, while employed by the defendant, was operating a diesel driven
air compressor. The spindle on that machine was not properly guarded as
required by the relevant Regulations, 1960. The spindle caught and tore the
plainti¬™s trousers and avulsed his penis and scrotal skin. One e¬ect of the injury
was that the plainti¬ still had the sexual urge without the ability to perform the
sexual act. On the summons for directions, trial by jury was ordered by the
judge. On appeal:]
Lord Denning MR: . . . Naturally enough, we have been referred to the recent
decision of this court in Ward v. James. It is a mistake to suppose that this court
in that case took away the right to trial by jury. It was not this court but
Parliament itself which years ago took away any absolute right to trial by jury
and left it to the discretion of the judges. This court in Ward v. James a¬rmed
that discretion and said that, as the statute has given a discretion to the judge,
this court would not fetter it by rigid rules from which the judge was never at
liberty to depart. What Ward v. James did was this. It laid down the considera-
tions which should be borne in mind by a judge when exercising his discretion;
and it is apparent that, on those considerations, the result will ordinarily be trial
by judge alone. It will not result in trial by jury save in exceptional circum-
stances. That is no great change. It has been the position for many years. As it
happened, in Ward v. James itself, the result was trial by jury.
In this present case the judge, it seems to me, has borne all the relevant consid-
erations in mind. He said, ˜this is a unique case™. So it is. Counsel for the defendants

78
For the history of the decline of the civil jury see Lord Devlin, Trial by Jury, Ch. 6.
79
The two cases were reported in the same volume of the All England Law Reports.
506 The jury


urged that there were one or two cases in the books where a man had retained the
sexual urge without the ability to perform the sexual act. That may be so, but they
were very di¬erent from this. I think that the judge was well entitled to take the
view that this was an exceptional case, and in the circumstances to exercise his dis-
cretion in favour of trial by jury. Indeed, when a judge exercises his discretion and
takes all the relevant considerations into account, it is well settled that the burden
is on anyone coming to this court to show that he was wrong. I see nothing wrong
in the way that Mr Justice Lyell dealt with this case in ordering trial by jury . . .
I think that this case was properly decided by the judge. The appeal fails and
must be dismissed.
Lord Justices Davies and Salmon agreed.
In 1995 the Law Commission in a consultation paper said it thought that
juries should never be used for personal injury cases:
Given the di¬culty of assessing damages for non-pecuniary loss in personal
injury cases and the judicial tari¬ that has been developed to ensure a measure
of consistency and uniformity, we consider it unsatisfactory that juries might
ever be called upon to assess compensatory damages for personal injury. Juries
do not have the bene¬t of knowledge of the scale of values that has been devel-
oped and the inevitable consequence is unacceptable inconsistency with awards
in other cases.80
Like the Court of Appeal in Ward v. James, the Law Commission rejected the
idea that the jury should be provided with a scale of values, or upper and lower
sums, leaving it for them to ¬x the actual amount.

Juries for libel and slander cases “ the Faulks Committee
The role of the jury in libel and slander actions was considered by the Faulks
Committee. In its report in 197481 the Committee concluded that juries should
no longer be available as of right in defamation actions but that instead there
should be the same discretion to permit a jury as in all other cases. They had
several reasons:
• Although juries were perfectly able to determine some questions that arose in
defamation actions, there were other matters (such as whether a plea of jus-
ti¬cation succeeded or technical legal concepts such as fair comment and
quali¬ed privilege) where a judge was normally more competent.
• Libel actions often turned on barbed subtleties, specialist jargon or group atti-
tudes of warring factions where the jury was not likely to have any relevant
insight or knowledge.
• Contrary to the popular view that judges were remote from the life of the
community, they were in fact well in touch with the emotions, conventions,
language and way of life of the rest of the community. (˜The idea that judges


80
Damages for Personal Injury: Non-Pecuniary Loss, consultation paper 140, 1995, para. 4.83 at
81
p. 125. The Law of Defamation, 1974, Cmnd. 5709.
507 The extent to which juries are used


live in an ivory tower is wholly out-dated. They go by train and bus, they look
at television and they hear, in matrimonial, criminal, accident and other
cases, every kind of expression which the ordinary man uses, and they have
learnt how he lives™ (para. 484).)
• Judges gave their reasons, whereas juries did not. It was more satisfactory for
both sides to know the reasons.
• Juries had di¬culties with complex cases.
• Juries were unpredictable.
• Trial by jury was more expensive.
• The existing rule gave the right of decision as to mode of trial to whichever
side wanted jury trial. No matter how strong the case against jury trial, the
party who wanted it would prevail. This was unjust to the other party and
wrong in principle.
The Committee concluded by saying that it believed that ˜much of the support
for jury trials is emotional and derives from the undoubted value of juries in
serious criminal cases where they stand between the prosecuting authority and
the citizen™.82
It did not recommend that the possibility of jury trial should be removed
altogether because there were some cases in which a jury would be better than
a judge:
We recognise it to be undesirable, that a judge sitting alone should be embroiled
in a matter of political, religious or moral controversy. The same might be true
where any party has been outspokenly critical of the Bench. Broadly, where the
issue is whether the words were true or false and the subject is one that raises
strong feelings among the general public so that a judge alone might be sus-
pected, however mistakenly, of prejudice conscious or unconscious, we should
expect that trial by jury might be awarded “ but that in cases which did not involve
such controversial questions a judge alone would be more likely to be selected.83
However, the Committee did have a recommendation on the subject of whether
juries should continue to deal with damages.

Juries and damages in defamation cases
The Committee came to the conclusion that it was not right that juries should
continue to award damages. The jury simply lacked the necessary knowledge
and experience. There were two possible alternatives. One was that the judge
should ¬x the amount of damages without any help from the jury. The other
was that the judge would ¬x the actual amount having had guidance from the
jury as to the appropriate scale. The Committee favoured the second. The jury
should determine whether the damages were to be ˜substantial/moderate/
nominal or contemptuous™ and the judge should ¬x the actual amount.84 The
Committee also said that the Court of Appeal should be empowered to review

82 83 84
Paragraph 496. Faulks, para. 503. Faulks, para. 513.
508 The jury


the amount of damages and should have the power to substitute its own ¬gure
for that of the jury.85
In its 1995 consultation paper on Damages for Personal Injury: Non-Pecuniary
Loss the Law Commission said that it had reluctantly come to the conclusion
that the Faulks Committee™s recommendation to split the determination of lia-
bility and damages between judge and jury was unworkable in libel actions.
In the late 1980s the question of the jury™s competence in the assessment of
damages came into issue again as a result of some huge libel awards:
• £450,000 to Martin Packard against a Greek newspaper (with a circulation of
¬fty copies in England), 1987.
• £300,000 to Koo Stark against the Daily Mirror regarding an alleged relation-
ship with Prince Andrew, 1988.
• £500,000 to Je¬rey Archer against the Daily Star regarding an allegation that
he had visited a prostitute, 1988. (This sum had to be paid back with costs and
interest after Archer was imprisoned for perjury in the case!)
• £650,000 against Private Eye for Sonia Sutcli¬e, wife of the ˜Yorkshire Ripper™,
regarding an allegation that she had cashed in on his notoriety, 1989. (The
award was set aside by the Court of Appeal which ordered a retrial. She even-
tually accepted £60,000 in settlement.)
These cases led to a change in the rules so as to permit the Court of Appeal to
substitute its own award for that of the jury “ as had been recommended in 1974
by the Faulks Committee, but the problem continued:
• £250,000 against Mirror Group Newspapers for broadcaster Esther Rantzen
regarding her reputation and integrity as someone concerned about sexual
abuse of children. Reduced on appeal to £110,000.86 The Court of Appeal said
the award was excessive by any objective standard of reasonable compensa-
tion. It invoked Article 10 of the European Convention as one of the reasons
for its decision. The courts™ previous reluctance to intervene should be re-
examined. The courts, it said, should subject large awards of damages to more
searching scrutiny than had been the case in the past. The question to be asked
was whether a reasonable jury could have thought the award was necessary to
compensate the plainti¬ and re-establish his reputation.
The Law Commission, in its 1995 consultation paper on Damages for Personal
Injury: Non-Pecuniary Loss, proposed that the judge in directing the jury in
defamation or other cases should inform the jury of the range of awards for
non-pecuniary loss in personal injury cases. The Law Commission™s view had
hardly been expressed when it became the law of the land through a ruling by
the Court of Appeal in a case brought by rock star Elton John against the Sunday
Mirror.87 The court reduced what it called the jury™s ˜manifestly excessive™ award

85 86
Faulks, para. 514. Rantzen v. Mirror Group Newspapers [1993] 4 All ER 975.
87
John v. Mirror Group Newspapers Ltd [1996] 2 All ER 35.
509 The extent to which juries are used


of £350,000 to £75,000. In doing so it held that in future lawyers and judges
could and should give juries clear guidance with regard to damages. It described
juries in libel actions as ˜sheep loosed on an unfenced common with no shep-
herd™. Sir Thomas Bingham MR said:
It is in our view o¬ensive to public opinion, and rightly so, that a defamation
plainti¬ should recover damages for injury to reputation greater, perhaps by a
signi¬cant factor, than if that same plainti¬ had been rendered a helpless cripple
or an insensate vegetable. The time has in our view come when judges, and
counsel, should be free to draw the attention of juries to these comparisons.
Mentioning ¬gures would not, it thought, develop into an auction. Figures
mentioned by counsel would tend to be the upper and lower bounds of a real-
istic bracket. The jury would remain free to choose a ¬gure within or outside
the bracket.
The Court of Appeal took the same approach in Thompson v. Metropolitan
Police Commissioner.88 The court held that in cases involving actions for unlaw-
ful acts by police o¬cers, juries should be told about damages awarded in per-
sonal injury cases even if the case did not involve personal injuries. Exemplary
damages should be from £5,000 to £25,000 with £50,000 an absolute maximum.
(The court reduced damages of £220,000 awarded by the jury to £35,000.)
However, in Gleaner Co Ltd v. Abrahams,89 the Privy Council said that because
damages in personal injury cases could be mentioned in defamation cases in
one jurisdiction did not mean that it was necessarily right in another jurisdic-
tion. There was an element of deterrence in libel cases which did not exist in
personal injury cases. It dismissed the defendant™s appeal against an award of 35
million Jamaican dollars (equivalent to £533,000).


Criminal cases
Cases tried at the Crown Court (called ˜trial on indictment™) where the accused
pleads not guilty to one or more charges have hitherto always been heard by
juries.
Cases tried on indictment are of two kinds: the very serious o¬ences that can
only be tried at the higher level and o¬ences triable either way.90 The great
majority of either-way cases are tried summarily.
The basic concept regarding the disposition of either-way cases has been that
if either the magistrates or the defendant think that the case should be heard in
the Crown Court that view prevails. The magistrates cannot insist on summary
trial if the defendant wants trial by jury; the defendant cannot insist on
summary trial if the magistrates think it should be dealt with by the Crown
Court. The Criminal Justice Act 2003 retained this fundamental principle.


88 89
[1997] 2 All ER 762. (2003) Times, 22 July.
90
For the allocation of such cases see pp. 315“22 above.
510 The jury


Where a number of defendants are jointly charged with an either-way
o¬ence and one elects to be tried on indictment, all must be sent for trial on
indictment.91


8. Aids to the jury
The question of whether, and if so how, to assist the jury has exercised a suc-
cession of o¬cial committees. The Morris Committee in 1965 recommended
that jurors be sent a lea¬‚et with information about their duties and about local
arrangements. It did not think that they should be encouraged to take notes,
though if they wished to do so, facilities to do so should be provided. (˜The
process of note-taking is one that requires a good deal of experience and skill.
Because of their training, judges are able to make accurate and reasonably com-
plete notes, and at the same time to observe all that is happening and to keep
control over the proceedings. Not all jurors can be expected to have the same
skill and training. Experience shows that as a general rule it may well be better
for jurors to concentrate on listening, observing and re¬‚ecting™.92)
The Crown Court Study found that in the great majority of cases one or more
members of the jury did take notes and most jurors said that they found their
notes to be useful.93
The Morris Committee was doubtful whether jurors should be informed that
they could ask questions. (˜If positive encouragement were given to jurors to ask
questions there would be a risk in a criminal case of some question prejudicial
to the accused being asked inadvertently, and there would also be some risk of
the proceedings getting out of hand™.94) In the Crown Court Study, the great
majority of jurors (70 per cent) said that they had been told they could ask ques-
tions, but of those who had wanted to do so, only 17 per cent had had the
courage to do so.95
Jurors now receive a good deal of information about jury service “ both
beforehand in the form of material sent out with the jury summons and at the
start of their jury service. This includes the showing of a video. The HM Courts
Service Website (www.hmcourtsservice.gov.uk) has a helpful thirty-three page
booklet Your Guide to Jury Service with sections on: preparing for your ¬rst day,
your ¬rst day at court, selecting/empanelling a jury, who™s who in court, the trial
process, in the jury deliberation room, complaints, frequently asked questions
and a glossary of some commonly used legal terms.
The Roskill Committee gave attention to ways of making the jury™s task easier,
especially in complex cases. The prosecution, it said, should prepare schedules
and summaries of the relevant contents of documentary evidence. Glossaries of

91
R v. Brentwood Justices, ex p Nicholls [1990] 3 All ER 516.
92
Report of the (Morris) Departmental Committee on Jury Service, 1965, Cmnd. 2627, para. 282.
93
M. Zander and P. Henderson, n. 69 above, p. 173, section 6.2.3.
94
Morris Committee, para. 283.
95
M. Zander and P. Henderson, n. 69 above, p. 174, section 6.2.4.
511 Aids to the jury


technical terms should be made for the jury. Modern techniques of presenta-
tion of information should be utilised, including any appropriate forms of
visual aid.
This exhortation was taken to heart. Cases run by the Serious Fraud O¬ce
rejoice in a full battery of hi-tech methods. Specially designed court rooms in
Chichester Rents in Chancery Lane, for instance, have a proliferation of TV
monitors and computer systems for presentation of evidence to the jury. The
jury itself has TV monitors on which they can see the head and shoulders of the
witness, but the TV monitors are constantly in use also to project documents
and graphics. In these huge cases with thousands of documents, the IT expert
is now a vital member of the lawyers™ support team.96
The Runciman Royal Commission also made recommendations designed to
ease the jury™s task. It thought that writing materials should always be provided,
that technological aids should be provided where appropriate and that the judge
should explain to the jury that they have a right to ask questions and to take
notes.97
Lord Justice Auld devoted considerable attention to the problem of provid-
ing more assistance to the jury. His recommendations included the following:
• Jurors should be provided with a copy of the indictment or charge.
• The judge should give jurors a fuller introduction to their task including the
structure and practical features of the trial, a word about their manner of
working, for example as regards note-taking and the time and manner of their
deliberations.
• He should give them a summary of the case and the questions they were to
decide supported with a written aide-memoire (a Cases and Issues Summary)
agreed in draft by the lawyers and approved by the judge. The judge™s
summary should identify the nature of the charges, the evidence agreed, the
matters of fact in issue and a list of the likely questions for their decision. If
the issues narrowed or widened in the course of the trial, the Case and Issues
Summary should be amended and re-issued.98
Auld acknowledged that ˜many criminal practitioners may not initially wel-
come the proposal for an agreed Case and Issues Summary™.99 They might
believe ˜that it would be impracticable in the hurly burly of their life, prepar-
ing cases for trial “ often in the cracks of the day while engaged in the trial of
other cases™.100
There are a considerable number of reasons why Auld™s proposal of an agreed
Case and Issues Summary poses problems:
• It is common in Crown Court cases for both prosecution and defence barris-
ters to receive the brief for the trial at the last minute “ the day before the trial

96
See also the Criminal Justice Act 1988, s. 31 which permits the court to approve special means
97
for conveying complex information. Runciman, pp. 134“5.
98 99 100
Auld, Ch. 11, paras. 21“3, pp. 520“1. Ibid, para. 24, p. 522. Ibid.
512 The jury


or the morning of the trial.101 In that situation how could there be an agreed
case statement?
• Counsel at trial is frequently di¬erent from counsel who dealt with the matter
before trial. Again, this is true for both the prosecution and the defence.102
• There is no system that reliably enables counsel to know the name of opposing
counsel in advance of the trial. In more substantial cases they might have that
knowledge but in ordinary run-of-the-mill cases, usually they would not.103
How could they agree a document if they do not know each other™s identity?
• Even if counsel does know the name of the then opposing counsel, since it is
normal for counsel to change during the pre-trial stage, there would be no
way of knowing whether that counsel will still be acting when the matter
comes to trial.
• If, as would often happen, the appreciation of the facts changes as the case
preparation moves along, the Case and Issues Summary would have to be
updated “ with further resulting problems of getting agreement.
• Presumably the Case and Issues Summary would have to be settled by
counsel, but what would be the role of the defence solicitors and the CPS? The
Auld report said nothing about this. Many solicitors would ¬nd it very unsat-
isfactory to be excluded from the process, but having them involved would
add signi¬cantly to the complication and delay involved.
• Would the lawyers in practice get instructions from the defendant? There are,
notoriously, serious di¬culties in criminal cases in getting instructions from
the defendant. If he is on bail, he frequently does not manage to get himself
to his solicitors™ o¬ce; if he is in custody, his solicitors and barristers com-
monly do not manage to get to the prison.
• Since there would be no advantage to the defendant in agreeing a statement
such as Auld had in mind, defendants and their lawyers would drag their feet
and would not be co-operative. Why should they be? As has been seen, this is
well known to be the case with defence disclosure despite the fact that failure to
produce a defence disclosure statement may result in adverse comment by the
judge (CPIA 1996, s. 11(3)). Plotniko¬™s and Woolfson™s research104 established

101
In the Crown Court Study half (51 per cent) of all prosecution barristers and one-third (31 per
cent) of defence barristers in contested cases received the brief in the case on the day before
the hearing or on the day itself (n. 69 above, section 2.1.3).
102
The Crown Court Study showed that close to half of all briefs were returned. Prosecution
barristers in contested cases said their brief had previously been returned in 59 per cent of
cases. For defence barristers the proportion was 44 per cent (n. 69 above, section 2.1.6). It
could not be assumed that a statement drafted by the (usually more junior) counsel who acted
earlier would be thought adequate by the trial advocate.
103
The Court Service™s Review of the E¬ectiveness of Plea and Directions Hearings in the Crown
Court, January 1998 asked counsel when they were informed of opposing counsel™s identity.
92 per cent of defence counsel and 96 per cent of prosecution counsel answered on the day of
the PDH (para. 5.31).
104
J. Plotniko¬ and R. Woolfson, A Fair Balance? Evaluation of the operation of disclosure law
(Home O¬ce, RDS Occasional Paper No. 76, 2001) “ available on www.homeo¬ce.gov.uk/
rds/index.html.
513 The quality of jury decision-making


that this was virtually a dead letter. The defence statement was generally either
framed in a way that revealed little or it was not entered at all. Yet prosecutors
generally did not ask the court to direct that further particulars be given nor
did they generally ask the judge to comment adversely on the absence or inad-
equacy of the defence statement.105 One reason was that judges seemed to be as
unenthusiastic about enforcing the statutory obligation as prosecutors. If that
is true of defence statements which are supposed to be helpful to the prosecu-
tion, how much more would it be true of Auld™s proposed case statements
which would mainly be intended to be helpful only to the jury?


9. The quality of jury decision-making
There is as yet no systematic study of the jury based on observation or record-
ing of their deliberations. The Contempt of Court Act 1981 makes such research
impossible. Section 8 of the Act states that it is contempt of court ˜to obtain, dis-
close, or solicit any particulars of statements made, opinions expressed, argu-
ments advanced or votes cast by members of a jury in the course of their
deliberations in any legal proceedings™.106 The Runciman Commission recom-
mended that s. 8 of the Contempt of Court Act be amended to permit autho-
rised research in the jury room.107 Lord Justice Auld disagreed.108
In 2005 the Department of Constitutional A¬airs published a consultation
paper canvassing the question whether such research should be permitted.109 In

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