#10511 - Juries - Criminal Procedure and Evidence

• Spencer hates juries.

  • Auld thought we should allow Ds who wished to do so to waive jury trial in preference for judge only trial.

• Actually only used for between 1 and 2% of criminal cases these days.

• Majority of law in Juries Act 1974

Problems with juries

1. Deliberations occur with no oversight

2. Incompetence of jury members

   1. (e.g. Vicky Pryce trial, in which the jury asked if they could come to a verdict on evidence not presented in court and w/ no evidence to support it from pros or defence)

   2. Also – a lot of technical and scientific evidence that jury isn’t going to understand

3. Irresponsible jury members

   1. Googling names of accused – every now and then one is found in contempt

   2. A-G v Davey; A-G v Beard: 2 jurors prosecuted by AG for contempt, one had posted facebook status about convicting and the other had been on the internet.

   3. Young – Ouija board

Cheryl Thomas study = juries usually come out with the right result. See her study.

Simon Jenkins criticism in the guardian – points to the fact that juries are thought to get it right most of the time, but also that magistrates and judges can do the same.

Jury Rationale

1. Magna Carta guarantees ‘right to be tried by your peers’ - from 1215. Didn’t mean juries originally, it meant ‘duty to be submitted to trial by your peers’.

2. As a safeguard against miscarriages of justice

   1. But potential for irrational decisions too

3. Keeps law in line w/ common sense and current ethical standards

4. Protection against the state:

   1. Some say being able to say that “you cannot convict me until you convince 10-12 others beyond reasonable doubt that I did it” is ultimate protection from authoritarian state.

   2. Jury equity – Clive Monty case in which P was clearly guilty under Official Secrets Act but the jury acquitted because it was so unfair. But this might lead to blanket rules and too heavy reliance on juries.

   3. Lord Devlin: “The jury is the lap that shows freedom lives”

5. Democratic…but surely our laws are democratic in themselves? And how does it ensure there’s true democracy by picking 12 at random?

   1. Blackstone: “suffrage” of 12 men should determine guilty but also references to them needing to be competent and sensible etc.

6. Publicly acceptable

7. Judges don’t have sole responsibility.

Juries = empanelled in all trials on indictment where D has plead guilty.

• When does law dispose of juries?

  • All summary or either way offences in the magistrates court

  • If its either-way offence, D has right to insist on jury but most opt to be dealt w/ by magistrates.

  • Guilty pleas in Crown Court (70%)

  • Where there is NG plea on indictable offence, exceptions to jury:

    • DVCVA 2003 s17 mechanisms

    • CJA 2003 s.44 – provision allowing non-jury trial in Crown Court in court case w/ serious suspicion of jury nobbling (other exception for serious fraud cases has now been repealed).

Eligibility – rewritten by the CJA 2003

• Everyone 18-70 registered as parliamentary/local gov elector can be jury member so long as been resident in UK for any period of at least 5 years since attaining age of 13 (JA s1)

• Exempt under Sched1: mentally disordered, those on bail, those on life sentences, those detained for public protection, those w/ extended sentence & those sentenced to imprisonment for 5+ years.

• Exempt for 10 years: anyone who has served prison sentence, anyone subject to community order/rehab order/community punishment order/drug treatment order

• NOT exempt: judges, police, barristers, solicitors.

Empanelling a jury

• Summoned at random from names and addresses on electoral roll. Creates panel of jurors. s.2-5 JA. If eligible and summoned, there is a duty to attend.

• Jury of 12 selected from panel. The jury in waiting are brought in after arraignment or sit during it if D doesn’t plead guilty to anything. 12 of them called at random by the usher – s11.

• Once empaneled, clerk informs D of right to challenge jurors.

• Each takes oath

Challenging

• English approach is that juries should be empanelled by random selection (cf. America).

• Possibility of challenging

  • Prosecution can ask juror to stand by – no reason needed (Mason)

  • P and D can challenge for cause

    • Bc ineligible or risk of bias.

    • Kray judge willing to exclude anyone who read inaccurate paper accounts of alleged gangland activities of the accused.

    • Burden on challenger to show on BoP that his objection is well-founded, usually by showing prima facie evidence of unsuitability.

  • Judge’s residual power – common where juror clearly not literate enough to understand evidence.

    • McCalla: defence asked for at least 2 black jurors but this was not possible – could not generally interfere with a random jury selection so as to incorporate more black people. Same in Ford.

    • Auld suggestion to allow racial composition of jury to be influenced not taken on.

• Jury vetting it possible – parties can look at and inspect jury panel before trial – look into backgrounds, likely attitudes etc.

Jury protection orders – when there is concern over jury nobbling can give jurors police protection.

Discharge of jurors or jury

• Can discharge up to 3 jurors and let the trial continue – s.16 JA

• Judge has discretion to discharge the whole jury from giving a verdict, and the accused can be retried by a different jury. Key situations

  • Cannot agree

  • Inadmissible evidence which is prejudicial is inadvertently given

    • Boyes: mother of victim shouted ‘when will it come out about the other 5 girls he attacked” CA quashed, should have considered fresh trial if they heard.

  • When 1+ jurors guilty of misconduct and/or might be prejudiced against the accused and the matter cannot be dealt with by just discharging single juror.

  • Jury influenced by outsiders

Jury Bias

Abroikov: position of those familiar with crim justice system serving as jurors was considered. 3 cases were heard;

1. Local CPS employee – this was not allowed, since the employer was the prosecutor.

2. Police man on jury – there was dispute between appellant and police sergeant on the evidence, but the HL said mere presence of policeman on jury did not render it unsafe – though the fact that the officer had the same local service BG as the sergeant giving evidence was important.

   1. Look at fair minded and informed observer and whether they would find a real and possible source of unfairness beyond the warnings in standard judicial warnings and directions.

3. Police man – not objectionable because case did not hinge on contest between police evidence and defence evidence.

Hanif and Khan v UK: ECtHR doubted systems in which police men could be on juries but focussed on incompatibility where there was police officer on jury who worked with any witness in the case. So no total ban but can be incompatible.

Jury Misconduct

• Difficult area because the secrecy of the retiring room of the jury is regarded as sacred. CA will not enquire on appeal what took place during deliberations.

  • Breaching secrecy = contempt of court.

• Instances of misconduct:

  • Young: jury got drunk and decided to set up a Ouija board to contact deceased. Were contacted by dead that the accused was guilty

    • CA quashed the conviction – it was in the hotel overnight, not the jury room, so was not allowed.

  • Connor and Mizra conjoined HL case. Letters written in each case by juror to trial court. In Mizra alleged racial bias in deliberations and in Connor juror complained that other members had not considered the case against each D separately.

    • HL maj said that the CL prohibition on evidence of deliberations stood even when there was prima facie evidence of jury partiality in breach of Art 6. Said confidentiality underpinned the independence and impartiality of the jury as a whole and helped to guarantee a fair trial.

• Thompson: Appeals against convictions. Alleged jury irregularity in various forms: use of internet to bring extraneous material to court room, phone call to accused’s solicitor saying under pressure from others etc.

  • CA held that jury deliberations were confidential and evidence as to deliberations were inadmissible (Mizra) this was subject to two exceptions:

    • (1) where it emerged there could have been complete repudiation of oath or

      • E.g. decision making by tossing coin or Ouija board.

    • (2) where extraneous material was introduced to jury deliberations

      • introduction of extraneous material that is not part of evidence is an irregularity (e.g. phone calls into/out of jury room; information from internet).

  • As to use of internet, this was so common that specific guidance should be given by judge. The use of the internet here constituted an irregularity however here, there was nothing to suggest that the jury verdict would have been different on basis of the jury member’s research.

• Remli v France: failure to respect human rights resulted from failure to look into racial bias expressed outside courts, so likely to apply in courts. Q compatibility with Mizra.

Coming to a verdict

• Magistrates decide by simple majority – s.9(2) MCA 1980

• Juries historically had to be unanimous but majority verdicts possible since Juries Act 1974 s17: don’t need unanimity where there are 10 in agreement where 11/12 jurors or nine in agreement where there are 10 jurors.

  • Consolidated Crim Practice direction and 17(2) – give maj verdict direction when 2 hours 10 minutes elapse and they have not agreed unanimously.

Do juries have to agree to the grounds upon which a conviction is based?

• Clearly need to agree with each other as to which offence they are convicting on.

• But where same criminal offence but can be committed one of two ways:

  • Gianetto: prosecution...