Explaining our Law and Legal System ... No.4 ... Juries

Vetting - A little-known and little-publicised process is that of "jury vetting."   The existence of this practice emerged in the late 1970s.  It is quite amazing that it developed without Parliamentary or judicial approval.  On 12th November 1979 Mr Cryer MP asked the Attorney-General a question in a Parliamentary debate - "Does the Right Hon. and learned Gentleman agree that it is unfortunate that the whole business of jury vetting and the secret guidelines drawn up by former Ministers came to public notice only as a result of a court case? Should not the guidelines about which he is talking be clear and open to ensure that there is no possible basis for the public to feel that something funny is going on behind closed doors?"  In R v Mason [1980] 3 All ER 777 the Court of Appeal gave approval to the practice and it is now carried out under guidance from the Attorney-General.   More of the background may be read in the interesting article of 4th December 1986 by E P Thompson.  The Crown Prosecution Service website also has information - Jury Vetting.  Regrettably, a search for "Jury Vetting" on the Attorney-General's Office website does not reveal the guidelines.

Majority verdicts - Historically, the verdict of a jury had to be unanimous but majority verdicts first came with the Criminal Justice Act 1967 s.13.  The law is now in the Juries Act 1974 which permits a majority verdict of at least 10 where there are 11 or 12 jurors and of at least 9 where there are 10 jurors.  The basic process is that the jury are given time - (never less than 2 hours) - to reach a unanimous verdict.  How much time will depend on the trial judge's view about what is reasonable given the particular case.  After that, the judge may indicate that a majority verdict will be acceptable.  The Auld Report said that the majority verdict "prevents the odd crank or possibly biased juror insisting on a disagreement and thereby frustrating the process."


Verdicts and the judge's role - A jury in England and Wales must return a verdict of either Guilty or Not Guilty.  The Scottish "Not Proven" verdict is unknown to English law.  In reaching the verdict, the trial judge "sums up" the case and gives the jury directions on the relevant law.  It is therefore probably fair to say as the Auld Report phrased it..

"We talk of ?trial by jury?, but it is more accurately described as ?trial by judge and jury?. It is a partnership in which the two have separate and overlapping contributions to the final outcome. The judge tells the jury what the law is and how it bears on the issues in the case; and they apply their new-found understanding of the law to their consideration of those issues. As to the facts, whilst the jury have primary responsibility for finding them, the judge has much to do with that too.  He may be called upon to rule whether there is evidence on which they could find the accused guilty; he may warn them to take particular care before acting on certain evidence; he may direct them about circumstantial evidence and whether, on the evidence before them, they can draw certain inferences from it; and he notes and sums up the evidence for them to assist their deliberations. The resultant verdict is, therefore, a product of a ?partnership? between judge and jury."

Perverse verdicts - It is frequently said that a jury may return a "perverse" verdict.  Another phrase sometimes used is "jury equity" or a "dispensing ability."  Again the Auld Report considered this and acknowledged that the possibility of a jury returning a verdict against the evidence might, occasionally, be a long-stop against State oppression.  However, he did not favour its retention seeing it as "defiance of the law" and "disregard" of the juror's oath and he recommended legislation to prevent it.  To date, no such legislation has been passed.  Precise examples of a jury actually doing this are not easy to find though the case of Clive Ponting is often mentioned as an example.
Influence on the law - Historically, the jury has influenced the development of the law in some respects.  Two examples come to mind.  First, the offence of Infanticide was introduced when it was realised that juries were (naturally) reluctant to convict women when the death penalty existed - (Infanticide Act 1938).   Secondly, juries were reluctant to convict drivers of manslaughter and this led to the introduction of the alternative offence now known as Causing Death by Dangerous Driving (Road Traffic Act 1988). It might also be noted that, to a considerable extent, the need to present cases to juries requires that the law be written in as clear and straightforward a way as possible so that it is readily explainable.  How far Parliament has succeeded in achieving this is a moot point.
Dispensing with the jury - In Northern Ireland, due to terrorism, there was extensive intimidation of jurors.  This led to a recommendation by the late Lord Diplock for non-jury trial for certain offences (referred to as "Scheduled Offences").  In England and Wales, the Criminal Justice Act 2003 Part 7 permits a non-jury trial in cases of jury tampering - see the earlier post Law and Lawyers 20th January 2011.  This will, hopefully, be a rare event but, regrettably, it appears to be necessary to have this option.

Proceedings for contempt of court are another example of where trial is without a jury.  Up to 2 years imprisonment is possible under the Contempt of Court Act 1981.  As the case of Joanne Fraill and Jamie Sewart illustrates, proceedings can be issued by the Attorney-General and the hearing is in the High Court without a jury.

Juries in Civil cases - Juries have been mostly phased out of civil cases.  This came about because, in such cases, the parties to the case have traditionally been able to influence the conduct of the proceedings.  (Note: Civil Procedure Rules now apply).  A jury of eight is still occasionally found in the County Courts: County Courts Act 1966 s66  and in the High Court: Senior Courts Act 1981 s.69.  If there is a jury it is usually in cases where fraud is alleged or the case is about defamation (i.e. libel or slander), malicious prosecution or false imprisonment.


For some, the jury is the "Lamp which shows that Freedom Lives."  This famous phrase was used by the distinguished judge, Lord Devlin, in his book "Trial by Jury"  (1956).  This was a reference to the candles that were lit in London in the windows of houses following the acquittal of the Seven Bishops in 1688.  Many judges and lawyers see the jury as "an integral and indispensable part of the criminal justice system" - (Lord Steyn in R v Connor [2004] UKHL 2 at para 6.

For others, the jury is seen as a poor tribunal which brings together lay persons who are unused to hearing lengthy evidence and expects them to apply their minds collectively to it against a background of often difficult law.  Lord Judge has noted that the internet generation no longer gets its information from merely listening.  Doubts have been raised about the decision-making processes used by juries and this has led to calls for research though, currently, this is not permitted: Contempt of Court Act 1981 s.8.  Some of those wishing to conduct research are motivated by a desire to come up with ways of assisting juries with their task.

The former Department for Constitutional Affairs (DCA) consulted in early 2005 about whether research should be permitted - "Jury research and impropriety."  Interestingly, in February 2010, a report conducted by Professor Cheryl Thomas (University College London) on behalf of the Ministry of Justice found that juries were fair and effective.  Mr Alexander Milne QC may be seen here talking about the benefits that research might bring.

The jury is one of the hallmarks of our common law system.  It submits the accused to the judgment of his peers as opposed to a system of judgment by what might be seen as an elitist profession.  It is a system which has stood the test of time and. on the whole, appears to have public confidence.  Nevertheless, is is a system which appears to be coming under stress though it is important to bear in mind that, every week, many juries perform this important civic duty and deliver a "true verdict according to the evidence" without any problems arising.

Additional materials are available here for those wishing to delve further into this subject.

Other blogs commenting about Jury trial are: Halsbury Law Exchange - barrister Felicity Gerrity  - "Trial by jury: the importance of ordinary jurors" and  Nothing Like the Sun - Francis Fitzgibbon QC - "Professor Dawkins' jury delusion."