In defence of the jury trial - speech at the Politeia forum
Discussing the history and importance of trial juries and how to deal with problems.
Thank you for that introduction Sheila, and for inviting me to speak this evening about trial by jury. It’s a great pleasure to be here and I’m delighted to be speaking to you on the subject of whether jury trial continues to be an effective guarantor of justice.
Those of you who know me will not be surprised to hear I am an enthusiastic advocate of trial by jury, and I make no apology for saying from the outset I think it is an essential element of the justice system of England and Wales. It is deeply ingrained in our national DNA.
The protection of historic freedoms through the defence of trial by jury was part of our coalition agreement when the government came into power, and it’s my firm view that trial by jury provides a vital safeguard in a free society.
I don’t subscribe to the view expressed by the poet Robert Frost that:
A jury consists of 12 persons chosen to decide who has the better lawyer.
I am only going to consider trial by jury in the criminal justice system this evening, but it is worth remembering that the civil justice system also has juries, for example in some inquest cases. I am also going to confine myself to talking about England and Wales, as jury trial in other jurisdictions, such as the United States, is very different and I think it would be unwise to draw too many parallels.
History
In England and Wales, some form of trial by jury has existed for probably about a thousand years, although it’s fair to say that in its early incarnation it bore little resemblance to the system we have today. The groups of noblemen assigned to the task were required to investigate the case themselves and it was primarily used as a means of resolving property disputes.
As you will, I am sure, know, the right for a man to be punished only pursuant to the ‘the lawful judgement of his equals’ was enshrined in King John’s Magna Carta in 1215. The ‘right’ was of course a limited one and only available to men of a certain standing, but I think it does have some resonance even now, because it lays the foundation stone for the principle of judgement by one’s peers. It was certainly preferable to using ordeal by water or fire as methods of proving guilt or innocence.
By the 17th century the right to be judged by one’s peers was confirmed in the Act which abolished the Star Chamber. The development I want to focus on concerns the right of the jury to return the verdict they consider just and Bushel’s case of 1670, which confirmed that a jury could not be punished by reason of the verdict it returned, is one of the earliest and most important examples.
Bushel had been a member of the jury trying Penn and Mead, 2 Quakers who were charged with unlawful assembly for holding a religious meeting in violation of the Conventicle Act. The jury found the two ‘‘guilty of speaking in Gracechurch Street’’ but refused to add “to an unlawful assembly”. The judge reacted by imprisoning them without food, heat or water but this was a jury made of stern stuff and after two days they returned a further verdict of not guilty.
The judge went on to fine them for returning a verdict contrary to their findings of fact and imprisoned them for contempt. Bushel petitioned the Court of Common Pleas for a writ of ‘habeas corpus’ and the subsequent proceedings confirmed the principle of juries’ independence that we value so greatly and which provides an essential guarantor of freedom.
The operation of jury trial was still a far cry from what we now understand – for example lawyers only became a regular feature at the turn of the 19th century and juries might hear half a dozen cases in a day before retiring to consider their verdicts. Until 1858, the jury would be kept without ‘fire, food or drink’ until a verdict was reached (or, as in Bushel’s case, a satisfactory verdict) so it is perhaps no surprise that it was often a swift affair.
The right of the defendant to testify, access to free legal representation and the establishment of an appellate procedure are all recent innovations in this story and make the function of the jury now very different from even a hundred years ago.
Examples of juries returning verdicts unpopular with the governing regime, or which may appear to contradict the directions of the judge, are not confined to the distant past.
As recently as 2005, the House of Lords confirmed in the case of R v Wang ([2005] 1 WLR 661) that there are no circumstances in which a judge is entitled to direct a jury to return a verdict of guilty. Mr Wang was charged with possessing offensive weapons in a public place. He had a sword and a knife which he claimed was because he practised Shaolin, a traditional martial art. The judge found that the defendant had failed to advance a lawful defence, because his claim could not amount to a ‘good reason’ for having the articles, and directed the jury to convict.
The Court of Appeal agreed with the trial judge that it had been ‘plain beyond sensible argument’ that the material before the jury could not discharge the burden of proof which the offence placed on the defendant. The House of Lords disagreed and quashed the conviction. Lord Bingham, quoted Lord Devlin he of the famous declaration that trial by jury is “the lamp which shows that freedom lives” in an earlier case.
I find it difficult to see how a sensible jury could have acquitted. But I do not reach such a conclusion as a matter of law and I cannot accept that the judge is entitled to direct the jury how to answer a question of fact, however obvious he may believe the answer to be and although he may be satisfied that any other answer would be perverse.
Juries should be trusted
That in my view gets to the heart of the matter. The right of the jury to return the verdict it collectively believes is the true one is inalienable. Well, you may say, do we want a legal system in which the jury can return a verdict which seems to us to fly in the face of the evidence? My answer is yes, it is essential that juries are trusted to take decisions, with proper direction, even if very occasionally those decisions will not accord with the view that lawyers, judges or the Crown may hold.
There is another reason why it is important that jury trial is preserved. This is to do with participation in the criminal justice system. Many people will go through life without any direct involvement in the criminal justice system. Their information will be gleaned from the media, drama, possibly anecdotes from friends or family. Depending on their generation, it may be Rumpole of the Bailey, This Life, or Silks.
It seems to me that one way for the system to maintain legitimacy is for people to have a way of genuinely being part of the decision making process. Indeed, it is hard to think of a more serious or important civil duty that virtually any member of the public may be called upon to conduct.
Research into juries
What do we know about jury trial? In 2012/13, of 97,182 cases prosecuted by the Crown Prosecution Service in the Crown Court, just over 15,000 proceeded to trial. 69,971 guilty pleas were entered (72% of cases).
Just to put that in context, the total number of cases dealt with by lay benches or District Judges in the Magistrates’ courts is around a million but the fact that only a small minority of criminal cases are disposed of by Crown Court jury trial in no way undermines the principle that it is an essential safeguard. Crown Court trials amount to a very considerable number of cases, including of course trials for the most serious offences.
I don’t want to present a rose tinted picture of a criminal justice system in which juries can do no wrong. I am particularly conscious of the fact that jurors are human and fallible; as individuals they make mistakes and they make bad decisions, just as all of us do. I will say more about that a little later.
Experience of lawyers, judges and others working in the Criminal Justice System however is overwhelmingly that juries almost always do a conscientious job and do it effectively. That is my experience too. Such views are also supported by the fact that appeals against conviction which rely on complaints about failings of jurors are rare.
It is also supported by recent research into juries, carried out by Professor Thomas of University College London and published by the Ministry of Justice in 2010. I commend this fascinating piece of work to you.
It is perhaps surprising that so little research has been done on jury decision making. This is especially the case now that Professor Thomas has shown how despite section 8 of the Contempt of Court Act 1981, which makes it a criminal offence to ‘obtain, disclose or solicit any particulars of statements made, opinions expressed, arguments advanced, or votes cast by members of a jury in the course of their deliberations’, does not in fact, as was commonly believed, prevent meaningful research being carried out.
The research found little evidence that juries are not fair. It also looked at the effectiveness of juries and found that, once sworn, juries reached verdicts by deliberation on 89% of all charges and that juries were discharged in less than 1% of cases.
Interestingly, the study found that offence type had an impact on the probability of a jury convicting. Those offences where the strongest direct evidence is likely to exist - such as making indecent photographs of children, or causing death by dangerous driving - had significantly higher conviction rates than offences which more obviously required the jury to be sure about the state of mind of the defendant.
An example of the latter might be attempted murder, which requires proof of an intention to kill, making it in one sense more difficult to prove than murder. This suggests that juries do try cases on the evidence and the law.
It is fair to say that the study identified certain problem areas with jury decision making and in particular highlighted jurors’ uncertainty about what they should do in the event of impropriety in the jury deliberating room. In addition, jurors’ ability to understand the judge’s legal directions increased markedly when written instructions were provided, suggesting that such a practice should be far more routine than it is now.
Examples of juries struggling with their task to the extent that they are unable properly to discharge it are very rare. You will no doubt remember the Vicky Pryce case, earlier this year, in which the judge discharged the jury because he concluded that they had a ‘fundamental deficit in understanding’ of the trial process. But the trial judge himself, Mr Justice Sweeney, said that in thirty years he had not come across a similar situation.
There are, too, examples of cases that have collapsed after the expenditure of much time and money, the longest and probably the most expensive being the Jubilee line fraud trial, which resulted in six defendants being acquitted when the jury was discharged after the trial had been ongoing for almost two years. The impact of the collapse of the trial was so keenly felt that my predecessor Lord Goldsmith QC referred the matter to the Chief Inspector of the Crown Prosecution Service to inquire into the circumstances.
The subsequent report concluded that there were a number of reasons why the trial had collapsed, including the illness of one of the defendants and the way it was presented by the prosecution, but importantly it was the (unusual) combination of the various factors which proved fatal. It was not a failure of the jury.
Challenges for jury trial
There are challenges to the integrity of jury trial, but I would like to suggest that those we face now are not so very different from those that have always been present. I have, as you will know, a particular role to play in respect of jurors, because I can, and do, bring contempt proceedings against those, including jurors, whose conduct is intended to and does undermine the administration of justice.
All juries are directed in robust terms about the need not to conduct their own research into the case. It has always been necessary to direct jurors not to discuss the case with anyone, not to visit the scene of the crime, not to research the witness or defendant details. And now such directions extend to not researching the case on the internet.
To ignore those directions, intentionally, amounts to a contempt of court. This does not mean that jurors must refrain from reading the news (online or in the traditional way), nor that they should not use the internet as they would normally. It means that they must not seek out extraneous information about the case they have sworn to try in accordance with the evidence.
About many criminal trials, there may be all kinds of prejudicial information ‘out there’ on the internet. This could be in the form of archived news reports about the defendant’s previous court appearances, or it could be, to use the words of the old authorities in a modern context, mere chaff and banter about the case on someone’s Facebook page or Twitter feed. But the chances of a juror seeing such material are fairly slim, providing they haven’t gone looking for it.
Let’s say one of the jury trying a defendant for a serious assault decide to take matters into their own hands by looking up archived news reports about the defendant – in defiance of the judge’s directions not to do that very thing.
Before too long, a bit of internet searching reveals that this is not the first time the defendant has been before the courts, and that he had in fact faced trial for rape. The rest of the jury must be told, the juror says to herself. There is information about the defendant that the judge is trying to withhold from us!
From this point onwards, the trial process is undermined. The jury will no longer be able to deliver a verdict based solely on the evidence adduced before them; the role of the judge has been usurped, the defendant’s right to a fair trial is prejudiced.
The scenario I described a moment ago involving a juror searching for material about the defendant on the internet was, sadly, not fictitious. The juror’s name was Theodora Dallas and the defendant was called Barry Medlock. The trial was at Luton Crown Court in 2011.
Dr Dallas was found by the Lord Chief Justice to be in contempt of court, and was committed to 6 months’ imprisonment. Barry Medlock had to be retried before a fresh jury, and the victim had to give evidence again. When passing sentence on Dr Dallas, the Lord Chief Justice said:
Jurors who perform their duties on the basis that they can pick and choose which principles governing trial by jury, and which orders made by the judge to ensure the proper process of jury trial they will obey, or who for whatever reason think that the principles do not apply to them, are in effect setting themselves up above the jury system and treating the principles that govern it with contempt…
The Lord Chief Justice continued,
The problem… is not the internet: the potential problems arise from the activities of jurors who disregard the long established principles which underpin the right of every citizen to a fair trial.
I endorse those remarks.
My recent experience is that the law of contempt is both adaptable and resilient in the face of the challenges of technology. The fundamental principles underlying the need for juror restraint are timeless.
Another danger is communication between jurors and witnesses or defendants, as was revealed in the case of Fraill and Sewart where a juror, Fraill, initiated contact with a defendant, Sewart, whom she had just acquitted. The contact was made while the jury was still deliberating the guilt of the remaining defendants in what had been a long, multi-handed organised crime trial.
Details of the jury’s deliberations were revealed by Fraill in the course of a Facebook chat she initiated with Sewart. In doing so, Fraill breached the prohibition in section 8 of the 1981 Act, in addition to breaching the directions of the judge not to go on the internet to research the case. Both denied the allegations, and a trial took place before the Lord Chief Justice, who, sitting with two High Court Judges, found the case proved.
The Law Commission has just this week published a report making recommendations to reform elements of the law governing contempt of court. They include creating a statutory offence for jurors who intentionally seek information beyond the evidence presented in court. My office has worked closely with the Law Commission on the proposals which I welcome and which will be given careful thought by the government.
My personal view is that the proposals seem to have very considerable merit. By creating a specific criminal offence of misconduct by a juror, the proposals emphasise the importance of jurors following judges’ directions, and can give clarity to jurors about what is and is not permissible.
But crucially, the proposals also provide jurors with an additional layer of protection when they are accused of such misconduct, as they would themselves be able to advance a defence to a jury of their peers.
In other words, these proposals are themselves another endorsement for the principle of trial by jury. The Law Commission are saying – and I agree - that we can trust a jury to make a reasoned decision, even in cases where jurors are themselves on trial. You might even say that the Commission has put the principle of jury service itself on trial – and found in its favour. And as I hope my speech has demonstrated, I am both pleased but also unsurprised by that outcome. Jury trial is a bulwark of our freedoms, it works, and I hope and expect that it is here to stay.