Discuss the arguments for retaining juries.

Jurors may re-assure the general public by adding a sense of openness to a trial, but is the presence of a jury in our criminal justice system still worthwhile?

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One of the strongest arguments for retaining juries is that the public have confidence in their use in our criminal justice system. Juries are randomly selected from persons registered on the electoral register and should have no connection with the defendant or the case. As such it enables general participation in the legal system and is based upon the principle of a trial by 'peers'. It was Lord Devlin who spoke so passionately about the jury system, saying in 1956, 'trial by jury is the lamp that shows that freedom lives'.

 

More recently Lord Hobhouse of Woodborough, in the conjoined appeal before the House of Lords of R v Connor and another and R v Mirza (2004), stated 'The jury trial has been adopted in all the main common law jurisdictions. It is rightly regarded as a bastion of the criminal justice system against domination of the state and a safeguard of the liberty of its citizens. This is an affirmation of human rights principles.'

 

The job of the jury is to listen to the evidence and decide what are the true facts surrounding the case and the events which took place. To reach a verdict the jury will be directed by the judge regarding the relevant law and they will have to apply the law to the facts and reach a verdict.

 

If you are sent a 'jury summons' this must be completed and returned within seven days. Jury service is not voluntary and you will be expected to attend. There are exceptions, a person will be excused if they are disqualified, ineligible or excused either by right or at the court's discretion. There are some concerns that this may fuel resentment and reluctance on the part of some but it is also suggested that once an individual gets used to the idea of their participation they actually do find the process interesting and worthwhile.

 

The use of a 12 person jury to decide on the verdict is seen as fair, because a group decision is perceived to be safer. The issue being that, as there is no meaningful jury vetting under our system, it is conceivable that individual prejudices could operate, but it is thought that the group factor will balance out such prejudices. It is possible for both the defence and the prosecution to raise 'challenges' at the selection stage and this may overcome any problems caused by random selection.

 

Participation by the public may bring problems in the sense that there have been cases of jury tampering or 'nobbling'. However legislation exists to deal with this and to criminalise such activity, (Criminal Justice & Public Order Act 1994 creates the offence). In extreme cases a trial can be held without a jury under the Crime and Disorder Act 1998 but this is rare.

 

Over the years members of the public and therefore juries themselves have become much more politically and socially aware, it could also be said that police and some of the expert witnesses that may be called upon will not be held in such awe and respect as they once were. At times we hear much about the less than perfect behaviour of the legal professionals and between the late 1980's to the late 1990's there seemed to be a rise in the number of 'not guilty' verdicts arrived at for some crimes.

 

There are instances from time to time of juries returning verdicts which appear to fly in the face of the law or the facts. The jury may be showing its dislike of the law in question or have particular sympathy for the defendant. Such 'perverse' decisions still have an air of fairness about them in that the jury seem to have a sense of what is right or fair in such situations. However, as the jury do not have to give the reasons for their verdict, we do not know for certain. What we do know is that such cases do signify the independence of the jury.

 

The most well known case of this kind is Bushell's Case of 1670. In this case the judge directed the jury to return a guilty verdict against William Penn and William Mead both Quakers, charged with unlawful assembly. The jurors refused to convict despite being locked up "without meat, drink, fire or tobacco" for two nights to try to persuade them to change their minds. The jurors were fined and imprisoned until they paid their fine but they still refused to convict the Quakers. Bushell, along with three other jurors refused to pay and remained in prison for several months. The case reached Chief Justice Vaughan, who released the jurors and ruled that juries had the right to ‘give their verdict according to their convictions’ and that no jury could be punished for its verdict. The jurors refusal to be brow beaten into changing their verdict was rewarded by a plaque erected in the Old Bailey.

 

 

In 1990 Pat Pottle and Michael Randle, two prison officers, were acquitted by a jury despite the judge giving clear directions to convict them for their role in helping to free George Blake, the Soviet spy, from prison. Both defendants had in effect admitted their guilt because they explained to the court their reasons for acting as they did. They thought that it was wrong for someone to be convicted some 26 years after the event and it seemed the jury agreed.

 

There are other such cases and it may be seen as a problem in that juries are not respecting the law. However, it appears that even if it is a problem, Parliament has not seen fit to intervene and legislate.

 

The presence of a jury has had positive influences in the way judges now give directions and rulings as to the law. The modern trend is for the judge to give more straight forward directions in plain ordinary language for the benefit of the jury. Previously directions were complex such as what amounts to 'foresight of consequences' or 'oblique intent' arising out of such cases as R v Maloney (1985); R v Nedric (1986) and eventually leading to R v Wollin (1998) or, what amounted to 'subjective' or 'objective' recklessness, a lower form of mens rea than intention. These phrases would have been troublesome for the judiciary themselves let alone the jury or members of the public.

 

Advocates now find themselves using simpler and clearer wording for the jury and for the victim's families. This is thought to have made the proceedings more understandable not only for the jury but for defendants themselves and this must be a good thing. If this means that the general public have a better understanding of the issues involved then this must be a positive outcome.

 

Justice is seen to be done because the judicial process is open and members of the public participate as jurors. Courts are open to the public and not secretive. These factors are important to victims and to society. It enables them to see that wrong doers are punished, and to see that justice is done and punishment is handed out.

 

There is also an argument that because members of a jury will probably only serve once or perhaps twice in their lifetime they have not become hardened to the facts of the case they are involved in. They are likely to take their job seriously and listen to the facts carefully and discuss them in detail with the other members of the jury.

 

The criminal justice system takes precautions to try and prevent outside influences affecting the jury system. The court will place restrictions on reporting and jurors are told to base their decision on the facts of the case and not to talk to anyone about what they hear in evidence. The courts are slow to allow an individual to escape due process of the law on the basis of the publicity which may have surrounded a case. This was so in the case of Rose West who claimed she would not have a fair trial due to the amount of publicity that the case had attracted. This attitude respects the importance of the trial process including the use of juries.

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The following arguments for retaining juries are discussed in this essay:

  • public confidence;
  • group decision is seen as fairer;
  • independence;
  • more straight forward directions about the law;
  • it encourages advocates to use simpler and clearer wording;
  • enables participation of the public.

The following cases are also mentioned in context - R v Connor and another (2004); R v Mirza (2004); Bushell's Case (1670); R v Pottle and Randle (1990).

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