The role of the jury in the English legal system was enshrined in Magna Carta 1215 which established every person’s equality under the law (including the King.) In recognising the right that “no free man shall be arrested or imprisoned… except by the lawful judgement of his peers” (clause 39 Magna Carta,)[1] the charter codified right to trial by a jury of one’s peers.
In subsequent centuries, most clauses of Magna Carta have faded into insignificance or been repealed. However, the right to jury trial remains sacrosanct and has underscored legal rights ever since, notably inspiring the constitution of the United States of America.[2]
At present the Coronavirus pandemic is straining every part of the nation’s infrastructure. Worsening backlogs in the court system cause lengthy delays in the hearing of cases. These strain the legal process and cause enormous distress to those awaiting trial hearings.
The Maxim ‘justice delayed is justice denied,’ attributed to 19th century prime minister
W.E. Gladstone, encapsulated the problem. Here again Magna Carta rules: “to no one will we sell… refuse or delay right or justice” (Magna Carta clause 40.)1 Current delays gives strength to the view that jury trials slow justice. The prize of time (and money) savings by removing the jury from the trial process makes this a tempting government target.
Current role of the jury in England and Wales:
Contrary to its prominence in dramas and reportage, jury trial represents a fraction of overall court business. Reducing the number of jury hearings has long attracted governments wishing to reduce the legal system’s financial burden on the public purse. Already civil proceedings are now almost always conducted without the use of a jury. Exceptions include hearings of libel/slander, false imprisonment, malicious prosecution, and fraud.[3] In these proceedings juries set financial compensation levels for successful litigants.
Criminal cases are categorised as Summary, Indictable and Triable. Of these, Summary cases are all heard by magistrates. To ease Crown court workload some offences have been re-designated as Summary offences in recent years.[4] [5] Indictable offences are the most serious category, including murder and rape. These must be heard by a jury. Triable offences, less serious than Indictable, can be heard by magistrates unless the defendant asserts their right to trial by jury. Magistrates now hear 95% of cases and, since 4 out of 5 Crown Court indictees plead guilty, the role of the jury is already a comparatively minor part of overall business. [6] Nevertheless, it is regarded as the “bulwark of individual liberties.” [7]
The Jury has the sovereign right to deliver the verdict after weighing all evidence and submissions from defence and prosecution counsels. Jury members jointly decide outcomes in closed session, obligated to confine their considerations only to the evidence presented in the hearing. The judge may clarify evidence during the trial and can direct on matters of law. Judges can direct the jury to find a defendant not guilty where the prosecution case is clearly unsustainable. However, a jury cannot be directed to return a guilty verdict or even coerced to that end. This would represent interference in the sovereign right of the jury and could motivate a later appeal. The decision of the jury itself is unchallengeable and cannot be appealed except in specific cases of jury misconduct (almost always unsuccessful.) [R v Young (1995) 2 Cr App R 379]8 [R v Chapman and Lauday (1976) 63 Cr App R 75] 9 [R v Richardson (2004) EWCA Crim 2997] 10
Covid backlog:
The coronavirus pandemic has caused enormous problems in the working environment nationwide. Normal court working became impossible because of requirements for social distancing and biosecurity combined with staff absences. Existing systemic backlogs were exacerbated bringing jury trials under scrutiny by government wishing to free the logjam. There is concern that the jury could become a scapegoat for government with financial motives wishing to end or at least further reduce jury trials. Significantly, in the first two months of the national lockdown (March to May 2020,) while the backlog in Crown Court rose 3.3% from 39,214 to 40,526, the backlog in magistrates’ courts rose 19% from 406,610 to 484,000.11
Options
The emergency created by the pandemic clearly demands multiple responses. Confining consideration to a binary choice between doing nothing and abolishing jury trials is unlikely to bring the degree of improvement needed. Numerous modifications to procedures are already being considered or implemented. The potential impact of the abolishing jury trials should be considered against this backdrop.
a) Do Nothing:
As already shown, in the first two months of the lockdown the Crown Court backlog rose by approximately 1300; an annual rate of almost 8000 (20%.) However, in the year 2019 the backlog rose from 33,113 to 37,434 a rise of 4,321 (13%) without Coronavirus as a factor. 12
Significantly, in 2019 government cut Crown Court sitting days by 15%.13 Inaction will unacceptably distress those defendants / witnesses waiting for trials, and since remand is time-limited may lead to the release of potentially dangerous criminals. The words of a rape victim describe the distress caused by delays. “I have my life on hold, I don’t have a life… there is no support, I feel completely abandoned. I have anxiety, I have panic attacks… nobody is interested in listening to victims. This is destroying me, our lives are on hold until there is a trial… If I had a chance to report him again, I wouldn’t have because of this… I’d be better if I hadn’t reported him and that’s heart-breaking.’’14
b) Abolish the Jury:
To any government wishing to streamline the court system, abolition of the jury is high on the wish list. Jury trials can cost over the £20,000 and typically occupy more court time.15 On occasions, bizarre behaviour has raised questions about the competence of juries to fulfil the role expected of them. The extraordinary actions of the jury in R v Young [1995] QB 32416 when a Ouija board was consulted while the jury was sequestered in a hotel overnight; questions asked of the judge in R v Vicky Pryce 201317 showing a fundamental lack of the most basic understanding of its role; allegations of racism and bullying18 in the jury room; using smart phones19 to access internet information, or even of jurors changing their vote20 in order to finish the trial quickly: these are all risks the judicial process is vulnerable to when trust is put in 12 random people to undertake this responsibility. Notwithstanding the secrecy surrounding jury room deliberations it is nevertheless significant that aberrations very rarely come to light and must surely be exceptional. If jury trial were replaced (perhaps temporarily) it is proposed to hear cases in front of a single judge (resembling the Diplock courts formerly used in Northern Ireland,) or before a bench composed of a judge and two magistrates.
c) Improve Biosecurity and Flexibility of Court operations:
Numerous mitigations have been considered, some implemented, to address problems caused by requirements for social distancing, disinfecting work areas and covering staff absences. The most significant are:
- Flexible Operating Hours (FOH.)21
- Extended Operating Hours (EOH.) 21
- Staggered hearing times. 21
- Use of multiple courts using live video feed (Virtual Trials.) 21 22
- Use of pre-recorded evidence.
- Installing shielding to prevent cross infection.
FOH and EOH help to maximise court time use, although there are concerns about strains on staff caused by prolonged periods of EOH. Staggered hearing times mitigate difficulties of numerous people entering and leaving the court building simultaneously.
Holding hearings using multiple rooms linked by live video overcomes social distancing problems but ties up extra space and staff. This arrangement is cumbersome and costly, prone to disruptions and distances juries from proceedings. 15
Using pre-recorded evidence could overcome the shortcomings of using multiple hearing rooms but would require a culture change if the jury were expected to view pre-recorded cross examinations for example. Installing protective screens to separate everyone within the courtroom has the immediate benefit of allowing preservation of the traditional layout of the courtroom keeping business as close as possible to normal.
Agents of the Community: The underscoring of the judicial system with trial by jury has provided reassurance to the community that justice is not something administered to them but by them. The jury are agents of the community and protect its sense of true justice by virtue of their normality rather than their legal expertise. Nothing exemplifies this more clearly than the occasions, albeit rare, when a jury feels its only route to justice is to confound legal directions and acquit a defendant in the face of overwhelming legal pressure to convict. The case of R v Ponting [1985] Crim LR 318 23 famously defied expectations and reflected the nation’s sense of justice “probably reflecting public contempt for the government’s attempt to conflate its own narrow political interest with the state’s interest.” Similarly, R v Gilderdale, The Times. 25 January 2010 24 showed the limits of a jury’s tolerance of the expectation that law alone leads to justice. This quality of the jury system keeps the law grounded in the community, sometimes motivating legislative changes. Growing public discomfort over death sentences in the 1950s for instance was reflected in unease regarding guilty verdicts in murder cases. “They only have to lift a little finger in order to save this person from the gallows. We can expect only one result from that.” 25
The requirement for all evidence and submission before the court to be directed at 12 ordinary men and women necessitates proceedings be conducted in simple language and in a way which can be universally understood. Use of the vernacular rather than legalese characterises jury trial. The principle of trial by a jury has survived since the 12th century and the value of 12 independent minds has defied attempts to improve the process for serious offences. Occasional proposals to reduce jury numbers, possibly to 7 (including in reaction to the current crisis,) have not been well received. Studies shows that smaller juries produce harsher verdicts 26 and “although no evidence explains why 12 was the number first chosen, centuries of experience show that it works.”27
Lord Devlin’s words- “The impression that a witness makes depends upon reception as well as transmission and may be affected by the idiosyncrasies of the receiving mind; the impression made upon the mind of 12 is more reliable.”- are apposite.28
The Guardian headline “Covid leading to four-year waits for England and Wales court trials”29 typifies the framing of the problem. The drip-feed of statements fingering Covid as the cause of four-year delays creates a disaster scenario of such magnitude to embarrass opposition to any prospective solution. Even the most cherished rights are put on the table.
The precise problem should be first properly identified and quantified before a hasty sweeping away of the most entrenched and valued individual legal rights. Firstly, the problem is not so much Covid but the backlog. To suggest Covid, disastrous as it surely is, is to blame for 4 year waits for court trials is plainly absurd since the pandemic has existed for less than one year. There is at least a three-year delay in the system which owes its provenance elsewhere. As we have seen, in the 12 months prior to the arrival of Covid, 15% government cuts to Crown court hearing days coincided with a 13% rise in delays. In order to address the backlog now that it is rightly being regarded as an emergency the solutions must be prioritised in order of effectiveness. First government must reverse cuts to Crown Court operations, reopen closed courtrooms and restore staff levels. Other mitigating plans are already being implemented in order to bring the activity of courts up to capacity. Once all the working practises have adapted through flexible times, remote hearings and Nightingale courtrooms, and courts fitted with plexiglass screens, business could function on a sustainable basis. At this point Covid could be mitigated at least to the same level as in supermarkets, pharmacies etc.
In conclusion, If the justification for abolishing trial by jury is not truly the Covid emergency but cost, this question becomes a political one. Inevitably any government needing to make savings will look to the justice system as it will to every other financial drain on the Treasury. The abolition of jury trials in Northern Ireland during the troubles was eventually reversed by the Justice and Security (Northern Ireland) Act 2007 3030 returning the meting out of justice to the community once again; a significant moment in the restoration of normality to the province at undoubtedly a cost worth paying. Ultimately, the future of jury trial depends on government’s willingness not to abolish it. This will be a decision motivated by finances. The protection and reassurance afforded the population by its right to ‘trial by one’s peers’ will be measured against the security afforded by state education, policing, social security, the NHS and all the other manifestations of the civilised society on which we depend.
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References:
[1] UK Parliament, The contents of Magna Carta (The clauses of Magna Carta) < https://www.parliament.uk/about/living-heritage/evolutionofparliament/originsofparliament/birthofparliament/overview/magnacarta/magnacartaclauses/#:~:text=Of%20enduring%20importance%20to%20people,the%20law%20of%20the%20land > accessed 09 January 2021.
[2] William Letwin, Economic Due Process in the American Constitution and the Rule of Law, in LIBERTY AND THE RULE OF LAW, supra note 12, at 23.
[3] Supreme Court Act 1981, s 69
[4] Criminal Justice Act 2003, s 41
[5] Criminal Justice Act 1988, s 37 – s 39.
[6] Court and Tribunals Judiciary, “Magistrates’ Courts” < https://www.judiciary.uk/you-and-the-judiciary/going-to-court/magistrates-court/ > accessed 9 January 2021
[7] Bushell’s Case (1670) 124 ER 100
8 [R v Young (1995) 2 Cr App R 379]
9 [R v Chapman and Lauday (1976) 63 Cr App R 75]
10 [R v Richardson (2004) EWCA Crim 2997]
11 Court and Tribunals Judiciary, “Magistrates’ Courts” < https://www.judiciary.uk/you-and-the-judiciary/going-to-court/magistrates-court/ > accessed 9 January 2021
12 Criminal court statistics quarterly, England and Wales, October to December 2019
13 Bowcott Owen, “Criminal cases delayed across England and Wales as courts lie idle” (Guardian, 2019) < https://www.theguardian.com/law/2019/aug/19/criminal-cases-delayed-across-england-and-wales-as-courts-lie-idle > accessed 12 Jan 2021
14 Choi Chris, “Nightingale Courts’ set up in theatres and cathedrals to deal with record backlog in trials due to Covid-19” (ITV News, 2020) < https://www.itv.com/news/2020-11-20/nightingale-courts-set-up-in-theatres-and-cathedrals-to-deal-with-record-backlog-in-trials-due-to-covid-19 > accessed 12 Jan 2021
15 Gemma Davies,’ Juries Trails Part-2′ (Northumbria University, 07 December 2020) < https://northumbria.hosted.panopto.com/Panopto/Pages/Viewer.aspx?id=71066b89-7ddc-4eba-a450-ac8801448418&start=undefined > accessed 10 Jan. 21
16 R v Young [1995] QB 324
17 “Vicky Pryce Trial: 10 questions jury asked the judge”, The Guardian, 20 February 2013, available at < http://www.guardian.co.uk/law/2013/feb/20/vicky-pryce-trial-10-questions > and “Ten questions posed by Vicky Pryce jury”, BBC News, 10 February 2013, available at < http://www.bbc.co.uk/news/uk-21521460 > (both accessed on 3 June 2013).
18 R v Qureshi [2002] 1 WLR 518, CA and R v Mirza; R v Connor & Rollock [2004] 1 AC 1118, HL
19 [2008] EWCA Crim 2359.
20 Attorney General v Scotcher [2003] EWHC 1380 (Admin)
21 Ashleigh Metcalfe,’ Juries during the pandemic’ (Northumbria University, 18 December 2020) < https://eu-lti.bbcollab.com/recording/4cd856dded5347f2bcfde2146d7232cb > accessed 10 Jan. 21
22 L. Mulcahy, Dr E. Rowden, “Exploring the case for Virtual Jury Trials during the COVID19 crisis – an evaluation of a pilot study conducted by JUSTICE (June,2020)”< https://justice.org.uk/our-work/justice-covid-19-response/ > accessed 10 Jan 2021
23 R v Ponting [1985] Crim LR 318
24 S Wilson, H Rutherford and others, English Legal System (4th edn, C-10, Oxford University Press 2020) 367
25 LORD ASQUITH OF BISHOPSTONE, ‘Juries and capital Punishment’ (Volume185: debated on 16/12/1953, c173) Hansard, < https://hansard.parliament.uk/lords/1953-12-16/debates/01d031c8-09dd-497a-967c-fc16e886344f/JuriesAndCapitalPunishment > accessed 11 Jan 2021
26 “Jury verdicts: Comparison of 6-vs. 12-person juries and unanimous vs. majority decision rule in a murder trial”, Buckhout, Weg, Reilly & Frohboese, Bulletin of the Psychonomic Society 10, 175-178 (1977)
27 “Jury majority, size and verdicts”. Chalmers, J. Leverick, F. and Shaw, A. (eds.) Post Corroboration Safeguards Review Report of the Academic Expert Group. The Scottish Government (2014)
28 Trial By Jury, Lord Devlin(1956) ch. 6
29 Owen Bowcott, ‘Covid leading to four-year waits for England and Wales court trials – The Guardian’ The Guardian (London, 10 Jan 2021) < https://www.theguardian.com/law/2021/jan/10/covid-leading-to-four-year- waits-for-england-and-wales-court-trials > accessed 11 January 2021
30 Justice and Security (Northern Ireland) Act 2007, s 9
Bibliography
Primary Sources
Cases:
- Bushell’s Case (1670)
- R v Young (1995)
- R v Chapman and Lauday (1976)
- R v Richardson (2004)
- R v Qureshi [2002]
- R v Mirza [2004]
- R v Connor & Rollock [2004]
- [2008] EWCA Crim
- Attorney General v Scotcher [2003]
- R v Ponting [1985]
Statutes and Statutory Instruments
- Magna Carta 1215
- Supreme Court Act 1981
- Criminal Justice Act 2003
- Criminal Justice Act 1988
- Justice and Security (Northern Ireland) Act 2007
Secondary Sources
Books
- William L, Economic Due Process in the American Constitution and the Rule of Law, in LIBERTY AND THE RULE OF LAW, supra note 12, at 23.
- Wilson S, Rutherford H and others, English Legal System (4th edn, C-10, Oxford University Press 2020) 367
- “Jury verdicts: Comparison of 6-vs. 12-person juries and unanimous vs. majority decision rule in a murder trial”, Buckhout, Weg, Reilly & Frohboese, Bulletin of the Psychonomic Society 10, 175-178 (1977)
- Trial By Jury, Lord Devlin(1956) ch. 6
Lectures and Journals Articles ( Online)
- Gemma D,’ Juries Trails Part-2′ (Northumbria University, 07 December 2020) < https://northumbria.hosted.panopto.com/Panopto/Pages/Viewer.aspx?id=71066b89-7ddc-4eba-a450-ac8801448418&start=undefined > accessed 10 Jan. 21
- Ashleigh M,’ Juries during the pandemic’ (Northumbria University, 18 December 2020) < https://eu-lti.bbcollab.com/recording/4cd856dded5347f2bcfde2146d7232cb > accessed 10 Jan. 21
- Mulcahy L, Dr Rowden E, “Exploring the case for Virtual Jury Trials during the COVID19 crisis – an evaluation of a pilot study conducted by JUSTICE (June,2020)” https://justice.org.uk/our-work/justice-covid-19-response/ accessed 10 Jan 2021
Newspaper, TV Articles (Online)
- Bowcott O, “Criminal cases delayed across England and Wales as courts lie idle” (Guardian, 2019)
- < https://www.theguardian.com/law/2019/aug/19/criminal-cases-delayed-across-england-and-wales-as-courts-lie-idle > accessed 12 Jan 2021
- Choi C, “Nightingale Courts’ set up in theatres and cathedrals to deal with record backlog in trials due to Covid-19” (ITV News, 2020) < https://www.itv.com/news/2020-11-20/nightingale-courts-set-up-in-theatres-and-cathedrals-to-deal-with-record-backlog-in-trials-due-to-covid-19 > accessed 12 Jan 2021
- “Vicky Pryce Trial: 10 questions jury asked the judge”, The Guardian, 20 February 2013, available at http://www.guardian.co.uk/law/2013/feb/20/vicky-pryce-trial-10-questions and “Ten questions posed by Vicky Pryce jury”, BBC News, 10 February 2013, available at http://www.bbc.co.uk/news/uk-21521460 (both accessed 3 June 2013).
- Owen B, ‘Covid leading to four-year waits for England and Wales court trials – The Guardian’ The Guardian (London, 10 Jan 2021) < https://www.theguardian.com/law/2021/jan/10/covid-leading-to-four-year- waits-for-england-and-wales-court-trials > accessed 11 January 2021
Command Papers and Law Commission reports
- Court and Tribunals Judiciary, “Magistrates’ Courts”
- Jury majority, size and verdicts”. Chalmers, J. Leverick, F. and Shaw, A. (eds.) Post Corroboration Safeguards Review Report of the Academic Expert Group. The Scottish Government (2014)
- Court and Tribunals Judiciary, “Magistrates’ Courts” < https://www.judiciary.uk/you-and-the-judiciary/going-to-court/magistrates-court/ > accessed 9 January 2021
- Criminal court statistics quarterly, England and Wales, October to December 2019
Other Secondary sources
- LORD ASQUITH OF BISHOPSTONE, ‘Juries and capital Punishment’ (Volume185: debated on 16/12/1953, c173) Hansard, < https://hansard.parliament.uk/lords/1953-12-16/debates/01d031c8-09dd-497a-967c-fc16e886344f/JuriesAndCapitalPunishment > accessed 11 Jan 2021
