Timeline – the Modern Jury Laws

As you may imagine, the following information took some considerable time to compile. Readers may find it interesting to peruse or useful to refer to in their own work. There will, of course, be cases and sections of legislation relevant to the topic not included below, but I have taken trouble as far as I could to include the critical points. I shall, I hope in the not too distant future, write up an article or two highlighting some of the more interesting parts.

1670Bushell’s CaseJury reaches verdicts independent of judicial direction
1764Mylock v SaladineLord Mansfield – “jurors should be as white as paper” (i.e. pure)
1785Vaise v DelavalAppeal courts will not look into alleged irregularities in the jury room after the verdict has been given. To protect jurymen from self-incrimination. 2 jurors wrote sworn affidavits to the judge that they had decided verdict by tossing a coin.
1825Juries Acts29 – right of the prosecution to challenge for cause
1922Ellis v Deheer CofACourt will never admit details of jury deliberations as evidence to challenge / support a verdict (articulation of an older common law position) Jury secrecy to secure finality of verdict, and to protect jury from pressure to change / explain their view.
1924R v Sussex Justicesjustice must not only be done but must manifestly and undoubtedly be seen to be done.
1951ECHR 1950Art. 6(1) – “fair and public hearing… by an independent and impartial tribunal”
1952R v Owen“… once the summing up is concluded, no further evidence ought to be given”
1957R v WilsonViolation of the rule stated in R v Owen will lead to a conviction being quashed.
1962R v Thompson CofAApplied rule in Vaise v Delaval. Appeal dismissed – a juryman had told someone the jury wanted to acquit until foreman produced list of previous convictions.
1969R v KrayJuror may be challenged for cause if his mind has been so prejudiced by media reports of previous convictions that he cannot try impartially – but seeing media reports in the past is not in itself enough cause.
1974Juries Acts2(1) – Lord Chancellor summons jurorss5 – reasonable chance to inspect the panel, i.e. names and addresses. Challenge to the array.s9(2) – A person summoned who wishes to be excused may be excused for “good reason”s9A(1) – May be deferred for “good reason”. s9A(1) before s9(2).s9B – Juror ineligible if disability renders him unable (inserted by s41 CJPO 1994)s10 – Juror ineligible if he has insufficient Englishs12(1), (4) – right of the defendant to challenge for causes16 – Court may discharge any (up to 3) or all members of the jury for incapacity or “any other reasons”. s17 – After min. 2 hours, majority verdict allowed of min. 9/10; 10/11; 10/12.s18(1) – No verdict after the event may be overturned because juror was unfit / ineligible to serve etc.Sch.1 – ineligibility, disqualification, and excusal as of right
1976R v Chapman & Lauday CofAJuror deaf (earwax). Discovered after guilty verdict, but appeal dismissed. Did not make unanimous conviction unsafe. s18(1) JA 1974 applied
1976International Covenant on Civil and Political Rights (ICCPR) 1966 (UN)Art. 14(1) – right to trial before “competent, independent, and impartial tribunal”. Ratified by the UK in 1976.
1981Contempt of Court Acts8(1) – Contempt to disclose / investigate details of jury deliberation
1984Juries (Disqualification) Act.
1984R v Ponting Crown CourtJury nullification / jury equity / perverse verdict. General Belgrano / public interest case.
1988Criminal Justice Acts118(1) – right to challenge without cause (peremptory challenge) abolished
1989R v Ford (Royston) CofAJudge was correct to refuse to insist on a multi-racial jury for an ethnic defendant. He has no power, and a defendant has no right to a particular ethnic representation on jury. Appeal dismissed.
1991R v Webster Old BaileyUse of s5 JA 1974 – all jurors from Romford, but defendant from Battersea! Fresh jurors empanelled.
1992Saric v Denmark ECtHRUnreasoned jury verdicts not in themselves a contravention of Art. 6 ECHR.
1993Royal Commission on Criminal Justice“Runciman Commission”. Included largest study of jury trials in the UK. [See Michael Zander QC, LSE). Judges have a positive duty to do as much as possible to correct things that go seriously wrong. Recommended removing the right to demand trial by jury for either way offences.
1993R v Gough HofLTest for bias: Court is the personification of the reasonable person, and does it consider there to be a “real danger” of bias? Emphasises possibility, not probability.
1994Criminal Justice and Public Order Acts41 – inserted s9B JA 1974s51(2) – offence to intimidate someone who has previously been a juror for the verdict they reached
1994R v OrglesJudge must not ask jurors individually if they feel able to return a true verdict (must be collective).
1995R v Young CofAOuija board case (4 members of jury in hotel). Verdict quashed – because the Ouija board had been in hotel between only some of the jury – not in the sacrosanct space of the whole jury in the jury room.
1996Pullar v UK ECtHRImpartiality = subjective AND objective (i.e. no real OR perceived bias)Presumption of an impartial jury, unless evidence to the contraryJuror who is employee of principal prosecution witness does not necessarily mean bias – just because trial judge would have dismissed him before the trial had he known, does not mean the juror’s presence created bias in the jury
1997Gregory v UK ECtHRThe UK jury system (and the secrecy of jury room deliberations) do not contravene Art. 6 ECHR. Correct judicial direction is sufficient to permit the system.
1997R v Tarrant CofAJury tampering danger, but Judge may not dictate that jurors must not be selected from a particular postcode. Jury selection must be random. Appeal allowed.
1998Human Rights Acts1 – Art. 6 ECHR incorporated directly into UK law.s2 – ECtHR judgements persuasive in UK courts
1999Criminal Justice (Mode of Trial) BillAttempt to remove right to trial by jury for either way offences.
1999R v McWhinneyProfoundly deaf juror discharged. Cannot have a sign language interpreter in the jury room
2000Criminal Justice (Mode of Trial) (No.2) BillSecond attempt to remove right to trial by jury for either way offences.
2001Auld Report (commissioned 1999)Everyone (except mentally ill) should be eligible for jury service, with no excuse as of right. Only 1/3 of 50,000 called for jury service in June/July 1999 were available.s8(1) CCA should be amended to permit trial judge and CofA to “inquire into alleged impropriety by a jury”.
2001Re Medicaments CofASubtly changed test for bias in R v Gough. No longer the court’s judgement, but an objective test based on whether the “fair-minded and informed observer… would conclude that there was a real possibility that the tribunal was biased”. “Real possibility” is the same as “real danger”.
2001Magill v Porter HofLThe “Porter test” for bias. “Whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility of bias”.
2000R v SanderRacist joke, but denial of racism, is not enough for presumption of impartiality to be rebutted. Jury not discharged.
2001Sander v UK ECtHRJudicial redirection not always sufficient to resolve jury misconduct. “Generally speaking, an admonition or direction by a judge, however clear, detailed and forceful, would not change racist views overnight”. Should have discharged jury.
2003Criminal Justice Act 2003s321 – Gives effect to Sch.33. Abolishes excusal as of right.Sch.33 – Juror eligibility: 18-70, live in UK min.5yrs since turning 13yrs; disqualification categories (on bail; disqualified for life; 10 year disqualification period).s43 – Provision for juryless trials in complex fraud cases. Requires additional Parliamentary approval from both Houses. (under s330(5)(b)).s44 – Applications for juryless trialss46 – Allows juryless trials where there is serious risk of jury tamperings154 – Magistrates sentencing powers up to 12 months (increased from 6 months). = fewer trials sent to Crown Court.
2003R v Smith (Lance Percival) CofANo right to have any particular ethnic representation on jury. All-white jury convicted black defendant – appeal dismissed. Test: would a reasonable judge have refused to discharge a jury?
2003R v El Faisal Crown CourtMuslim cleric, soliciting murder of Jews and Hindus. Trial judge asked who was Jewish / Hindu / married to one, in order to be deselected. No answer, but “implicit in what Lord Hobhouse said in Mirza that even this limited enquiry should not have taken place” (Daly and Pattenden)
2004R v Alexander CofAJury forewoman (after guilty verdicts) sent lead counsel for the prosecution champagne and asked him for dinner. No bias found – the gesture was clearly separate from the verdicts, and the verdicts were unanimous. Appeal dismissed.
2004R v Mirza HofLs8 CAA 1981 does not apply to the court of trial or to the Court of Appeal (i.e. a court cannot be in contempt of itself – Lord Hobhouse) Confirmed the recommendation in the Auld Report.However, the common law rule articulated in Ellis v Deheer does apply.Challenges to jury deliberations should be brought to the attention of the trial judge before the verdict is reached.After a verdict is reached, jury room deliberations remain sacrosanct.There is no conflict with Art. 6 ECHR. This was already confirmed by the endorsement in Gregory v UK.“it seems plain that discussion and disagreement in public as to what happened in the jury room is likely to undermine public confidence…” Lord Slynn.Occasional mistakes are a price worth paying for the preservation of the jury system. Lord Steyn dissented on this point, suggesting the since the 1993 Royal Commission on Criminal Justice, there has been “a positive duty on judges, when things have gone seriously wrong in the criminal justice system, to do everything possible to put it right”. Allowing the Court of Appeal to investigate jury room deliberations in exceptional cases would uphold this duty. This was a dissenting opinion.If jury does not deliberate at all (but opts for (e.g.) drawing lots / toss of a coin / Ouija board), even within the jury room, then there has been no trial, and so there is no confidentiality for the activities of the jury and a retrial may be ordered on the basis of these activities. Cleared up the tension created by R v Young. Lord Hope.Presumption of an impartial jury, unless evidence to the contraryLord Hobhouse – judge’s ability “to discharge the jury or individual jurors protects the impartiality of the determination of guilt”.
2004R v M CofAApplied Mirza. Obiter: Mirza (sanctity of jury deliberations) would seem to extend to the thought processes of individual jurors. Thus, they should not be questioned on how their minds reached the verdict.
2004Domestic Violence, Crime and Victims ActSs17-24 – Allows trial by jury on sample counts only – other counts by judge only. Conditions apply. In force January 2007.
2004Practice Direction (Crown Court: Guidance to Jurors)“Trial judges should ensure that the jury is alerted to the need to bring any concerns about fellow jurors to the attention of the judge at the time and not wait until the case is concluded”.
2005R v Karakaya CofA“The introduction of extraneous material [into the jury room] contravened very well established principles”. Rape trial, conviction quashed, retrial ordered. Printed documents from internet found in the jury room after verdict.
2005AG v ScotcherA juror who reveals the jury’s deliberations to a third party will be in contravention of s8(1) CCA 1981 and will be prosecuted.
2005R v Momodou CofAJudicial redirection may be an adequate response to jury impropriety. However, it may be the best a judge can do. Appeal dismissed.
2005R v Hussein CofADitto.
2005R v Smith; R v Mercieca HofLLord Carswell – “the general rule is that the court will not investigate, or receive evidence about, anything said in the course of the jury’s deliberations while they are considering their verdict in the jury room”. Exceptions: Allegation that jury did not deliberate at all (e.g. toss of a coin) (ref. Mirza); allegation of extraneous influence; complaints made during course of trial = further directions from the judge.
2005Jubilee Line Fraud Trial Old Bailey£60m trial collapse, June 2003 – Jan 2005, jury heard evidence on only 140 days. One juror pregnant, one arrested for benefit fraud, and finally one went “on strike” due to financial issues.
2006R v Thakrar CofAConviction quashed after trial judge did not discharge jury after juryman sent him a note that 3 WEEKS ago some other jury members had been looking at negative extraneous evidence (from internet). Very long time – bias can fester if not nipped in the bud. Clearly, given delay in reporting, judicial directions to report irregularities had not been fully understood / acted on.
2006R v Abu Hamza CofAAdverse publicity = no ground for appeal on jury bias grounds. Presumption that a properly directed jury will disregard adverse publicity – unless evidence to contrary. Appeal dismissed.
2006/7Fraud (Trials without Jury) BillAttempt to implement s43 CJA 2003
2007R v Abdroikov; R v Green; R v Williamson HoLAbdroikov – Policeman on jury not biased; Green, Williamson – CPS solicitor on jury may be biased, depending on the facts. Green and Williamson appeals allowed.
2007R v Moran (Noel) CofAMurder, guilty, unanimous verdict. Two jurors subsequently wrote to court saying they had made wrong decision and had felt pressured by other jurors to find guilty. Appeal on this basis. No evidence of misconduct, so appeal dismissed.
2007/8R v Paul Boseley CofATearing knickers case. After verdict, and immediately after sentence (6 ½ years), judge bailed defendant with good grounds for appeal after it emerged the jury had bought 5 pairs of knickers to see how easily they would tear, during their deliberations. Evidence of this after jury asked court staff to dispose of the knickers. CofA then quashed the conviction. At retrial (2008), Boseley found not guilty.
2008R v Wicks Crown CourtJuror dismissed and arrested for common law contempt of court after listening to iPod and doodling throughout murder trial. Charges not pressed.
2008R v Cadman CofAConviction quashed as per R v Owen and R v Wilson. Trial judge allowed evidence after summing up!
2008R v Kingsnorth Six Crown CourtJury nullification / jury equity / perverse verdict. Coal power station, criminal damage, s5 lawful excuse allowed (protection of property – global warming)
2010Taxquet v Belgium ECtHRArt. 6(1) ECHR and Art.14(1) ICCPR do not require juries to give reasons. Judicial procedural supervision provides the appropriate safeguards. BUT defendant must be able to understand the verdict that has been given.
2010R v GilderdaleJury nullification / jury equity / perverse verdict. Assisted suicide / attempted murder. Mother – daughter.
2010R v McDonnel CofAAppeal dismissed. In trial, discovered (not reported) extraneous material from internet, but totality of the extraneous evidence not considered sufficient to discharge jury. Strong judicial warning only. Endorsed by CofA – important to consider – might the extraneous material lead them to reach a verdict that they would not otherwise have reached?
2011R v Twomey Crown CourtFirst use of s46 CJA 2003 – robbery trial without jury. Trial (jury failed to reach verdict); 1st retrial (3 jurors “dropped out”); 2nd retrial (jury tampering); 3rd retrial (judge-only trial).
2011R v Guthrie CofAs46 CJA 2003 does not limit a judge’s common law power to discharge a jury or a particular juror.s16 JA 1974 remains in force, unaffected by s46 CJA 2003.Trial judge dismissed jury (reasons of jury tampering) under common law powers, then continued trial without jury under s46 CJA 2003.s46 CJA 2003 is NOT limited to only very serious cases with tampering involving serious intimidation by organised / professional crime.
2011 Mustafa (Abu Hamza) v UK ECtHRAdverse publicity = no infringement of Art. 6 ECHR wrt jury bias. National courts best placed to determine evidence to contrary. Supported CofA in R v Abu Hamza.
2008R v Hanif and Khan CofADistinction between partiality towards case and partiality towards witness. Wrt witness, 2 stage test: would the fair-minded observer consider that the partiality of a juror to the witness may have caused the jury to accept the evidence of that witness; and if so, would the fair-minded observer consider that this may have affected the outcome of the trial? If yes to both, the unfair by appearance.
2012Hanif and Khan v UK ECtHRPoliceman who knows a police witness, sitting on jury, violates Art. 6(1) ECHR. Possibly any policeman on jury does so. (CofA in 2008 had dismissed appeal out of deference to Parliament’s laws). Case referred back to CofA in 2014 by Criminal Cases Review Commission (CCRC), CofA allowed appeal wrt Hanif, but dismissed it wrt Khan (“neither follow nor apply the decision [of the ECtHR] in the case of Khan”). Retrial for Hanif. http://www.bailii.org/ew/cases/EWCA/Crim/2014/1678.html
2012Protection of Freedoms Acts113 – Repealed s43 CJA 2003
2013Twomey and Cameron v UK, Guthrie v UK ECtHRApplication: Procedure to allow for juryless trials in these cases did not meet requirements under Art.6(1) ECHR since it was based on closed material (not seen by the defendants), and in Guthrie’s case the trial judge had seen this closed material.Decision: Safeguards sufficient. Both applications inadmissible.
2013R v Pryce (Vicky)Jury discharged, retrial ordered. Basic failures in understanding of a jury’s duties.
2016R v White (Jordan)s6 JA 1974 used – “praying a tales”. Must start case with 12 jurors.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s