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Review of the
Criminal Courts of England and Wales

Chapter 5 - Juries

Introduction
The ‘right’ to trial by judge and jury
Composition of the jury
Random selection
Verdicts
Trial of cases on indictment without a jury
Information for and treatment of jurors

INTRODUCTION

1 The jury is often described as 'the jewel in the Crown' or 'the corner-stone' of the British criminal justice system. It is a hallowed institution which, because of its ancient origin and involvement of 12 randomly selected lay people in the criminal process, commands much public confidence. In the van of such confidence are the judges and legal practitioners who, when asked, invariably say that, in general, juries 'get it right'. For most it is also an important incident of citizenship; De Tocqueville memorably described it as "a peerless teacher of citizenship". However, support for it is not universal, not least among those who have been jurors. And there are many, in particular leading academic lawyers, who express reservations because we do not, and are not permitted by law[1] to, know how individual juries reach their verdicts. It is also well to keep in mind how rarely juries are used in the criminal trial process given the enormous importance with which they are invested by the public, politicians and legal professions. Only about 1% of criminal cases in England and Wales culminate in trial by jury.[2]

2 I take as my starting point that any change to the system of trial by jury requires a compelling case. I should say 'further' change, because it has evolved to its present form over many centuries, responding where necessary to the circumstances and demands of the time on the criminal justice system as a whole. 19th and 20th century examples of such change are the innovation in 1855 of a statutory system that grew over the next 150 years or so into the present wide category of 'either-way' cases, the introduction in 1967 of majority verdicts, the widening in 1972 of general eligibility for jury service from certain landowners to all on the electoral roll, the conversion in the 1980s of certain offences previously triable on indictment to summary only offences, and the abolition in 1988 of the right of peremptory challenge.

3 The Royal Commission on Capital Punishment, reporting in 1953, said that it had been "struck by the almost unanimous tributes paid by the judges and other experienced witnesses to the reliability and common sense of British juries".[3] The Morris Committee on Jury Service, in 1965[4] observed that, although the merits of jury trial and the types of cases that should be heard by a jury were outside its terms of reference, it thought it right to record that the evidence before it showed "in general an acceptance of the desirability of maintaining the jury system in criminal cases". And the Runciman Royal Commission in 1993 said much the same, though it urged research into the way in which juries worked, principally, it would seem, with a view to improve the system of jury trial rather than to consider whether it should continue:

"Juries are not specifically mentioned in our terms of reference. This may seem an anomaly since convictions of the innocent [sic] and acquittals of the guilty [sic] in serious cases are always jury decisions. But we are conscious that the jury system is widely and firmly believed to be one of the cornerstones of our system of justice. We have received no evidence which would lead us to argue that an alternative method of arriving at a verdict in criminal trials would make the risk of a mistake significantly less". [5]

4 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.[6] 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.

5 Many of the rules of criminal procedure and evidence that still dominate jury trial stem from its long evolution from trial by ordeal to its present form, and until 1965 against a back-drop of capital and other severe penalties for a wide range of offences. They also derive from judges' lack of confidence in the competence of juries for their task, despite their tradition of eulogy of the jury system. Hence also their elaborate directions on the law, emphatic cautions and often laborious rehearsal of the evidence before permitting jurors to consider their verdict. Dr Glanville Williams, one of the greatest English academic criminal lawyers of the last century, observed,[7] citing Mr Justice Swallow in Sir Alan Herbert's hilarious tale, Uncommon Law, that such assistance should be deemed necessary is an acknowledgement of the peculiar difficulties of an amateur tribunal:

"Gentlemen of the jury, the facts of this distressing and important case have already been put before you some four or five times, twice by prosecuting counsel, twice by counsel for the defence, and once at least by each of the various witnesses who have been heard; but so low is my opinion of your understanding that I think it necessary, in the simplest language, to tell you the facts again".

6 The only qualification required for jury service in England and Wales, apart from age and ordinary residence in this country, is entry on the electoral roll. The nature of this record results in under-representation of those in their early 20s, ethnic minorities and the more mobile sections of the community, such as those living in rented accommodation. Similarly, the many categories of ineligibility and scope for excusal as of right or for good reason mean that those in a wide range of demanding occupations are less likely to undertake jury service than the general population. Applications for excusal are most frequently received in long and complex cases where a range of experience and intellect is most needed. In New York[8] and many other States of the USA source records for jury service have been expanded, all or most of the exemptions from jury trial have been swept away, and excusals have largely become deferrals. The result is that nearly everyone does jury service as an acknowledged civic duty, including judges, lawyers, policemen, doctors and clergymen.

 

THE 'RIGHT' TO TRIAL BY JUDGE AND JURY

7 In England and Wales there is no constitutional or indeed any form of general right to trial by judge and jury, only a general obligation to submit to it in indictable cases. It is often claimed that Magna Carta, traditionally regarded as the foundation of our liberties, established such a right. The claim is incorrect. Certainly, Magna Carta is no basis for jury trial as we know it today. First, such right as it may have indicated seems to have had an earlier origin in the inquisition of the Carolingian Kings, adopted and imported into this country by the Normans.[9] Second, as legal historians have pointed out,[10] its reference to a free man's right to the lawful judgment of his 'peers' did not refer to trial by jury. Third, it did not protect everybody in the rigid class system of the time - it was not a truly democratic reform. Fourth, as Lord, then Sir Patrick, Devlin noted in his Hamlyn Lectures in 1956 entitled Trial By Jury,[11] it began as "something different". The form of trial to which it referred originated from an earlier reform of Henry II replacing trial by ordeal of fire or water. His jury consisted of 12 persons in the neighbourhood, witnesses, who swore to the truth of what they knew. It was not until much later that they emerged as a body of strangers to the case whose task was to decide it rationally upon evidence put before them. And, fifth and in any event, Magna Carta's statement of an accused's right was to one of two alternatives, either "by the lawful judgment of his peers or by the law of the land".[12]

8 Quite independently of Magna Carta, there is no legal basis for regarding the claimed 'right' to jury trial as a constitutional entitlement, that is an entrenched right overriding all other legal instruments, as in the United States for offences carrying more than six months imprisonment [13] or under the Canadian Charter of Rights and Freedoms for offences punishable by five years imprisonment or more,[14] or as a right at all. Nor has it become a right as a result of the incorporation into our law of the European Convention of Human Rights' Article 6 concept of a fair trial. On the contrary, there are suggestions that in some respects it may contravene that provision.[15] Originally, the accused had no choice but to be tried by jury in all indictable cases; he still has no choice in indictable only cases. It was only when, in 1855, Parliament began to permit him to opt for summary trial of certain offences which had formerly been triable only on indictment, that he acquired an elective right to jury trial in what developed over the next 150 years into a wide range of 'either-way' offences. And, as I have already noted, Parliament has made a number of changes in recent years modifying or removing the right in certain of those offences. The right is claimed "only for a fluctuating class of crimes of intermediate gravity".[16]

9 Nevertheless, the institution of the jury has for long been a powerful symbol in our criminal justice system. In the 18th century Blackstone described it in a famous passage as 'the palladium' or 'the grand bulwark' of the Englishman's liberties.[17] Sir Patrick Devlin in 1956, spoke of it as "a little parliament" and the "lamp that shows that freedom lives".[18] But, save possibly for the so-called 'dispensing power' of the jury, it is doubtful whether those metaphors are apt as main or practical justifications for the institution. Random selection - to the extent that it has ever existed, given our history of restricted qualification for and exclusions and rights of excusal from jury service - is not to be equated with democracy. The jury does not represent or reflect the community as a whole, save in the broad sense of enabling some citizens to participate in the trial process. Over the last two or more centuries judges have been more instrumental than juries in declaring and protecting the rights of citizens. Sadly, juries did not prevent the miscarriages of justice uncovered in the late 1980s and early 1990s arising, in the main, from falsification or concealment of evidence that so shook public confidence and gave rise to the appointment of the Runciman Royal Commission some ten years ago. And, from the earliest times many offences have not been triable by jury; today, as I have said, it is a response to only 1% of all prosecuted crime.

10 However, the jury retains its aura - one of involvement of the community in the administration of justice. For many this counts for more than its efficiency as a fact-finding tribunal, as many distinguished academic lawyers have, sometimes wryly, observed.[19] Baroness Kennedy of the Shaws is one of the many who have recently and eloquently articulated this basis for it:

"... jury tradition is not only about the right of the citizen to elect trial but also about the juror's duty of citizenship. It gives people an important role as jurors - as stakeholders - in the criminal justice system. Seeing the courts in action and participating in that process maintains public trust and confidence in the law". [20]

 

COMPOSITION OF THE JURY

11 Despite all the reforms of the latter half of the last century, juries in England and Wales mostly still do not reflect the broad range of skills and experience or ethnic diversity of the communities from which they are drawn. Jury service may be an important incident of citizenship, but many in this country do not qualify for this civic privilege and duty. And many who do qualify, do not regard it as a privilege and do their best to avoid it. If the jury is to fulfil its valued role of giving the community a say in the administration of justice, it should reflect the community better than it does.

12 About a quarter of a million people are summoned for jury service every year. A recent Home Office research project[21] suggests that only about a third of them are available to do it. It shows that, in a sample of 50,000 people summoned for jury service in June and July 1999, only one-third was available for service, about half of whom were allowed to defer their service until a later date. Of the remaining two-thirds, 13% were ineligible, disqualified or excused as of right, 15% either failed to attend on the day or their summonses were returned as 'undelivered' and 38% were excused.

13 The variety of mechanisms and broad scope for avoidance of jury service illustrated by these figures suggest that public perception of it as a civic duty is far from universal. And it is unfair to those who do their jury service, not least because, as a result of others' avoidance of it, they may be required to serve more frequently and for longer than would otherwise be necessary. Most of the exclusions or scope for excusal from jury service deprive juries of the experience and skills of a wide range of professional and otherwise successful and busy people. They create the impression, voiced by many contributors to the Review, that jury service is only for those not important or clever enough to get out of it.

14 In my view, no-one should be automatically ineligible or excusable from jury service simply because he or she is a member of a certain profession or holds a particular office or job. Where the demands of the office or job are such as to make jury service difficult for him over the period covered by the jury summons, he should be subject to the same regime as the self-employed or ordinary wage earners or others for whom jury service is also costly and burdensome, that is, discretionary excusal or deferral. There is nothing new about this proposition in other common law jurisdictions. It was pioneered in New York in the mid-1990s and has been widely adopted throughout the USA. If and to the extent that it may be thought to bear heavily on persons with demanding and responsible jobs, it should be remembered that the wider the pool from which jurors may be drawn the less frequently each of them will be required for jury service and, on average, the shorter the time they will have to give to it.

15 Before continuing, I pause to say a word about the New York Jury Projectinitiated in 1993 by Judith S Kaye, the Chief Judge of the State of New York. One of its three objectives was the attainment of jury pools that were "truly representative of the community". At that time, the New York State's Judiciary Law,[22] in accordance with the United States Supreme Court's oft stated constitutional guarantee, declared its policy to be that all litigants were entitled to trial by a jury drawn from a "fair cross section of the community". It had long before established source lists for jurors in addition to voter registration rolls but, as in this country, there were many occupational exclusions and exceptions. As a result of the Project Panel's recommendations, the maximum age limit of 70 was abolished and those above that age were left to seek excusal on the ground of physical or mental incapacity or serious inconvenience, all statutory occupational exclusions and exemptions were abolished, the scope for excusal was reduced to non-permanent excusal for incapacity by reason of mental or physical ill-health or undue hardship, and those summoned for service were permitted one deferral as of right to a date specified by the potential juror.

16 In England and Wales, until earlier this year, each court (other than those in London) had its own arrangements for summoning jurors. A Central Juror Summoning Bureau has now been established to administer the juror summoning process for the whole of the country. It is designed to overcome the deficiencies of the former system, principally in securing a better match in numbers of jurors summoned to the workload of each court, in providing better communication with potential jurors and accommodation of their needs, and in bringing greater consistency to the treatment of their applications for excusal or deferral. It has developed a computer system to select potential jurors at random from the electoral roll and to generate summonses and letters confirming dates for service. Such a national body should be well placed to introduce and develop some of the reforms I recommend below. I have in mind, in particular, the combination of a number of directories and lists, entry on which would assist in identifying persons qualified for jury service, and better communication systems as to jurors' qualification for and ability to undertake jury service. As to the latter, I understand that, as a first step, the Bureau has established an electronic link with the police criminal records system to enable automatic checks on any previous convictions of potential jurors.

The size of the jury

17 We take for granted that a criminal jury should consist of twelve people. This is a matter of tradition rather than logic.[23] There have been some - not many - proposals for change, mostly for a reduction in size to achieve economies and to reduce the general burden of jury service. Though those matters are relevant, they are not, in my view, of sufficient weight or merit to justify changing an institution that draws much of its public support from the number of decision makers that it brings to the task of determining guilt. Traditions of jury size vary from country to country, both in common law as well as civil law jurisdictions. For example, in Scotland, the number is 15.

18 There is, however, some support and precedent for the swearing of alternate or reserve jurors in case the number falls below the minimum of nine by reason of illness or other necessity, a particular hazard in long cases. Whilst this would involve extra expense in jury allowances and additional jury accommodation, the over-all savings in long cases, in both financial and in human terms, of aborted trials and re-trials could be worth it. To meet the possibility of lack of commitment to the case by alternate jurors, they and the primary jurors could be sworn and treated in exactly the same way throughout the trial. In that way neither they nor anyone else would know that they were in reserve until the time for deliberation. Alternatively, there could be a ballot at that time to determine who is to form the final jury. I acknowledge that a practical obstacle to such provision is the present size of jury boxes in courts all over the country, but enlargement would only be necessary in those courts large enough and customarily used for long and heavy trials. Such a system and provision are well and widely established in the USA, and is also to be found in some Commonwealth jurisdictions.

19 The Roskill Fraud Trials Committee was lukewarm about such an insurance provision for long cases; it was not opposed to it in principle, but not satisfied that the problem was sufficiently serious to warrant doing anything about it.[24] Enquiries made by the Court Service in 1998 disclosed no instance when a trial had had to be aborted because the number of the jury fell below nine. However, in one case, a fraud trial of some ten months' duration, the jury were reduced to nine during the course of their deliberations, which must have caused much anxiety to all concerned, including the remaining jurors. Jury trial in long and complex cases is a fragile and highly expensive exercise. It is also an ordeal to which all involved should not be subject a second time for want of a quorate jury.

20 Although I later recommend a system of trial without jury in long and complex frauds,[25] I consider that a system of alternate or reserve jurors could have value in some other very long cases here. It would also have the advantage of maintaining a jury of 12 while continuing to provide for majority verdicts.[26] If such a system were introduced, judges would have to be vigilant to maintain the stringent criterion of 'necessity' for the discharge of jurors during the trial. There are indications in the USA of jurors being more prone to seek discharge in circumstances short of necessity because they know that there are jurors in reserve. I do not suggest that alternate jurors should be sworn in every long case, but that the judge should consider it at the pre-trial stage.

I recommend the introduction of a system enabling judges in long cases, where they consider it appropriate, to swear alternate or reserve jurors to meet the contingency of a jury otherwise being reduced in number by discharge for illness or any other reason of necessity.

Qualification for jury service

21 Until 197227 there was a statutorily imposed property qualification for jury service. Sir Patrick Devlin in 1956[28] reckoned that it excluded the majority of the adult population. As a result of the recommendations of the Morris Committee in 1965,[29] which eventually gave rise to the Juries Act 1974, that has gone. The only qualifications now are an age of at least 18 and not more than 70, to have been ordinarily resident in this country for a period of at least five years since the age of 13 and registration as a parliamentary or local government elector.[30] There have been a few submissions in the Review as to the age limit and residence qualification, but I see no compelling case for change in either of them. The requirement of entry on the electoral register is, however, an important candidate for change on grounds of principle and practicality. The overriding principle of selection from that register and, later in the process, from the panels and part panels drawn from it for each court, is that of random selection. Randomness is not an end in itself. It does not necessarily improve the quality of the decision-making. Its value is that it is considered to be the best, albeit a rough and ready way, of empanelling a jury that is likely to be collegiately independent and to reflect the community at large.

22 As I have said, there are many who, by statute, are ineligible to serve on a jury or who are entitled to excusal as of right, and some who are disqualified. There is also provision for discretionary excusal and for discharge of jury summonses because of disability. But quite apart from all of those exclusionary mechanisms, there is a fundamental weakness in dependence on entry on the electoral register as one of the main criteria of eligibility for jury service. Home Office research[31] shows that in 1999 about 8% of those eligible for registration according to the 1991 Census and Electoral register were not registered. There are a number of reasons for that. Until earlier this year, the electoral register was simply a 'snapshot' of names and addresses in October of each year, and so rapidly became out of date. Although, the introduction of 'rolling' registration will improve the situation, people who live in insecure accommodation or who move relatively frequently will continue to be under-represented on the register. Comparisons with the census indicate that those aged 20 to 24, ethnic minorities and those living in rental accommodation are the most under-represented on the electoral roll.

23 It is plain that we should do what USA Federal and State jurisdictions and a number of Commonwealth countries have done for some time - supplement and/or cross-check the electoral roll by reference to other sources, for example the Driver and Vehicle Licensing Authority, the Department for Work and Pensions, the Inland Revenue and telephone directories. This would require a merging and constant updating of records from the various sources, but, with modern computer technology, it can be done. One complication of widening the net in that way is that it would include non-Commonwealth citizens who, save for citizens of the Republic of Ireland, are not entitled to vote or, therefore, to entry on the electoral roll. However, this could be dealt with, as it is in the United States, by resolving the issue of qualification at the summons stage.

24 Such a reform would be an important contributor to juries becoming a better reflection of the community from which they are drawn and would encourage the perception of jury service as a universal civic duty. And, by significantly increasing the jury pool, it would have the practical benefit of reducing both the frequency with which people are required for jury service and the length of it.

I recommend:

Enforcement of jury service

25 The Home Office Research to which I have referred indicates that about 15% of summoned jurors fail to attend court on the day or have their summonses returned as 'undelivered'. Failure to attend court in response to a jury summons is punishable summarily by a fine of up to £1,000 or as a contempt of court.[32] But there is little attempt at enforcement. Those who do not respond to a summons are sent a further letter and their names are passed to the court. The courts rarely follow up those who, they know, have not responded to the summons or those who have indicated that they would attend, but have failed to do so. Even when recalcitrant potential jurors are brought before the court, judges are reluctant to impose any significant punishment. Some courts occasionally list a number of such acts of defiance for hearing on the same day with a view to giving publicity to their enforcement proceedings, but the publicity is too limited, patchy and sporadic to do much good. The result of all this is that it has become widely known that a jury summons may be ignored with impunity.

26 Something must be done to bring home to the public that jury service is a public duty, that they must do it unless ineligible or excused and that they will be punished if they do not. It can be done, as is shown by what has been achieved in New York and elsewhere in the United States, where very few now escape jury service. At the same time, it would be wasteful of court time to clutter up lists with the original penal proceedings for which the law now provides. I suggest that a better course would be to examine the practicalities of introducing a system of fixed penalties subject to a right of appeal to magistrates.[33] If introduced it should be accompanied by regular publicity of the sort that currently highlights action taken against those using a television without a licence.

I recommend that there should be rigorous and well publicised enforcement of the obligation to undertake jury service when required and that consideration should be given to doing so by way of a system of fixed penalties subject to a right of appeal to the magistrates.

Ineligibility

27 There are many categories of person whom the 1974 Act makes ineligible for service. They include: present and past members of the judiciary at all levels, including justices of the peace; all those concerned with the day to day administration of the legal system or any court; others from a whole range of professions and occupations concerned with the administration of justice, including present or past barristers, solicitors, legal executives, police, prison and probation officers; and also clergymen, the mentally ill[34] and any person on bail in criminal proceedings.[35] There is also provision in the Act for disqualification of persons with a criminal record who have received particular types of sentence.[36]

28 As to those who practise law or are concerned with the business of the courts and otherwise with administration of the law and justice, the Morris Committee had recommended before the 1974 Act that they should continue to be excluded from jury service. It was not of that view because such persons would readily deduce from what was and was not said in the proceedings whether the defendant had a criminal record. The Committee acknowledged that many without formal legal training knew enough about the workings of the courts to make a shrewd guess about that. But it considered that such persons' specialist knowledge and the prestige attached to their occupations would enable them unduly to influence their fellow jurors. For that reason,[37] it recommended a considerable widening of the categories of exclusion (to which the 1974 Act gave effect); and the Runciman Royal Commission, reporting in 1993, recommended no change.[38]

29 The most commonly voiced objection to removing the ineligibility of all or most of those connected with the courts and the wider administration of justice is the one not relied on by the Morris Committee - that they would be able to deduce from the lack of reference to a defendant's good character, that he has previous convictions. In my view, such concern is unreal for the reason given by the Morris Committee. It is widely known that a defendant is generally entitled to keep quiet in court about his past if it is bad and to make much of it is good. Any juror who has served before will know that, and any juror who sits for the first time will soon become aware of it if he does not already know. The second main objection - the one relied upon by the Morris Committee - that such persons, by reason of their status or position could unduly influence their fellow jurymen, is unlikely today. People no longer defer to professionals or those holding particular office in the way they used to do. Experience in the USA where, in a number of States, judges, lawyers and others holding positions in the criminal justice system have sat as jurors, is that their fellow jurors have not allowed them to dominate their deliberations.[39] A number of them have also commented on how diffident they would have felt about trying to do so since, despite their familiarity with court procedures, they found the role of a juror much more difficult than they had expected.

30 There is also the anxiety voiced by some that those closely connected with the criminal justice system, for example, a policeman or a prosecutor, would not approach the case with the same openness of mind as someone unconnected with the legal system. I do not know why the undoubted risk of prejudice of that sort should be any greater than in the case of many others who are not excluded from juries and who are trusted to put aside any prejudices they may have. Take, for example shopkeepers or house-owners who may have been burgled, or car owners whose cars may have been vandalised, many government and other employees concerned in one way or another with public welfare and people with strong views on various controversial issues, such as legalisation of drugs or euthanasia. I acknowledge that there may be Article 6 considerations in this. But it would be for the judge in each case to satisfy himself that the potential juror in question was not likely to engender any reasonable suspicion or apprehension of bias so as to distinguish him from other members of the public who would normally be expected to have an interest in upholding the law. Provided that the judge was so satisfied, the over-all fairness of the tribunal and of the trial should not be at risk.[40]

31 As I have said, I consider that there is a strong case for removal of all the categories of ineligibility based on occupation. My one reservation has been as to judges. I say that, not because I consider that they are too grand for the task or that their work is so important that they could not be spared for it. On the contrary, I consider that it would be good for them and the system of jury trial if they could experience at first hand what jurors have to put up with. In particular, it would surely help them see how well or badly they and all those concerned in the process assist jurors in their task. And I have been heartened by the knowledge that judges have sat on juries or been potential jurors in the USA.[41] A number have spoken warmly of the experience. They include Judith S Kaye, the Chief Judge of the State of New York, Shirley Abrahamson, Chief Justice of the Wisconsin Supreme Court and Justice Breyer, of the Supreme Court of the USA who gave an account at the American Bar Association Meeting in London in July 2000 of his jury service.

32 There are two main reasons why I have hesitated over the notion of judges as jurors. First, some observers of and participants in the scene might regard the innovation as little more than a gesture, or as one New York columnist described it in its early days there, "a foolish experiment in injudicious pseudo-egalitarianism". But, if it is well meant and, as I believe, capable of contributing both to the work of individual juries and to improvement of the jury system as a whole, it should be considered. A more practical difficulty is that potential judge/jurors may often know or be known to the trial judge or advocates or others involved in the trial. This could be regarded as compromising their independence and/or, dependent on their seniority or personality, as inhibiting the judge or advocates in their conduct of the case. However, such problems could be dealt with as and when they arise by discretionary excusal rather than a blanket ineligibility by reason of their occupation. They would be in no different position in that respect from all others concerned with the administration of justice if my recommendation for the general removal of ineligibility is adopted. For those reasons, I have come to the conclusion that it would be wrong to single out the judges for special treatment in this respect.

33 As to the ineligibility of clergymen, the 1974 Act reflected the Morris Committee's recommendation for no change because of the possible embarrassment to them flowing from their pastoral role and compassionate instincts.[42] However, there are many others in the community with similar roles and instincts. Like the Runciman Royal Commission[43] I consider that there is no justification for excluding them from jury service unless they find it incompatible with their tenets or beliefs. Provision has since been made for the excusal as of right of "a practising member of a religious society or order the tenets of which are incompatible with jury service",[44] but I am not sure that that is quite what the Commission intended.[45] It seems to me that this would be more appropriately dealt with by way of discretionary excusal rather than an entitlement by reference simply to claim membership of a religious body.

34 Thus, in my view, there is a strong case for removing all the present categories of ineligibility based upon occupation, that is, those in Groups A - the Judiciary, B - others concerned with the administration of justice and C - the clergy, in Part I of Schedule 1 to the 1974 Act. Any difficulty or embarrassment that the holding of any such office may pose in a particular case can be dealt with under the courts' discretionary power of excusal. As to the categories of disqualification for those with a criminal record who have received particular types of sentence, as set out in Part II of Schedule 1 to the Act, I see no reason for change. Until recently there was very little check that persons summoned met the requirements for jury service, in particular, as to whether they had previous convictions. However, that has now changed with the establishment by the Central Summoning Bureau of an electronic link with the Police National Computer, which enables an automatic check on each person summoned.

Accordingly, I recommend that:

Excusals as of right and discretionary excusal

35 In addition to persons who within specified periods have previously served on a jury or who have been excused by a court from doing so,[46] a large range of persons are entitled to excusal from sitting on a jury if they claim it. They include persons over 65 and members of certain religious bodies to whom I have referred and two groups of persons who, by reason of their public duties or medical responsibilities, might find it difficult to undertake jury service. The first group includes, Peers and Peeresses, Members of Parliament and full-time members of the armed forces. The second consists of medical practitioners, dentists, nurses, midwives, veterinary practitioners and pharmaceutical chemists.[47] The two groups reflect the reasoning and recommendations of the Morris Committee that excusal as of right should be granted to an occupation where it is in the public interest because of the special and personal duties to the State that it involves or because of the special and personal responsibilities of its individual members for the immediate relief of pain and suffering.[48]

36 Excusal as of right of those over 65 is relatively new, having been introduced by a statutory amendment in 1988.[49] But it seems to me that the increasing number and better health of persons over that age justify treating them as other potential jurors under the qualifying limit of 70, namely, fit to serve unless they can show that they are so physically or mentally unfit as not to be able to act effectively as jurors. No doubt, claims by persons over 65 on that account would be sympathetically considered.

37 As to the main two categories of persons excusable as of right, I consider that there may be a good reason for excusing them where it is vital that they are available to perform their important duties over the period covered by the summons. But I see no reason why that should entitle them to excusal as of right simply by virtue of their position. As the Morris Committee acknowledged,[50] it is extremely difficult to draw a line between those whose work is and is not so crucial that it would be against the public interest to compel them to serve as jurors. Invidious choices of that sort can be avoided, and the jury strengthened, by replacing excusal of right in such cases with discretionary excusal or deferral.

38 The remaining category of excusal as of right is that of persons who have served on a jury or who have attended to serve on a jury within two years before the service of the summons or who are within a period of excusal granted by the court.[51] If my recommendations as to the composition of juries are adopted, many more jurors should become available for service than at present, with a consequent reduction in the need to expose them as often to selection for jury service. With that in mind, once patterns of jury usage for each court catchment area have emerged and the Central Summoning Bureau has developed more sophisticated computer controls, consideration could be given to permitting local increases in the period of excusal of right under this head. Such a proposal, it seems to me, would be more flexible and fair to those who wish to do jury service than another suggestion made in the Review. It was for the creation of three jury qualification lists, one for those who have never served on a jury, a second for those who have served once, and a third for those who have served more than once, and for random selection from the first list until it was exhausted, then from the second and then the third.

39 As to discretionary excusal or deferral, an officer of the court may excuse or defer the attendance of a person summoned for jury service if he is satisfied that there is good reason for doing so. There is a right of appeal to the court in the event of refusal.[52] The present scope for excusal accounts, as I have indicated, for 38% of those currently summoned for jury service who are able to avoid it. It is taken up in the main by those who are self-employed or in full-time employment who can make out a case for economic or other hardship for themselves or others if they have to give up their work for even a short period, and also by parents who are unable to make alternative arrangements for the care of their children. If, as I recommend, the main categories of ineligibility and all of excusal as of right are abolished, there will be more work for officials and judges in deciding whether to grant discretionary excusals or deferrals in such cases when sought. The claims will be at least as pressing as many claims for discretionary excusal already are. But they should be tested carefully according to the individual circumstances of each claim, otherwise there could be a reversion to the present widespread excusal of such persons by reason only of their positions or occupations. I hope that much of the present pressure to avoid jury service may go if, in accordance with these and other of my recommendations, people are asked to do it less often, for shorter periods, with more consideration for their personal commitments and under better conditions than now.

40 Where a claim for excusal appears to be well founded, the Central Summoning Bureau officers should aim to deal with it by way of deferral rather than excusal. I am much attracted by the regime successfully introduced in New York and many other USA courts of requiring the claimant to offer and make arrangements to do his jury service at some alternative time suitable to him or her. In certain counties in New York State, for example, an automated telephone system enables jurors to 'postpone' their first summons for up to six months, usually to a specific date of their choice. Subsequent applications for deferral should be considered against clear, published criteria and, if granted, for a specific period, with scope for an extended period where appropriate. Only if a request for deferral is not practicable or reasonable should the Bureau normally refuse it or consider its power of excusal.[53]

I recommend that:

Discharge of jury summons on account of disability or incapacity

41 The court has power to discharge a jury summons if it considers that the person, on account of disability[54] or "insufficient understanding of English"[55] will not be able to act effectively as a juror.[56]

42 In both cases this power of discharge is quite distinct from that of excusal for good reason. As to disability, amendment of the law in 1994[57] effectively established a presumption that people with disabilities attending court in response to a summons can serve on juries. In a case of doubt the judge should only discharge the summons if he is "of the opinion that the person will not, on account of his disability, be capable of acting effectively as a juror". This is of a piece with the strong move in this country and civilised countries everywhere to accommodate and, as far as possible, positively to include people with disabilities in all society's activities. The European Convention on Human Rights speaks of the right of each individual to pursue a dignified and fulfilling life, and Article 14 of it, as interpreted by the Strasbourg Court, prohibits discrimination against people with disabilities. The Disability Discrimination Act 1995 is our opening legislative contribution to that movement.

43 As the Bar Council Disability Committee have observed, in a powerful submission in the Review, the concept of disabled persons sitting on juries is wholly consistent with the principle of random selection from all members of society. Enabling them to do so is not just a question of evaluating their disability and relating it to the task, but also of providing, where reasonably practicable, the facilities and/or assistance to them to undertake it. This includes fairly predictable needs, such as access for people with mobility difficulties to and, as necessary, throughout the court-building, space for jurors in wheelchairs in or near the jury box, special lavatories and suitable equipment for people with visual impairments. The Court Service has been alive to these basic needs for some years. All courts have been audited against the standards implied by the Disability Discrimination Act 1995 and a schedule of works has been compiled that should ensure compliance with those standards by October 2004. Priority will be given to works to the main court centres for each circuit.

44 There are, however, additional problems for the profoundly deaf since, if they are to contribute effectively to the verdict, they will require the assistance of an interpreter in the jury room before and during the jury's deliberations. Judges to date have ruled that if a person was so deaf that he could not participate in the jury's deliberations without an interpreter, he should be discharged as incapable of acting effectively as a juror, because the presence of a 13th party in the jury room would be an incurable irregularity.[58]

45 In recent years a number of organisations concerned with disability generally and the deaf in particular have pressed for amendment of the law to permit a deaf person to act as a juror with the assistance of a sign language interpreter or lip speaker. The Bar Council Disability Committee suggest that anxieties about an interpreter intruding on the privacy of the jury room would be met if he were required to undertake to communicate with the disabled person and the other jurors only as an interpreter and not to divulge the jurors' deliberations to any third person.

46 There is understandable caution about the prospect of such a 13th person in the jury room. But accredited interpreters work to agreed professional standards that should preclude any attempt to intrude on or breach the confidence of juries' deliberations. In April 2000 the Lord Chancellor indicated that he could see no objection to deaf people serving as jurors. The Government has committed itself to a general review of support in court and in the jury room to jurors with disabilities and to those who cannot speak English. The Home Office was to issue a consultation paper on the matter towards the end of 2000, but has yet to do so. In the circumstances, it would be premature to attempt any specific recommendation. But, in principle, I consider that all reasonable arrangements, coupled with suitable safeguards, should be provided to enable people with disabilities to sit as jurors with third party assistance. I say this, not because there is a general right, as distinct from duty, to undertake jury service or under any anti-discrimination legislation,[59] but because such inclusiveness is a mark of a modern, civilised, society.

47 In the United States a policy of automatic exclusion of blind or deaf persons from jury service would violate the Federal Anti-Discrimination legislation.[60] The experience of the American Courts where deaf people have sat on juries is that they have not been a hindrance. On the contrary, the need for juries to work at their pace, although lengthening the deliberations somewhat, has tended to make them more structured, with the advantage, if nothing else, of only one person talking at a time.

48 Regardless, of the outcome on that particular issue, I consider that more needs to be done than at present to inform all people with disabilities summoned for jury service that they will be considered for it, if they wish. I know that the Central Summoning Bureau is alert to identify and, in liaison with the courts, to meet these needs. But I think it could do more by way of positive encouragement. Given the Home Office's current review of the whole subject, I consider that, apart from a general exhortation to make proper provision at all Crown Court centres for people with disabilities to serve as jurors, it would be wrong for me to attempt any specific recommendation in advance of the Home Office's completion of its review.

Discharge of jury summons because of incapacity to understand English

49 As to command of and literacy in English, the Morris Committee considered and rejected a number of proposals variously calling for educational, intelligence or literacy tests as a requirement for inclusion on the list for jury service.[61] However, it recommended that no-one should be qualified to serve on a jury who found it difficult to read, write, speak or understand English. The Roskill Committee doubted whether the formula in the 1974 Act of "insufficient understanding of English" sufficiently met those recommendations as to literacy. Whilst the Committee noted a judicial readiness to excuse jurors who acknowledged a difficulty in reading and writing in cases involving documentary evidence, it regarded it as no guarantee of excluding them in such cases. It was of the view that, either by amendment of the statutory formula or by leaving it to those responsible for the administration of the courts, it should be ensured that only literate persons should serve as jurors in fraud cases.[62]

50 To impose literacy as a qualification for jury service would exclude a significant section of the community who, despite that inability, have much to contribute to the broad range of experience and common-sense that is required in a jury. However, in my view, it is becoming increasingly necessary for jurors to have a reasonable command of written English. Even in the simplest case, there are usually exhibited documents that they must be capable of understanding. If, as I recommend, there is a move to more use of visual aids in court, to written summaries of the issues and of admitted facts and to more wide-spread use of written directions, the need will become greater. I have sympathy with the Roskill Committee's concern that there should be a means of ensuring that illiterate persons do not sit as jurors in fraud trials or any case that involves critical documentary evidence. It would be difficult to entrust the matter to the Central Summoning Bureau to sort out by way of discretionary excusal at the summoning stage. It would not be known then whether the illiterate person summoned would be required to sit as a juror in a case with critical documentary evidence. And to leave it to discreet enquiries by court staff when organising panels of jurors for particular cases is both chancy and offends the principle of randomness. The present system of leaving the judge as the final filter during the process of jury selection is probably the best that can be achieved. By then the nature of the case for trial and its likely demands on the literacy of potential jurors can be assessed. The judge should give the panel of potential jurors an ample and tactfully expressed warning of what they are in for, and offer them a formula that would enable them to seek excusal without embarrassment. As a very last resort, there is always the option for the prosecution to 'stand by' a potential juror who clearly has difficulty, when being sworn, in reading the oath.

 

RANDOM SELECTION

The principle

51 I have mentioned the principle of random selection and how its application to the process of selecting names from the electoral register is skewed by the latter's incompleteness, tending to exclude many from the poorer and more mobile sections of society, including ethnic minorities. The principle is further damaged by the removal from the pool of a large swathe of those who are presently ineligible or excused as of right or for good reason. If and when those distortions are reduced by enlarging the sources for jury qualification, removing the main categories of ineligibility and of excusal as of right and introducing a scheme of flexible deferral, there should be a significant improvement in the quality of juries and a general reduction in the burden of jury service. But juries will still not include many of the less fortunate in society who, for one reason or another, would not be found on any list from which potential jurors could be drawn. Not only does randomness not equal representativeness, but it can result in juries in individual cases being grossly unrepresentative. This is not ideal, but I share the Runciman Royal Commission's reluctance to interfere with the general principle of random selection.[63] There are, however, two candidates for some modification - ethnic and linguistic.

Ethnic minority representation on juries

52 The Crown Court study undertaken during 1992 on behalf of the Runciman Royal Commission[64] indicated that, nationally, ethnic minority communities were not seriously under-represented on juries. There has been no comprehensive monitoring since then of the national or local ethnic make-up of juries and, in the absence of a similar national study, I cannot, therefore, say that the position remains the same. A fundamental problem is that ethnic minorities are among the highest categories of persons who, though entitled to serve on juries, do not qualify because they are not registered as electors. Recent Home Office research[65] indicates that about 24% of black, 15% from the Indian sub-continent and 24% of other ethnic minorities are not registered. A limited and relatively unscientific survey undertaken for the Review in Liverpool, Nottingham and Durham in August and September last year showed a noticeable lack of ethnic mix in jury trials at all three centres.

53 The Court of Appeal in 1989 held that a judge has no power to influence the composition of the jury by directing that a multi-racial jury be empanelled or by the use of his power of discretionary discharge, or by directing that the panel should be drawn from another jury catchment area. The Runciman Royal Commission agreed with that as a general proposition. But it recommended that, in exceptional cases with "a racial dimension" involving an ethnic minority defendant or victim, the judge could, if persuaded that one or other reasonably believed there would not be a fair trial from an all-white jury, direct the selection of a jury consisting of up to three people from ethnic minority groups. It also recommended that in an appropriate case he should be able to direct that one or more of the three jurors should be drawn from the same ethnic minority as the defendant or the victim. It suggested that either variation could be achieved by the jury bailiff continuing to draw names randomly selected from the panel available at court until the three requisite persons were drawn.[66] The Government of the day did not adopt the recommendation because it considered it offended the principle of random selection from a cross-section of the population as a whole.

54 The Law Society, the Race Relations Committee of the Bar Council, The Commission for Racial Equality and others have sought to revive the Runciman Royal Commission recommendations. They have suggested two further alternatives. The first, also mentioned by the Commission, was that the judge could direct transfer of the case to a court centre in another locality where the ethnic mix would give a better chance of drawing a multi-racial jury. The second was that, in order to create a better chance of ethnic minority representation on a jury, the panel from which it is drawn could be amalgamated with that from another court area or drawn from that other panel.

55 As to the Runciman Royal Commission's proposal, the arguments against it are the familiar one of principle - the importance of random selection - and practicality, the difficulty of early identification of cases calling for a multi-racial jury so as to provide panels with sufficient members of ethnic minorities to ensure the availability of at least three of them for selection in such cases. The suggestion of moving cases to another court centre, initially appealed to me as a pragmatic solution to an otherwise difficult question. There would be no legal obstacle to it[67] and little practical difficulty (save for those who might have to travel longer distances to court). But, on reflection, it smacks of forum shopping and could cause grave upset, say when the victim and the defendant are of different ethnicity and/or are at odds as to where the matter should be tried. The suggestion of drawing potential jurors, or amalgamating panels with those, from areas of higher ethnic minority populations would be equally unacceptable for similar reasons, and would be inefficient.

56 Dr. Penny Darbyshire's analysis for the Review of jury research[68] indicates, unsurprisingly, that the race of jurors can affect the verdict in cases where either the defendant or the victim or witnesses on one side or another are of a different race from those on the jury. This is of some significance when put against the 1995 British Crime Survey's figure for that year of nearly 400,000 crimes in England and Wales considered by the victim to be racially motivated. Where there is evidence of racial bias on the part of jurors, it is clearly capable of affecting the fairness of the trial. So, is the principle of random selection a sufficient answer to the problem when considered against the following factors: the emergence of a large number of racially aggravated offences coupled with recent statutory recognition of them;[69] the relatively recent loss of the right of peremptory challenge; the inability to challenge for cause without a prima facie case of its existence; and the newly applicable Article 6 principle of 'objective impartiality', namely a requirement of sufficient guarantees to exclude any objectively justified or legitimate doubts as to the impartiality of the tribunal?[70] Dr Darbyshire, in her analysis, posed a similar question:

"For over five centuries, until 1870, members of minorities such as Jews, Germans and Italians had the right to be tried by a jury comprised half of foreigners. It was called the jury 'de mediate linguae'. This right was abolished on the ground that "no foreigner need fear for a fair trial in England". Given the trial data, reported cases and research findings, can we in England and Wales believe this to be true now?"

57 I have found this a difficult question both on the principle of randomness and on the practicalities of change.

58 However, randomness is not an end in itself. It is, so far, the best means we have, absent some system of investigation or examination of potential jurors as in the United States, of trying to secure an impartial and fair jury. A move towards the Runciman Royal Commission's proposals would be a danger to that aim if it were to amount to special pleading, that is to say, for representation on a jury of those from the same background or sympathetic to the defendant or victim. That would clearly be unacceptable. But, as a means of widening the range of backgrounds and experience on the jury in appropriate cases, it could be a positive aid to over-all fairness in cases of particular ethnic sensitivity.

59 That still leaves the question: what makes race so special in the sense that any changes of the sort proposed should not also be made for other special interest groups? The answer may be as follows. Our randomly selected and uninvestigated juries are clearly at risk of one or more of their number bringing prejudice of one sort or another to their task. Such prejudice is usually invisible, and we are content to assume that it will be overcome or cancelled by differing views of the other members. But membership of a particular racial group is usually visible, and, as Dr Darbyshire's research and other studies suggest, white juries are, or are perceived to be, less fair to black than to white people. It is this quality of visible difference and the prejudice that it may engender that singles out race for different treatment from other special interest groups in the courtroom. In my view, that is not a problem that can be solved by a North American style jury examination, which would not, in any event, be well supported in this country for all the obvious practical reasons as well as serious reservations about its efficacy.

60 What then is to be done about the potential for racial prejudice in all-white juries in our system? I believe that the practical problems, in devising a procedure, in appropriate cases, to ensure a wider racial mix and to balance any competing interests of defendant and complainant, are not insurmountable. The Central Summoning Bureau could ask potential jurors to state their ethnic origins, a question asked in the census. If they don't want to say, they need not do so. The parties could be required to indicate early in their preparation for the pre-trial assessment[71] whether race is likely to be a relevant issue and, if so, whether steps should be taken to attempt to secure some ethnic minority representation on the jury. This could be done by the empanelment of a larger number of jurors than normal from which the jury for the case is to be selected, some of whom would be identified by their juror cards as from ethnic minorities. It may be necessary to allow a longer period of notice in such cases than the standard summons period of eight weeks ahead. The first nine selected would be called to serve and, if they did not include a minimum of - say three - ethnic minority jurors, the remainder would be stood down until the minimum was reached. My recommendations for widening the pool of potential jurors so as to include better ethnic minority representation country-wide, if adopted, should go some way to assist in securing sufficient ethnic minority members of court panels to make such a scheme feasible.

61 As to the suggested difficulty where the defendant and the complainant are of different ethnic origin, the judge's ruling would be for a racially diverse jury in the form that I have suggested, not that it should contain representatives of the particular ethnic background on either side. Any question as to who would qualify as an ethnic minority for this purpose should be an implementation issue to be resolved in consultation with the Commission for Racial Equality and other relevant groups.

62 I do not suggest a parallel process for magistrates' courts constituted by a bench of lay magistrates. Apart from my recommendations directed to secure a lay magistracy more reflective of the local communities it serves, their semi-professionalism, coupled with their sharing of their jurisdiction with professional judges, would make it unnecessary and, on a case by case basis, wholly impracticable.

Accordingly, I recommend that a scheme should be devised, along the lines that I have outlined, for cases in which the court considers that race is likely to be relevant to an issue of importance in the case, for the selection of a jury consisting of, say, up to three people from any ethnic minority group.

Linguistic composition of juries - Wales[72]

63 There are particular problems about the composition of juries in Wales. They are not new. They concern the Welsh language, looked at from the perspective of jurors whose only or main language is English, or the English language, for jurors whose only or main language is Welsh or who simply prefer to have the evidence in their own language. Over the last 10 to 15 years there has been a renaissance of the Welsh language. It is still very much a 'minority' language, but about half million - about 20% - of those in Wales now speak it. Their numbers are increasing and there will clearly be greater use of it in public life, including in the courts. However, the distribution of Welsh speakers throughout the Principality is not even. In some areas, in particular, the north west, the majority speak it. In others, for example the south east, only a minority do; but even within that area it is variable. According to the 1991 census results, the percentage of those three years old and over able to speak Welsh in the then counties was: Gwent 2.4%; South Glamorgan 6.5%; Mid Glamorgan 8.5%; and West Glamorgan 15%.[73]

64 The Welsh Language Act 1993 requires that in the administration of justice in Wales and Monmouthshire, both languages are to be treated on a basis of equality, and provides that in any legal proceeding any party, witness or other person may speak in Welsh if he wishes to do so. Where Welsh is spoken and not everyone in the case speaks it, simultaneous professional interpretation is provided. Practice Directions require that cases in which Welsh may be used should, wherever practicable, be listed before a Welsh speaking judge and in a court with simultaneous translation facilities. However, because of the system of random selection of jurors, there is no mechanism to ensure that all or, indeed, any of a jury's members are bilingual, thus requiring simultaneous translation in almost all cases where Welsh is used.

65 Mr Justice Roderick Evans, when the Resident Judge of Cardiff, suggested in a paper prepared for the Review that a witness, including a defendant, who has to give evidence to a jury through an interpreter is at a disadvantage, and so are the jury in their assessment of him and of what he says. He suggested that the only way to overcome those disadvantages is by introducing some mechanism to ensure bilingual juries in all Crown Court trials where Welsh is spoken. He went further and maintained that the underlying principle of the 1993 Act requires it to accommodate Welsh-only speakers by amendment of section 10 of the Juries Act 1974 which requires the discharge of any potential juror with insufficient understanding of English to act as a juror.

"The present inability to select a jury whose members are bilingual is inconsistent with the principle that English and Welsh should be treated on a basis of equality, militates against the exercise of the right to use Welsh in court, draws an inappropriate distinction between citizens who choose to use Welsh rather than English and has the potential to work injustice."

66 In 1973, Lord Justice Edmund Davies, as he then was, in a report to the Lord Chancellor of an informal study on the use of Welsh in courts in Wales,[74] concluded that selecting bilingual juries would offend against the principle of random selection. I understand that Welshmen may differ about that. But assuming that it is so, Mr Justice Roderick Evans questioned:

"whether adherence to a tenet of English law developed in a monolingual England is a good reason for perpetuating an injustice in an officially bilingual Wales."

67 Mr. Justice Thomas, a Presiding Judge of the Wales and Chester Circuit, and Mr Justice Roderick Evans, drawing on the experience of the Canadian Federal Courts and the Provincial Court of New Brunswick in the use of both French and English, urge the introduction of a system of bilingual juries in Wales in any case in which the Welsh language is likely to be used and in which a bilingual judge would be required to preside. They do not identify who should determine that, or by what criteria. They suggest that a jury panel of bilingual speakers should be drawn from those identified as such on a new register or that a bilingual jury should be selected in court from a panel summoned as now. The latter procedure, which is that in use in Canada, would be lengthy and expensive since it would involve bringing to court much larger panels than now to ensure a jury of 12 bilingual speakers. There would still have to be provision for simultaneous interpretation of the evidence of those witnesses who wish to give their evidence in English, as happens in Canada in French language trials.[75] But that is a feature of any trial in England and Wales where witnesses are unable or unwilling for good reason to give their evidence in English. All this would require amendment of the Juries Act 1974 to put English and Welsh on an equal footing, in particular in the provision enabling discharge of a potential juror on the ground of insufficient understanding of English, rather than Welsh, to be an effective juror.

68 However, there are others of great experience in the administration of criminal justice in Wales who, while acknowledging the importance of removing any inhibition on speaking Welsh in court in the Principality, take a different view. In a submission to the Review, Lord Justice Pill, a former Presiding Judge of the Wales and Chester Circuit, has expressed a number of concerns about the proposal.

69 As to the principle of random selection, Lord Justice Pill has pointed out that, to require bilingual juries in every case in which the Welsh language is likely to be used, would clearly violate it in its exclusion of 75% or 80% of the Principality's population (increasing to over 90% in the heavily populated south east) from the privilege, as well as the civic duty, of jury service. That privilege - cherished by the supporters of the jury system - was also of concern to Lord Justice Edmund Davies. He stated in his Report:

"... while jury service is often regarded merely as a duty, it is in fact one of the important privileges of citizenship. To take steps to ensure that 75% of the population of the Principality should be debarred from jury service in a particular case on the sole ground that they cannot understand Welsh would involve a radical departure from that random formation of the jury panel which Blackstone described as a 'palladium' of our liberties".

70 As to the suggestion that the principle of random selection is a tenet of English law no longer applicable in a bilingual Wales, Lord Justice Pill has observed, "[t]here is nothing particularly English about it", it is of general application throughout the common law world and "[d]eparture from it, whether on linguistic or other grounds, inevitably amounts to a fundamental attack upon it":

"Quite apart from the privileges of citizenship, there is a potential for injustice in excluding from the pool from which the jury is selected 90% of the defendant's peers. Moreover, in South East Wales ability to speak Welsh rightly has important social and cultural associations and a defendant may be deprived of a trial by a jury including members of that monoglot majority with which he has most in common."

71 There are other difficulties in the proposal to which Lord Justice Pill has also referred. They include the important and difficult questions of who should determine in any case whether there should be a bilingual jury and by reference to what criteria, and how to identify potential jurors with sufficient knowledge of Welsh for the subtleties and rigours of a criminal trial.

72 As a non Welshman, I approach this debate with timidity. My view, for what it is worth, is that the proposal of a power to order bilingual juries in particular cases is worthy of further consideration - but not by me. It should be developed and examined, with appropriate consultation, in Wales. The aims should be: to secure a solution that would encourage the greater use of the Welsh language whilst recognising the balance of English and Welsh speakers in the Principality and the importance of maintaining the privilege and civic duty of jury service for the population as a whole; to preserve, so far as possible, the principle of random selection; to provide an efficient procedure for jury selection; and, most important of all, to ensure that each defendant has a fair trial. Among the matters that will require detailed attention are: the criteria for exercise of the power of directing bilingual juries; who should exercise it and how; how it should be administered so as to secure efficiency and sensitivity to the interests of all concerned; and, in the light of what emerges, whether any, and if so, what amendment is necessary to section 10 of the 1974 Act.

Jury challenge

73 The right of jury challenge is very limited in England and Wales in comparison with that in the United States of America. There is no longer a right to peremptory challenge. It was abolished in 1988,[76] no doubt in the light of the Roskill Committee's Report. The Committee saw it as an erosion of the principle of random selection and, in its general use, an abuse that was on the way to bringing the whole jury system into public disrepute. It recommended its abolition in fraud cases, making plain that, had it been within its terms of reference, it would have recommended its general abolition.[77] The prosecution still has the right to 'stand by' a juror, notwithstanding a similar recommendation by the Roskill Committee, again because it eroded the principle of random selection. However, its use is now tightly restricted by guidelines issued by the Attorney General in 1988.[78] Challenge for cause also remains, but the burden of proof is on the person who seeks to make it. And before it can be explored by examination of a potential juror there must be some factual foundation for it. The Roskill Committee, before recommending the removal of the peremptory challenge, considered whether there would be pressure to extend the challenge for cause in the form common in the United States. It forecast correctly that English and Welsh judges would stand firm against any such attempts at fishing challenges.

74 There have been very few proposals in the Review for change as to jury challenge and much support for resisting any move to the United States system. I make no recommendations for change either by restoring the right to peremptory challenge or by opening the present limited challenge for cause procedure to permit fishing examination of jurors. The latter would bring with it a considerable threat to the principle of random selection and much expense and prolongation of criminal proceedings. I add that the lack of opportunity here to investigate the possibility of bias in individual jurors has to be put alongside our provision for majority verdicts (which are unknown or unusual in the USA), which prevents individuals thwarting the otherwise general consensus of the jury.

 

VERDICTS

Unanimous and majority verdicts

75 The verdict of an English or Welsh jury in a criminal case should normally be unanimous. But since 1967[79] majority verdicts are permitted, of at least ten when there are 11 or 12 jurors and of at least nine when the jury has been reduced to ten. The system has worked well over the years. Its strength is that it requires an overwhelming majority[80] and yet prevents the odd crank or possibly biased juror insisting on a disagreement and thereby frustrating the process. The Review has produced little support for change either in the levels of the required majorities or for reversion to unanimity in all cases or for any form of intermediate verdict, such as that of 'not proven' in use in Scotland.

Jury research

76 There are two possible and overlapping purposes of jury research. The first would be to determine whether juries, in their present form, should continue as fact finders in serious cases. The second would be to learn whether there are better ways of enabling them to do their job. Dr Glanville Williams has said that if one proceeds by the light of reason, there are formidable arguments against the jury system.[81] It is a randomly picked and legally untrained body of men and women trying to cope with inconvenience, discomfort and artificialities of a criminal trial. On the other hand, as he acknowledged, drawing on two of Stephen's three claimed advantages of jury trial, juries' verdicts are, in the main, accepted more readily than those of judges and they bring ordinary citizens into the administration of justice.[82]/a> Implicit in both of those advantages is a widespread public acceptance that a number of heads are better than one and that, in the case of most serious crime, they trump any conceivable alternative. Certainly, very few contributors to the Review have suggested that I should recommend the general abolition of trial by jury and leave the entirety of the criminal process to professional judges.[83] And many of those who are agnostic about juries and/or favour their reform, urge some research first into the way in which they work. I have some sympathy with 'the need to know' argument.

77 Despite many advances in the last few decades in administrative arrangements for, and forensic assistance to, jurors, once they are in the jury box we still subject them to archaic and artificial procedures that impede them in their task. They are given very little objective or conveniently summarised guidance at the start of a trial as to the issues they are there to decide and as to what evidence is and is not agreed. They are expected to have prodigious powers of concentration and memory both as to the, mostly oral, evidence and the advocates' submissions. And, at the end of the trial, the judge orally gives them complex directions on the law and a summarised regurgitation of the evidence, much of which must become a blur for many of them by the time they are considering their verdict. In the more complex or serious cases judges increasingly provide them with a brief written list or summary of the questions they have to decide, but that is about as far as it goes.

78 Some might say, given the way juries have to work, it is just as well that we do not know how they reach their verdicts, in particular, whether they are loyal to their oaths or affirmations "to give a true verdict according to the evidence". It was for long undeclared law that jurors should not tell and no-one should ask them what went on in the jury room. This mutual constraint became formalised, in very wide terms, in section 8 of the Contempt of Court Act 1981, which also made breach of it a contempt of court.[84]

79 The main evils that would flow from disclosure of jurors' deliberations seem to be that publicity might engender doubt in the validity of their verdicts and/or might deter them from expressing their views frankly for fear of exposure to intimidation or acts of revenge from disgruntled parties. The latter is understandable, but should the ban be so wide as to prevent legitimate and discreetly conducted research? Is the view of Lord Hewart CJ expressed in 1922[85] defendable today, namely that the value of a jury's verdict lies only in its unanimity, not in the process by which they arrived at it? As Dr Glanville Williams has said, it suggests that "the real reason for keeping the jury's deliberations secret is to preserve confidence in a system which more intimate knowledge might destroy."[86]

80 If jurors in a significant number of cases are not returning verdicts on the evidence and are influenced by other considerations, should we find out about it? Should section 8 of the 1981 Act be amended to permit legitimate research (and, while we are about it, to enable the Court of Appeal, Criminal Division, to examine conduct in the jury room the subject of appeal)?[87] Or is public confidence in juries' oracular verdicts so precious to our legal system that we should not put it at risk? Many fear that the very undertaking of intrusive research - that is, into how individual juries reach their decisions - could damage public confidence by sewing doubt as to the integrity of verdicts. That is important, not only for those verdicts that might be vulnerable to challenge, but also to those, guilty and not guilty alike, which examination might eventually show to have been justified. The process, which might take some years, could result in a clean bill of health for juries, but would it justify the possible damage done in the meantime?

81 On the other hand, such research might show that all is not well and that changes are needed. That would be worthwhile, subject to three considerations. First, still assuming the sort of research for which amendment of the 1981 Act would be necessary, it would be essential to find an effective machinery for it. Jurors under observation, or speaking after verdict of how they reached it, may not give an accurate picture, respectively, of how an unobserved jury would have behaved or of how they did behave. Shadow juries must be suspect too because they are not subject to the same responsibility or stresses of the true jury. Second, there would be no point in such research unless we could be reasonably sure of devising a significantly better system, either without a jury or to ensure that jurors can and do their job properly. Third, the outcome of intrusive research might be inconclusive, no more than that juries are infinitely variable in their make-up and in their responses to the individual circumstances of each case and to the competence and personalities of those involved, including the judge and the advocates.

82 As to the validity of jury trial in principle, I am much of the same view as previous review bodies and the vast majority of those who have made submissions on the point to the Review. I share their instinct to accept the jury system unless and until it is found so wanting that we should seek to replace it with some other mode of trial. I would go further in accepting the powerfully symbolic effect of the jury as a means of enabling citizens to participate in the trial process and the public confidence that, rightly or wrongly, it engenders in the system. However, I also agree with the Runciman Royal Commission that some research could be of value. For the reasons I have given, I have grave doubt whether intrusive research of the sort requiring amendment of the 1981 Act would be wise, or that it would produce any definitive answer or one that would enable us with confidence to substitute some other system.

83 As to improvement of the jury system, there is already a wealth of well-documented research throughout the common law world. Most of it is of a non-intrusive kind that would not require amendment of the 1981 Act. Dr Penny Darbyshire of the Kingston Law School has undertaken for the Review an analysis of the major pieces of research in the twentieth century. I have listed them in Appendix V, just to indicate the volume and breadth of the material available. Much of this research has been, and is now being, put to good use in improving trial by judge and jury in the various jurisdictions where it has been undertaken.

84 In all or most common law jurisdictions the law prevents observation of or listening to a jury's deliberations and considerably restricts what jurors can be asked afterwards.[88] Research has, in the main, taken one of three forms: interviews of jurors before and/or after their deliberations; comparison of their verdicts with those of other participants in the trial, including the judge and the advocates; and use of shadow or mock juries either present at the trial or in viewing re-enactments or video-films of the trial.[89]

85 Most of the research has been in the United States of America,[90] which has a different form of jury trial from ours. For that reason, it should be approached with care. But it has much to teach us, in particular, as to the composition and treatment of juries and as to how courts should assist them in their task.[91] I have already mentioned the pioneering work of the 1994 New York Jury Project, which has been influential in jury reform throughout the United States, and much of which is relevant to our system. There has also been a great deal of valuable research in Commonwealth countries, one of the most recent and impressive of which is a study of a sample of trials for a Review by the Law Commission of New Zealand of Juries in Criminal Trials.[92] The study consisted of questioning jurors before trial as to their knowledge, if any, of the case, observing the trial, interviewing the trial judge and questioning jurors after verdict on the adequacy and clarity of pre-trial information, their reactions to the trial process, their understanding of the law, their decision-making process, the nature of and basis for their verdict and the impact of pre-trial and trial publicity.[93] As I have said, and as the authors of the New Zealand study have acknowledged,[94] its value depends on the accuracy and honesty of jurors in recounting their reasoning processes and/or on the possible effect on their behaviour of the knowledge that it was taking place.

86 In framing my recommendation on the treatment of jurors in this chapter and on procedure in jury trials in Chapter 11, I have drawn heavily on Dr Darbyshire's analysis of existing research, on the wealth of material I have been provided by other common law jurisdictions and on the many authoritative submissions in the Review on the subject. To the extent that further research of the non-intrusive New York or New Zealand variety may be necessary for our system of trial by judge and jury, I would commend it.

87 What I have in mind is an enquiry of jurors and others for their general views on the conditions and manner of their service and on the assistance that they are given by court staff, the judge and advocates. Work of this nature, if carefully conducted, should not require amendment of the law or damage public confidence in the jury system pending attempts to improve it. Those who have read Trevor Grove's entertaining and revealing account of his service on a jury, The Juryman's Tale, or have looked at research elsewhere will have some idea of the possibilities.

I recommend:

The unreasoned verdict

88 The jury is unique among decision-makers in the English criminal trial process in not having to explain its decision. There is a question whether its oracular verdict satisfies Article 6 of the European Convention of Human Rights in its requirement of a reasoned decision. The Strasbourg Court has not, so far, had to consider the point directly,[95] but the English courts may well have to do so soon. Those who are sanguine about a finding of compliance rely on the argument that the English judge's public directions of law and summing-up of the evidence stand proxy for the jury's reasons. But such an argument depends upon an assumption that they follow and understand his directions on the law and reach their verdict in accordance with the evidence, applying to their findings of fact those directions. Such an argument would be flawed if it included the proposition that, for the purpose of acquittal, though not for conviction, juries are free to do as they like and without explanation. It appears likely that the argument will be tested. If it were to fail and, jurors were required publicly to reason their verdicts, perhaps by answering a short series of questions, as some civil juries do, the courts could not stand powerless in the face of overtly perverse acquittals any more than of perverse verdicts of guilty.

89 Independently of Article 6, it is a function of due process in the common law that a professional judge[96] when determining issues of law or fact should normally give reasons for his decision. A reasoned judgment tells the parties why they have won or lost; it is more likely to be soundly based on the evidence than an unreasoned one;[97] and, by its openness is more likely to engender public confidence in the decision-making system.[98] Until recently no such general duty applied to other decision-makers, including lay magistrates and many administrative tribunals and, of course, juries. However, the general trend has been towards the giving of reasons by decision-makers. In recent years lay magistrates have increasingly been expected to explain their findings, in addition to their long-standing obligation to do so on appeal from their decision by way of case stated to the High Court. But the precise impact of Article 6 on this trend and the continuing exception of the jury verdict is uncertain. The Judicial Committee of the Privy Council have suggested the need for some general appraisal in the light of its provisions.[99]

90 Before considering the possible effect of Article 6, it is important to note that there is no absolute test in English law for the adequacy of reasons. The degree of detail depends, in general, on the nature of the case and the issues in it. In certain types of case it is necessary for the courts, not only to identify the evidence they have accepted or rejected, but also why they have done so. In others it may be sufficient simply to record the acceptance or rejection of evidence without explanation.

91 What is, what should be, the future for the English jury's unreasoned verdict, given the Article 6 requirement of a fair trial that there should be a public pronouncement - a publicly reasoned - decision in criminal cases? It is said that the English draftsmen of the provision some 50 years ago did not intend it to apply to jury verdicts. Presumably, they felt that it could be assumed that juries would loyally abide by the directions of law and decide issues of fact in the light of them and according to the evidence.

92 For a number of reasons, I incline to the view of a number of eminent British commentators that the Strasbourg Court, in taking account of the way in which our system of jury trial works as a whole, would not consider our juries' unreasoned verdicts to breach Article 6.[100] First, the Strasbourg case law is not precise about the content of reasons required to satisfy the fair trial test. The Court has said that it varies according to the nature of the decision and the circumstances of each case,[101] though it has identified as an important requirement a sufficiency of reasoning to enable the decision to be reviewed by a higher court.[102] Second, as Professor John Spencer has commented in the Review, the Strasbourg case law "is not particularly exacting". As well as allowing for different national traditions, the Court has stressed in a number of cases that the general duty to give reasons does not require a detailed answer to every question. Third, the case law does not suggest that courts must identify the pieces of evidence that they have accepted and why. Fourth, the Court has expressly ruled that the publicly unreasoned determination of a Danish jury was not contrary to the Convention.[103] And, fifth, in considering whether there has been a fair trial, the Court looks at the trial and any appeal together. In England the Court of Appeal (Criminal Division) has some, albeit limited, ability to quash a conviction if it considers that it was contrary to the evidence,[104] but the absence of reasoned decisions limits its ability to remedy unfairness which may have resulted from a defect in, or misunderstanding of, a judge's summing-up.

93 As to the Strasbourg Court's respect for individual national traditions, the Review's Cambridge conference with European Judges and Jurists[105] illustrated the variety of modes of trial that it has to accommodate. Just as some member countries have no jury or other lay involvement in their criminal process,[106] others have very different jury systems, both in their composition and in the way in which they function. Unsurprisingly, there is no general continental consensus as to what is meant by the reasoning, 'motivation', of a judicial decision. In France, for example, it can mean, depending on the context, no more than an identification of the legal principles by reference to which the court has reached its decision on the facts.

94 However, many contributors to the Review have suggested that the system may not, as a matter of English law, withstand a challenge, that the unreasoned jury verdict violates Article 6. And a number of members of the Bar have indicated at Review seminars that they intend to make such a challenge. There is some encouragement for it in the Strasbourg Court's decision in Murray v UK[107] where it held that inferences from silence in a Diplock court complied with Article 6 because the judge fully and openly reasoned his decision. Some have inferred that the absence of the opportunity for such reasoning by a jury would lead to a different result.

95 However, the Murray judgment does not say that it is only by way of a reasoned judgment that such an inference can be justified or that a verdict following a proper direction on the law and summing-up of the material evidence on the issue is not a reasoned verdict.[108] That this is so is indicated by the Strasbourg Court's recent decision in Condron v UK,[109] another adverse inference from silence case, but this time before a jury where the complaint was of the inadequacy of the judge's direction to them on the point.[110] The Court, taking Murray as the starting point, but noting that jury trial was different, said that "the fact that the issue of the applicant[s]' silence was left to a jury cannot of itself be incompatible with the requirement of a fair trial".[111] Such reasoning suggests that the Court is amenable to accepting the jury's verdict as the final word in a judgment of which the summing-up furnishes the overt reasoning process. The Commission, however, has considered the related but different point whether a Belgian jury's answers 'yes' or 'no' to each of a series of questions put to them by the judge satisfied Article 6. It held that they did since they formed "a framework for the jury's verdict",[112] a mechanism to which I return in Chapter 11 when considering judges' directions to juries.

96 There are a number of reasons why the English courts may be more determinative than the Strasbourg Court on the effect in England and Wales of Article 6 on our unreasoned jury verdict. I believe that their approach should not simply be to shield us from possible criticism in Strasbourg, but to ensure that our criminal process, however long established and cherished, meets our own present requirements of a fair trial. Over the last two or three decades we have demanded much more of all in the criminal justice process than we previously found acceptable, particularly in the formulation of judicial reasons and in the volume and sophistication of judicial directions to the jury. Yet the jury, in the way in which it is expected to do its job, has barely changed at all. There is also the broader point made by Sir Louis Blom-Cooper, QC,[113] that a publicly unaccountable jury is a 'curiosity' in today's democratic society.

97 Whilst it is certainly arguable that a judge's direction, coupled with a jury's verdict, amounts to a reasoned judicial decision, it falls short of what English law expects from a court composed only of a judge who is required to give one. Unlike the judge, a jury do not have to identify the evidence that they have accepted or rejected or, where there is more than one route to conviction, which route they have taken. These features can cause difficulty where there are a number of ingredients in the offence alleged, and various pieces of evidence that may constitute them, or different routes by which a jury can arrive at their verdict, for there is no means of ensuring or knowing that they were unanimous in the way they reached it. This is a common problem in complex fraud and other cases where the prosecution case is of a course of conduct, but it also arises frequently in more straightforward cases. The way in which the, often, many and complex alternatives are put to juries must be very difficult for them, untrained as many of them are for such close analysis. It is fertile ground for error and injustice that are, in the main, undetectable by way of appeal. The dilemma for the trial judge in directing juries in such cases, and for an appellate court in examining the validity of jury verdicts in them, has given rise to a plethora of conflicting and otherwise unsatisfactory jurisprudence.[114] In my view, the time has come for the trial judge in each case to give the jury a series of written factual questions, tailored to the law as he knows it to be and to the issues and evidence in the case. The answers to these questions should logically lead only to a verdict of guilty or not guilty. I discuss this again in more detail, and make a recommendation on it, in Chapter 11. I go on to recommend that, where the judge considers it appropriate, he should be permitted to require a jury to answer publicly each of his questions.

98 There is also the wider problem of the secrecy of the jury's deliberations insofar as it prevents any effective enquiry by the Court of Appeal into possible misconduct in the jury room. The jurisprudence of the Court, in its laudable attempt to overcome the unduly restrictive prohibition in section 8 of the 1981 Act, is logically hard to justify. It will not enquire into what jurors have done or said in the course of their deliberations in the jury room, but it will do if they are elsewhere, say while in a hotel overnight.[115] In my view, the effective bar that section 8 puts on an appellate court inquiring into and remedying possible bias or other impropriety in the course of a jury's deliberations is indefensible and capable of causing serious injustice. Recent Strasbourg case law suggests that, for those reasons, it is also highly vulnerable under Article 6.[116] If, as I shall recommend, Parliament should amend section 8 to permit the Court of Appeal to investigate such matters, it is hard to see why the scope of its investigation should not also extend to allegations of impropriety of reasoning or lack of any reasoning, for example, that some jurors ignored or slept through the deliberations or that the jury decided one way or other on some irrational prejudice or whim, deliberately ignoring the evidence. In making the recommendation I should record that I have considered and rejected a suggestion made by a number of contributors to the Review that the trial judge should retire with the jury to 'police' them in their deliberations. Such a proposition is alien to our criminal process and would, if anything, be more vulnerable to the open reasoning requirements of Article 6 than our present system.

I recommend that section 8 of the Contempt of Court Act 1981 should be amended to permit, where appropriate, enquiry by the trial judge and/or the Court of Appeal (Criminal Division) into alleged impropriety by a jury, whether in the course of its deliberations or otherwise.

Perverse verdicts

99 There are many, in particular the Bar, who fervently support what they regard as the right of the jury to ignore their duty to return a verdict according to the evidence and to acquit where they disapprove of the law or of the prosecution in seeking to enforce it. Lord Devlin attributed this notion to a later misapplication or hardening of the Magna Carta provision to which I have referred. Nevertheless, he saw it as a protection against laws that the ordinary man might regard as "harsh and oppressive" and an insurance "that the criminal law will conform to the ordinary man's idea of what is fair and just".[117] EP Thompson, expressed a similar view in a memorable passage in 1980:

"The English common law rests upon a bargain between the Law and the People. The jury box is where people come into the court; the judge watches them and the jury watches back. A jury is the place where the bargain is struck. The jury attends in judgment, not only