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The continued existence of the jury reinforces the principle that no man is to be fined
or imprisoned merely by the will of the state, but only by the judgment of his equals.
It is thus part of a bargain, as E P Thompson writes, between the law and the people:
the jury attends in judgment not only upon the accused but also upon the justice and
humanity of the law. Lord Devlin described the jury in 1956 as "the lamp that shows
that freedom lives", and suggested that no tyrant could afford to leave a subject's
freedom in the hands of twelve of his countrymen. Two years later Lord Birkett said
the jury introduces into the law an element of community sentiment and fairness: a
jury can do justice where a judge has to follow the law.
R v Blythe (1998)
A man D was charged with cultivating cannabis with intent to supply it to his
terminally ill wife W, who suffered severe pain from multiple sclerosis. Judge Hale
told the jury at Warrington that the defence of duress of circumstances was not
available in such a case, even though D feared W might commit suicide, but the jury
disregarded this instruction and found D not guilty. D was convicted of simple
possession and fined £100.
R v Melchett (2000)
A large number of Greenpeace supporters entered a field and destroyed part of a crop
of genetically modified maize. They were charged with causing criminal damage, but
pled the statutory defence (under s.5 of the Criminal Damage Act 1977) that they
honestly believed the destruction was reasonable and necessary to prevent damage to
other crops. The first jury were unable to reach a verdict, but the defendants were
acquitted by the jury at the retrial.
Quayle & others v R (2005)
In several conjoined appeals involving the possession and use of cannabis for medical
purposes, the appellants argued inter alia that the judge should have reminded the
jury of their right to acquit regardless of the law. The Court of Appeal disagreed: the
jury has a well-established power to return a verdict of not guilty, said Mance LJ,
whatever the law and however clear it may be, but to require the judge to direct the
jury that they should weigh in the balance the pros and cons of enforcing the clear
policy of a statutory scheme in any particular case is a different matter. It would
involve a positive invitation to the jury to act contrary to the law and to take over the
role of the legislative authorities.
The fact that the jury are lay people without legal training really should not matter.
They do not decide questions of law but questions of fact, including questions of
reasonableness and so on that are eminently suitable for decision by ordinary people.
In their book Jury Trials (1979), on the other hand, Baldwin and McConville set out
plainly the logical argument against the jury as it is currently constituted. Twelve
individuals, they wrote, often with no prior contact with the courts, are chosen at
random to listen to evidence (sometimes of a highly technical nature) and to decide
upon matters affecting the reputation and liberty of those charged with criminal
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offences. They are given no training for this task, they deliberate in secret, they
return a verdict without giving reasons, and they are responsible to their own
conscience but to no one else. After the trial they melt away into the community from
which they are drawn.
Although jurors do not need any prior knowledge of the law, their inexperience and
lack of legal knowledge means that important points of evidence may have to be
given several times and then explained at length, thereby adding to the length and
expense of the trial. The rules of evidence also reflect the need to keep from the
inexperienced jury a lot of prejudicial but potentially relevant evidence about other
offences with which the defendant (or witnesses) may have been charged, and
limiting the admissibility of hearsay evidence whose reliability they might have
difficulty in assessing.
Jurors are not subject to any kind of intelligence test, and may be unable to cope with
difficult medical, financial or technical evidence. Complex fraud trials have given
rise to particular concern, because most ordinary jurors do not have the training or
expertise for the detailed study of pages of accounts, and the Criminal Justice Act
2003 (not yet fully in force) makes provision for judge-only trials in some such cases.
But there is a risk in other cases that jurors may put too much faith in the evidence of
"expert" witnesses: it was largely Dr Meadows' testimony about the likelihood of two
innocent "cot deaths" in the same family that led to the wrongful conviction of Sally
Clark.
Jurors may also be influenced by the media, or bribed or threatened by the
defendant's friends, or may give decisions based on prejudice. Research by the
psychologist Richard Wiseman (reported in October 1999) showed that many people
(and by extension, many jurors) still have preconceived ideas of what a criminal looks
like. Two large groups of TV viewers were shown a summary of a court case: the
evidence was exactly the same in each case, but one defendant had a broken nose,
deep set small eyes and an unsymmetrical face, while the other was attractive with
blue eyes and an angelic symmetrical face. Eleven per cent more viewers convicted
the defendant fitting the criminal stereotype.
The jury represents the public at large, but in some ways it does so too well - the
"ordinary standards of common decency" can all too easily become the standards of
common prejudice. Juries in the past were reluctant to convict a driver charged with
manslaughter, identifying too easily with the man in the dock, and it was necessary to
create the special offence of "causing death by dangerous driving". But in other cases,
perhaps involving serious child abuse, the jury may reflect the popular prejudice
against a possibly innocent defendant and forget that its job is not to reflect public
revulsion at a particularly horrible crime, but rather to decide dispassionately whether
the person in the dock is the person who committed it.)
Jurors sometimes misbehave: in December 2000, a ten-week trial at the Old Bailey
had to be stopped because an "improper relationship" had developed between a
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female juror and a male police officer acting as jury bailiff. The defendants' previous
trial (on the same charges) had been stopped when the jury were found to be playing
cards when they should have been considering their verdict.
The jury is not required to give reasons for its decisions, and (although this can
never be checked) there are strong suspicions that some decisions are based on
wholly irrelevant factors such as the personality of one of the barristers, a prejudice in
favour of (or against) the police, or perhaps something even more extraordinary.
R v Young [1995]
D was charged with two murders and was convicted. It subsequently came to light
that during an overnight stay at a hotel, four of the jurors (possibly under the
influence of drink) had supposedly contacted one of D's alleged victims using a ouija
board, and had obtained confirmation that D was the killer. The Court of Appeal
allowed D's appeal against conviction and ordered a new trial (at which D was again
convicted). The statutory prohibition on inquiries into the jury's deliberations applied
even to the Court of Appeal, said Lord Taylor CJ, but did not apply to events that
occurred during the overnight break in their deliberations. [Quaere: Would it have
been any different if the jurors had prayed to God for guidance?]
We have noted already that juries can historically disregard the law in order to do
justice, but perhaps they sometimes go too far.
R v Owen (1992)
D's son was killed by a careless driver T, who was sent to prison for twelve months.
D felt this was not enough, and when T was released D went to T's home and fired at
him with a sawn-off shotgun, causing injuries to T's back and arm. D was tried for
attempted murder and malicious wounding with intent, but the jury at Maidstone
Crown Court acquitted him and some members later congratulated him on what he
had done.
It is questionable whether jury service is an efficient use of professional people's
time, particularly since the 2004 reforms making it almost impossible even for
doctors, MPs and self-employed business people to secure an exemption. Shortly
after the new rules were introduced, Lord Justice Dyson was randomly selected for
jury service and had to take two weeks' leave from the Court of Appeal to sit as a
juror in his local Crown Court. Cherie Booth (a practising barrister and Recorder) was
similarly called shortly after her husband had ceased to be Prime Minister in 2007.
However, research by the New Zealand Law Commission (published in 2001)
"showed no evidence that the jury is not impartial and democratic, [but] highlighted
the care and commitment that jurors bring to their task, the crucial aspect of
community and civic participation, and the educative function of jury service." It
dismissed the argument that juries cannot understand expert evidence: even where
there is difficult scientific or financial evidence to consider, the better answer is
usually to explain it more clearly and carefully rather than to remove the jury. Only a
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very small proportion of trials, suggests the report, are too long and perhaps too
complex for a jury.
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