Feb 23, 2009, 11:05PM | #
Jury System of England and Wales
Describe and evaluate the jury system of England and Wales. What, in your opinion, are the advantages and disadvantages, and how has the system changed after the introduction of the CJA 2003?
In the jury system of England and Wales, a jury can be summoned for indictable criminal offenses or criminal offenses triable either as indictable or summary at the election of the accused. In civil trials, summoning a jury is limited to certain specified civil disputes heard in the Queen's Bench. The general trend has been towards reduced use of juries in both criminal and civil trials, with only a low percentage of trial courts summoning a jury. Obtaining a trial by jury is not considered a right in the judicial system of England and Wales and is subject to the limitations established by Parliament. The policy adopted by Parliament appears to involve incremental restrictions on the ability of the accused to obtain a trial by jury. The Criminal Justice Act 2003 (CJA 2003) altered the jury system in England and Wales by granting the Crown Court discretion to deny a trial by jury for certain fraud offenses and in circumstances when a danger of jury tampering exists. It also altered the nature of the offenses identified as triable-either-way in the magistrates' courts.
Juries in civil trials in the court system of England and Wales are very rare because the judge has the discretion to order the trial to be held without a jury under the Administration of Justice Act 1933. The same statute, however, provided that the court must grant application for a trial by jury made by either party in cases involving slander, libel, fraud, false imprisonment, malicious prosecution, seduction, and breach of promise of marriage. The provisions of the Administration of Justice Act 1933 were subsequently amended by the Supreme Court Act 1981, to grant the court discretion over whether to grant an application for a trial by jury in civil cases except those involving slander, libel, false imprisonment, and malicious prosecution. With respect to cases involving fraud, the Supreme Court Act 1981 further specified that the court will consider applications only by the party against whom the fraud is charged. The criteria the court uses when determining whether to grant the application for a trial by jury is the judge's assessment of whether the subject matter is so technical or the case would be so prolonged as to place a burden on the jury that would not be in the interests of justice. As a result, the judge can deem the jury incompetent to assess complex legal issues or technical information related to the case at bar (Cairns & McLeod, 2002). In practice, the Supreme Court Act 1981 has resulted in the elimination of trial by jury in civil cases in all but a very small number of cases.
The criminal jury under the law of England and Wales is essentially restricted to the Crown Court. The magistrates' courts, which deal with nearly all criminal cases, do not use juries. As a result, of the structure of the court system and the restrictions imposed on the use of a jury by various statutes, only approximately 1% of criminal cases are tried by jury (Slapper, Slapper, & Kelly, 2006). The structure of the court system plays a role in limiting trial by juries. Offenses are categorized as summary offenses dealt with in magistrates courts with summary judgment, indictable offenses triable in Crown Courts, and offenses-triable-either way. The structure of the jury system appears to have the advantage of increasing the efficiency of the courts by reducing the cost and time necessary to conduct jury trials. The system, however, functionally limits the ability of the accused to obtain a trial by jury.
The use of a statutory classification of offenses that creates the category of offenses-triable-either way creates an additional avenue for an individual to obtain a trial by jury. The category of offenses-triable-either way include offenses brought before the magistrates' court, and are identified by statute as permitting the defendant to obtain a trial by jury in the Crown Court or a summary judgment in the magistrate's court (Hirschel, Wakefield & Sasse, 2008). These offenses are not of the magnitude to warrant a trial in the Crown Court, but the election to proceed in a Crown Court is granted to the accused by statute. Research investigating the election by the accused to select a trial by jury in the Crown Court is the belief that the likelihood of acquittal is greater in the Crown Court, although range of penalties available to the Crown Court is higher than in the magistrates' court (Hostettler, 2004). There is no objective data, however, indicating that the rate of acquittal is higher for cases tried by juries in the Crown Court when compared to the rate of acquittal for cases in which the magistrates' court granted a summary judgement (Hirschel, Wakefield & Sasse, 2008).
The magistrates' courts can also refer a case to the Crown Court for trial after taking into consideration the nature of the case and whether the sentence the magistrates' court can impose is adequate for the offense. The magistrates' courts must also allow the prosecutor to make representations about the mode of trial that would be most suitable. The magistrates' courts exercise this discretion when the case involves prior convictions of the accused for the same offense or multiple offenses that would require sentencing greater than the authority of the magistrates' courts permit if the accused were to be found guilty of all offenses. The magistrates' court system has the advantage of efficiency for the system with magistrates able to summarily dispose of relatively minor case. At the same time, the accused has the ability to obtain a trial by jury in the Crown Court for specified triable-either-way offenses.
The Juries Act 1974 as amended governs the procedures for jury qualification and jury service in England and Wales. In the Juries Act 1974, all persons registered as an elector over the age of 18 is qualified to be a member of a jury. Certain individuals were disqualified from serving on juries because of concerns that these individuals would unduly influence other members of the jury (Hostettler, 2004). The list of persons with disqualifying occupations was quite length in the Act as originally passed, and included civilians employed for police purposes, individuals employed by penal authorities, and individuals employed by the courts. The Juries Act 1974 also allowed the jury to reach a verdict without unanimity. For cases heard in the Crown Court or the High Court, the jury can render a verdict if ten of an eleven panel jury or nine of a ten panel jury agrees on the verdict. For cases before a county court, seven of the eight members of the jury must agree on the verdict.
The Lord Chancellor is responsible for issuing summons to jurors based on the list of registered electors. Although there is no restriction on the place in England or Wales where the juror can serve, the Lord Chancellor should take into consideration the distance between the residence of the juror and the court where the juror will serve. Jury service is mandatory by statute, with the courts authorised to impose a fine on individuals do not comply with the summons or abandon their duties as a juror. An individual can be excused from service on the jury if the individual has served on a jury within the past two years, for good reason or incapacity as determined by the appropriate officer. A member of a jury panel selected for a jury can be challenged based on qualifications. In the event of the death or discharge of a juror during the course of a trial, the trial may continue if the number of jurors does not fall below nine. The court, however, may discharge the jury following the death or discharge of a member of the jury as the court sees fit.
Criticism of the jury system in England and Wales has emphasised the high cost of juries to the court system. In addition, the increasingly complex and technical nature of many trials that are difficult for lay people to understand purportedly leads to unintentional jury nullification (Hostetler, 2004). Criticism of the jury system also focuses on the absence of any requirement for the jury to explain its verdict, which may have been the outcome of an incorrect understanding of the facts or faulty application of the law. In addition,
The Criminal Justice Act 2003 (CJA 2003) restricted the ability of an individual indicted for criminal offenses to obtain a jury trial but only addressed some of the concerns of critics of the jury system. The statute, however, demonstrates the incremental approach taken by Parliament to reduce the availability of trial by jury by gradually imposing limitations. While the particular circumstances limiting the availability of trial by jury contained in CJA 2003 are narrow in scope, they are nonetheless cumulative with other restrictions contained in previous statutes passed by Parliament.
Part 7 (43) of the CJA 2003 allows the prosecutor to make application to the Crown Court for the trial to be conducted without jury for certain fraud offenses. The conditions supporting the grant of the application occur when the complexity of the trial or the length of the trial would make the trial so burdensome to the jury that the trial should be conducted without a jury in the interests of justice (Gibson, 2005). The provision in the statute has altered the jury system in England and Wales by a specific restriction on the ability of an accused to obtain a jury trial. In addition, the statutory provision suggests that trials involving complex issues are not suitable for jury trials, but does not clearly define the threshold of complexity necessary to prevent the accused from obtaining a jury trial.
Part 7 (44) of the CJA 2003 allows the prosecutor to make application to the Crown Court for the trial to be conducted without jury when 'a real and present danger' exists of jury tampering. The specific evidence of danger of jury tampering occurs in a retrial when the previous trial jury was discharged for tampering, a case where a defendant had engaged in jury tampering in a previous trial, and a case where there has been intimidation or attempted intimidation of a member of the jury. Part 7 (46) of the CJA further allows the Crown Court judge to discharge a jury and continue the trial if the judge is satisfied that jury tampering has taken place and that continuing the trial would be fair to the defendant or defendants. If continuation of the trial without a jury would be unfair to the defendant, the judge can terminate the trial and order that the new trial take place without a jury (Slapper, Slapper, & Kelly, 2006). If the judge continues the trial without a jury or orders a new trial without a jury, both the prosecutor and the defence have the right to appeal to the Court of Appeals (Gibson & Watkins, 2004).
Part 7 (44) of the CJA 2003 changed the jury system in England and Wales by creating specific circumstances in which the Crown Court can determine that the case should not be tried by a jury regardless of the nature of the offense charged against an individual if there is the appearance of jury tampering. In effect, the previous acts of the accused in tampering with a jury in an earlier trial can influence the offender's ability to obtain a trail by jury in a subsequent trial. In addition, the provisions allow the judge to convert a trial by jury to a trial by the Crown Court judge, which indicates that the actions of the accused during the course of the trial can affect the ability of the accused to obtain a trial by jury. The definition of 'jury tampering' in the statute appears to be quite broad, which grants the judge considerable discretion to interpret circumstances involving only that appearance of jury tampering as sufficient to warrant a trial without a jury (Slapper, Slapper, & Kelly, 2006).
Another type of change to the jury system in England and Wales made by CJA 2003 was the elimination of most of the disqualifications for jury service contained in the Jury Act 1974. The CJA 2003 disqualifies individuals from serving on juries who are mentally disordered. It also disqualifies individuals who have served a sentence of penal servitude in the past ten years, have been sentenced to a term of lifetime penal servitude or who have been released on bail pending trial at the time the jury is summoned. As a result, the CJA 2003 removed the disqualifications for individuals employed by the courts, the penal system or the police from being members of a jury.
The CJA 2003 also has provisions indirectly affecting the triable-either-way cases in magistrates' courts. The CJA 2003 expanded the sentencing power of magistrates from six months to twelve months. Although the statute did not restrict the availability of the option for the accused to elect to have the case heard in a Crown Court for an offense triable-either-way, the expanded sentencing power may function as a disincentive for the election. In addition, it reduces the possibility that the magistrate will refer the case to the Crown Court in situations where the sentencing power of the magistrate courts is insufficient for the gravity of the offense or in case of multiple offenses.
The jury system in England and Wales has the advantages of providing individuals accused of offenses with the ability to obtain a trial by jury for more serious offenses. It also has the advantage of preserving a practice that has become a traditional expectation among citizens in England and Wales with respect to the operation of the courts. The jury system, however, has the disadvantages of increasing the costs for courts, and placing a burden on jurors in cases involving lengthy and complex proceedings. It also has the disadvantage of greater risk that the jury will render an erroneous verdict because of nullification or the inability to understand complex facts or the application of the law to the facts.
Cairns, J. & McLeod, G. 2002. The dearest birthright of the people of England: The jury
in the history of the Common Law. Oxford: Hart Publishing.
Gibson, B. 2005. Criminal Justice Act 2003: The statute. Winchester: Waterside Press.
Gibson, B. & Watkins, M. 2004. Criminal Justice Act 2003: A guide to the new
procedures and sentencing. Winchester: Waterside Press.
Hirshel, D. Wakefield, W., & Sasse, S. 2008. Criminal justice in England and the United
States. London: Jones & Bartlett.
Hostettler, J. 2004. The criminal jury old and new: Jury power from early times to the
present day. Winchester: Waterside Press.
Slapper, G., Slapper, K., & Kelly, D. (2006). London: Routledge Cavendish.