Guest blog: How will restricting jury trial and reducing jury numbers affect the delivery of justice?

 

 

 

 

 

The Ministry of Justice (“MoJ”) is “at the heart of the justice system (and) works to protect and advance the principles of justice”.  Its vision is to “deliver a world-class justice system that works for everyone in society”[1].  The Lord Chief Justice and the Lord Chancellor have suggested that it may be necessary to remove the right to a jury trial in some cases and reduce the number of jurors in others from 12 to 7 in order to address the backlog of Crown Court cases[2] which has continued to grow since the Coronavirus pandemic began in 2020. 

It is important we consider what advantages there may be in removing jury trial and reducing jury numbers against the possible consequences.  No research has been conducted to model the effects on the delivery of justice and this paper considers whether such changes will “protect and advance the principles of justice” and “deliver a … justice system that works for everyone in society”.

A brief History

The jury system in England & Wales has developed since the twelfth century.   12 witnesses with local knowledge would be gathered together to resolve land disputes and the landowner would be decided by 12 votes (unanimity)[3] .

The Magna Carta enshrined the right to be judged by a jury of one’s peers in 1215[4] and since then that right has been seen as one of society’s fundamental freedoms.  Lord Devlin wrote that “Trial by jury is more than an instrument of justice and more than a wheel of the constitution, it is the lamp that shows that freedom lives”[5].  But will the light be dimmed if juries are withdrawn in certain cases and reduced in others?  

Over time, limits to the jury system have narrowed access to a jury trial.  During the Second World War juries were reduced to 7 to take account of the numbers of men conscripted to fight overseas.[6] The Criminal Justice Act 2003 has permitted trials without a jury in cases of jury tampering.[7] The Domestic Violence, Crime and Victims Act, 2004 allows for sample counts to be tried by a jury and the remainder to be tried by a judge alone.[8]

Nevetheless trial by a jury of 12 randomly selected individuals has remained something that the public have faith in and trust to deliver justice.[9]

Impartiality

Although juries decide less than 1% of all criminal cases in England & Wales[10] these often involve the most serious crimes and defendants face the greatest possible loss of liberty.  Fairness of jury decision-making is therefore of fundamental importance.  It might also be argued that for a society in crisis, an effective and fair criminal justice also needs to be efficient and it is suggested that the changes are needed to increase efficiency.

Whether juries are fair has been the subject of some analysis.  An MoJ report by Cheryl Thomas in 2010[11] examined whether juries discriminated against either defendants or witnesses who were Black, Asian or of Mixed Ethnicity.  The study looked at cases between 2006 and 2008 and crucially found that juries did not discriminate along racial lines.

That is not to say that the United Kingdom’s jury system has a perfect record.

The European Court of Human Rights (“ECHR”) considered the case of Sander v The United Kingdom in 2000[12]. Mr. Sander, a British national of Asian origin was convicted of fraud in 1995.  During the trial a juror sent a note to the trial judge indicating that other jurors had made openly racist remarks and jokes.  The trial judge reminded the jury of their duty to be impartial. The next day the jury including the note-writer wrote that they were offended by and denied the suggestion of racial bias.  One juror admitted making racist remarks and apologized for causing offence.  After conviction Mr. Sander unsuccessfully appealed.  At Strasbourg the Court stressed that a tribunal, including a jury, must be impartial from a subjective as well as an objective point of view. It found a breach of Article 6, the right to a fair trial and ruled that sufficient guarantees must exist to exclude objectively justified or legitimate doubts as to the impartiality of the jury.

It is noteworthy in this case that the court were only made aware of the possibility of racial bias by one juror who reported it.  One might ask why it was that only one of the twelve reported it.  Would a smaller jury react differently?  Would removing the jury altogether ensure there was no bias at all?

In addition the 2010 study found 70% of jurors serving on high profile cases were likely to recall media coverage, 35% recalled pre-trial media coverage and 20% found it difficult to put these reports out of their minds.  Significant numbers also looked for information on the internet. 

These findings have been addressed in the subsequent provision of written directions and warnings regarding media coverage and looking on the internet but the research suggests that of the 12 at least 2 may not be able to resist outside interference.

A case which I was instructed in confirmed to me that jury numbers are critical to fair deliberation.  In R v Bruckland[13] the defendant was convicted by a majority of 10 to 2.  After the verdict I was approached in the car park outside court by two distressed jurors.  They insisted on informing me that they had been bullied by the foreman of the jury, had reported it to the usher and one of them had been persuaded to change their mind to convict the defendant.  The matter came before the Court of Appeal.  The conviction was quashed and it was held that Counsel should have been informed of the jury irregularities.  Without the jurors speaking up, no one would have ever known and although they were upset that the proper course of justice had been interfered with, the remaining 9 jurors and one other dissenter had not raised any concerns.

The possibility of bias and internal as well as external influence, whether overt or subconscious, must be managed within the jury system.  In a jury of 12 it seems to be the case that at least one or two jurors are prepared to speak up when something is wrong so that it can be corrected.  Whether that would be the same in a reduced jury requires consideration.  Whether all bias could be objectively excluded from Magistrates and Judges sitting alone depends on your viewpoint.

Understanding the law

The jury’s ability to properly consider evidence whilst applying the law was considered in the same study in 2010.

It was noted that only 31% of jurors understood the legal directions in the terms used by the judge and there was variation between different courts as to whether judicial directions were fully understood (51 % of jurors in one court thought directions were difficult). 31% improved to 48% with written directions given to the jury which is now common practice. 

If only half of a jury are confident of the legal directions given to them by the judge then aren’t legally trained lawyers better judges of the facts?

Lord Devlin did not think so.  He thought the legally trained may well be better at considering legal matters but for primary facts including whether a witness was telling the truth, 12 minds were better than one.

Lord Devlin wrote that “whether a person is telling the truth ... simply from the demeanour of the witness and his manner of telling it, is a matter about which it is easy for a single mind to be fallible.  The impression that a witness makes depends upon reception as well as transmission and may be affected by the idiosyncrasies of the receiving mind; the impression made upon a mind of twelve is more reliable.”  He also wrote that “The jury hear the witness as one who is as ignorant as they are of lawyers’ ways of thought; that is the great advantage to a man of judgment by his peers.”[14]

Sir William Holdsworth[15] was concerned, as Lord Devlin was, with the greater effect of the jury system on the rule of law and its development in the society it both supervises and serves.  He wrote that " The effects of the jury system upon the law are no less remarkable and no less beneficial. It tends to make the law intelligible by keeping it in touch with the common facts of life…..Rules of law must struggle for existence in the strong air of practical life. Rules which are so refined that they bear but a small relation to the world of sense will sooner or later be swept away…..The jury system has for some hundreds of years been constantly bringing the rules of law to the touchstone of contemporary common sense."

The importance of the jury system therefore in delivering common sense decisions by ordinary citizens as opposed to lawyers is clear but can fewer than 12 jurors equally come to the same fair and just verdict?

Majority verdicts

A Scottish study in 2014[16] referred to the preference across jurisdictions for unanimous verdicts having been established due to the need for proof beyond reasonable doubt, the presumption of innocence and the view that a jury verdict is a collective decision. “The verdict is one of the jury as a whole, not simply the result of counting votes in a ballot.”[17]   However, over time the unanimity rule has been qualified in most jurisdictions to allow juries to return verdicts by a majority.

Qualified majority rules exist in the English system in recognition of the fact that sometimes an individual juror, or perhaps two jurors, may not participate properly in the process.  They may have been intimidated or have taken an unreasonable or perverse approach to their task.  Yet a qualified majority of sufficient numbers is not thought to undermine the principle that the verdict should be one of the jury as a whole.  This must be because a jury of 12 allows for a minority to be lost to the whole without undermining the whole.  There must be a recognition that an individual juror or jurors may not be willing or able properly to participate in the collective decision-making process and that an individual juror or jurors may fall ill, be under some influence or bias or be lacking in other skills.  The 12 accommodates this, a finding that is not based on data but based on the effectiveness of the jury system for over 850 years.

But if the 12 can be reduced even to 9 in certain circumstances and still remains “whole” and able to deliver fair and just verdicts can it not be reduced further?

Twelve good men and true

This phrase was coined to refer to the good character of jurors[18] but was not a number that was decided by a process of scientific analysis, it developed at Common Law and has been maintained because many believe it to work.[19]

The Law Commission of Canada consulted on juries and considered reducing the number from 12.[20] It was concluded that the development of the jury had resulted in its size being workable, manageable and able to discharge its functions and it was decided that the jury should continue to be 12 as “those who would reduce the jury size from 12 to 6 had failed to prove it would increase the effectiveness or efficiency of trials.”

Researchers in the United States examined the possible impact of reducing the 12 person jury to a smaller size (usually six) in 1997[21].  The US Supreme Court had already concluded that the size of a jury could not be reduced below 6 without violating the accused’s Sixth Amendment right to a jury trial.[22] 

The 1997 study indicated that 12 person juries were preferable to smaller juries because a smaller jury was less likely to be properly representative of the community, more likely not to contain members of minority groups, more likely to deliberate for a shorter time (at the expense of better deliberation) and possibly less likely to recall evidence accurately.   The only negative finding was that a larger jury was more likely to be hung than a smaller one.

An American study in 1977 had also found jury verdicts became more severe in the smaller jury and under majority rule and resulted in more convictions.  Variations in jury size therefore were demonstrated to affect judicial finding.[23]

An analysis of jury numbers and majority verdicts was also considered by the Scottish government in 2014. [24]

Whilst the study compared 15 person and 12 person juries, it was the largest study of its type ever conducted of 64 mock juries involving nearly 1,000 participants. 

Whilst there was no statistical difference between convictions and acquittals there were statistical differences in the verdicts favoured by individual jurors.  In Scotland three verdicts are available, Guilty, Not Guilty and Not proven and verdicts are returned by a simple majority (8 out of 15).  The significant finding was that juror verdicts were affected by how the jury system was constructed, the number of jurors, the verdicts available and the size of the majority required. 

It was concluded that 12 jurors were more likely to fully participate in the deliberations than 15.  There was no impact on deliberation length or the range of evidential or legal issues discussed.  Jurors asked to reach a unanimous verdict took substantially longer to deliberate than those required to reach a simple majority.

The research found the size of the majority required had the biggest impact on the likelihood of individual jurors changing their view on which verdict should be returned.  Individuals were more likely to change their view when asked to reach unanimous verdicts (as in the English system currently) rather than a simple majority.  This demonstrated that jurors, engaging in deliberations for longer, were willing to reconsider and change their minds.

The studies in America and Scotland reached the same conclusion, namely that when it comes to juries, size does matter.

A 12 member jury is likely to be more representative of the society it serves and therefore have available a wider range of experience and judgment in the terms of age, gender, race and culture with which to evaluate evidence.  A 12 member jury is more likely to withstand outside or internal influence.  As was found in the American study 12 member juries are more likely to have robust and searching discussions and to explore more factual issues than a smaller jury.

Despite the reference in the Scottish study to “some evidence” (what is unclear) and an earlier reference to “increased knowledge about the psychology of small groups”(again without citation of evidence) the Commission’s preference for a 12 member jury seems to have had no particular factual basis. It admitted as much in its closing statement:

“It can be postulated that since lower numbers of jurors are less likely to change their minds after due deliberation and consideration, if bias exists, it is more likely to influence the verdict in a small jury than in a larger one.  Since it is vital for impartiality to be both subjective as well as objective it must be right that sufficient jury numbers will counterbalance bias, including racial bias as seems to be the case in juries of 12.”

Therefore in the final analysis we are left with the conclusion that the 12 person jury works but are not necessarily any the wiser as to why.

Public trust

Surveys for the Rowntree Foundation in 1999 and 2004[25] found that the right to trial by jury was top of the British public’s list of rights that should be enshrined in a written Bill of Rights.  Opinion polls and studies in 2002[26], 2007[27] and 2011[28] also showed strong public support for jury trial. 

The Bar Council and Law Society Survey in 2002 found over 84% of the public trusted a jury to come to the right decision and felt trial by a jury was fairer than being tried by a judge.  A MORI Survey (Thomas  2007) found both white and non-white members of the public had equally high levels of confidence in the jury system. 

The 2011 study results showed widespread support for and confidence in the criminal jury in England & Wales and in other common law jurisdictions.

This prompts the author to suggest in this particular circumstance it would appear that “the customer is always right”.

Conclusion

The principle of the jury, if not its number, has withstood the test of time for more than 850 years and the dynamics of a 12 person jury mean that there is a mix of citizens bringing their individual weaknesses and strengths into the jury box.  Within the 12 members, individual differences, skills, experiences and prejudices are mitigated within “the whole”.

Some jurors will have better memories of evidence and able to remind those that do not in discussion.  Some members, unable to understand and apply legal directions will be assisted by those that do.  Individuals who are not influenced or biased will be in the majority and therefore able to hold sway over those that are.

Twelve allows for a qualified majority in order to account for losses to the jury in terms of ill health or unwillingness to participate.

There is no evidence of why 12 was the number chosen (Lord Devlin joked that it was 2 more than 10 to show the English contempt for decimalization).[29] Equally there has been no research to show that 7 jurors are able to deliver equally just and true verdicts as opposed to 12.   However, more than 850 years of practice tells us that juries of 12 work in practice and can be trusted to get it right.  If they did not they would not command the trust and support of the public that they serve.  The fact that there are 12 jurors may have been an accidental choice but the number has worked.  We can see from what analysis there has been the possible reasons for that, namely that 12 are “large enough to create a formidable body of opinion”.[30]

If it is right that 12 jurors are the most effective and fairest tribunal then we must question on what basis should it be reduced to 7. 

The suggestion being made is that by abandoning juries in some cases and in others restricting their number to 7, there would be reduced risk to jurors and other court users from contracting the Coronavirus.  Clearly reducing the number of people present in a room reduces risk statistically.  With social distancing currently in place, reducing from 2 metres to 1 metre, it must be assumed that social distancing would apply whatever the size of the jury and the problem is therefore merely one of accommodation.  The logistics of attending court, sitting in the jury box and being in retirement are all matters which are to be addressed no matter what the size of jury, as are the cleaning regimes and physical measures that need to be put in place.

All the anxieties and questions for the MoJ to address in administration of the criminal justice system are not, it seems to me, significantly alleviated by reducing the size of the jury or by substituting it for a different tribunal.  Most importantly, by contemplating removal of and reduction of the size of the jury, in a time of crisis, the faith and trust of the public may be irretrievably broken.

Lord Devlin’s comment regarding the jury system being the lamp showing freedom lives should be considered in full.  He said “The first object of any tyrant in Whitehall would be to make Parliament utterly subservient to his will; and the next to overthrow or diminish trial by jury, for no tyrant could afford to leave a subject's freedom in the hands of twelve of his countrymen. So that trial by jury is more than an instrument of justice and more than one wheel of the constitution: it is the lamp that shows that freedom lives. To many of us the boundaries between Whitehall and Westminster are uncertain and confused. We are anxious that government should be strong and yet fearful lest the gathering momentum of executive power crush all else that is in our State. We look for some landmark that we may say that so long as it stands, we are safe; and if it is threatened, we must resist. It is there, this beacon that seven centuries have ended.”

Whatever the cause of the backlog in criminal cases that now requires the justice system to increase its capacity (noting that the backlog of criminal cases was evident in October 2019)[31], this should not be at the expense of fair and effective justice for all.  The 12 person jury not only has been demonstrated to lack bias but also has been demonstrated over centuries to deliver effective justice. 

I have not been able to find any data demonstrating how the 7 person juries during the Second World War performed.  However, the rule of peremptory challenge at that time allowed both Prosecution and Defence to challenge up to seven jurors in order to address any perceived bias.[32]   This was removed as it was felt that this created unfairness in removing the randomness of jury selection.

I have also found it has not been possible to analyse the data from the Court of Appeal and the Criminal Cases Review Commission to ascertain those cases where the jury have got things wrong as opposed to inadmissible evidence being put before them or errors in direction by the Judge.

Before a fundamental right such as the jury trial is interfered with there should be evidence that a reduced jury is equally capable of delivering the quality of justice that a jury of 12 does.  Such evidence as there is suggests that it would not.

I have concluded that far from “protecting and advancing the principles of justice” and “delivering a world-class justice system that works for everyone in society” tinkering with the jury system and considering removing it altogether in certain types of case is risking the opposite.

As we are told that new “Nightingale” courts will be opened to deal with the backlog and that they may be referred to as “Blackstone” courts it might be presient to remember the words of Mr. Justice Blackstone on the English jury system: “So that the liberties of England cannot but subsist so long as this palladium remains sacred and inviolate; not only from all open attacks, … but also from all secret machinations, which may sap and undermine it; by introduction of new and arbitrary methods of trial; by justices of the peace, commissioners of the revenue, and courts of conscience.  And however these may appear at first (as doubtless all arbitrary powers, well executed, are the most convenient), yet let it be again remembered, that delays and little inconveniences in the forms of justice are the price that all free nations must pay for their liberty … that these inroads upon this sacred bulwark of the nation are fundamentally opposite to the spirit of our constitution and that, though begun in trifles, the precedent may gradually increase and spread, to the utter disuse of juries in questions of the most momentous concern.”[33]

Tana Adkin QC, barrister at Charter Chambers and member of the Bar Council's Retention Panel

1] Minstry of Justice, www.gov.uk/government/organisations/ministry-of-jusice