A Racist Jury

By Dr Peter Jepson.

Published in Criminal Lawyer, June 2000.

This article will seek to examine the European Court of Human Rights case of Sander v United Kingdom[i] and considers the implication that this case could have for jury trials in the UK. 

The facts of Sander v United Kingdom are somewhat simple, while at the same time illustrative of potential problems that can occur in a multi-cultural society. Kudlip Sander, a British national of Asian origin born in the UK and living in Birmingham, was convicted of fraud on the 8th March 1995. At the trial one of the jurors sent a note to the trial Judge expressing fears that other members of the jury, who had made openly racist remarks and jokes, were not impartial. As a consequence, the complaining juror was separated from the others and the note was read out in open Court to the Jury, who were advised by the Judge that they should be impartial. 

The next day the Jury found Sander guilty and sent the judge a collective letter, signed by all the jurors including the original complainant, refuting the allegations and denying any racial bias. Not surprisingly, the defendant appealed against the conviction – in effect claiming that a “racist jury” had tried him and arguing that the trial judge was wrong not to have dismissed the jury. The Court of Appeal rejected this appeal.

In due course the European Court of Human Rights were asked to adjudicate on this matter and they considered that the allegations in the first note were capable of causing the applicant, and any objective observer, legitimate doubts as to the impartiality of the court, which neither the letter nor the direction of the jury by the judge could have dispelled. As a result, by four votes to three, it was held that there had been a violation of Article 6(1) of the ECHR - the right to a fair and public hearing.

Logically this ECHR decision makes sense, in that directing a jury that they should be impartial after some members have already expressed racist views is a little like locking the gate after the horse has bolted. Given the legitimate concerns about the impartiality of some members of the jury it would have been far wiser to have dismissed the jury and commence a fresh trial – no matter what the cost to the taxpayer. With it being sensible to follow the old adage: that it is important not only that justice is done, but that it is seen to have been done. 

  

Implications for Jury Trials.

As a result of s2 (1) of the Human Rights Act 1998, any Court must take into account decisions of the European Court of Human Rights in interpreting convention rights. Consequently, it is argued that there could be some implications for jury trials involving defendants who come from an ethnic background.  A narrow interpretation, deriving from the Sander case, is that a Judge should take into account the ECHR decision and dismiss a Jury – establishing a new trial - should one, or more of their number, complain about racial tendencies amongst Jury members. In addition, any racist comments made by a judge could, in certain circumstances, provide grounds for an appeal. 

Clearly, such a narrow approach would ensure consistency with the Sander decision. However, what is exceedingly worrying about the Sander case is that it could be the tip of a very big iceberg. Indeed but for the bravery of the sole juror, who felt they should speak out against the perceived racism of his fellow jurors, this issue of racism would not have come to light.[ii] Given the government’s commitment to tackling institutionalised racism within society, the Home Secretary, Jack Straw, should surely take a more positive and purposeful approach than simply sitting back and waiting for another complaint. It can be argued that, following his undertakings in relation to the Macpherson Report, Jack Straw has a moral duty to take positive steps to try and ensure that jurors are not racist and that, as jurors, they are prepared to look objectively and impartially at the evidence presented at trial. 

To fulfil this moral duty a variety of steps could be taken. Firstly, potential jurors should be given very clear written guidance which emphasises the need for impartiality – with discrimination on the basis of race, gender, religion or any other means, considered to be unacceptable. It follows that potential jurors should also be given the opportunity of excluding themselves from jury service if they consider that they have problems in accepting that they live in a multi-cultural society where people of all races should be treated equally. Thus, if they consider that they may feel prejudiced on racial, nationality or other similar grounds, they could – in privacy - opt to decline the invitation to serve as a juror.[iii] 

The Home Secretary could also consider a limited development of jury vetting, essentially for the purpose of ensuring there are no racial tendencies amongst jury members. This could be achieved by giving the defendants/prosecution lawyer a statutory right to ask questions of jurors so as to try and ascertain if they have problems with regards to the principles of equal treatment.

 

Having ethnic people on juries.

One obvious way of reducing the potential for racial discrimination is to ensure that amongst the jurors are people from the same background as the defendant. Research in 1979 by Baldwin and McConville found that ethnic minority numbers were severely under-represented on juries. They looked at a sample of 3,912 jurors and found only 28 jurors from ethnic minorities – with census figures indicating this should be 10 times higher. While the 1993 research of Zander and Henderson suggested an improvement, the figures still show that non-white jurors (5%) are below the national figure of 5.9%.

Even accepting the promise of progress within these figures, the case of R v Ford[iv] emphasises that there can be no guarantee that non-white jurors will sit on a particular case, with the Judge having no power to empanel a multi-racial jury. Interestingly, the Runciman Commission (1993) has recommended that in exceptional cases it should be possible for either the prosecution or the defence to apply for the selection of the jury to contain up to three people from an ethnic minority background, with at least one or more of these coming from the same ethnic background as the defendant.

In conclusion.

Given the governments commitment to take on board issues of institutionalised racism it is surely incumbent upon the Home Secretary to take some positive steps to eradicate the potential for racism amongst jury members. Obviously, rash law making is not always sound law making, but recognition of the need for some changes is surely needed. Before introducing any legislation, the Home Secretary needs to establish a constructive review of any options for change, with the widest possible remit for consultation. This must include consultation with judges, lawyers, academics, the Commission for Racial Equality and ethnic minority organisations.    

Dr Peter Jepson - Strode’s College, Egham. 

30th May 2000

Peter Jepson has a doctorate in Discrimination Law and is author of ‘Tackling Militant Racism’ which will be published as a book later this year.

Endnotes....

[i] Application number 34129/96.

[ii] This is due to the need for confidentiality with regards to a Juries deliberation.

[iii] This could lead to a drop in the number of people serving on juries, but quality is surely better than quantity?

[iv] [1989] 3 All ER 445.

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