Taymour Keen Class 1C

Law Essay AS- 2

Part A

“What part is played by juries and lay magistrates in the resolution of civil and criminal cases?

Introduction

The English legal system is made up of many lay people and they prove to be an integral part of the system of law and order in particular within the system of justice. Lay magistrates and members of the jury both also known as justice’s of the peace are the two main sectors of lay people who are used in the resolution of civil and criminal cases. I will discuss what the main duties for them magistrates and juries are and where they carry out these duties.

Lay people are used in the English legal system to contribute to the having a fair justice system. It is thought that if lay people are used a cross-section of society is included in the legal system and therefore the English legal system will be more equitable (fair). In both the cases of juries and lay magistrates there main duty is to reach a verdict of guilty or not guilty especially in the case of the jury. Therefore you are able to see that the decisions made by and the duties of lay people are significantly important in the English legal system.

Juries

History of the Jury

Juries were used over 1000 years ago and it is thought that they were used before the Norman Conquest. Originally they jury were a group of people who knew the defendant and were witnesses rather than decision-makers. However, the situation is now quite the opposite as juries have to have no conflict of interest with the case that they are trying. The main function of jurors is to decide issues of fact. This is outlined in the Juries Act 1974. They are used in Crown Court criminal trials and are expected to determine the verdict in a criminal trial. The jury will only be used in criminal trials where the trial is on indictment i.e. a more serious case such as manslaughter, murder or rap; and only when the defendant pleads not guilty. The Judge will explain the law to the jury and the jury should determine the verdict based upon the facts in relation to the law.

Juries are selected randomly in order to try and represent a cross-section of society. However, the selection procedure has been criticised as many professionals can be exempt and the jury in most cases are not vetted apart from in very high profile cases.

The Independence of the Jury

The independence of the jury was established following Bushell’sCase (1670). In this case several jurors refused to convict Quaker activists of unlawful assembly. The judge would not accept the ‘not guilty’ verdict and forced the jury to reconsider their decision. They were made to retire without food and drink. When they still returned a not-guilty verdict the court fined them and sent them to prison until the fines were paid. The Court of Common pleas ordered the release of the jurors and said that jurors could not be punished for the verdict which they gave and the judge had no power to change this, even if it did go against their decision. This case proved that jurors ‘were the sole arbiters of fact’ Another case which emphasised the independence of the jury was R v McKenna (1960) in which the judge threatened the jury that if they did not give a verdict in ten minutes they would be locked up all night. They returned a verdict of guilty which was quashed due to the judge’s interference.

The jury in practise

When a court is ready to swear in a jury each juror will go into the jury box to be sworn. They oath they say is as follows:

“I swear by Almighty God that I will faithfully try the defendant and give a true verdict according to the evidence”

Alternatively the juror may decide to swear on a different holy book or solemnly promise (affirm) to try the defendant and give a true verdict according to the evidence. This eliminates the reference to religion if a juror does not practise any religion.

The prosecution may ask the juror to leave the jury box before they are sworn in if there is a conflict of interest, i.e. a member of the jury knows the defendant, or indeed any member of the court and their relationship with this person may cause them to not be impartial.

During a criminal case the prosecution and defence will both argue their case and then the judge will summarise the key facts in the case and what the jury need to decide. The jury will then retire in order to make their decision. It is to be remembered that the consultation process between jury members is secretive and the jury do not have to provide any reasons for their verdict. The jury will elect a foreman who will deliver their verdict.

The jury’s verdict usually must be unanimous however if the jury have been deliberating for over two hours the judge may decide to accept a majority verdict or either 11 to 1 or 10 to 2.

Where juries are used

Juries are only used in a few civil trials. In civil cases there is a right to a jury in cases of defamation, malicious prosecution; false imprisonment and fraud. These cases all involve character or reputation and so the use of a jury is still maintained. Defamation is when a person says, writes or publishes information about a person which is not true and that may damage that person’s reputation. Malicious prosecution is not that common in modern times but still does happen as with false imprisonment.

The judge may refuse to let a jury sit if the case involves a lot of documentary evidence or scientific or accounting material. An example of such an occurrence was in the McLibel trial. This case involved a defamation action brought by McDonalds against two environmental campaigners and on this occasion a jury was not allowed.

In personal injury cases the use of juries is thought to often be unsuitable. In Ward v James (1966) where the plaintiff was claiming for injuries caused in a road crash the court of appeal laid down guidelines for personal injury cases. These included that experience is needed to assess compensation fairly and jurors do not have that experience. Also legal training and practise are needed in order to be able to apply the law with uniformity and treat cases alike, jurors do not have those qualifications.

Another example was in the case of H v Ministry of Defence (1991) when a soldier campaigned that he had received negligent medical treatment. He applied for a jury trail but this was refused as it was held that a jury trial would only be allowed in personal injury cases in very exceptional circumstances such as when their might be a claim for exemplary damages.

Juries are used in both civil and criminal courts. Their main use is in the Crown Court (criminal court) where they decide the verdict of a trial. However they try fewer than 4% of all criminal cases as most are dealt with in the magistrates’ court. There are twelve members of the jury in a crown court trial. Juries have a very important part to play in a crown court trial and it is therefore extremely important that all members of the jury are impartial and have no bias or else the defendant may not be receiving a fair trial.

Juries are also used in the High Court. There are also 12 members of the jury used and they decide liability and also access damages in cases involving defamation, false imprisonment, malicious prosecution and fraud. This is similar to the County court however there are only 8 members of the jury.

The final use of juries is in the Coroner’s Court. They are used to enquire into deaths and have to be used when there has been a death in prison, an industrial accident, circumstances where the health and safety of the public is involved or when the death is in police custody or as a result of an injury caused by a police officer in the execution of his duty. Between 7 and 12 members of the jury are used. However, since 1977 a coroner no longer has to summon a jury to cases involving homicide or road accidents and the coroner can choose whether a jury should be used or not.

Use of Lay magistrates in the Legal system

History of Lay Magistrates’

Lay Magistrates are an extremely important part of the English Legal System. In 1195 Richard I appointed ‘keepers of the peace’ and towards the mid 13th century the judicial side of the position developed. In 1361 the title ‘Justice of the peace’ was more commonly used. Poor quality of local justices of the peace in London and the absence of an adequate police force meant that public offices with paid magistrates were being set up. Between 1792 and 1839 they were in charge of the police and hearing cases in court. In 1835 the Municipal Corporations act allowed boroughs to request the appointment of a paid magistrate.

Training of Magistrates

In order to be a magistrate you must have six main qualities. These include having a good character, good understanding and communication, social awareness, maturity and sound temperament, sound judgement and reliability. This is in addition to having certain ‘judicial’ qualities. You also have to be at least 21 to apply to become a magistrate; however a local advisory committee will very rarely appoint someone who is under 27. Lay magistrates must also live within the commission area of the court of within 15 miles of the boundary of that area.

The lay magistrates training initiative started in 1998 and this applied that newly-appointed magistrates had to have four basic competencies. These are an applied understanding of the framework within which magistrates operate; this would be achieved by the magistrates sitting in court trial until they had a feel of the court environment and the role they would play in a magistrate’s court. They also have to have an ability to follow basic law and procedure, to think and act judicially and an ability to work as an effective member of a team.

Lay magistrates in practise

Lay Magistrate’s sit in magistrates’ courts in a panel of three and hear many different criminal cases. In fact the magistrates court deals with around 98% of all criminal cases and most magistrates’ courts are staffed by lay magistrates with the assistance of a court clerk.

The other type of magistrate is a stipendiary magistrate, or paid and qualified magistrate. This has been replaced by the term District Judge and they sit alone in a magistrates’ court and will make any decisions however it is deemed fairer and indeed cheaper to have lay magistrates instead.

What the main duties of a Magistrate are

Magistrates deal with Criminal trials but do have a civil jurisdiction. Their civil jurisdiction is mainly to do with licensing and family matters as well as debt work in relation to debt owed to utility companies i.e. gas, electricity. Magistrates will also sit in the Youth court and this is classed as a civil jurisdiction. In a youth court the magistrates must be under 65 and the panel must usually include one man and one women. There is also a special panel for family cases. Magistrates will also deal with non-payment of council tax or failure to have a television license.

In criminal cases the magistrate’s work load is very heavy and Magistrates’ Courts are the busiest courts. The duties that Magistrate’s carry out include early administrative hearings which are hearings before a case is actually tried and they include actions such as confirming the address and name of the defendant, pleas and other administrative tasks. Magistrates’ also do committal proceedings when the case is indictable, remand hearings to decide whether a defendant should stay in prison until their trial, bail applications- these are needed when the police do not issue suspects with bail and therefore the suspect will have to apply for bail directly to the magistrates. Magistrate’s also decide the verdict in summary and triable either way cases and sentence defendants when appropriate. Magistrates can only give up to 6 months in prison and up to a £5000 fine however they can refer a case to the crown court for sentencing if they deem it appropriate.

Some of the cases magistrates will see on a regular basis include most driving offences, failure to pay for a television license, minor assault and minor criminal damage. Magistrates also carry out administrative tasks such as granting bail, issuing warrants, issuing licenses i.e. those for the selling of alcohol, practice of gambling etc. Magistrates also have the power to issue search warrants as well as warrants for arrest.

Lay magistrates could also sit at the Crown court to hear appeals from the magistrates’ court and in this instance they would sit as a panel of three supported by a qualified judge.

Magistrates rely on legal advice from the court clerk who also may not be qualified. However the Clerk to the Justices must be a qualified Barrister or Solicitor. The Clerk’s job is to give the magistrates advice on law and procedure but they must not be involved in deciding the guilt or innocence of the accused, this has to be decided solely by the magistrates. In R v Eccles Justices, ex parte Farrelly (1992)the Queen’s Bench Divisional Court quashed convictions because the clerk had apparently assisted in the decision making process.

Magistrates are described to be middle-class; middle aged and middle minded however some people feel that they do not yet represent a cross-section of society. The home affairs committee of the House of Commons reported in 1996 that a balance had not yet been achieved in the magistracy. However women are equally represented and those with disabilities equally considered.

Conclusion

In conclusion it is clear that lay people are very important in the legal system. Lay Magistrates form the basis of the Magistrate’s Court and do civil as well as criminal duties including granting licenses, sentencing, deciding verdicts and carrying out committal, remand and early administrative hearings. They are very inexpensive and have high success rates although they are criticised as not representing a cross-section of society and are described as being middle-classed, middle-aged and middle-minded.

On the other hand Jury’s are from all walks of life. The selection process is totally random despite those who are excluded. Juries are present in criminal cases in the crown court as deciders of fact and decision makers, and they are also present in some civil courts for cases where the integrity and reputation of an individual are involved. Without lay people the English legal system could not easily exist.

Part B

“Examine critically the arguments for and against the use of juries in the English Legal system.”

Selection of Jurors- Fair or unfair?

Jurors are selected randomly from the electoral role. The electoral role is the list of people who are allowed to vote. In order to be a member of the jury you must be between 18 and 70 years of age. Those who are aged between 65 and 70 are allowed to refuse to do jury service.

Jury service is a civil duty and it is compulsory if called up. You are entitled to time of work if you are called up and if your employer refuses to pay you then you are entitled to claim expenses.

In order to be selected for jury service you must have lived in the UK for 5 years since the age of 13 and not fit into the exempt categories. Although only 12 people are needed for each jury, more people are called to ensure that in each court there is a full jury.

Those who are exempt include those who are ineligible, disqualified or excused. Those who are ineligible include those concerned with the administration of justice, those with a religious vocation and those who are mentally ill. Those who are disqualified include those with certain criminal convictions including serving a term of imprisonment, received a suspended sentence or received a community service order in the last 10 years. Those who are excused include professionals such as MPs, member of the armed forces, doctors and those who have served on the jury in the previous two years. There are also those who are excused on the discretion of the judge these include midwifes, mothers with small children, students who have examinations during the time of jury service or those with booked holidays. However, it may be the case that they still have to do jury service just at a later date. Because there are so many discretionary excusals (Home Office research in 1999 showed that one in every three jurors was excused form serving) this can prevent juries from being a true representation of a cross-section of society.

It is thought that seeing as the process of selection is random, the jury should represent a cross-section of society and those selected should be of mixed race, origin, age, sex and profession. Those selected are hardly ever vetted but in certain cases including those associated with National Security the Attorney- General may give permission for potential jurors to be vetted. This involves researching into their backgrounds to see if they have any strong views which may affect their practise as a juror. In such cases the juror would not be summoned. This goes against the random selection principle as it is as if the jury is being selected and only those suitable considered which does not represent a cross-section of society.

It is also argued that because of all the amount of people who are exempt this does not represent a cross-section of society. This is because many professionals are exempt from the serving as jurors which can be deemed unfair and not representative of all walks of life. It seems that there is over-representation on juries of the young unemployed, middle-aged housewives and retired people because of the exemptions. Another problem is when the jury is not multiracial especially if the defendant is from an ethnic minority and the majority of the jury are of a white ethnic origin. Research by Baldwin and McConville in 1979 found that ethnic minorities were very under-represented on juries. Out of 3,912 jurors only 28 were from ethnic minorities while the figure should have been 10 times that.

Sometimes even though people know they are disqualified they still sit on the jury and fail to disclose this fact. In a survey carried out in Inner London It is estimated that one in ever 24 jurors was disqualified.

The Auld Review proposed that those who are ineligible or excuses should serve and this has also been proposed in the Criminal Justice Act 2003. It also seems that within society there is a wide-spread reluctance to serve which the amount of exemptions does not help.

Arguments for the use of juries

There are many arguments for and against the use of juries and it has been an ongoing debate on whether to use juries in the legal system.

Lord Denning in the case Ward v James (1966) said:

“Let it not be supposed that this court is in any way opposed to trial by jury. It has been the bulwark of our liberties too long for any of us to seek to alter it. Whenever a man is on trial for serious crime, or when in a civil case a man’s honour or integrity is at stake, or when one or other party must be deliberately lying, then trial by jury has no equal”

Lord Delvin in his book Trial by Jury (1956) described jury trial as “the lamp that shows freedom lives”.

The first is that the defendant is being tried by his peers and this is a generally favourable concept. It should make the defendants trial fairer and in some instances more comfortable which wont make the defendant more nervous and affect their performance in court, i.e. the defendant may appear extremely nervous and be found guilty because of this even though they did not commit the crime.

Another argument is that having a jury trial maintains public confidence in the legal system. Having a jury deciding the verdict should hopefully mean a much fairer alternative than having just a single judge who could be discriminative in their verdict. Because there are twelve opinions forming the verdict and at least 10 of the jurors have to agree it is much fairer and this should restore confidence in the legal system. Having a jury is considered as one of the fundamentals of a democratic society.

The jury also represents a limited ability to mitigate the harshness of law. This has happened in relation to the motor-manslaughter charge which carried a life sentence being changed to an offence called causing death by reckless driving which carries a lower custodial sentence of up to five years. McCabe and Purves mentioned in The Jury trial at work (1972)that the jury can bend the law without breaking it.

Other advantages of a jury trial include that since juries are just lay people and have no legal qualifications it is possible for them to decide cases on their idea of ‘fairness’. This is sometimes referred to as ‘jury equity’. Also the use of the jury system is seen as making the legal system more open i.e. members of the public are involved; the whole process is public and points of law are explained in court making the trial easier to understand. In addition the jury do not have to give a reason for their decision.

The jury also have the ability to judge according to their conscience signifying the independence of the jury Bushell’s Case (1670). Also because of the secrecy and impartiality of the jury trial it is inevitable that the process is equitable.

A significant advantage of having a jury trial is the fact that juries to tend to get the verdict right despite research by Baldwin and McConville in 1979 which suggested that up to 5 percent of jury trials could result in the wrong verdict.

Arguments against the use of Juries

There are also many views against the use of Juries in the English Legal system. Professor Hogan once said: “Trial by Jury has long outlived its usefulness. We preserve it because it’s a sacred cow.” Sir Robert Mark who was former commissioner of the Metropolitan Police said that confidence in the jury system is “based on practically no evidence whatsoever”.

Disadvantages of a jury trial sometimes outweigh the advantages and many people have proposed that magistrates should be used in all criminal cases. One major disadvantage would be the cost of a jury trial. Not only does the judge have to be paid, but so do barristers, the jury (in the form of expenses) and there are many more administrative tasks which need to be carried out. Furthermore a trial in a crown court will most probably be longer than that in a Magistrate’s Court so there is a cost implication with regards to this.

The fact that the jury has no legal knowledge is considered a disadvantage. The thought of having 12 people with no legal knowledge or training deciding the verdict in what could be a very technical case is worrying for the English legal system. The jury could easily be swayed by good advocacy rather than considering the facts in full. Although the consideration of the jury being all lay people may lead to a case of the inevitable equity in the case it could also be seen as perverse and unjustified. Seeing as the jury do not have to provide a reason for the verdict they have reached no-one knows how they have reached their verdict, which sometimes may be against the contrary of those in the legal profession.

One issue which is a major disadvantage of a jury trial is the potential racial bias which may exist. They may have prejudices which affect the verdict. An example of when the jury was thought to have been racist was in the case of Sander v United Kingdom. In this case members of the jury were thought to be not impartial and after the jury returned a guilty verdict Kudlip Sandler appealed against the decision saying that the jury were racist. The court of appeal rejected his appeal so he took the case to the European Court of Human Rights. They considered that there has been a violation of Article 6 – the right to a fair and public hearing and that the judge should have started a fresh trial.

Other disadvantages include the possible media interference which may influence the jury’s decision. An example of this was in the case R v West (1996) when there was very powerful media coverage. A more recent example was the case of Ian Huntley; because of the high profile media coverage this may have contributed to the jury giving a guilty verdict.

It is also impossible to guarantee no intimidation directed at the jury i.e. jury ‘nobbling’. Especially in high profile cases this may be even more evident. Family members or associates may intimidate jury members into reaching a particular decision. Although there have been steps to prevent this is does still feature in some cases.

Alternatives to trial by jury

If there was no longer a jury trial then there would be various alternatives in the criminal courts however there are many factors to consider. These include whether the new method of trial would be effective, whether the cost would be much greater and whether public confidence in the jury system would continue.

Possible alternatives to jury trial include trial by a single judge; however this would be expensive and may be perceived as being biased by the public. It would however be fast and efficient. Other alternatives include trial by a mix of lay people and professionals which would be expensive and could still be perceived as biased; also the decision making may be dominated by the professionals. Otherwise the trial could be by a bench of judges which would be very expensive and there would be no lay representation.

The strongest alternative would be to increase Magistrate’s powers and hold more cases in the Magistrates’ courts. This would be very fast, efficient and inexpensive however it may be criticised by the public.

Conclusion

In conclusion it may be the best conclusion to keep the jury trial and just provide training. The alternatives to a jury trial are all very expensive and the problems with the jury trial can be resolved. Juries provide public confidence in the legal system and they provide an equitable verdict. However, members of the jury may also be under qualified and not understand the case being brought before them, jury ‘nobbling’ and intimidation ma exist and jury trials are lengthy and expensive.

Bibliography

The English Legal System

Jacqueline Martin (Hodder and Stoughton)

AS LAW

Charman, Vanstone and Sherratt (Willan publishing)

References to a racist jury from:

www.peterjepson.com.law/a_racist_jury.htm

English Legal System: J. Martin pg 239

AS Law: Charman, Vanstone and Sherratt pg 193

English Legal System: J. Martin pg 241

English Legal System: J. Martin pg 235

AS Law: Charman, Vanstone and Sherratt pg 202/3

English Legal System: J. Martin pg 236

AS Law: Charman, Vanstone and Sherratt pg 194

AS Law: Charman, Vanstone & Sherratt pg 198

AS Law: Charman, Vanstone and Sherratt pg 199

A Racist Jury by Dr Peter Jepson www.peterjepson.com/law/a_racist_jury.htm