(a) What part is played by juries and lay magistrates in the resolution of civil and criminal cases

(a) What part is played by juries and lay magistrates in the resolution of civil and criminal cases? (40 marks), (b) Examine critically the arguments for and against the use of either juries or lay magistrates in the English legal system. (60 marks) AEB

Written by Conor Newman (February 2008)

a.) Plan

Juries in civil cases:libel and slander, malicious prosecution, false imprisonment, fraud. Juries assess damages as well as give verdict. Discretion to allow jury trials in other cases-Ward v James(1966), Singh v London Undergound (1990), H v Ministry of Defence (1991)

Juries in criminal cases: used in criminal cases in the crown court, although are actually only used in about 1% of all cases (30,000 trials a year)-serious indictable or triable either way offences. Decide verdict-guilty or not guilty, while the judge decides the facts

(Also used in the coroner’s court where there has been a death in prison, in an industrial accident, health and safety of public involved, or police brutality.

Magistrates in civil cases: limited jurisdiction: enforcing debts, and payment of taxes, grant alcohol/betting licences.

Magistrates in criminal cases: try 97% of all criminal cases, and deal with Early Administrative hearings, remand hearing bail applications and committal proceedings. Also work in youth court to hear criminal cases. Also hear appeals in the Crown Court

b.) Plan

Advantages	Disadvantages
Allows public participation/democratic	Perverse decisions
Judge according to conscience(equity)	Lack of secrecy?
Secrecy and impartiality	Bias and jury nobbling

a.)

Introduction

This essay will be describing and explaining the role of both juries and lay magistrates in civil and criminal cases, in the English Legal System. A jury is a group of lay people (i.e. people who are not involved in the case, because they can be legally qualified) that sit in the courts and decide upon the verdict in criminal cases, and decide liability in civil cases. They are selected randomly from the electoral register, and are obliged to attend jury service when called upon-it is a civil duty.

Juries have been a part of the English legal system for over 1,000 years, with the Magna Carta enshrining the right for a person to have a trial by the lawful judgment of one’s peers. They are independent of the judge, who cannot influence their decision-this was seen in the Bushell’s case, where the Court of Common Pleas, which was amalgamated with the Exchequer division to become the Queen’s Bench Division in the Judicature Act 1873, ruled that juries are the sole arbiters of fact and that a judge cannot challenge their decision.

Magistrates, on the other hand, are lay people who have undergone training to become a type of judge. Although they do not have legal qualifications, they are used extensively in England and Wales, particularly in criminal cases, and they sit in the Magistrate’s Courts. They are also known as Justices of the Peace, and their history dates back to the First Crusade, where Richard the Lionheart established the justices of the peace to maintain the law in unruly areas, and they were originally specially selected knights. In modern times, they are effectively lay judges that try criminal cases and do some civil work as well. Anyone can apply to be a lay magistrate, although obviously there are some restrictions in regards to age and so forth, and they must be of good character and have good intelligence, among other things. Currently, there are about 29,000 lay magistrates, and they sit as part-time judges in the magistrate’s courts. When hearing cases, they sit as a panel of three, and are assisted by a clerk who has legal knowledge.

Juries in civil cases

Juries have a very limited role in civil cases, as there are only a very small number of cases where a jury is necessary. Juries can sit in the County Court and the High Court, with 8 and 12 members respectively. Parties only have the right to a jury trial in cases of defamation, such as libel and slander; cases regarding false imprisonment and malicious prosecution; and any case alleging fraud. Defamation is effectively making a false claim that does harm the reputation of an individual or business. Slander is when such an act is committed in speech, while libel is when it is committed in a fixed medium like a newspaper or magazine. False imprisonment is where a person is intentionally restrained without the perpetrator having legal right to do so. Malicious prosecution is where a defendant is prosecuted maliciously, to cause problems for the defendant. Finally, fraud is where a person deceives others for personal gain, usually in terms of money, but often for a gain in reputation or esteem in sciences, for example. All of these civil cases require a jury trial because they regard people’s character and retribution, and so it would be unfair if just a sole judge had to decide. However, a jury can be refused by the judge if the case is too complex in terms of the law or perhaps the evidence that is being used. In civil cases other than those described above, the case of Ward v James (1966) set precedent that juries should only be used in personal injury claims in rare, exceptional circumstances. In both Singh v London Underground (1990) and H v Ministry of Defence (1991), a jury trial was denied due to the guidelines of Ward v James. So, this case has effectively prevented the use of juries in personal injury cases. However, in the Queen’s Bench Division of the High Court, jury trials can still be granted, although this is very rare. Between October 2003 and July 2004, only eight cases were tried by jury.[1]

The role of the jury in civil cases is a two part one, as juries must not only decide liability, but also, if they decide that the claimant has won the case, the amount of damages the defendant must pay to the claimant. When deciding damages, juries have a large amount of freedom in how much they award the claimant, leading to these settlements being described as “Mickey Mouse” money-it is totally unpredictable. Now, the Court of Appeal has powers to alter the amount of damages decided by the jury, if they believe they are excessive or questionable. This power was used in the case of Rantzen v Mirror Group Newspapers (1993), where the award to Rantzen was reduced from £250,000 to £110,000.

Juries in Criminal Cases

Juries have a much larger role to play in criminal trials, as this is their well-recognised and more important role. However, juries are now only used in criminal cases that make it to the Crown Court, which are indictable and triable either-way offences. Indictable offences are the most serious of crimes, like murder and rape, and they are always dealt with in the Crown Court. Either-way offences are when the case can be tried in either the magistrates or the Crown Court, in which case the magistrate will either decide to hear the case in their court, or the defendant will opt for a trial by jury in the Crown Court. The advantage to the defendant of going to the Crown Court is that they may believe that they would have a better chance of being acquitted if they faced a jury than a judge. However, new laws passed by the Home Secretary have reduced the number of either-way offences and turned them into summary offences, meaning that juries in the Crown Court are being used less often than before. Furthermore, around three quarters of all defendants plead guilty, in which case a sole judge will decide the sentence without a jury. So in fact, juries only sit on less than 1% of all Criminal cases, although this is still around 30,000 cases a year.[2]

In a criminal trial involving a jury, the judge presiding over the case and the jury have their functions split between them. The judge must decide on the points of law and direct the jury in regards to the law, as they are likely to not be legally qualified. The jury is the sole arbiter of the facts-is the defendant guilty, or not guilty? In some cases, the judge may state that there is not enough evidence to make a case against the defendant, in which case he will direct the jury to acquit them. This idea of a direct acquittal occurs in around 10% of cases.[3] If this does not occur, then, after the judge has summed up the law involved to the jury, they will retire to a private room and decide whether the defendant is guilty or innocent. They must try to come to a unanimous decision, but it can be done by majority verdict if they do not come to a verdict within two hours. The jury cannot be disturbed whilst they are coming to a verdict, and whatever takes place in the room is completely secret to anyone in the court room. Any attempt to discern what is taking place in the jury room is a criminal offence. Moreover, the jury can only be influenced by what occurs in the courtroom, not by outside factors. As stated previously, once the jury have come to a verdict their decision is binding and the judge cannot go against what they have said. Once the jury have come to their verdict, the judge will either formally acquit the defendant or decide upon a suitable sentence, depending upon the decision of the jury.

Magistrates in civil cases

Magistrates, like juries, have a rather limited role in civil cases. They do not preside over many civil cases, except those regarding the enforcing of debts or non-payment of council tax or television licences. They also hear appeals from local authorities on subjects such as alcohol and betting licensing, as well as granting warrants to the police. Furthermore, magistrates hear some family cases like simple divorce proceedings and adoption orders, so long as the money involved is not particularly high, otherwise the case will go to the High Court. Most family matters arise from the breakdown of marriage and its effects, such as custody of children.[4]

Magistrates in Criminal cases

Magistrates have a far more pronounced role in criminal matters. Magistrates preside over 97% of all criminal cases, which are all summary offences. For the other 3%, they hear the preliminary hearings but do not decide the result-this is for the Crown Court. The other 3% of cases are indictable and either-way offences, which are far more serious. Magistrates usually sit in a panel of three, and have the power to give a maximum of 6 months imprisonment or £5,000 in fines. They can also give other sentences, such as community service for up to 300 hours, or electronic tagging. If the magistrate trying the case believes that a harsher sentence is needed, they can refer the case to the Crown Court, whose powers are not as limited. Furthermore, magistrates sit in youth courts, dealing with criminal charges against 10-17 year olds. Such magistrates must be under 65 and should include at least one man and one woman.[5] Such are measures exist in order to make sure that young people’s liberties are protected and that they receive a completely fair, unbiased trial. If they were forced to stand trial in front of two white, male, elderly judges, then there would be a risk that the judges are biased against the defendant. Finally, magistrates can sit at the Crown Court to hear appeals that have come from the magistrate’s court, forming a panel with a qualified judge.

Conclusion

Overall then, juries and magistrates are a part of the English legal system that are much more prevalent in criminal cases than in civil cases. Juries are used in the Crown Court for serious criminal offences, and decide the facts. Magistrates try the rest of the criminal cases, while also dealing with simple civil matters. Finally, juries are used in a minute number of civil cases.

b.)

Introduction

In this essay I will be discussing the various advantages and disadvantages of juries in both civil and criminal cases, and assessing whether, looking at these factors, they are a suitable and necessary addition to the English legal system.

Juries are the arbiters of the facts and decide the verdict in criminal cases in the Crown Court, and some civil cases. They sit in groups of 12 or 8, and are made up of members of the general public, chosen from the electoral register. Being a juror is a civil duty, and so attendance is compulsory if chosen, although there are many excuses available not to attend.

I will first be looking at the advantages of juries, and then move onto the disadvantages.

Bastion of liberty and democracy

Lord Devlin once described juries as ‘the lamp that shows that freedom lives’[6]. What he meant by this is that juries are a vital part of our liberal democracy and are a sign that we have and experience freedom in our lives. Without juries, then all those charged with offences would be tried solely by judges, which could lead to corruption, bias and too much power to the judiciary. Juries act as a safeguard against tyranny of the state, and in that way they are a vital part of a liberal democracy. Also, they are a long established tradition, and if we did not have juries then 800 years of trial ‘by the lawful judgment of his peers’ will be destroyed. A right to a fair trial is enshrined in the Magna Carta, the cornerstone and precursor of our uncodified constitution, and it laid the foundation for the jury system, creating trials that could actually be called fair and just. A verdict made by a jury reflects the views of society, not the views of the judiciary or of the state, and thus can be said to be more legitimate than the views of a mostly white, middle-class judiciary. Alongside this point, juries are made up of members of the public. Therefore, they allow the average citizen to take part in the administration of justice, and, as stated by Lord Denning give ‘ordinary folk their finest lesson in citizenship’.[7] Juries offer a cross-section of different parts of society, as they are chosen at random, and this will reduce the chances of a defendant being discriminated against in terms of race or class. However, these points are negated by the fact that very few defendants actually benefit from juries, as they are only used in a tiny number of cases, and also because of the limits of jury selection-those who are homeless, not on the electoral register, or refuse to attend, for example. If Juries are seen as important in a liberal democracy, then why is it that they are used in so few cases?

Jury Equity

Juries are not bound by judicial precedent or what the judge believes is the ‘right’ judgment. They are free to find a defendant innocent, even if there is a lot of evidence stacked against them. Many jurors give their verdict according to their conscience-what do they think is the right decision? This idea of giving verdicts according to morality makes judgments fairer, because some laws may not be viewed by all members of society as morally sound. In the case of R v Kronlid and Others (1996) a group of people were charged with criminal damage to a Hawk Fighter Plane. They did so because the plane was going to be sold to the Indonesian government, and there was a high risk that they would use it to carry out genocide against East Timor. The jury clearly believed that they were morally in the right, and so acquitted them. In another case, R v Ponting (1985), the defendant had leaked Government secrets, but these secrets were a matter of public interest as they showed that the government had lied to Parliament. He was again, acquitted by the jury. These two cases clearly show that the fact that juries can give their verdict according to the general moral views of society, rather than the strict, narrow minded ideas of some laws, can lead to decisions that benefit society and reflect our views. If there were no jury trials, then these people who, although not legally, were morally in the right according to our society’s views, would have faced imprisonment. Juries act as a sort of moral check on the legal system, allowing people to insert moral guidance and ensure that people are not being imprisoned for crimes that, in the eyes of many members of society, should not even be crimes at all. In fact, jury trials can often lead to the laws being changed-this occurred after Ponting’s case, as the acquittal of the government civil servant led to the government amending the Official Secrets Act 1911, under which he had been charged. So, juries inadvertently allow ordinary people to scrutinise government laws and policies, giving the average person an opportunity to take part in the amendment of legislation-thus making the system more democratic.

Secrecy and Impartiality

The jury’s decision making is meant to be a secret; in fact, they are told not to talk about what happens in the jury room to anyone, even after the case. This high level of secrecy means that they are free from outside pressures, and can come to a verdict that may be unpopular with those in the legal system or even with those in the general public, without them fearing that they will be ‘blamed’ for such a decision. They are also away from the media spotlight, meaning that their decision will not be influenced by this, nor will they be concerned about doing press interviews or other such stressful endeavours. This means that their verdict will truly be theirs, and not one that has been influenced by others. However, there are obvious flaws in this advantage. For one thing, the media spotlight will already be on the case, albeit not on the juries. This will influence their verdict, as the press is not an unbiased source of information, and will inevitably ‘take sides’ on the proceedings. In the case of R v West (1996), where Rose West was charged with multiple accounts of murder, there was massive media attention on the case, and many members of the press were paying large sums of money to witnesses to obtain their statements. Rose West appealed against her conviction, stating that the media spotlight affected the jury’s verdict and thus not enabled her to have a fair trial. The Court of Appeal rejected this appeal. More recently, the Ipswich murders in 2006 led to the Crown Prosecution Service advising the press to be very careful in how they covered the rest of the case, in order to keep the trial fair and unbiased. However, obviously bias will still remain in court rooms. We do not live in a perfect society, and unfortunately juries do take their various prejudices into the court room, when ideally they should leave them aside and simply focus on the case at hand. However, the fact that they do not know anyone in the case, even the lawyers and judges, ensures that they remain impartial to the people themselves and do not bring in any personal prejudices, even though racial or other prejudices may still remain.

Perverse Decisions

One of the key arguments for the abolition of jury trials is that they can often make perverse, ridiculous, or unpopular verdicts. This is because they are not bound by the laws or judicial precedent, or by any other factors. Furthermore, they do not have to justify any of their verdicts, while a judge must give a detailed explanation of why s/he has chosen to give this verdict, and the legal principles that s/he has based their verdict on. Juries can convict a defendant for any reason they deem necessary, and because of the secrecy of the court room no-one knows if the jury has made their decision for the ‘right’ reason. This is the downside of jury equity-they may make a decision not based on the facts, but based on whimsical ideas or prejudices. This was seen in the case of R v Randle and Pottle (1991) where the defendants had helped the spy George Blake escape.[8] The jury acquitted them, most likely because of the time lapse of 25 years between the trial and the actual offence. Nevertheless, they were guilty in the eyes of the law. Juries also have a higher acquittal rate than magistrates, and this could be because magistrates have heard most of the common excuses and have been hardened to them, while juries are inexperienced and could be sympathetic to those who are clearly guilty. Zander points out that the high rate of acquittals should be taken lightly, because there are a high number of directed acquittals and guilty pleas in the Crown Court.[9] In fact, 40% of all acquittals are ordered by the judge, according to the Runciman Commission. In fraud cases, the Roskill Committee concluded that many juries had difficulty understanding some of the complex evidence, and so were more likely to acquit.[10] This evidence all shows that juries will often make decisions not based on the law or even the facts, but based on the fact that they do not understand the case, or that they let their conscience get in the way of the administration of justice.

Secrecy of the jury

Although the secrecy of the jury was previously discussed as an advantage, it can also be a serious disadvantage. The Contempt of Court Act 1981 makes it clear that no inquiry can be made into the jury room, even for an appeal. This was backed up by the House of Lords in R v Mirza (2004).Therefore, juries do not have to give a reason for their decision. There is no way of knowing whether the jury actually understood the case at all, or whether they simply convicted a person because they wanted to leave or because they were prejudiced against their race or religion, for example. In the case of R v Connor and Rollock, a juror passed a note to the judge, stating that while they all agreed that it was only one of the defendants that committed the stabbing, they were going to convict both to ‘teach them a lesson’.[11] The jury simply did not want to stay in court for another week-not the basis upon which a prison sentence should be made. So, the secrecy of the jury is clearly a disadvantage. The courts can, however, pry into the acts of the jury if the behaviour took place outside of the jury. This happened in R v Young (Stephen) (1995), where the jury had used a ouija board to contact the dead and were intending to use the séance as the basis for their verdict. When this séance became known, the Court of Appeal quashed the sentence and ordered a re-trial. They felt it was right to do so because the séance had taken place in a hotel room, not in the jury room.

Jury ‘Nobbling’ and bias

As already stated, juries do often take their various prejudices into the court room. In Sander v United Kingdom (2000), one of the jurors had contacted the judge saying that there was evidence that some of the jurors were making openly racist comments jokes about the defendant, and this juror believed it would be influencing their decision. The judge ordered the jury to ‘search their conscience’, but did not stop the trial. The next day, two more letters were received, one admitting the blame for the racist jokes, and the other signed by all jurors saying they did not have racist attitudes. On appeal to the European Court of Human Rights, they ruled that the decision had breached the European Convention on Human Rights. Article 6 states that ‘everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.’[12] The ECHR argued that the jury were not impartial, and thus he had not received a fair trial.

Jury nobbling has also been a problem in jury trials. This is when jurors are intimidated into giving a certain verdict by those outside the trial. This problem reached its peak in the 1980s with several Old Bailey trials stopped because of allegations of nobbling. Jurors were told not to go to local shops and to stay out of sight in order to maintain impartiality. However, the threat of juries being ‘nobbled’ always remains. If a jury has been forced to give a certain verdict, then they can no longer said to be impartial or unbiased. However, the argument remains as to whether any jury is truly impartial-very few people can simply forget about their prejudices and focus solely on the evidence.

Conclusion

Overall, I believe it is safe to say that the advantages of juries outweigh the disadvantages. They act as a safeguard against certain controversial laws that the government may wish to implement, and fulfil an 800 year old tradition to a fair trial by one’s peers. Although there is always a risk of juries having certain prejudices or being ‘nobbled’, and they do not have to give their reasons for their verdict, I believe that this is a necessary evil to safeguard our democracy. Every system has its flaws, but in this case, the advantages of juries definitely outweigh those flaws.