Written by Shazneen Munshi

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

(b)Examine critically the arguments for and against the use of either juries or lay magistrates in the English Legal System.

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

In this essay, I am going to explore in detail what part juries and lay magistrates play in the resolution of civil and criminal cases and then critically examine the arguments for and against the use of either juries or lay magistrates in the English legal system.  Since the thirteenth century, the modern jury has been a corner-stone of our democracy as it has given ordinary people from a variety of backgrounds the right to be involved in the administration of justice in England and Wales.  In addition, as stated in the Magna Carta (1215), people have had the right to trial by ‘the lawful judgement’ of their peers.  Therefore, the use of lay people (those without legal training, jurors, magistrates) makes the law accessible to ordinary people.

Role of juries in civil cases

Juries in civil cases which come before the County Court and High Court are used in very limited circumstances, but where they are used in the resolution of civil cases, they have a dual role.  Firstly, they decide whether the claimant has proved his case or not, then, if they decided that the claimant has won the case, the jury go on to decide the amount of damages that the defendant should pay to the claimant.  The jury have to listen to both sides of the argument and then base their decision on the evidence presented to them.

Prior to 1854 all common law actions were tried by a jury but since then the parties could acquiesce not to use a jury and therefore their use gradually declined.  However, in 1933 the Administration of Justice Act limited the right to use a jury so that juries could not be used in disputes over breach of contract.  The present rules for when juries may be used in civil cases are now laid out in section 69 of the Supreme Court Act 1981 for High Court cases, and section 66 of the country courts Act 1984 for cases in that court.  These Acts restrict entitlement to jury trial as they states that parties have the right to jury trial only in cases involving Defamation (i.e. cases of libel and slander), false imprisonment, malicious prosecution and fraud.  The jury trial has been retained for these implicating cases as they all involve implicating character or reputation.  However, even for these cases a trial by jury can be refused at the judge’s discretion if the case involves complicated documents or accounts or scientific evidence and is therefore thought to be inappropriate for a jury trial as they may not have the necessary knowledge to interpret the facts.

Role of juries in personal injury cases

Furthermore, it is also very rare for a jury to try a civil case in the Queen’s Bench Division of the High Court although the parties can apply to a judge.  In 1966, the Court of Appeal laid down guidelines for personal injury cases.  This involves the case of Ward v James (1966) where the plaintiff was claiming for injuries caused in a road accident.  The guidelines were that personal injury cases should be tried by a judge sitting alone because such cases involve damages which must pay regard to the conventional scales of compensation.  Also, there have to be exceptional circumstances before the court will allow a jury to be used in such case.

Therefore, these guidelines make it clear that juries have no part to play in personal injury cases as they are seldom used.

Role of juries in criminal cases

In the resolution of criminal cases, the main role of juries is in the Crown Court where they decide whether the defendant is guilty or not guilty (choose whether to acquit or convict the accused).  However, jury trials account for less than 1 percent of all criminal trials as 97 per cent of cases are dealt with in the Magistrates’ Court.  The jury is only used at the Crown Court for cases where the defendant pleads not guilty and this accounts for only 20,000 cases each year.  Juries deal with serious criminal cases such as murder, manslaughter or rape.

Firstly, the jury’s role is to hear the prosecution and the defence case, listen to the judge’s summing up and explanation of any law involved and then retire to the jury room to make the decision on the guilt or innocence of the accused in secret.  The jury then determines their verdict on the evidence presented to them in relation to the law and decide issues of fact.  They can also ask written questions to the judge concerning the law.  Furthermore, the jury have to be 99 percent certain of the defendant’s guilt in order to convict them, if not the accused has to be acquitted.

Initially, the jury must try to come to a unanimous verdict (one in which they all agree) but if after two hours (longer where there are several defendants), the jury have not reached a verdict, the judge can call them back to the courtroom and direct them that he can now accept a majority verdict (10 or 11 out of 12 jurors must agree on the same verdict).  Once the jury have made their verdict, the judge must accept their decision, even if he or she does not agree with it.  This long-established principle dates back to Bushell’s case (1670).  The jury does not have to give any reasons for their verdict and there can be no inquiry into how they reached their decision.  This is supported  by the Contempt of Court Act 1981 and the independence of the jury which means no one can question a jury’s verdict, neither the judge or the media.  If the accused is found guilty, it is then the judge’s role to pass a sentence on the convicted defendant.

Lay Magistrates

There are about 29,000 lay magistrates sitting as part-time judges in the Magistrates’ Courts.  Lay Magistrates are ordinary people who are not legally qualified and sit to hear cases as a bench of two or three.

Role of lay magistrates in civil courts

In the resolution of civil cases, lay magistrates deal with the enforcing of debts owed to the utilities (gas, electric and water), non-payment of the council tax and non payment of television licenses.  In addition, they also have the power to grant licences for the sale of alcohol to public houses, off-licenses and licenses for betting and gaming establishments. 

Role of lay magistrates’ in criminal cases

In criminal cases, the role of lay magistrates’ is extremely wide ranging as they have the jurisdiction to try 97 percent of all criminal cases and deal with preliminary hearings in the remaining 3 percent of cases.  Firstly, the Bench sit in groups of two or three and hear summary cases (cases involving less serious offences such as criminal damage), and triable – either way cases (middle of the range crimes such as theft), then they decide the law and sentence defendants who either plead or are found guilty.  Magistrates also hold committal proceedings in indictable offences (more serious crimes such as murder, manslaughter, rape) which are sent for full trial to the Crown Court.

In addition, lay magistrates also grant bail applications, issue search warrants and deal with legal aid.

Bail applications

Magistrates have to decide whether a person should stay in custody or be released on bail while awaiting trial.  If the police oppose a bail application, the magistrates must listen to the arguments of all the parties and reach a decision.  The Bench must have regard to the provisions of the Bail Act but may take advantage of the Criminal Justice Act 1988 to reduce the pressures of ongoing applications.

Search warrants

The police obtain search warrants issued by magistrates before they can enter premises without the occupier’s permission to make a search, for example for drugs or firearms.  There are many statutes which allow magistrates’ to issue a warrant authorising entry to and search of specific premises.

In addition, there is also a special panel for the Family-Division of the High Court to hear cases involving orders for protection against violence, affiliation cases, adoption orders and proceedings under the Children Act 1989.

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Examine critically the arguments for and against the use of either juries or lay magistrates in the English Legal System

I have chosen to discuss and examine critically the arguments for and against the use of juries in the English legal system.

Firstly, juries enable ordinary people from a variety of backgrounds to participate in the administration of justice and therefore the jury is considered as one of the fundamentals of a democratic society as the right to be tried by one’s peers (as stated in the Magna Carta 1215) is a bastion of liberty against the state.  Lord Devlin once remarked that juries are ‘the lamp that shows freedom lives’.  The use of juries makes the law accessible to ordinary people who are more able to relate to the public and so this restores faith in the English legal system. 

In addition, the tradition of trial by jury is very old and so the general public also have confidence in the impartiality and fairness of a jury trial.  However, it can be argued that the combination of inability, disqualification and excusals in the selection process effectively excludes large sections of the community as it leaves us with a very limited category which consists of the unemployed, retired and wealthy people who can afford to take time off work.  Therefore, juries are not necessarily representative of a cross-section of society and so may not consist of ‘ordinary people’.

Furthermore, another advantage of the use of juries is that they do not have to give reasons for their verdict and it is possible for them to decide on their idea of ‘fairness’.  Therefore, they are not bound to follow the precedent of past cases or even Acts of Parliament but decide verdicts on their judgement of ‘fairness’.  This is sometimes referred to as jury equity.  However, this type of decision can be seen as a perverse decision as it is one which is not justified.  The disadvantages of jury equity can be seen in clear cut cases such as R v Randle and Pottle (1991) where the defendants were charged with helping the spy George Blake to escape from prison but the jury refused to convict them.

Moreover, the use of a jury is viewed as making the legal system more open as justice is seen to be done by members of the public who are involved in a key role in an open process.  Therefore, this makes the law accessible to the general population.  In addition, it also helps to keep the law clearer as points have to be explained to the jury in a simple manner and so enables the defendant to understand the case more easily.  However, against this is the fact that the jury deliberate in private, no one can inquire into what happened in the jury room and the jury do not have to give any reason for their verdict.  Therefore, the legal system of justice is not completely open.

The secrecy of a jury room can also be seen as an advantage as the jury are free from pressure in their discussion and so are protected from outside influences when deciding on the verdict.  However, there is also the disadvantage that, as no reasons have to be given for the verdict, there is no way of knowing if the jury did understand the case and come to the decision for the right reasons.  The fear of jurors of having a lack of understanding of the case that they are trying, was only partly borne out by a survey carried out in 1992 for the Runciman Commission, in which jurors were asked whether they thought they had been able to understand the evidence.

In the survey, 10 percent of jurors admitted they had difficulty in understanding the case.  Even though this is a small proportion, it is still worrying however, that in some cases a defendant’s future is being decided by some members of the public who do not apprehend the case and who are not trained in their duties, apart from a brief video and some short leaflets.  This can be seen in one case at Snaresbrook crown court where the jury, after retiring to consider their verdict, sent a note to the judge asking what they had to do.  Therefore, the secrecy of the jury room may be a disadvantage as jurors may have a lack of understanding of the case that they are trying as they do not possess the necessary skills and experience and so may wrongly convict a defendant.

However, even though judges possess the necessary legal knowledge, skills and experience, there would be many problems if they were given a greater role in criminal cases (i.e. deciding the verdict) as they are more case-hardened, have little understanding of the background and problems of the defendants and their decision would be individual and so not be as balanced as a jury’s decision in which there is a group decision by twelve people, possibly giving fairer results.

Furthermore, another disadvantage of juries is that they tend to acquit too many defendants as they are seen as being softer and less-case hardened.  This is a problem because guilty defendants may escape punishment.

In addition, the use of juries makes trials slower as each point has to be explained carefully to the jury and the whole procedure of the case takes longer.  Therefore, the cost of using juries is expensive as they may be at court for a longer period of time and so have greater travel and accommodation expenses.

Also, the compulsory nature of jury service is unpopular and may be disagreeable to jurors.  Therefore, some jurors may be against the whole system, while others may rush their verdict in order to leave as quickly as possible.  Jury service can also be a mental strain, especially where jurors have to listen to horrific evidence and so they may not be completely focused to make the right decision.  For example, jurors in the Rosemary West Case were offered counselling after the trial to help them cope with the evidence they had to see and hear.

Furthermore, fraud trials with complex accounts being given in evidence can create special problems for jurors as the documents are very long and complicated.  In addition, these cases take a long period of time to resolve and so jurors have to be away from their own work for months.  Such cases also become very expensive both for the prosecution and for the defence.

The present system of jury trial is coming under pressure for reform as society, the political system and even the types of offences have changed.  There are many reforms which have been proposed in the Auld Report (a report commissioned by the Government published in 2001) in order to improve the jury system in criminal courts.  Firstly, the Auld Report proposed that juries should be smaller in less serious (summary) offences and that the categories that juries are selected from should be widened by abolishing ineligibility and excusals as of right.  Therefore, this would result in a more balanced representation of society.  In addition, the report also proposed that a wider method than just using the electoral roll should be used to make sure that juries reflect the local community and so the randomness of selection should be reduced.  Also, the report stated that provision should be made for ethnic minority representation on juries where race is likely to be an issue.  Previously, this recommendation was also made by the Runciman Commission in 1993 but never brought into effect.

Another reform was also proposed by The Roskill Committee in 1986 which suggested that juries should not be used in complex fraud cases as the complicated evidence (accounts) can create special problems for jurors.  Instead, a combination of lay and legal members could be used on a jury and this would therefore give support to the lay jurors.  This was also suggested by the Auld Report(2001) which stated that an alternative to a jury should be used in Crown Courts, consisting of a judge and two lay people taken from a special panel.  However, this reform could pose a problem as there is a possibility of the jury being biased and influenced by the legal members.

In conclusion, I consider that the part played by juries and lay magistrates is extremely important in the resolution of criminal and civil cases as they both have a vital role in the administration of justice, deciding the guilt or innocence of the defendant in criminal cases and resolving important civil matters, as ‘ordinary people’ from a variety of backgrounds.  In addition, juries and lay magistrates are necessary in the administration of justice as they maintain the democracy of our state and give the general public confidence in the legal system.  Also, the tradition of trial by jury is very old and so also gives people faith in the fairness and impartiality of the jury system.

Furthermore, I have critically examined the arguments for and against the use of juries in the English Legal System and have reached a conclusion.  Firstly, even though I have discovered that there are more disadvantages for the use of juries than advantages, the advantages outweigh them as they are of greater significance.  The involvement of ordinary people from a variety of backgrounds in the administration of justice gives democratic qualities to the state and so restores confidence in the general public.  This is far more important than the fact that they acquit too many defendants or the expensive cost of providing juries.  Therefore, it is worth paying more for a system which promotes public involvement and confidence.  In addition, the present jury system needs reforms in order to reflect our multi-cultural society and therefore result in a more balanced representation of the general public.