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

Roberto Kehinde

Law

1LG

Essay Las-5

(a) What part is played by juries and lay magistrates in the resolution of civil and criminal cases? (40 marks)

Introduction

Juries and Lay Magistrates play an instrumental role in the resolution of civil and criminal cases, each are used in very different cases and each are very different in their decision making process. Juries have been a key part in the English Legal System for over 1000 years and have, (until recently) played an extremely important role in the resolution of legal matters for centuries.

Lay magistrates also play a key role in resolving law and have more recently become extremely important in majority of case in the English Legal System. It is important to ask why the magistracy has played such a key role and what the difference in the roles of Jurors and Lay Magistrates is. It is interesting to note that the work accomplished by both jurors and lay magistrates is very different and each plays an important role in the English Legal System

Main

Juries

What is a Jury and what do they do?

A Jury consists of a number of ordinary individuals called for service on any kind of legal matter. The main role of the jury is to bring their point of view to a case as a lay person with no legal knowledge. In criminal trials a jury consists of twelve people who are chosen at random. They combine their experience, common sense and wisdom to decide the facts and reach a verdict in the jury room. There main use today is in the crown court where they simply decide whether any defendant is Guilty or not guilty. They are only used when defendants plead not guilty which means they are used in about 20,000 cases a year. It is important to remember that the jury does not decide the law it simply decides the verdict. The Judge decides the point of law and the sentence while the jury decides the question of guilt. The judges have the power to acquit the defendant if he decides that the prosecutions evidence has not made a case against the defendant. This is called a direct acquittal.

Criminal Cases

Juries play a very important role in the resolution of criminal cases. Juries often try the most serious criminal cases such as rape or murder. These types of cases take place in the crown court and include a jury of 12 members. However jury trials account for less than 1% of all criminal trials due to the fact that 97% of these cases are dealt with by the magistrate’s court. Most of the cases that go to the Crown court have defendants pleading guilty which means there is not need for a jury. Additionally, the judges have the power to acquit the defendant if he decides that the prosecutions evidence has not made a case against the defendant. This is called a direct acquittal. Unfortunately these direct acquittals lead to even less cases going to the crown court and juries being used even less.

The jury can decide by 1 of 2 verdicts, they can either decide unanimously or by what is called a majority verdict. A Unanimous verdict as its name suggests has all members of the jury in agreement on the verdict while a majority verdict can now include 10-2 or 11-1 for guilty or not guilty. Where this has occurred the foreman of the jury must then announce the numbers of the majority. In Criminal cases after over 2 hours of no verdict the judge can call the jury back into the courtroom for a majority verdict.

The Juries deliberation is done in secret, no-one other than the jurors is allowed in this private room and all deliberation must take place here. There can be no inquiry into how the jury reached its verdict; this makes it completely independent in criminal cases. Section 8 of the Contempt of Court Act 1981 makes it a criminal offence to disclose anything that occurs in a jury room. It is a criminal offence “to obtain, disclose or solicit any particulars of statements made, opinions expressed, arguments advanced or votes cast by members of a jury in the course of their deliberations in any legal proceedings.” The act was enacted because newspapers were paying jurors larges sums of money for “their story”.

A Jury’s role in criminal cases is somewhat limited due to the number of cases that never reach court or do not require the direct use of a jury.

Civil Cases

Juries in Civil cases are used in very rare or limited circumstances in the present day. This may be due to civil cases being resolved mainly in other courts or by other means or due to the complex documentation often involved in civil cases. Jurors may struggle to understand and give a perverse or perhaps incorrect decision where business accruement is involved. Where they are use they have to maintain a dual role. They must firstly, decide whether the claimant has sufficiently proven his case against the defendant and they must also, if they decide that the claimant has won the case, decide a fair amount of damages to be paid to the claimant by the losing defendant. These are 2 very important roles and can only be properly carried out by a jury.

Before 1854, all common law actions had to be tried by a jury. There was no other choice. However after 1854 if both parties agreed that they did not want to use a jury then they did not have to. From this point onwards, their role in the civil department of the English legal system began to deteriorate. It is evident that this new found ability to refusal trial by jury was favorable to both claimants and defendants. This may have been due to the unpleasant experience of being scrutinized by a lawyer or an individual of the legal profession. In 1933 the Administration of Justice Act limited the right to use a jury so that juries could no longer be use d in cases that involved breach of contract. The present rules that outline the use of juries in the English legal system for civil cases are in Section 69 of the Supreme Court Act 1981 for High Court cases. Furthermore, the present rules that outline the use of juries in the County Court are in Section 66 of the County Courts Act 1984.

These Acts state that parties have the right to jury trial in civil case for the following types of cases;

Firstly, defamation, this involves cases of libel and slander. Defamation can be defined as “the communication of a statement that makes a false claim, expressively stated or implied to be factual, that may harm the reputation of an individual, business, product, group, government or nation.” This is the most frequent use of juries.

Secondly, False imprisonment allows parties to claim a jury ion a civil case. It can be defined as “wherein a person is intentionally confined without legal authority.”

Additionally, Malicious Prosecution joins the list, which “elements include (1) intentionally (and maliciously) instituting or pursuing (or causing to be instituted or pursued) a legal action (civil or criminal) that is (2) brought without probable cause and (3) dismissed in favor of the victim of the malicious prosecution.”

Finally, for cases of fraud, this is a deception made for personal gain.

These cases all involve personal reputation and it is simply for this reason that the jury trial must be retained and used in these instances.

Use of Juries in personal Injury Cases

In cases in the Queens Bench Division of the High Court, the parties have the power to appeal to a judge to include a jury in the trial but unfortunately approval is very rare. This situation has been brought about by the case Ward v James 1966 where the plaintiff was claiming for injuries in a car crash. In this case the Court of Appeal laid down guidelines for personal Injury cases. These were; Firstly personal injury cases should be tried by one judge alone this is because compensatory damages must be assessed and equated to the scale of damages inflicted or caused.

This is very difficult as there are often external costs that must be taken into account and it makes it difficult to attain a 100% perfect figure. Also there has to be exception circumstances before the court will allow a jury to be used.

This decision in effect almost stopped the use of juries in personal injury cases. For example in the case Singh v London Underground (1990) a request for a jury was to try a personal injury case involving the Kings Cross Underground fire was refused. It was deemed that the case was unsuitable for jury trial because it contained such wide points.

Additionally, the case H v Ministry of Defence (1991) further reinforced the courts reluctance to allow juries in personal injury cases. In this case the defendant was a soldier who had received negligent medical treatment which led to the amputation of his penis. He applied for a jury trial but it was once again deemed that juries for personal injury cases would only be used for very exceptional circumstances.

The court gave an example; where the injuries resulted from someone deliberately abusing their authority and there may be a claim for exemplary damages.

The reluctance to use a jury in such cases because of the case Ward v James has led to in the period October 2003 to July 2004 there were only 8 cases tried by jury in the Queens Bench Division and none were personal injury cases.

Trial by Jury in the County court has also become a rarity but since 1991 and the changes to the jurisdiction there are cases where it can be used.

Juries in the coroner’s court

In these courts a jury of between seven and 11 members may be used to enquire into deaths. A jury can be used in four separate types of cases, where there has been a death in:

Prison, Industrial accidents, Circumstances where health and safety of the public is involved for example the Marchioness tragedy on the Thames, police custody or resulting from an injury caused by a police officer in the line of duty.

Since 1977 a jury has the discretion to summon a jury.

Juries have such a large influence in the outcome of a case that they must understand all the points being presented, if they do not understand such points then they should not be used in wither a criminal or civil case.

Lay Magistrates

What are Lay Magistrates and what do they do?

The lay magistrates, or ‘Justices of the Peace’, as they are also known, are local people who volunteer their services. They don’t have formal legal qualifications but are chosen with regard to their local knowledge. They sit in the magistrate’s court as a bench of 2 or 3 magistrates. This has been restricted as the maximum after 1996 as seven magistrates were allowed before this.

After 1919 women were allowed to become lay magistrate. A single lay magistrate has very limited powers; they can however issue search warrants, warrants for arrest and conduct early administrative hearings.

Until the Courts Act of 2003 lay magistrates had to live within 15 miles of the commission area. Following this act the commission area was abolished.

Lay Magistrates have no legal training; they do however have requirements to their character. They must obviously be between the ages of 18 and 65 although those that are younger generally tend not to be accepted as a lay magistrate. IN 1998 the Lord Chancellor set out six qualities which candidates should have. They must have good character, understanding and communication, social awareness, maturity and sound temperament, sound judgment and commitment and reliability.

They must have certain judicial qualities and be able to assimilate factual information quickly. They must adopt an assertive position and be able to reason with others. They must also have a commitment to the voluntary work that they provide.

Criminal Cases

Lay magistrates must deal with up to 97% of all criminal cases and they deal with 3% of the preliminary hearings in the remaining 3% of cases. They therefore deal with all types of criminal cases and are likely to become case hardened because of this. The amount of cases that lay magistrates may see means that lay magistrates play an instrumental role in the resolution of criminal cases in particular.

Youth Court

This process involves a series of trained specialists to form a youth court. Here they convict young offenders between the age of 10 and 17 years of age for criminal convictions. It can be described as a specialized form of the magistrates' court. As in the magistrates' court, the case will be heard by magistrates or by a District Judge (magistrates' courts). The Youth Court is not open to the general public and only those directly involved in the case will normally be in court.

Appeals

Lay magistrates may also sit in the crown court to hear appeals from the magistrate’s court. In these cases the lay justices form a panel with a qualified judge.

Civil Cases

Lay magistrates will also deal with a series of civil cases, for example they are likely to deal with the enforcing of debts owed to the utilities (gas, water etc.) Additionally they may also deal with council tax and the non payment of television licenses.

Finally they will also hear appeals from the refusal of a local authority to grant licenses for the sale of alcohol and licenses to set up betting and gaming establishments.

They may also deal with firstly, Early Administrative Hearings, these are an arrangement in which issues, such as legal aid and advance information, can be dealt with at the earliest opportunity after a person has been charged and bailed to appear before a magistrates' court - the objective being to speed up progress of the case. These hearings can be conducted by a single magistrate or a legal adviser using delegated powers.

As well as early administrative hearings they must participate in remand hearings.

They will also deal with bail applications; these are as the name implies applications for bail for imprisoned defendants. Finally they may also take part in committal proceedings.

Conclusion

It is evident, that both Lay Magistrates and Juries play an instrumental role in the resolution of criminal and civil cases. However in my opinion as Lay magistrates deal with 97% of cases it is logical to conclude that they may play the larger role.

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(b) Examine critically the arguments for and against the use of either juries or lay magistrates in the English legal system. (60 marks)

Introduction

In recent years the use of Juries in the English Legal System has dramatically lessened. Although we do not want to promote the general use of juries as it is better for people to resolve their issues outside court, there are certain cases in which it is exceedingly useful to possess the attributes and resources provided from a Jury.

Juries have many advantages and many disadvantages; it is debatable to say that one side outweighs the other.

Main

What Is A Jury?

The use of a Jury has a series of advantages and disadvantages.

I intend to explore each advantage followed by a possible disadvantage that is available or vice versa.

Blue= Advantage

Red=Disadvantage

Public confidence

Firstly, the use of a jury promotes the confidence of the public, 12 separate individuals who usually have no legal training and are completely independent of the English legal system must decide a verdict on a case, this clearly implements the key ideologies of democracy and this is why a jury is one of the stamps of a democratic society. The process of voting and unanimity and majority verdicts also expresses the ideology of democracy. This is likely to appeal to the public.

Furthermore the very principles of a jury system express the right to be tried by ones peers and opens up liberty to everyone. The jury system has been supported by a range of judges and is described by Lord Devlin as “the lamp that shows that freedom lives”. The general method of the jury is generally perceived with fairness, justice and impartiality. The public has confidence in such a traditional method.

On the other hand one key disadvantage of this process is that these 12 complete strangers may not be capable of doing such a difficult task, even if the public has confidence in the process of trial by your peers, it is not always certain that these peers will be able to try to a high enough standard. This is especially the case for cases that are particularly detailed or extremely complex. This is one of the main reasons why juries are not used very frequently. It is very important for Juries to be capable of performing their job and giving a verdict after understanding and debating all of the key facts of the case. If they are incapable of doing so then the public confidence placed in them is simply misled.

Juries are often criticized on the grounds that they acquit too many defendants. About 60% of all cases have the defendant being acquitted however this doesn’t give an accurate portrayal as it includes cases discharged by the judge and those in which the judge directed an acquittal.

This misdirects the public confidence.

Jury Equity

Juries are not legal experts and are not capable of giving a verdict based on the legal facts of the case and are not bound by precedent or even Acts of Parliament. This then leads to the following question. How do Juries make their decision? It is simply based on what is called jury equity. This can be described as deciding a case on what seems to be the “fairest” ruling. This can often avoid decisions that judges or legally trained professionals would have made, that may have been an injustice but are deemed legally correct due to the wording of an Act or Statute, while Juries can make decisions that avoid absurd rulings and seem fair.

This is evident from the Pointing’s Case (1985) in which a civil servant was charged under the old wide ranging section 2 of the Official Secrets Act 1911. He had leaked Information on the sinking of a ship in the Falklands war to a Member of Parliament. He pleaded not guilty claiming that his actions had been in the public interest. The jury refused to convict him even though the judge ruled that there was no defense for his actions. The case Led to Government reconsidering the law and to amend section 2. Jury equity can avoid perverse results and in my opinion can provide the most efficient justice.

On the other hand the Disadvantage of Jury equity is that even though juries can ignore law that they feel is unjust it can sometimes lead to perverse decisions. These are decisions that are not justified. This means that it is possible to have a clear cut case in which one side has no defense and that side still wins. As seen in the pointing case. In some ways it could be argues that this undermines the relevant legislation as the Jury is in effect making the point that the legislation is ineffective and would cause an unjust result if applied rigidly.

An example of such a decision is in the case R v Randle and Pottle (1991) where the defendants were charged with helping the spy George Blake to escape from prison. Their prosecution did not occur until over 25 years after the escape when they wrote about what they had done. The Jury acquitted them; this may have been because of the difference in time between the actual prosecution of the defendants and the time of the escape.

Open System of Justice

The use of a jury is generally viewed as making the legal system more open, as lay people are used and it is ordinary members of the public; it seems to be open and fair. If a judge alone sentenced and decided your verdict it would seem unfair to the offender.

This open system of justice helps keep the law much clearer as all legal points must be explained to the jury and this enables the defendant to understand much more easily. The fact that court decisions are widely publicized enforces the ethos of an open system of justice.

However, the publicity of cases is not always a positive aspect. Cases can suffer from high media coverage which leads to influencing the Jury.

For example in the case, R v West (1996) in which Rosemary West was convicted for the murders of 10 young girls and women, including her own daughter. After the discovery of the bodies the media coverage was intense. Additionally, some newspapers had paid large sums of money to some of the witnesses in order to secure their story after the trial ended. One of the grounds in which rosemary west appealed was that the media coverage had made it impossible to receive a fair trial. The Court of Appeal rejected this notion, due to the fact that it would mean if “allegations of murder were sufficiently horrendous so as to inevitably shock the nation, the accused could not be tried”. They also said that the trial judge had given significant warning to the jury to not be deluded by what they had heard in the media.

Another case that portrayed the media’s influence was R v Taylor and Taylor (1993) in which 2 sisters were charged for murder. Some newspapers portrayed an image of a video clip that gave an inaccurate portrayal of what had happened. The judge gave them leave to appeal because of the influence of such a picture. The Court of Appeal quashed the convictions.

Also when the five prostitutes were murdered in Ipswich in 2006, a member of the Crown prosecution service informed the Jury to be careful in any further coverage.

It is widely known that the Media can affect a jury.

Secrecy

All deliberation done by the Jury is done in a secret room that cannot be entered by anyone but the members of the Jury and there can be no inquiry into how they reached their decision. Section 8 of the Contempt of Court Act 1981 makes the disclosure of anything that happened in a jury room a contempt of court which is a criminal offence. It is contempt to “obtain, disclose or solicit any particulars of statements made, opinions expressed, arguments advanced or votes cast by members of a jury in the course of their deliberations in any legal proceeding”.

This is an advantage because they are completely free from outside pressure and can express arguments or opinions that may be publicly harsh or unpopular. It also allows Juries to ignore the strict line of the law. Additionally it has also been suggested that people would be a lot less willing to serve on a jury if they knew that their discussions would be made public. It basically, protects the jury from all outside influences and protects the vote of each jury member therefore, it protects the verdict.

This can also be a disadvantage because no reason has to be given for the verdict. This means that there is no way of knowing what was said or how the decision came about. This could mean that the decision could have been made for the wrong reasons.

In the case R v Mirza (2004) the House of Lords ruled that it could not inquire into the discussions of the Jury room. Two cases were considered in the appeal. These were; R v Mirza and R v Connor and Rollock.

In Mirza the defendant was a Pakistani who settled in the UK in 1988, he had an interpreter and the jury sent notes asking why he needed an interpreter. He was convicted on a 10-2 Majority. Several days after the trial a juror wrote to the defendants counsel saying that there had been a theory that the use of an interpreter had been a ploy and that she had been shouted down when she had objected and reminded her fellow judges of the judges directions.

In Connor and Rollock a juror wrote to the Crown Court stating that while many jurors thought that it was one or the other defendant that had committed the crime some said they should sentence both to teach them a lesson. This was before sentencing but after the Verdict. The juror argued that when she had tried to make them consider who was responsible they had said that it could take up to a week to decide on a verdict.

The House of Lords ruled that section 8 of the contempt of court Act 1981 meant that her information could not be acted upon.

The only exception is where their may be an inquiry into the actions of the jury are if it occurred outside the jury room. In the case R v Young Stephen (1995) the defendant was charged with the murder of two people. As the jury had not come to a verdict by the end of that day they had to stay overnight in a hotel. At this hotel some members of the jury held a séance on an Ouija board to contact the dead victim. The next day they came back with a Guilty verdict. When the use of the board became known the defendant appealed and the verdict was quashed and a re trial was ordered.

There are many problems with the secrecy of the Jury as we are not able to know what discussion has taken place or whether the juror has understood the case at all.

Impartiality

A jury must be completely impartial at all times. This is usually the case as they are not involved in the case and do not know anyone involved. The process of random selection ensures that they remain impartial. If the random selection is a true representation of society there should be an impartial jury as each person has different prejudices and this should cancel out bias. Additionally no one person is responsible for the decision. It is a collective decision from all members of the Jury.

After the end of the case the jury will dissolve and become as Sir Sebag Shaw said “anonymous and amorphous”

Even though the jury must be impartial and is likely to be impartial in most cases, there is still a possibility of types of prejudice such as racial bias affecting the result of a case.

An all white jury trying an ethnic minority can be viewed with suspicion.

In the case Sander v United Kingdom (2000) the European court of Human rights ruled that there had been a breach in Article 6 of the European Convention on Human rights. In the case a juror had written a note to the judge during the trial raising concern that some of the jurors had been making openly racist remarks.

The judge asked the jurors to search their consciences. The next day the judge received two letters, one from the jury claiming that no racist remarks had been made and signed by all members of the jury and one from an individual juror in saying he may have been the one making the jokes. Despite the discrepancies in the letters the judge allowed the case to continue. The judge should have discharged the jury.

Fraud Trials

A major disadvantage of the Jury process is that fraud trials and other complex civil cases create special problems for jurors. Jurors who can easily cope with factual information and such can understand a case easily. However, even they may struggle with the complexity of such fraud trials. This comes as a major disadvantage because it becomes very easy to give the wrong verdict or to not even understand the verdict.

These cases tend to go on for very long periods of time.

More Disadvantages and advantages

Cost

A major disadvantage of the use of juries is the cost apportioned to setting up a court case and selecting a jury. Civil cases in particular are very expensive.

Juries have cost the Department for Children, Schools and Families more than £500,000 in four months. At the end of the case the losing party will have to pay the costs of the case which may amount to hundreds of thousands of pounds.

As a result of this the Lord Chancellor has introduced some reforms so that defamation becomes less costly. Firstly it is now possible to switch the case to the county court where there will be 8 judges and lower costs.

Secondly, the parties may also agree to the case being tried by a judge alone without a jury. This allows a quick and easy procedure.

Alternatives to the use of juries

There are alternatives to jury trials that could be used in courts due to these disadvantages explained. These could be trial by a single judge, trial by a panel of judges, trial by a judge plus a panel of lay assessors. Perhaps even a mini-jury using 6 members could be efficient in the process of decision making.

The most prominent Advantage

In my opinion the most prominent advantage of Jury service is the impartiality of the randomly selected process. The process of random selection ensures that they remain impartial. If the random selection is a true representation of society there should be an impartial jury as each person has different prejudices and this should cancel out bias.

This is such an important advantage

The most prominent Disadvantage

In my opinion the most prominent disadvantage of Jury service is in my opinion the problems caused by the secrecy of the Jury room. All deliberation done by the Jury is done in a secret room that cannot be entered by anyone but the members of the Jury and there can be no inquiry into how they reached their decision. Section 8 of the Contempt of Court Act 1981 makes the disclosure of anything that happened in a jury room a contempt of court which is a criminal offence.

This is a serious disadvantage and can cause serious problems.

Conclusion

In my opinion, the disadvantages of the use of juries far outweigh the advantages. The problems involved with secrecy, media influence, racial bias, lack of understanding and more cause a serious deterrence in the use of Juries. In today’s modern society the issue of juries has become outdated and inefficient. Therefore in my opinion new and more up to date methods of trial should be ensued. Perhaps some of the alternatives to Jury service should be considered and perhaps implemented on a much more regular basis.

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Bibliography

Ø The English Legal System by Jacqueline Martin

Ø The English Legal System Course Companion and Revision Guide by Jo Smillie

Ø http://www.hmcourts-service.gov.uk/infoabout/jury_service/index.htm

Ø http://www.cjsni.gov.uk/index.cfm/area/information/page/whatisjuryservice

Ø http://en.wikipedia.org/wiki/Defamation

Ø http://en.wikipedia.org/wiki/False_imprisonment

Ø http://en.wikipedia.org/wiki/Fraud

Ø http://en.wikipedia.org/wiki/Malicious Prosecution

Ø http://www.magistrates-association.org.uk/branch_information/glossary.htm

Ø http://www.hmcourts-service.gov.uk/infoabout/magistrates/youth.htm

Ø http://www.guardian.co.uk/politics/2007/oct/23/children.immigrationpolicy