Is there a need to reform trial by jury?

1211397834_80_177_117_97I spent the first two weeks of the year on jury service at Southwark and Blackfriars Crown Court (pictured).  It was a fairly time-consuming exercise, even though court sittings could be described at times as leisurely.  Part of the time was spent waiting and part of the time was spent worrying one might be selected for a case expected to last for several weeks.  I almost got selected for one expected to last ten weeks.  In the event, I served on the jury on three short trials.

Knowing I was doing jury service, a colleague in the Lords, Lord Brown of Eaton-under-Heywood, a former member of the Supreme Court, sent me a copy of the High Sheriff’s Law Lecture he gave at Oxford University in 2010, entitled ‘Are Juries a good thing?  The jury is out’.   In the lecture, he raised some fundamental questions about the value of juries.  He recognised the range of experience brought by those selected for jury service, and various other merits attached  to trial by jury, but took the view that they were not necessarily especially good at convicting the guilty and acquitting the innocent.  He noted that the conviction rate was some 70% in magistrates’ courts and 60% in jury trials.  He saw long and complex trials as particularly problematic.  He also saw it as a defect that juries do not give reasons for their verdicts.  It is now an offence, under the 1981 Contempt of Court Act, to disclose what went on in the jury room  – which is why I am confining my comments to the principles of trial by jury and to the way the process operates.

I can appreciate Lord Brown’s doubts, not least in respect of long trials.  My concern is more immediate and practical.  It concerns the process of calling people for jury service.   The selection is necessarily random, drawing names from the electoral register.  The result is that some people are called for whom giving up two weeks is difficult.  Some people who are keen to do jury service are never called at all.  When I mentioned to one or two friends I was going on jury service, their response was ‘You lucky thing, I wish I was doing that’.  I did not exactly share their enthusiasm.  There are people who would not only be happy to serve on a jury, but also be willing to serve on one lasting several weeks.  If their services could be tapped, it would save time when it comes to jury selection.   Given the commitments that people have, selecting jurors for a long trial can be problematic.

I am now giving thought to how we can maintain the basic principle of drawing people at random for jury service, but at the same time drawing on the services of those who are keen to serve, especially in trials that may be lengthy.  Watch this space.

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About Lord Norton

Professor of Government at Hull University, and Member of the House of Lords
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23 Responses to Is there a need to reform trial by jury?

  1. maude elwes says:

    Trial by Jury or our peers is fundamental to the needs of true justice. To try and do away with it has more to do with the ‘fifth collumn’ than with what is keeping us all safe. Thomas More of Henry VIII th days knew more than most about the need for an open court and one that relied on his neighbour to judge him, than we do today.

    I was called for Jury duty about six years ago. It was a hot day, so I wore a straw hat. Didn’t take it off when I went inside. As a result, I was challenged as unsuitable. Too posh they thought. Well, you know, washed and combed hair, clean outfit, I stuck out like a sore thumb. Anyway, that’s it for life, I shall never be called again.

    As an aside, what has happened to Lords of the blog? No posts have gone up for over a week now. And even if mine appear too controversial for airing, others must surely have written a few words? Are they all censored?

    • Lord Norton says:

      maude elwes: Unfortunately, men cannot wear hats in court, so I could not use that as a means of being excused. If they could, I may have invested in a bowler…

      On Lords of the Blog, if the moderator does not approve comments, it is left to the authors of each post to allow comments. If they don’t check regularly, there may be a delay. I do check regularly, so any comments for my posts appear quite quickly.

      • maude elwes says:

        You mean, LN, you don’t have one? Goodness gracious, are you saying you also don’t have a top hat either? How do you manage at the very formal occassions where such a piece of equipment is a necessity?

        https://andrewsandpygott.wordpress.com/traditional-morning-dress/

        My straw is what I wear in the garden when the days are too hot for comfort. So, as it was one of those, I stuck it on in order not to get too many rays as I walked there. And you are right, being female does allow you the privilege to keep it on. All to do with understanding the female need for coiffure.

      • Lord Norton says:

        maude elwes: I am thinking of getting a top hat to go with my morning suit, even though the opportunities to wear it, as opposed to carry it, will be few and far between.

  2. Mark Shephard says:

    You would need to be careful that those desperate to serve were representative of the wider populace (both in terms of demography and attitudes and beliefs)

    • Lord Norton says:

      Mark Shephard: if everyone willing to serve on trials beyond two weeks were to tick a box on the electoral registration form, one may well get a wide body of people willing to serve.

  3. maude elwes says:

    @ Mark Shephard:

    And judges, I assume, are representative in terms of demography, attitudes and beliefs. And of course those who prime them prior to the case being heard. Makes a big difference that!

    And just to put it on record, I, for one, am not desperate to serve in any shape or form. However, dragging all the way to the local court, having set aside various tasks, only to be considered not criminal looking enough, is in essence, banning a very large portion of the indigenous British public from their role in the upkeep of the law they live by. Which results in the crock we read on removing the jury altogether.

  4. James Hand says:

    If people were to serve on juries more often – which might happen if the willing were prioritised – there could be a risk of altering the dynamics (the inexperienced looking to the ‘regulars’ and reducing the representative element). However, I understand a decade ago around 500,000 people served a year (with a 1 in 6 change of ever being called and some being called more often, it being random) across roughly 80 courts and while I would assume the numbers have fallen in recent years the risk of regulars may not be high.

    There are arguments on both sides for the value of jurors at e.g. http://barristerblogger.com/2014/05/29/everyones-got-juries-wrong/ and http://www.halsburyslawexchange.co.uk/jury-trials/ but today’s report by the President of the Queen’s Bench suggests the right may be curtailed (chapter 10), following the reduction in civil juries.

    On a connected note the Institute of Criminal Justice Studies have some interesting research into the operation of juries (e.g. two panels of six provide for more active involvement and structured note-books help with deliberations).

    • Lord Norton says:

      James Hand: I was conscious that by the time I served on the third jury, I was becoming something of a ‘regular’. There may be a case for drawing on a wider body of electors, but providing that they serve only on one jury. For trials expected to last for several weeks, one could select randomly from those who had ticked a box on the electoral registration form indicating their willingness to be on such juries, assuming that the number ticking the box was a large one. On speeding up trials, courts could certainly sit for longer, moving from their current short days.

      • Croft says:

        On time issue: You have a all but ‘mandatory’ delay on starting while some short matters are heard and its well after 10 am. Setting aside delays for legal points (fair enough) without the jury when everyone troops in an out you then get anywhere near lunch and its a remotely convenient break suddenly its time to stop early – but oddly not come back just as early! The same is true at the end of the day – which is closer to a school day than a work day.

  5. tizres says:

    Lord Norton, given you have no other reason to register on the electoral roll, I commend you for your civic engagement. A couple of questions, if I may: were the jurors the same for each of the three trials, and were you volunteered to be the foreman on any? In case the answer is yes to the first one, did you notice any progress in how your fellow jurists came to their verdicts?

    • Lord Norton says:

      tizres: I think your last question draws me into territory into which I think I should not be drawn. On your first, there was some overlap, in large part because when jurors were being selected for a particular trial the only ones not already serving on cases were those who had just completed a case. I was jury foreman for one of the juries on which I served.

    • Lord Norton says:

      Croft: Although I was probably the only person in the building entitled to be so addressed, my natural modesty took over…

  6. Croft says:

    I heard an old lawyer make this argument – paraphrased – ‘Some judges seem to find having juries decide things they disagree with objectionable. Much better and cheaper the logic goes to go to have them act as judge and jury because what we need in our justice system is even more power concentrated in the hands of few people we don’t appoint, can’t sack and are accountable only to people identical to them!’

    “He noted that the conviction rate was some 70% in magistrates’ courts and 60% in jury trials.”

    So? Mags cases are far simpler generally and the consequences of conviction far less serious. Doesn’t seem unreasonable that juries are more conscious of the need to prove beyond reasonable doubt.

    “He saw long and complex trials as particularly problematic.”

    Since the length is partly the responsibility of the judge – and some are markedly quicker and less tolerant of time wasting than others I don’t see this as a fault of the jury. Other countries with our system seem to manage shorter trials.

    “He also saw it as a defect that juries do not give reasons for their verdicts.”

    Could I be cynical and suggest that if juries gave reasons the judiciary would give themselves carte blanche to overturn decisions they didn’t like. And since length is an objection in the previous point above – how could this do anything but add length to appeals as we’d have a whole slew of new grounds for the vexatious and publicly funded.

  7. Dean B says:

    I do remember having my confidence in trial by jury shaken by the first Vicky Pryce trial

    http://www.theguardian.com/uk/2013/feb/20/vicky-pryce-retrial-jury

    Hopefully that was exceptional.

  8. miafritz says:

    HEARD IN A COURTROOM (by Legal Cheek)
    JUDGE: Can I just stress to the jury the importance of paying attention to all the evidence no matter how tedious, as your decision can have dramatic impact on Mr *************’s future
    JUROR: What does tedious mean?

  9. maude elwes says:

    How odd my post showing the result in South Africa at not having a jury hasn’t arrived on the thread. Mmm. I wonder why that is? The Pistorius trial was an excellent example of fairness in non jury trials.

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