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Criminal Justice Act 2003 Examining Jury Change Methods Law Essay

In order to appreciate the changes wrought by the Criminal Justice Act 2003 to the make up of a jury, the procedure by which jurors may be challenged and to critically examine the continuing relevance of a jury in the face of complex, emotive and legally ground breaking cases it is important to consider the history of the jury to explore to what extent the Criminal Justice Act 2003 has altered the role they play in the current legal system. The origins of the jury in England and Wales can be traced back to Anglo-Saxon times when local community members in certain parts of the country would come together to pass judgement upon disputes and crimes. [1] This right to such a trial by one's peers having been enshrined in the Magna Carta of 1215 in the writ of Habeas Corpus. By 1166 the Assize of Clarendon had led to these juries being systematically adopted across the country. Contrary to current practice, in which jurors are well guarded about what evidence is admissible or inadmissible in reaching their decision, the juries found in this period of history were what was called "self-informing." [2] This meant that the members of the jury heard very little direct evidence or testimony given to them in actual court. Rather, jury members were selected from the area surrounding the crime or dispute and were then expected to arrive at the trial armed with knowledge of the facts before they came to court. [3] Acceptable sources of knowledge for a juror ranged widely and could include both first-hand knowledge, results of their own investigation and less credible sources such as hearsay and rumour. The system of selection of the jurors was left to a local magistrate or under-sheriff who was required to assemble a panel of subjects to try the case. This system was open to widespread abuse both by those seeking to avoid jury service and those hoping to address private grievances through their participation in a particular trial. [4] 

Thus to ensure such malpractices were avoided, by 1730, Parliament had passed the Bill for Better Regulation of Juries. [5] This Act of Parliament stipulated that the list of all those liable for jury service at any one time was to be posted in the respective parish and that panels of jurors were to be selected at random by drawing lots. Such a process, which came to be known as sortition, had, as its main aim, the objective of preventing the wealthier middle and upper class citizens in a parish from evading their judicial responsibilities by bribing the under-sheriff to pass over them when selecting a list of jurors for a case. Judging from such attempts to regulate the abuses of the judicial selection procedure, it is clear that there is considerable parliamentary and democratic support for the view that sitting upon a jury is a civic duty required of anyone called to serve as such. [6] Similarly, the principle that an accused person may only be subject to punishment, imprisonment or penalty after a judgement made by a number of his peers has a long history in British democracy, and is a fundamental rule which goes some way to protecting an individual subject from the arbitrary use of executive power. Given its fundamental status in a democratic society such as Britain, any legislative amendments which seek to alter the make up or procedure of jury trials in the United Kingdom are bound to met with considerable criticism.

Criminal Justice Act 2003

The Criminal Justice Act 2003 made two highly significant changes to the law affecting juries. The first related to who could sit upon a jury and the second was directed, perhaps more controversially, at circumstances when a jury may not be required to try a defendant at all. Section 321 together with schedule 33 of the Act amended the main statute which deals primarily with the government of jury service, namely the Juries Act 1974. [7] The amendment contained in the section of the new Act was to abolish (save in the case of mentally disordered persons) the categories of those ineligible for, and prima facie excusal "as of right" from jury service, as originally set out in the 1974 Act. This amendment ensured that a particular group, whom before the amendment was enacted, must not, or need not, commence service upon a jury, would in the future be required to do so like other citizens unless they could show that they had good reason not to. These provisions came into force on 5 April 2004 and they affected the selection of jurors from particular professions which previously had been excluded from consideration. [8] Traditional arguments made for the exclusion of jurors from certain walks of life range from the detrimental effects taking particular (especially highly skilled or specialised) professionals out of their work may have on society. Adopting a utilitarian analysis, these disadvantages have been traditionally considered to outweigh the civic requirement to serve as a juror. Also arguments have been raised that the presence of particular persons in a jury will have an unwanted effect upon the other members of the jury – such as the presence of a legal executive, solicitor or barrister – whose opinion could in theory sway a jury more strongly than that of a non-specialist. [9] Similarly, over familiarity with the judicial system might be said to nullify some of the possible benefit of having a trial by jury in that each member's decision supposedly embodies an intrinsically moral and democratic judgement upon one's peers, rather than giving a judgement based purely upon a legalistic analysis of the facts presented by either plaintiff or defendant.

After the new provisions in the 2003 Act came into force, additional questions arose concerning the effects of requiring some categories of people in society to serve on juries. [10] As the bill passed through Parliament it was suggested that the public would suffer disproportionately when certain professionals were not, because of their commitment to jury service, available to carry out their normal services. For example, jury service carried out by medical practitioners could have a serious effect on the quantity and quality of services provided to patients of the NHS. Furthermore, the number of operations which a surgeon could oversee or carry out in a year. Similar questions are posed by the new Act about how the service of a judge (in a civic capacity) on a jury will affect the waiting time for trials as trial windows need to be rearranged and workloads reallocated. Addressing similar concerns The NHS Alliance, which represents GPs, claimed at the time the bill was being discussed, that some single-practice surgeries may have to be closed because of a shortage of locums to replace them temporarily. These concerns were raised as the bill passed through Parliament – particularly through the House of Lords. In oral questions in the House of Lords Lord Livsey of Talgarth commented:

In one case, a single-handed GP had to close down her surgery for weeks; in another, a barrister was called for jury service in his own court's area; and, in another, a hospital consultant was appointed to a jury, with the resulting cancellation of operations. In another case, a judge was appointed to a jury. I do not know what the other jurors thought of that. The result is even longer waiting lists for the NHS and court cases. Will the Minister re-examine this matter? It has quite an impact on important aspects of society and services. [11] 

Lord Skelmersdale asked:

How can a hospital consultant with the inevitable waiting list of patients find a time within 12 months convenient to them to serve on a jury? [12] 

Baroness Scotland of Asthal replied:

… If we are told well in advance, most of us have one or two weeks when we can make ourselves available to discharge our public duty. However, if a person can genuinely show that there is no period within the next 12 months when they could reasonably be expected to attend—for good and exceptional reasons—they can be excluded, but the presumption is that everyone, if called upon, should serve. [13] 

Viscount Bledisloe suggested that there were some types of people who performed services for the community which outweighed the value of jury service, which they would have to do during their limited holidays if it was not to reduce their other public service. These concerns were ultimately to fall on deaf ears as the Act when eventually passed held that no such exceptions were to be made as of right and those individuals from such public sector jobs or organisations would have to demonstrate that there was good reason not to serve, on an individual basis, in a particular trial.

When considering such professionals and their possible continuing exemption from jury service, particular discussion was given over to the presence of and possible undue influence that judges and other legal professionals might have over other members of the jury. Concerns have also expressed about the influence which professionals such judges and police officers might have on their fellow jurors. This issue was once again heavily scrutinised in the House of Lords. Lord Ackner suggested that there was a risk of a judge’s presence eroding jury trial. Such a concern ties into the earlier contention that at the heart of a jury trial remains a commitment to a moral and democratic judgement rather than an overly legal or technical approach being too readily adopted. Baroness Kennedy pointed out that the American experience of judges sitting on juries, which Baroness Scotland said worked quite well, was not an apt comparison: in the United States it was still possible to challenge jurors. Following from the change in the rules implemented by the 2003 Act, one Lord Justice of Appeal and one Family Division High Court Judge were also soon summoned for jury service and these calls to serve prompted the then Lord Chief Justice, Lord Woolf to offer specific guidance to judges about how to conduct themselves upon a jury. Similarly queries were placed over the wisdom of employing police officers in a jury.

However despite strong calls for change the former Home Office Minister Hazel Blears said that the Government had no intention of amending the provisions in the 2003 Act relating to jury service. [14] As well as political discussion over the issue, several cases highlighted the changes brought about by the 2003 Act. In R v Abdroikov (R v Abdroikov; R v Green; R v Williamson) [15] and others, the Court of Appeal rejected arguments that police officers, members of the prosecution service or other persons involved in the administration of justice, including judges, should, because that was their occupation, be automatically disqualified from a jury. [16] Their special knowledge of the criminal justice system could mean that they could draw inferences, but the guidance which they received both before and after they became members of the jury should avoid their using that knowledge in a way which was unfair to the defendant: it was to be hoped and expected that those who were employed in the administration of justice would be particularly careful not to act in a manner which was inconsistent with their duty as members of the jury and in particular, to exercise the independence of mind which was required of all jurors and to be on their guard to reach their verdict only on the evidence in accordance with the trial judge’s directions.

In similar cases on this issue which reached the House of Lords two go to the heart of this issue under discussion here. One concerned where a police officer had been on the jury and another where a Crown Prosecution Service (CPS) lawyer had served as a juror. When conducting the case and reaching their judgment, Baroness Hale stressed that there was no attack upon the 2003 legislation itself. There had been no suggestion of actual bias on the part of jurors, but the majority of their Lordships considered that, in two of the cases, the appellants had not been tried by tribunals which appeared to be impartial. The police officer juror shared the same local service background as the police officer whose evidence conflicted with the defendant’s. Such a set of circumstances went so far as to make it almost impossible for the public to perceive that any judgement was reached based solely upon the objectivity of the particular jurors. In a similar vein, Baroness Hale said that it was inconceivable that the Director of Public Prosecutions could sit as a juror in a case prosecuted by the CPS, irrespective of whether or not he had been personally involved in the decision to prosecute, although there would be no objection to his sitting in a case prosecuted by some other person or authority. In her view the same analysis must apply to a CPS lawyer. What is interesting here is how it is as much the perception of a jury's impartiality that is as important to the effective running of the judicial process as it is the actual objectivity of any one juror. The new legislation has raised questions of jurors which the previous exclusions avoided, although this means each instance of possible jury bias can now be addressed on its own facts it does increase the cost and length of assessing such issues judicially when an outright exclusion would have saved considerable time and avoided the cases discussed above having come to court.

Since that the Act is now on the statute book, considerable guidance has been prepared and published for summoning officers to indicate how to deal with particularly thorny issues thrown up by the new legislation. The guidance sets out the principles which summoning officers should observe when exercising their discretion when considering applications for people to be excused or have their jury service deferred. It makes specific reference to Members of Parliament and the Speaker. As well as the erosion here of the doctrine of the separation of powers, by having member of the executive and legislature actively participating in the the judicial process, there is considerable danger of political reasons being read into judgements made when politicians serve upon juries. The guidance offered to summon officers’ states that members of parliament who seek excusal of jury service on the grounds of parliamentary duties should be offered deferral in the first instance. This flexible approach is echoed elsewhere in the guidance note and it is noted that if an MP feels that it would be inappropriate to do jury service in their own constituency, they should be allowed to do it elsewhere in the country. Similarly, and in a striking difference to the treatment of judges and medical practitioners, the Speaker of the House of Commons and his deputies, because of the difficulties their absence from the House would cause, should in the first instance be deferred to a time when Parliament is not sitting. Such a differing set of standards can be criticised since effectively ceremonial positions are being excused from jury service even though important public servants such as doctors and nurses are not. This unusual exclusion for the officers of the House of Commons undermines the argument put forward by the government that even busy practitioners can find time out of their workload to serve on a jury when such political officers apparently cannot.

The second major alteration to trial by jury made by the Criminal Justice Act 2003 was inclusion of legislation that allowed in certain circumstances for the trials to be heard without the presence or ultimate decision of a jury. Part 7 of the 2003 Act was to allow for trials on indictment without a jury on the application of the prosecution in certain fraud cases and in cases where there is a danger of jury tampering. [17] Certain clauses in the Bill were also to have provided for trial without jury on the application of the defendant. Following the Bill’s passage though the House of Commons all the measures providing for non-jury trial on indictment were rejected by the House of Lords. In negotiations to secure the passage of the legislation through Parliament former Home Secretary David Blunkett offered an amendment, now set out in section 330(5)(b) of the 2003 Act under which the provisions of section 43 can only come into force if they are approved by resolutions of both Houses of Parliament under the affirmative procedure. Additional last minute changes were incorporated into the Bill in order to get the Bill passed through both the Commons and the Lords. Blunkett was ultimately forced to drop some of his plans to restrict the right to trial by jury. There were three key areas which sparked heated political debate over the Bill and which were ultimately rejected by the House of Lords. These were: allowing defendants to choose a judge-only trial; restricting the right to jury trials in long and complex fraud cases; imposing a judge-only trial in cases of jury nobbling. In a bid to secure an agreement, Blunkett dropped the most controversial proposal that an accused person could choose between a judge only or jury trial in the crown court, a proposal from the Auld report. In a further concession, Mr Blunkett also proposed that the Lord Chief Justice would decide in long and complex fraud cases whether the jury should be abandoned, and instead let the case be heard solely by a judge. The government also promised that a judge would be required to consider whether a defendant could get a fair trial in a case of jury nobbling. The effect of section 46(3) is that, where there has been jury tampering, the judge may not continue the trial without a jury unless to do so would be fair to the defendant(s).

Correspondingly, Part 7 has not been brought into force. In June 2004, former Attorney General Lord Goldsmith was reported to have said that plans to remove juries from complex fraud trials were to be revived within months and that he hoped a consultation on alternatives to jury trial would be issued before the end of 2004. [18] In June 2005 he made a statement dealing with the Government's intention to implement s 43 of the Criminal Justice Act 2003 in order to ensure that people accused of serious frauds do not escape justice. It was proposed that the implementation of this provision for trial without jury in serious and complex fraud cases would be subject to judicial safeguards. Following from this the Government decided that they would seek affirmative resolutions from both Houses of Parliament in order to implement Section 43. Section 43 enables serious and complex fraud trials to be conducted by a judge sitting alone without a jury. The provision can operate only where the judge is satisfied that the length or complexity of the trial is likely to make it so burdensome upon the jury that the interests of justice require it, subject to the Lord Chief Justice's approval in each case. [19] A draft commencement order designed to bring section 43 and a number of other provisions in Part 7 of the 2003 Act into force was considered and approved in standing committee in the House of Commons in November 2005. The order was then due to be debated in the House of Lords but the Government withdrew the motion to approve it, reportedly because it was concerned that it might lose the vote on the motion. The Attorney General subsequently said that the Government remained committed to the policy set out in section 43 of the 2003 Act but that, rather than bring forward an order to implement it, the Government would introduce fresh primary legislation to give effect to it as soon as parliamentary time allowed.

The Fraud (Trials without a Jury) Bill 2006-07 was introduced in November 2006, to repeal section 330(5)(b) of the Criminal Justice Act 2003 and require that any application under section 43 of the 2003 Act for an order for a non-jury trial and any resulting non-jury trial be heard by a High Court judge exercising the jurisdiction of a Crown Court judge. The Bill was given a Third Reading in the Commons on a division of 281 to 246 votes, but it was voted down on Second Reading in the House of Lords by 216 to 143 votes. [20] In light of this rejection Lord Goldsmith warned that “It will be no surprise to anybody, therefore, for me to make plain that this Bill, if rejected today, will be reintroduced next Session, with a view to using the Parliament Acts”. This meant that the government would seek to force through the bill despite opposition from the House of Lords.

One of the key issues analysed throughout is that the essential ingredient of a jury is the use of a democratic element of society in reaching a decision about the accused. Although costly and potentially open to bias and corruption, jury trials remain at the heart of criminal justice in this country both due to their historic importance and their contemporary relevance in importing a degree of flexibility and public opinion into legal cases and decisions. [21] This trait is also echoed in other elements of the criminal justice system – such as the tests used for theft and deception offences – namely the Ghosh test which echoes the call for the judgement of the reasonable or average subject that lies at the heart of jury service. [22] Similarly, the role of the jury is in itself potentially very dramatically democratic. Juries can reach decisions which they feel are morally correct, despite current legal frameworks or are compassionate or specific only to the current case in a way no judge, bound more tightly to the letter of the law ever could. In the UK, this power exists often called "jury equity". [23] This enables a jury to reach a decision in direct contradiction with the law if they feel the law is unjust. This can create a persuasive precedent for future cases, or render prosecutors reluctant to bring a charge – thus a jury has the power to influence the law in a way no judge could. Perhaps the best example of modern-day jury equity in England and Wales was the acquittal of Clive Ponting, on a charge of revealing secret information, under section 2 of the Official Secrets Act 1911 in 1985. [24] Mr Ponting's defence was that the revelation was in the public interest. The trial judge directed the jury that "the public interest is what the government of the day says it is" – effectively a direction to the jury to convict. Nevertheless, the jury returned a verdict of not guilty. [25] Another example is the acquittal in 1989 of Michael Randle and Pat Pottle, who confessed in open court to charges of springing the Soviet spy George Blake from Wormwood Scrubs Prison and smuggling him to East Germany in 1966. [26] Pottle successfully appealed to the jury to disregard the judge's instruction that they consider only whether the defendants were guilty in law, and assert a jury's ancient right to throw out a politically-motivated prosecution, in this case compounded by its cynical untimeliness.

Conclusion

It has been analysed that in order to appreciate the changes wrought by the Criminal Justice Act 2003 to the make up of a jury, the procedure by which jurors may be challenged and to critically examine the continuing relevance of a jury in the face of complex, emotive and legally ground breaking cases we had to review the history of the jury in order to explore to what extent the Criminal Justice Act 2003 has altered the role they play in the current legal system. It has been detected that in its current form the revisions are slight but rather it is the potential mechanism that lies within the Act to implement more widespread changes which have stirred the most debate and caused the most concern amongst academics, commentators and jurists. The origins of the jury in England and Wales are well founded and amendments to these principles are strongly contested by those who feel that these more constitutional elements of British law are being eroded or replaced.

Despite contemporary security concerns at the time the Act was implemented, the belief in the essential characteristics of the jury trial remained strong and it was felt that they were not subject to amendment. Judging from the historic and more recent attempts to regulate the abuses of the judicial selection procedure and the hope to streamline and save costs in failed trials and juries sitting for extremely long periods in complex fraud trials, it is clear that there is considerable parliamentary and democratic support for the view that sitting upon a jury is a civic duty required of anyone called to serve as such and this right should not be tapered with lightly by a current government. Similarly, the principle that an accused person may only be subject to punishment, imprisonment or penalty after a judgement made by a number of his peers has a long history in British democracy, and is a fundamental rule which goes some way to protecting an individual subject from the arbitrary use of executive power. Given its such fundamental status in a democratic society such as Britain, the legislative amendments sought (and indeed which lie dormant) in the 2003 Act seek to alter the make up and procedure of jury trials in the United Kingdom to such an extent that they are felt to undo one of the very cornerstones of the unwritten British constitution. Jury trials should therefore remain at the heart of the criminal justice system and a defendant's right to be heard and judged by his peers must not be eroded in the name of efficiency or cost saving.


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