Common Law

"Shall swear, with their hands upon a holy thing, that they will condemn no man that is innocent, nor acquit any that is guilty." Oath taken by jurors in 1019. Jury trials have been a cornerstone of the English legal system for 900 years. In that time it has been praised as the bulwark of the ordinary Englishman's liberties by eminent jurists including Blackstone in his Commentaries. Post Magna Carta 1215 was the recognition of a person's right to trial by 'the lawful judgment of his peers'. These peers refer to a jury. According To historians, there are many theories regarding the origin of the jury system and it would be practically impossible to pin down the exact theory. Some even say that its origin would be impossible to find for it would be lost in antiquity, as Bourguignon puts it, "its origin is lost in the night of time". Furthermore, it was described by the late Chief Commissioner Adam as "a tradition so high that nothing is known of its origin". In order to determine the guilt and innocence of a human being when he is charged before various tribunals of law, he is brought into the dock and the charge put to him. The clerk of the court reads over the charge which has by now been put into formal language known as the indictment. Then the Defendant will plead, that is, he says whether he is guilty or not guilty. On a plea of Not guilty the next step is to empanel or bring in the jury who will try him. A jury is a group of men and women who sit in court, listen to evidence and decide whether the court had established beyond reasonable doubt for criminal cases or on the balance of probability for civil cases, that the defendant had commited the offence charged. The quotation in EP Thompson's Writing by Candlelight "The English common law rest upon a bargain between the law and the people. The jury box is where the people come into the court; the judge watches them and the jury watches back. A jury is the place where the bargain is struck. A jury attends in judgement not only upon the accused but also upon the justice and humanity of the law." Drawing the relationship between the system and the law by enlightening that the jury system is a system made in order to allow the general public a chance to participate in the process of justice making. This upholds the basis of common law and also gives a democratic humanising element to the trial process. Proving to be most vital, the independence of the jury as the sole arbitrators of facts became firmly established following Bushell's Case. Reinforced in R v McKenna, Cassels J held that "a jury shall deliberate in complete freedom, uninfluenced by any promise, unintimidated by any threat". Noah Yavitz in 'Right to Jury Trial' states that such impartiality is necessary as juries are to comply with the requirements for a fair trial under Art 6(1) of the European Convention on Human Rights as established in Gregory v United Kingdom.

Following the Morris Committee Report in 1972, the qualifications for jury service were revised. According to Schedule 1 of the Juries Act 1974, to qualify for jury service, a person must be aged between 18 and 70, be an elector and have lived in the UK for at least 5 years. In April 2014, s.321 of the Criminal Justice Act 2003 came into effect, only the mentally disorder persons group of people were ineligible for jury service, whereas the police, lawyers, Judges and clergy were now eligible for jury service. Auld LJ had recommended that English that the core objective of the reform was to broaden the pool of potential jurors, and to make the jury more representative of society Jason M Solomon in 'Civil Jury' renders those qualifications however do not guarantee that a panel of twelve persons would produce the best justice. Hence advantages and disadvantages of the jury system have to be juxtaposed to study its relevance today.

Lord Devlin opined in his seminal work on 'Trial by Jury', that the advantage of being judged through a democratic process is that it prevents any arbitrary exercise of power, hence upholding the rule of law. This system recognizes the need for an unbiased trial and accordingly, Sir Robin Auld made a proposal report refereeing to the composition of ethnic-mixed juries, stating that a panel consisting of twelve men and women chosen randomly from the community is the ideal approach. In regards, In R v Ford, Lord Lane CJ held that a judge has no power to select a multi-racial jury as it is under the jurisdiction of the Lord Chancellor under S 5 of the Jury Act 1974. It has been concluded that deliberately changing the composition of the jury panel would inevitably lead to biasness. The 12 people who are in jury, all of whom have been randomly selected, the jury should represent a cross section of society. Due to the number of people on a jury it is envisaged it will be able to make decisions without bias. For example, in the law of theft the test for dishonesty has to be established according to the standards of ordinary people. In other areas of law the test may involve deciding what is reasonable in the circumstances; for example in the law on self defence. This is a matter on which a panel of 12 ordinary people can make the decision.
Byron C Lichstein in 'Judges and Jurors' states that being protected from undue exterior pressure and influences adds to the perks of having trial by jury. This enables juries to decide on the basis of morality and avoid unjust laws or precedents without breaking them. Making decisions on the facts of each individual case, they would not be required to give reasoning for their decisions. This means that a jury can make a decisions based on fairness as opposed to the law also knwn as 'jury equity'. It is likely to occur where a jury believes the law to be unfair and resulting in refusal to convict the defendant as in Ponting's Case. Also, as in R v Randale & Pottle, juries may reach perverse decisions. Perverse verdicts enjoy public respect and can provide a 'criminal equity'. To this, Anna Roberts explained, claiming that perverse verdicts undermine the principle of justice as they defy the will of the democratically elected Legislature. Recently, in the case of Kingsnorth six, in 2008 a jury at Maidstone Crown Court found six defendants who caused damage to the Kingsnorth coal-fired power station not guilty of criminal damages. The six had relied on the defence in s 5 of the Criminal Damage Act 1971of protection of property. As they claimed that their actions were in order to prevent damage from global warming.

In addition, the jury system has been acknowledged as a barometer of public opinion and since the Criminal Justice Act (2003), its composition has been widened. The case of R v Abdroikov, Greene & Williamson established the necessity to draw a distinction between eligibility and whether a particular person should sit in a particular jury. It was held that persons involved in the administration of justice should not automatically be regarded as being disqualified, because of their occupations, from a jury. The Auld Report supported the Royal Commission's view that the representativeness of the jury should be increased. This recommendation was included under the CRIMNAL JUSTICE ACT which remover the concept of exclusion as right and abolished the categories of ineligibility. Thus renders another advantage of this system. Bearing in the mind the right to be tried one's peers is a fundamental right under the English Legal System. Justice is seen to done as members of the public are involved in such a key role and the whole process is public. It is a system that is seen as an effective one and, as famously quoted by Lord Devlin, juries are viewed as "the lamp that shows that freedom lives".

Dru Stevenson in 'Uncertainty with Jury Systems' held that as much as this system upholds the doctrine of separation of powers between the Executive and the Judiciary, trial by jury has also garnered overwhelming disadvantages. Firstly, Richard Ferguson claimed that juries are not able to handle technical issues. As jurors do not understand complex proceedings and thus reach verdicts based on inappropriate methods i.e. with the use of a Ouija board in R v Young. According to Lord Justice Henry, at times juries take too long to reach a verdict especially in fraud trials causing this system to lose its efficiency. John Reid, a former Home Office Secretary held that fraud trials without a jury are consistent with human rights under S 19(1) (a) of the HRA 1998. Also, S 43(2) of the CRIMNAL JUSTICE ACT 2003 enhances the disadvantage of this system as this provision holds that the prosecution may conduct fraud trials without a jury. The case of Condron & others v UK proves that a defendant may not get a fair trial if a judge does not provide proper direction for the jury. In this case, the European Court of Human Rights decided that the trial judge had not properly directed the jury on the issue of the applicant's silence during a police interview, resulting in an unfair trial, violating his right under Art 6 of the ECHR.

Another disadvantage of this system is in obtaining reliable evidence about the overall quality of Jury verdicts is hampered by the fact that under the Contempt of Court Act 1981 Section (8) where it is contempt to publish or make a solicitation for publication details of what happens in a Jury room as illustrated in the case of Attorney General v Associated Newspapers. Based on the law, it is punishable with a fine or a prison sentence. Juries deliberate and no one can inquire into what happens in the Jury room. In the 1990s, the Royal Commission on Criminal Justice argued for the repeal of this provision to allow for academic research into Juries and the Government supported this change. Finally progress was seen in 2005 when Lord Chancellor Lord Falconer issued a consult paper on the jury to sought opinion on the proposal to change this law.

Both the Conservative and Labour governments have called for reforms to be made on trials by jury. Driven by economic reasons as much as by errors of jury verdicts, they had introduced a range of measures which had reduced the roles of the jury. Legislation in the 1970s restricted the range of offences for which the defendant could elect trial by jury. More recently, the Criminal Justice Act (1988) classified certain offences such as driving, common assault and battery as summary offences only.

In fact Jack Straw, the Justice Secretary proposed to cut 2000 jury trials which was agreed by Lord Bingham, the Lord Chief Justice and the Magistrates' Association. However, the opposites were infuriated by the bill which removes automatic right to jury trial to 18 500 defendants a year charged with middle-ranking offences such as theft and burglary. Critiques have said that the original bill will lead to two levels of justice as middle class professionals are more likely to receive a jury trial. Ultimately, House of Lords threw out Jack Straw's bill to curb a defendant's right to trial.

In conclusion, there are many reasons in favour of doing away with the jury system. However, according to Devlin who cites Blackstone, the jury is a symbol of participatory democracy. At whatever cost, this element must be preserved. As Devlin said "no tyrant could afford to leave a subject's freedom in the hands of twelve of his countrymen. So that trial by jury… is the lamp that shows that freedom lives". Though there are many flaws to the current system, yet there are no any complications on the application of jury system. I am strongly agree that there is a need of democratic participation in the justice system. In fact, the Malaysian government who previously abolished its jury system is currently considering for its revival. Furthermore, the jury system is also a long trusted method in the English Legal System (approximately 700 years) and is a part of its legal heritage. Logically, it would not have got so far if it was not trusted by the people. Lord Denning M.R., while urging reform and greater selectivity, has been a staunch defender of the jury and has praised its good sense; he said: "It has been the bulwark of our liberties too long for any of us to seek to alter it. Whenever a man is on trial for serious crime…or when one or other party must be deliberately lying, then trial by jury has no equal." Yet, there is a need for some reformation to face the current crime which grows in accordance with the technology, cyber crime and etc by keeping the justice updated and secured always.

















Bibliography
Books
Wu Min Aun, The Malaysian Legal System
John Murray, Success in Law (2nd edition)
Gary Slapper & David Kelly, The English Legal System 12th Edition, Routledge
Steve Wilson, Rebecca Mitchell, Tony Storey & Natalie Wortley, English Legal System 2nd Edition
Patrick Devlin, Trial by Jury, William S. Hein, Incorporated, 1988
Rebecca Huxley-Binns & Jacqueline Martin, Unlocking English Legal System 3rd Edition.
Michael Zander, Cases and Materials on the English Legal System, 10th Edition
Jo Boylan – Kemp, English Legal System, The Fundamentals, 2nd Edition


Electronic Sources
http://www.barefootsworld.net/trial103b.html accessed July 28th,2014

http://www.historytoday.com/ralph-v-turner/meaning-magna-carta-1215 accessed July 29th,2014

http://constitution.org/cmt/wf/htj.htm accessed July 29th, 2014

https://lawreview.uchicago.edu/sites/lawreview.uchicago.edu/files/uploads/79_4/09%20Yavitz%20CMT.pdf accessed 28th July 2014

http://courtslaw.jotwell.com/considering-the-civil-jury/ accessed 29th July 2014

http://www.inbrief.co.uk/legal-system/jury-qualifications-and-disqualifications.htm accessed 28th July 2014

http://www.lawteacher.net/criminal-law/essays/jury-system-criminal.php accessed in 27th July 2014

http://scholarship.law.edu/cgi/viewcontent.cgi?article=1012&context=lawreview accessed in 28th July 2014

http://lawreview.law.ucdavis.edu/issues/45/4/Articles/45-4_Roberts.pdf accessed in 28th July 2014

http://www.georgemasonlawreview.org/doc/19-2-STEVENSON.pdf accessed 27th July 2014

http://www.stabroeknews.com/2013/opinion/letters/10/08/trial-by-jury-is-the-lamp-that-shows-freedom-lives/ accessed 30th July 2014

accessed 28th July 2014

accessed 27th July 2014.

Table of Statutes and Cases

Table of Cases
Bushell's Case (1970) Vaugh 135

R v McKenna (1960) 2 ALL ER 326

Gregory v United Kingdom (1997) 25 EHRR 577

R v Ford [1989] 3 All ER 445

Ponting's Case 1984, unreported

Condron & Others v United Kingdom [2000] EHRR1

R v Randle and Pottle, The Independent, 26th March 1991

R v Abdroikof [2007] UKHL 37

R v Green [2007] UKHL 37

R v Young [1995] 2 WLR 430

R v Williamson [2007] UKHL 37



10







Available in http://www.barefootsworld.net/trial103b.html accessed July 28th,2014
Wu Min Aun, The Malaysian Legal System
Available in http://www.historytoday.com/ralph-v-turner/meaning-magna-carta-1215 accessed July 29th,2014
Available in William Forsyth, 'History of Trial by Jury' http://constitution.org/cmt/wf/htj.htm accessed July 29th, 2014
John Murray, Success in Law (2nd edition)
Gary Slapper & David Kelly, The English Legal System 12th Edition, Routledge
Bushell's Case (1970) Vaugh 135
R v McKenna (1960) 2 ALL ER 326
Available in https://lawreview.uchicago.edu/sites/lawreview.uchicago.edu/files/uploads/79_4/09%20Yavitz%20CMT.pdf accessed 28th July 2014
Gregory v United Kingdom (1997) 25 EHRR 577
Available in http://www.inbrief.co.uk/legal-system/jury-qualifications-and-disqualifications.htm accessed 28th July 2014
Steve Wilson, Rebecca Mitchell, Tony Storey & Natalie Wortley, English Legal System 2nd Edition
Available in http://courtslaw.jotwell.com/considering-the-civil-jury/ accessed 29th July 2014
Patrick Devlin, Trial by Jury, William S. Hein, Incorporated, 1988
Available in http://www.lawteacher.net/criminal-law/essays/jury-system-criminal.php accessed in 27th July 2014
R v Ford [1989] 3 All ER 445
Availble in http://scholarship.law.edu/cgi/viewcontent.cgi?article=1012&context=lawreview accessed in 28th July 2014
Ponting's Case 1984, unreported
R v Randle and Pottle, The Independent, 26th March 1991
Available in http://lawreview.law.ucdavis.edu/issues/45/4/Articles/45-4_Roberts.pdf accessed in 28th July 2014
Rebecca Huxley-Binns & Jacqueline Martin, Unlocking English Legal System 3rd Edition.
R v Abdroikof [2007] UKHL 37
R v Green [2007] UKHL 37
R v Williamson [2007] UKHL 37
Michael Zander, Cases and Materials on the English Legal System, 10th Edition
Jo Boylan – Kemp, English Legal System, The Fundamentals, 2nd Edition
Available in http://www.georgemasonlawreview.org/doc/19-2-STEVENSON.pdf accessed 27th July 2014
Available in http://www.lawteacher.net/criminal-law/essays/jury-system-criminal.php accessed 27th July 2014
R v Young [1995] 2 WLR 430
Available in http://www.lawteacher.net/criminal-law/essays/jury-system-criminal.php Accessed 27th July 2014
Condron & Others v United Kingdom [2000] EHRR1
Attorney General v Associated Newspapers [1994] 1 ALL ER 556
Available in http://www.lawteacher.net/criminal-law/essays/jury-system-criminal.php Accessed 27th July 2014
Available in http://www.lawteacher.net/criminal-law/essays/jury-law-system.php accessed 28th July 2014
Available in http://www.lawteacher.net/criminal-law/essays/jury-law-system.php accessed 28th July 2014

Available in http://www.stabroeknews.com/2013/opinion/letters/10/08/trial-by-jury-is-the-lamp-that-shows-freedom-lives/ accessed 30th July 2014
accessed 28th July 2014
accessed 27th July 2014.
John Murray, Success in Law (2nd edition)