For present purposes it is necessary to go back to the reign
of Henry II (1154-89), who introduced the Petty Assizes and
the Grand Assizes. (The term Assizes here refers to what today
are called juries, and is in no way associated with the system
of courts called Assizes which were in existence until 1970).
The Petty Assizes were twelve freeholders chosen from the
district in which a dispute originated, and they were sworn
to answer specific question of fact, rather than to give a
decision on a case as a whole. They were not jurors in the
modern sense, because there were no witnesses at the trial,
and the jurors were expected to answer the questions from
their own knowledge, and to find out the truth if they did
not know.
The Grand Assizes were a means of settling disputes as to
the ownership of land. They consisted of twelve knight of
the shire, whose task was to declare whether what was alleged
in the writ by which the action was started was true. As with
the Petty Assizes, they spoke from their own knowledge.
By the beginning of the fourteenth century it had become the
function of juries to decide general issues as distinct from
specific questions of fact. Later the practice grew of having
witnesses as well as jurors, so that the jury did not act
entirely on their own knowledge. However, although in 1562
a statute gave the right to compel the attendance of witnesses
at a trial and so recognised the importance of witnesses,
it was not until the decision in Bushell’s Case (1670)
that it was finally recognised that jurors should not act
on their own knowledge, but should decide cases on the evidence
adduced by witnesses.
The current rule is that every person between the ages of
eighteen and sixty-five who is on the register for parliamentary
and local government elections is eligible for jury service,
provided that he has been resident in the United Kingdom for
at least five years (although any person with an insufficient
command of English, however long he has resided in the country,
can ask to be excused jury service).
Certain groups of people, however, are not eligible:
-judges
and other people concerned with the administration of justice,
such as lawyers, policemen, and probation officers;
-clergymen;
-mental
patients who are resident in a hospital or similar institution
or who regularly attend for treatment by a medical practitioner.
Other people, although eligible, can claim exemption as of
right:
-members of either House of Parliament;
-full-time members of the armed services;
-medical practitioners and those in similar professions;
-people who have attended a prison sentence of three months
or more are disqualified for jury service for a period of
ten years, and those who have been sentenced to a term of
imprisonment for five years or more are disqualified for life.
There is therefore little substance to the criticism which
is heard from time to time that “convicted criminals”
can serve on juries.
Service on a jury for those who are eligible is compulsory,
and a person who ignores a summons to sit on a jury may be
penalised. A potential juryman may, however, ask to be excused,
and the request will be granted if attendance would impose
unusual hardship: if, for example, he is a self-employed business
man and the case may last for several weeks, or if a woman
has children for whose care it would be difficult to make
provision.
The use of juries in civil
cases is now comparatively rare. Either party may demand
a jury in cases of fraud, defamation, malicious prosecution,
and false imprisonment. In all other cases the question of
whether there shall be a jury is left to the discretion of
the court, which rarely allows one except in defended divorce
petitions, of which at present there are very few.
When there is a jury in a High
Court case it consists of twelve persons whose verdict
must normally be unanimous, but if unanimity cannot be reached
after a reasonable period the verdict of ten of a jury of
eleven or twelve, or nine of a jury of ten, can be accepted.
The original number of jurymen is always twelve, but may be
reduced to eleven or ten as the result of, say, sickness in
the course of the trial. If the number falls below nine a
re-trial may be ordered, but with the consent of both parties
the trial may proceed with an incomplete jury.
Very occasionally, a jury is allowed in a case heard by the
County court. In this court the jury consists of eight persons.
Normally their verdict must be unanimous, but if unanimity
cannot be reached, the verdict of seven out of eight is accepted.
Juries also sit in coroners’ courts. In such courts
the jury is always an uneven number, either seven, nine, or
eleven. The verdict need not be unanimous, but the coroner
may discharge the jury and summon another if there are more
than two dissentients.
In general, it is the function of the jury to decide the facts
of a case, matters of law being left to the judge. But a judge
may withdraw a case from the jury if he decides that the evidence
is so flimsy that no reasonable jury could find for the plaintiff.
The relationship between judge and jury was explained in Metropolitan
Rail v. Jackson (1877) (a negligence case, but the same principle
would apply in other cases) as follows:
The judge has a certain duty to discharge, and the jurors
have another and different duty. The judge has to say whether
any facts have been established by the evidence from which
negligence may reasonably be inferred; the jurors have to
say whether from these facts, when submitted to them, negligence
ought to be inferred. It would place in the hands of jurors
a power which might be exercised in the most arbitrary manner,
if they were at liberty to hold that negligence might be inferred
from any state of facts whatever.
Where a case is heard by a judge alone, he is of course performing
the functions of both judge and jury
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