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The Assize of Clarendon, 1166, and the Assize of Northampton,
1176 (in this context ‘Assize’ means ‘decree’
or ‘ordinance’) imposed on a ‘jury’
drawn from a particular district the duty of ensuring that prisoners
were brought before the judges of Assize to be tried for serious
crimes.
This was the origin of the Grand Jury. Later it became
the duty of the Grand Jury to consider all bills of indictment,
that is, allegations of crime, preferred against prisoners who
had been committed for trial by the justices of the peace in
order to discover whether there was a ‘true bill’,
that is, whether the accusations of crime had been genuinely
brought, and whether there was a prima facie case. Grand Juries
were abolished in 1933, and their functions are now performed
by magistrates’ courts.
The origin of the present criminal jury, the Petty Jury as it
was called in the days when there was also a Grand Jury, can
be traced back to 1215, when trial by ordeal was abolished and
trial by battle, a duel between the parties, was also losing
favour. There was need, therefore, for a new form of trial and
the practice arose of a man ‘putting himself on his country’,
that is, agreeing to be bound by the verdict of his neighbours.
As with the civil
jury, the criminal jury at first acted entirely on their
own knowledge. Later they had the assistance of witnesses, and
eventually it became accepted that the jury should base their
decisions entirely on the evidence adduced before them. An important
landmark in the history of the jury was Bushell’s Case
(supra) which established the independence of the jury, with
its verdict not being challengeable except on appeal, on the
grounds, for example, that it was against the weight of the
evidence.
At the present time, all criminal cases dealt with at Crown
Courts (except appeals from magistrates’ courts) are heard
before a jury of twelve. As with civil cases, a procedure requires
the jury to try to reach unanimity, but if, after a reasonable
time, which must be at least two hours, they cannot agree, the
judge may accept a majority verdict of ten in the case of eleven
or twelve jurors, or nine in the case of ten jurors. The Crown
Court cannot accept a majority verdict of guilty unless
the foreman of the jury states the voting figures.
Exceptionally, in cases of murder and offences punishable by
death, a trial may not continue if the number of jurors is reduced
below twelve unless both prosecution and defence agree. In the
event of a jury being unable to agree, and the division of opinion
being such as to prevent a majority verdict being entered, they
are discharged and a new trial is ordered. If the jury at the
second trial also fail to agree, it is the practice of the Crown
not to proceed with the case. It is a general rule that jurors
are chosen more or less at random from the electoral lists,
but any party to proceedings may inspect the panel from which
the jurors for his case will be drawn. Normally, either party
has very limited rights to challenge jurors. However, for certain
types of criminal case, particularly those involving charges
of treason, terrorism, or membership of a proscribed organisation,
both prosecution and defence may, well before the trial, be
given a list of potential jurors whose backgrounds they can
investigate, with a view to excluding potential jurors who might
be thought not to be impartial. This procedure is looked upon
with disfavour by many because it destroys the element of random
selection which is one of the main justifications of the jury
system, because the investigations are expensive, and because
the prosecution has access to information, such as police records,
which is not available to the defence.
A person charged with a criminal offence may always challenge
up to three jurors without giving any reason for the challenge,
and have them replaced. His objection may be completely without
justifications, for example, that the jurors are young people,
or coloured people, or women, but the court will never know
his reason. Since one defendant can challenge only three jurors,
(unless he can give good reasons for further challenges), the
scope for abuse of the system of challenge is limited when there
is a single defendant. Where, however, there are a number of
defendants involved in the same case and each can have three
challenges, they can if they act in collusion sometimes completely
distort the composition of the jury so that it is no longer
a random selection. It is for this reason that many people feel
that the right of challenge without cause, for which there is
no logical justification, should be abolished.
As already mentioned, it is the general rule that when a person
has served as a juror he or she is automatically exempt from
further service for a period of at least two years. The
judge also has a discretionary power to release a jury from
service for a longer period or even for life. It has long been
a practice for judges to exempt juries from further service
where they have been involved in a trial which is lengthy or
complicated or where the details of the case have been particularly
distasteful and unpleasant.
It is generally accepted that in criminal cases the system of
trial by jury, as distinct from trial by judge alone, is desirable,
but the system does run into problems, of which two may be mentioned.
First, when a number of defendants are charged together, and
there are perhaps several alternative charges brought against
each defendant, trials tend to become prolonged, and the task
of the jury in reaching verdicts on various counts against defendants
can be difficult. (There was one case in 1982 where a jury deliberated
for nine days to reach verdicts on various charges brought against
a total of fourteen defendants.)
Secondly, some cases, particularly
those involving fraud over a long period, may by their nature
be so complicated as to be virtually incomprehensible to ordinary
members of the public. Suggestions are made from time to time
that long or complicated trials should not be dealt with by
ordinary juries, but no alternative suggestions have attracted
wide acceptance, and it would perhaps be unwise to alter a generally
sound system simply because in certain cases it give rise to
problems.
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