The English jury has its roots in two institutions that date from before the Norman conquest in 1066. The inquest, as a means of setting a fact, had developed in Scandinavia and the Carolingian Empire while Anglo-Saxon law had used a “jury of accusation” to establish the strength of the allegation against a criminal suspect in the latter case, the jury were not triers of fact and, if the accusation was seen as posing a case to answer, guilt or innocence were established by oath, often in the form of compurgation, or trial by ordeal. In 1166 King Henry 11 then began to develop a more evidentiary form of settling disputes by issuing the Assize of Clarendon (an Act of the King) During the eleventh and twelfth centuries, juries were sworn to decide property disputes but it was the Roman Catholic Church’s 1215 withdrawal of support for trial by ordeal that necessitated the development of the jury in its modern form. In 1215 the concept of an accused person’s right to be tried by their peers was then formalised further by being set out in the Magna Carta. The role of the jury continued to change over hundreds of years and by about the 15th century they had begun to assume the role of the independent assessors of fact in a case and it is from that their modern day role has developed.
The modern day fundamental principle behind a jury is that an alleged offender is provided with the opportunity to be tried by 12 of their peers in an effort to ensure that justice is done. A jury should be free from judicial and other pressures and their final decision in the case as to the defendant’s guilt or innocence cannot be challenged (except under the allowed routes of appeal)
2.1 Criminal juries
Though juries are symbolically important in the criminal court they actually operate in a minority of cases and their roles is constantly being reduced to save money.
Juries are summoned for criminal trials in the Crown Court where the offence is an indictable offence or an offence triable either way that has been sent to the Crown Court after examination by magistrates. Magistrates have the power to send any offence triable either way to the Crown Court but, even if they elect to try the case themselves, the accused retains the right to elect for a Crown Court trial with a jury. Summary offences are tried by magistrates and there is no right of Crown Court trial by jury. During the 21st century some exceptions to jury trial in the Crown Court have been developed.
2.2 Trial without a jury
Crown Court trial without a jury is permitted in cases of suspected jury tampering where there is evidence of a “real and present danger” and, despite the possibility of police protection, there is a substantial likelihood of tampering, and a trial without a jury is in the interests of justice. The first such prosecution application was made in February 2008.
There are also provisions under the Domestic Violence, Crime and Victims Act 2004, ss. 17 – 20 to try defendants accused of domestic violence on sample counts and, on conviction, for the remainder of the counts to be tried by a judge alone. These provisions came into force on 8 January 2007.
If the defendant pleads autrefois, the judge now decides the matter without a jury.
In Northern Ireland, some terrorist offences were tried with bench trials called Diplock courts.
A coroner must summon a jury for an inquest if the death occurred in prison or in police custody, or in police custody, or in the execution of a police officer’s duty, or if it falls under the Health and Safety at work etc. Act 1974, or it if affects public health or safety.
4. Civil Juries
All common law civil cases were tried by jury up to the introduction of juryless trials in the new Country Courts in 1846. The perceived success of this system, together with increasing recognition of the integrity of judges and the professionalisation of legal institutions, meant that, when the Common Law Procedure Act 1854 gave litigants in the Queen’s Bench the option of trial by judge alone, there was a steady uptake. Over the next eighty years, the use of juries in civil trials steadily declined.
In 1933 the Administration of Justice (Miscellaneous Provisions) Act 1933,s. 6 guaranteed the right of jury trial in the Queen’s Bench division for:
- Malicious prosecution
- False imprisonment
- Breach of promise of marriage
“…….but, save as aforesaid, any action to be tried in that Division may, in the discretion of the court or a judge, be ordered to be tried either with or without a jury.” The Act brought a de facto end to civil jury trials in England and Wales save for the causes where the right was guaranteed.
In Ward v. James (1966), Lord Denning, delivering the judgments of the Court of Appeal, held that personal injury cases were unsuitable for jury trials owing to the technical expertise and experience needed in assessing damages. In Singh v. London Underground Ltd (1990), a litigant sought a jury trial on a case arising from the King’s Cross fire but was refused owing to the technical nature of the case. As of 1998, less than 1% of civil trials in England and Wales were jury trials and these were principally defamation cases.
Section 69 of the Senior Courts Act 1981, which replaced s. 6 of the 1933 Act in respect of High Court trials, provides that trial shall be by jury on the application of a party where the court is satisfied that there is in issue:
- a claim of fraud against the party; or
- a claim respect of libel, slander, malicious prosecution or false imprisonment
unless the court is of the opinion that the trial requires any prolonged examination of documents or accounts or any scientific or local investigation which cannot conveniently be made with a jury.