What can the English Legal System learn from jury research published up to 2001

Abstract

In 1936, US Supreme Court Justice Charles Evans Hughes stated 'Impartiality is not a characteristic of who or what a person is but rather a state of mind'.6 This statement expresses how we currently expect our jurors in England and Wales to think and act.With the abolition of the defence's right to peremptory challenge 7 and a blind faith in random selection of jurors solely from the electoral roll, it is difficult to draw another conclusion.It follows that jurors' characteristics such as race, sex, age, occupation, and attitudes must be considered unimportant.We expect members of the public to dutifully put aside any biases they may have, step into the jury box, swear an oath, be totally fair and deliver an impartial, just verdict.Is this blind trust naïve? Do Juries Represent the Population at Large?The abolition of the property requirement and age reduction from 21 years to 18 years in 1972 changed jury composition, 8 and it was assumed, thenceforth, that juries became representative of the population.Baldwin and McConville found, however, in the 1970s, that there was a significant under-representation of women and ethnic minorities on Birmingham juries.Only 0.7 per cent of the 3,912 jurors surveyed were of West Indian/Asian origin but a representative proportion would have been '12 or even 15 times that number for a city like Birmingham'.9 Zander and Henderson's 1993 Crown Court Study for the Royal Commission on Criminal Justice surveyed over 8,300 jurors from all over England and Wales and found males to be overrepresented (53 per cent as opposed to 48 per cent in the population) but non-whites to be only slightly under-represented (5 per cent, as opposed to 5.9 per cent of the population).10 Nevertheless, Lloyd-Bostock and Thomas comment, in 2000, that there 'still appears to be an under-representation of women and ethnic minorities'.11 The Crown Court Study found that the social classes of the jurors surveyed reflected the wider population in terms of unskilled manual workers and professionals/managers, but skilled manual workers were under-represented on juries.Research in 1993 by the New Zealand Department of Justice, however, made a more detailed analysis of occupational groups on jury panels and found many to be under-represented.12 We think if a more thorough analysis were conducted here, the same pattern would be found, because the same underlying causes exist here as in New Zealand: a long list of statutory excusals, a large proportion of discretionary excusals and of nonappearances, as we describe below.We come back to this issue in Part C and in the conclusions.Concern has already been expressed to the Criminal Courts Review over the statutory exclusion of large elements of the population by virtue of ineligibility, disqualification or excusability as of right, under the Juries Act 1974, and the same concern has been expressed over very similar sweeping statutory exclusions in some Australian jurisdictions.13 Another reason for unrepresentativeness may be the summoning and excusal system.Research 14 in England and Wales found that of those summoned for jury service in June and July 1999, 38 per cent were excused 15 and only 34 per cent were available for jury service.Nearly half of these were deferred to later dates.Of the deferrals, 39 per cent were for work commitments and 35 per cent for holidays.It has been pointed out that 'since excuses and exemptions are not randomly 'to pay for child care given by a spouse who stays home from work while the other does jury service'. CommentOne very simple solution to the large number of excusals for childcare would be to offer a loss of earnings allowance to the other parent or another suitable carer, where professional child care is unsuitable or unobtainable.The same applies to carers for the elderly or disabled. Non-AppearancesHere, the new Central Summoning Bureau 34 is to be welcomed, in particular the centralisation of decision making on excusals and deferrals, reducing inconsistencies.In addition, the new jury summoning system and national call centre may go some way towards addressing the difficulties of jury participation.Our research team has, however, discovered that the Bureau's efforts may still not provide more inclusive jury panels.We observed a new panel being greeted at the Crown Court in a London location in October 2000.Of the 100 persons the jury manager was expecting to appear, fifteen were missing.When we asked if they would be pursued, she explained that there were not the resources to do this.A circuit judge confirmed to us that he was well aware of this and if a friend of his were called for jury service, he would simply advise them not to turn up, knowing that there would be no ramifications.In November 2000 we asked the Central Summoning Bureau to explain this.They told us that, although they send out one follow-up letter to non-respondents, they then simply supply the court with the list of respondents and non-respondents.They said they 'rely on the illusion' that severe consequences will flow from non-response.It is up to the court to take any further action.Many courts, if they feel they have sufficient jurors among the respondents, will do nothing.Astonishingly, the Bureau staff find they need to call four times as many persons as a court needs for jury service in England and Wales generally, and up to six times as many in London because of the combination of "no-shows", statutory exclusion and excusals.

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