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Criminal Law Review 2008
Exposing the myths of jury service Cheryl Thomas Subject: Criminal procedure Keywords: Jury service; Minorities; Verdicts *Crim. L.R. 415 Summary: Assumptions about the representative nature of jury service have become entrenched in this country, influencing reviews of the jury system and policy development in this area. Most of these assumptions paint a picture of unrepresentative jurors and widespread avoidance of jury service. However, no research had been conducted to prove or disprove any of these beliefs for over 15 years. This article reports the findings of the first study of the representative nature of jurors since the Crown Court Study in 1992, and the first empirical study ever undertaken in this country on the influence of race on jury decision-making. The results show that most current thinking about jury representation and race is based on myth not reality.
Current beliefs about jury service One of the remarkable aspects of the jury system in England and Wales is that while juries now decide only a small fraction of all criminal cases,1 the right to trial by jury continues to be a highly charged subject. In the last 50 years there have been numerous calls to alter the jury system,2 but the impetus for change has more often than not come from individual cases and professional anecdote instead of any systematic monitoring or research,3 and those conducting reviews of the jury system have often expressed frustration at the lack of reliable evidence on which to base their findings.4 Despite this lack of evidence, numerous beliefs about juries appear to have become entrenched in this country, most of which *Crim. L.R. 416 tend to paint a rather disparaging picture of the jury system. They include the belief that there is widespread avoidance of jury service by the British public and particularly among Londoners,5 that jury service is only for those not clever or important enough to get out of serving,6 that ethnic minorities, women and young people are under-represented in the jury system and that as a consequence juries do not reflect the broad range of skills and experience of the communities from which they are drawn.7 These perceptions have led to important policy recommendations for changing the jury system, many of which have focussed on ethnic minority representation on juries. In his Review of the Criminal Courts, Auld L.J. recommended that summoning source lists should be expanded so that juries would include more ethnic minorities.8 Both the Auld Review and the Runciman Commission9 recommended that judges be allowed to empanel racially mixed juries particularly in cases with an overt racial element.10 What underlies these recommendations is not just the desire for juries to appear fair, but the assumption that ethnic background may make an actual difference to jury decision-making. While there has been no research evidence in this country to support this belief, it reflects more general concerns about the low levels of confidence ethnic minorities appear to have in the criminal justice system11 and allegations of racial bias on the part of juries.12 Despite such negative views, the public appears to be solidly in support of the jury system. A 2002 survey by the legal profession found that the delivery of justice by juries has overwhelming support among the public in England and Wales: over 80 per cent said they trusted a jury to come to the right decision and that trial by *Crim. L.R. 417 jury is fairer than being tried by a judge.13 A MORI survey in 2003 also found that both white and non-white members of the public had high levels of confidence in the jury system.14 The Lord Chief Justice recently called for the legal system to trust the common sense of the jury,15 but given the negative beliefs about juries at least in official circles, such trust is likely to depend in part on clear evidence of whether juries reflect their local communities and are unbiased in their decision-making.
Previous research on jury representation In the last 30 years, only two studies have assessed juror representation. The Crown Court Study16 was conducted over 15 years ago by Zander and Henderson on behalf of the Runicman Commission, and in most respects this study was and remains highly informative. However, official restrictions
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imposed on the study meant that it could not identify which jurors served at individual Crown Courts, and as a result the study was only able to show how the total percentage of ethnic minority jurors in the study compared to national population figures. In reality, because each Crown Court has its own individual catchment area for jurors, ethnic minority representation among jurors needs to be measured against the local ethnic minority population for each Crown Court. Prior to the Crown Court Study, Baldwin and McConville's study of jury trials at Birmingham Crown Court in the 1970s17 reported an under-representation of ethnic minorities at that court. But the study was conducted almost 30 years ago and its scope was limited to only one court. Important changes in the jury system have occurred since these two studies, including the establishment of the Jury Central Summoning Bureau in 2001 which standardised the entire juror summoning process and computerised the random summoning of all jurors, the introduction of new juror eligibility rules in 2004, and the 2001 national census which revealed changes in the ethnic population of England and Wales. In this period there have also been legal challenges by ethnic minority defendants to verdicts of all-white juries either on the grounds of jury selection procedures18 or in cases where racial bias among jurors was alleged.19 For *Crim. L.R. 418 many years, it had been accepted that in exceptional circumstances a judge had the discretion to achieve a racially mixed jury,20 but in 1989 the Court of Appeal ruled that a trial judge has no power to construct such a jury.21 The Government also rejected both the Runciman and Auld recommendations for judges to be able to construct racially mixed juries.22 In addition, a new class of racially-aggravated offences was created in 1998,23 introducing an overt racial dimension to jury trials and raising questions about jury composition when the victim is from an ethnic minority. Despite these developments, no new research had been conducted to determine whether ethnic minorities are in fact under-represented in the jury system or whether it is valid to assume that the race of jurors, defendants or victims affects jury impartiality.24
Jury Diversity Research Project In 2001 in response to the Stephen Lawrence Inquiry,25 the Lord Chancellor, Lord Irvine, instituted a research programme to examine whether direct or indirect discrimination against ethnic minorities existed in the court system.26 As part of this programme, the Jury Diversity Project was established to provide a systematic, court-by-court analysis of the representative nature of the jury summoning process and, in doing so, to determine whether claims about the lack of representation among those doing jury service are borne out in reality. It was also designed to provide the first empirical research in this country on whether race can affect jury decision-making. Between 2003 and 2006, a number of inter-connected studies of jury representation and decision-making were conducted. The representation *Crim. L.R. 419 research involved a large-scale survey of the socio-economic background of all jurors summoned in England and Wales in one week in 2003 and one week in 2005 (15,746 jurors), as well as a survey of the socio-economic background of jury pools27 and juries at three Crown Courts over a four-week period (640 jurors). The decision-making research used case simulation with real jurors (319 jurors on 27 juries), as well as a small exploratory study of jury verdicts in real cases at three Crown Courts (186 verdicts). A MORI survey on public attitudes to jury service was also conducted on behalf of the project (1871 respondents).
Representation and juror summoning The first question the study addressed was to what extent those summoned by computerised random selection were representative of the local population for each Crown Court in England and Wales. Today, the guiding principle in juror selection is that individuals are summoned randomly for jury service.28 This method is thought to be the best way of achieving fairness in juror selection and representation in juries, but its effectiveness has not been known. Summoning is carried out on a court-by-court basis for each Crown Court, and each court has a unique juror catchment area defined by postcode districts. This means that the population dynamics of the juror catchment area, including the size of the ethnic minority population in that area, is the most fundamental factor affecting the representative nature of juries. But there are a number of distinct stages in the juror selection process, and at each stage there are factors at play that could affect ethnic minority representation on juries. For instance, ethnic minorities may be more likely than white people to be excluded from the juror summoning process because they may be more likely not to be on the local electoral lists that form the summoning lists. If ethnic minorities are on the lists, they may be more likely not to receive a summons. If they receive a summons, they may be more likely to request an excusal or be disqualified.
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A voluntary questionnaire was included in all jury summonses29 asking those summoned to identify their ethnic group,30 gender, age, employment status, income, religion and first language. A high response rate enabled the study to create socio-economic profiles of those summoned for each Crown Court,31 which were then compared to population profiles for each court's juror catchment area using 2001 census data in postcode district form. The findings reveal that most current thinking about jury representation is based on myth not reality. *Crim. L.R. 420 Myth: Black and minority ethnic (BME) groups are under-represented among those summoned for jury service in England and Wales. Based on this assumption, the Auld Review recommended amending the law to allow the JCSB to combine a number of publicly maintained lists (telephone directories, vehicle licensing and Inland Revenue lists) to increase the number of ethnic minorities summoned for jury service.32 Reality: The survey found that there was no significant under-representation of BME groups among those summoned for jury service at virtually all Crown Courts in England and Wales (83 of the 84 courts covered in the survey).33 This indicates that the process of computerised random summoning from the electoral lists provided by local authorities is successfully reaching an ethnically representative group of potential jurors in almost every court. This may be surprising given that BME groups are generally thought to be under-represented on electoral lists,34 which form the source lists for juror summoning. But in reality there is no evidence to support altering the juror source lists.
Willingness to do jury service Myth: There is widespread avoidance of jury service by the British public in general and particularly in London where most ethnic minorities live. The Auld Review reported claims by Darbyshire that most people try to avoid jury service if summoned and that five-sixths of Londoners avoid or evade jury service.35 Reality: The summoning survey found no evidence to support these claims. Almost all people (85 percent) summoned for jury service replied to the summons, and in London the overwhelming majority (79 per cent) replied and three-fifths served. It also cannot be assumed that all non-replies to summonses represent a wilful attempt to avoid jury service. A third of all non-replies are summonses that are returned to the JCSB as undeliverable due to a change of residence, and it is also likely that many unreturned summonses also reflect changes in residence. When unreturned summonses were examined on an individual court basis, the findings showed that the highest non-return rates were in areas with the highest levels of rental accommodation.36 *Crim. L.R. 421 A MORI survey conducted for the Jury Diversity Project also revealed that the vast majority of the public are willing to do jury service. Three-quarters of the public (76 per cent) agreed that they would do jury service because they consider it a civic duty, while the majority said they would enjoy the responsibility (54 per cent) and would even look forward to serving on a jury (50 per cent). The overwhelming majority (69 per cent) disagreed with the view that they would not want to do jury service because they did not have confidence in the jury system. There is also no evidence to suggest that ethnic minorities are unwilling to do jury service. An equally small proportion of white and non-white respondents agreed (14 per cent) with the statement “I would not want to do jury service because I do not have confidence in the jury system”.
Impact of juror eligibility rule changes In its 2002 White Paper, Justice for All, the Government set out its intention to increase the proportion of the population eligible for jury service, in part as a means of ensuring that juries properly reflect the diversity of the communities they serve.37 The Criminal Justice Act 2003 removed ineligibility and the right of excusal from jury service for a number of groups,38 but summoned jurors may still be disqualified or excused from jury service due to age, residency, mental disability, criminal record, language, medical or other reasons. The project conducted two surveys, one before and one after these new eligibility rules came into effect in 2004. As Figures 1A and 1B show, the new rules appeared to have an immediate impact on the proportion of those summoned that served. Those serving increased from 54 per cent to 64 per cent, disqualifications fell by a third and excusals fell by a quarter. TABULAR OR GRAPHIC MATERIAL SET FORTH AT THIS POINT IS NOT DISPLAYABLE *Crim. L.R. 422 Among those who did not serve, the single largest group (38 per cent) was excused
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for medical reasons. However, among BME jurors summoned who did not serve, the single largest group (24 per cent) was disqualified because they were not resident for the required period, and the next largest group (21 per cent) was excused for language reasons. Residency and language proficiency are both basic requirements for jury service, indicating that where ethnic minorities did not serve this was due in large part to circumstances beyond their control, not any unwillingness to do jury service. It should be noted that while the new eligibility rules increased participation overall, they did not substantially alter the representative nature of jurors. The in-depth study of jury pools at three Crown Courts conducted in 2003 (reported below) showed that, even before these new eligibility rules were introduced, serving jurors were remarkably representative of the local community in terms of ethnicity, gender, income, occupation and religion.
Who serves? The relative importance of ethnicity A detailed examination of all excusals and disqualifications from jury service also showed that most current thinking about who does and does not do jury service is based on myth, not reality. Myth : Ethnic minorities are under-represented among those doing jury service. Reality: In almost all courts (81 of the 84 surveyed), there was no significant difference between the proportion of BME jurors serving and the BME population levels in the juror catchment area for each court.39 By collecting data on age, gender, income, employment, religion and language, the study was able to show which juror characteristics had the greatest impact on whether a summoned juror served or not, and how important ethnicity is in relation to these other factors. A key finding from the survey was that the most significant factors predicting whether a summoned juror will serve or not are income and employment status, *Crim. L.R. 423 not ethnicity.40 Among all people summoned, those with the lowest household income and those who were economically inactive were the least likely to serve. This was also true for ethnic minorities summoned for jury service, where those with the highest household incomes had the highest levels of jury service. Ethnicity was only relevant to whether a summoned juror served or not when ethnicity was combined with language. The only ethnic/language group where the majority did not serve (53 per cent) was BME jurors who had a language other than English as their first language.41 This is not surprising, as those without a sufficient command of English are excused from jury service. Myth: The middle classes and the important and clever avoid jury service,42 the self-employed are virtually exempt from jury service,43 women and young people are under-represented among serving jurors44 and juries are mostly made up of the retired and unemployed. Reality: There was no indication that “the important and clever” in society avoid jury service. Summoned jurors in lower income brackets and those who are economically inactive were far less likely to serve than those in medium to high income brackets and those who are employed. The highest rates of jury service were among middle to high-income earners, and those in higher status professions were fully represented among serving jurors. The self-employed served in proportion to their representation in the population, and the employed in general are over-represented among serving jurors, while it is the retired and unemployed that are under-represented. The proportion of men and women serving as jurors was exactly the same (50 per cent), and gender had no significant impact on whether those summoned served or not. The proportion of people aged 18-24 serving as jurors (10 per cent) was almost identical to their representation in the general population (11 per cent).
Composition of jury pools and juries A more detailed study was undertaken of all serving jurors in the jury pool and on juries over four consecutive weeks in three Crown Courts where more than 10 per cent of the local population are ethnic minorities (Blackfriars, Reading and Manchester Minshull Street).45 When ethnicity was broken down into specific ethnic groups, a clearer picture emerged of how unique the demographics of ethnicity are among serving jurors in individual courts. For instance, in Reading and Blackfriars, Pakistani jurors were represented in proportion to the local Pakistani populations,46 but Pakistani jurors in Manchester were the most under-represented *Crim. L.R. 424 ethnic group in the jury pool (3.8 per cent in local population but an average of 0.8 per cent serving). As the summoning survey showed, when ethnic minorities do not serve this is most often because they are not resident for the required period or due to language difficulties, and the fact that there is a lower level of English literacy in the Pakistani community in the Manchester catchment area then in the Pakistani communities in the Reading and Blackfriars catchment areas appears to account for the variation in
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representation among Pakistani jurors in these courts.47 The analysis of serving jurors at these three courts also revealed another misconception about juries. Myth: Juries do not reflect the broad range of skills and experience in the community. Reality: No occupational groups were significantly under-represented among serving jurors at any of the three courts. One clear consistent trend across all three courts was for the employed to be over-represented among serving jurors in relation to their representation in each court's juror catchment area. The single largest occupational group among serving jurors at all three courts were professionals, reflecting the fact that professionals make up the single largest occupational group in the three catchment areas. This further dispels the myth that the important and the clever manage to avoid jury service. An analysis of representation on individual juries at each of the three courts revealed a substantial difference in the proportion of racially mixed juries at each court. As Figure 2 shows, all juries were racially mixed at Blackfriars (with at least one BME juror on a jury), while just over half (53 per cent) of all juries were racially mixed at Reading and just under half (44 per cent) were racially mixed Manchester Minshull Street. This reflects the higher ethnic minority population level in the Blackfriars' juror catchment area (33 per cent) compared to Reading and Manchester Minshull Street (10 per cent and 11 per cent respectively). At Blackfriars not every jury was strictly representative of the ethnic minority population in the court catchment area: only 17 per cent of the Blackfriars juries had at least 33 per cent of BME jurors (i.e. four or more). But all the racially mixed juries at Reading and Manchester were at a minimum representative of the local population, as a single BME juror made a jury representative of the local population. There were no all-male or all-female juries in any of the courts, and 88 per cent of all the juries had either a 6:6, 7:5 or 8:4 gender split.48
Where racial composition of the jury remains a concern The ethnicity of summoned jurors may be more problematic for some Crown Courts than others. The study determined that racially mixed juries are only likely to exist in courts where ethnic minorities make up at least 10 per cent of the entire juror catchment area. This does not reflect any failure in summoning; it is simply the consequence of population levels in these catchment areas and the process TABULAR OR GRAPHIC MATERIAL SET FORTH AT THIS POINT IS NOT DISPLAYABLE *Crim. L.R. 425 of random selection. But this factor is crucially important in understanding the relationship between ethnicity and juror summoning in Crown Courts. Only 20 of the 94 Crown Courts in England and Wales (21 per cent) have juror catchment areas where ethnic minorities comprise more than 10 per cent of the population and therefore have a high probability that any ethnic minorities will be on juries. Most of these courts are in London.49 This means that at most Crown Courts in the country (74 or 79 per cent) there is little likelihood that ethnic minorities will be on a jury. The study identified 13 of these 74 courts50 where the lack of ethnic minority representation on juries may be particularly problematic. These are courts where, despite the overall ethnic minority population level being below 10 per cent in the juror catchment area, there are large pockets of ethnic minorities within the area. This is likely to create a public expectation that juries at these courts will be racially mixed--an expectation that the summoning process cannot meet. The question of the racial composition of juries is also more likely to arise at some of these courts because a high proportion of ethnic minority defendants or racially-aggravated crimes are prosecuted there.51 There is no simple solution to this situation. Public information could help court users understand why juries are predominantly all-white at these courts, but this will not alter jury *Crim. L.R. 426 composition. Redrawing the court boundaries to increase the overall proportion of ethnic minorities in the juror catchment area is also not a viable option for most of these courts.
Race and jury decision-making study Concern about the possible under-representation of ethnic minorities on juries assumes that the ethnic composition of juries can affect jury outcomes, and this study used case simulation with real jurors to explore this issue for the first time in this country. Research with actual cases has the inherent problem that no two cases are identical, making it very difficult to draw conclusions that can
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be extrapolated beyond individual cases. Case simulation permits a systematic study of decision making and was used for this reason, not because s.8 prohibits interviewing jurors about their deliberations. Simulation studies have validly been criticised for lacking authenticity, either in the subjects that take part, the casematerials or the simulation itself.52 However, extensive efforts were made to bring this simulation as close as possible to conditions experienced by real juries. This was done not only through the use of an actual case,53 the use of a real judge, barristers, police, court staff and witnesses in the case materials, but crucially through the use of real jurors sitting as a jury at a Crown Court as the study participants. The study was conducted with dismissed jurors at Blackfriars Crown Court in London.54 Jury panels were selected by the Court Service's own random selection programme and all juries included enough jurors to constitute a valid jury.55 The study included 27 separate juries with 319 jurors. All juries saw a film of the same case in which a male defendant was accused of causing Actual Bodily Harm (ABH)56 by punching a male victim after a confrontation outside a bar. Different versions of the case were created in which changes were made to the race of the defendant or the victim (white, black or Asian) or the charge against the defendant (either a single charge of ABH or two charges of ABH and Racially-aggravated ABH).57 Juries were randomly assigned to view one of the case versions. The case films contained all the elements of an actual trial: prosecution opening, evidence-inchief and cross examination of all witnesses, prosecution and defence closings, and *Crim. L.R. 427 instructions on the law by the judge. After viewing the case, jurors recorded their initial verdicts before deliberating, deliberated in an attempt to reach a verdict,58 recorded their verdicts after deliberation, and then completed a questionnaire exploring their views of the witnesses, evidence and the justice and jury systems. Two aspects of this research distinguish it from other jury studies. First, it was a study of racially mixed juries, and was therefore able to draw direct comparisons between the decision-making of white and ethnic minority jurors. Even in the United States few jury studies have included ethnic minority participants, and even fewer have included ethnic minority and white participants in the same study. Secondly, it examined both individual juror votes and jury verdicts. Most “jury” research only examines individual juror judgements, not the verdicts of juries.59 This is because jury (as opposed to juror) decision-making studies can be time consuming and logistically complicated. But in the real world of criminal trials it is ultimately the verdict of the jury that counts, and studies of individual juror decision-making can rightly be criticised for failing to take this factor into account.
Verdicts of racially mixed juries and votes of individual jurors The main finding is that the verdicts of racially mixed juries did not discriminate against defendants based on the defendant's race. In the 27 separate jury verdicts, outcomes for the white, black and Asian defendants were remarkably similar. Where the jury reached a verdict, in almost all instances (10 of 11 or 91 per cent) the verdict was the same regardless of the race of the defendant. There were more hung juries (16) than verdicts (11), but this mirrored the divisive nature of the original case,60 and the possibility of reaching a majority verdict meant that more juries reached a verdict (11) than if unanimity had been necessary (1). Even though the defendant's race did not have an impact on jury verdicts, race did have a significant impact on the individual votes of some jurors who sat on these juries. Statistical analysis of the individual votes of all 319 jurors who took part in the case simulation showed that in certain cases BME jurors were significantly less likely to vote to convict a BME defendant than a white defendant.61 As Figures 3A and 3B show, this “same race leniency” was only present when race was not an explicit element of the case. When the assault was prosecuted as ABH only and no mention was made of race, BME jurors were far less likely to convict a BME defendant (12 per cent) than the white defendant (59 per cent), while white jurors had similar conviction rates for the white defendant and BME defendants (33 per cent and 26 per cent respectively). However, when the exact same assault TABULAR OR GRAPHIC MATERIAL SET FORTH AT THIS POINT IS NOT DISPLAYABLE *Crim. L.R. 428 was prosecuted as racially-aggravated,62 white jurors and BME jurors had similar conviction rates63 for both the white defendant (63 per cent and 67 per cent respectively) and BME defendants (32 per cent and 29 per cent respectively). White jurors also showed some evidence of same race leniency, but again this was only present where race was not an explicit element in the case. In these cases, *Crim. L.R. 429 white jurors had very low conviction rates for the white defendant (33 per cent), despite consistently stating that they
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did not believe his evidence and felt he was dishonest.64 Runciman and Auld both recommended that racially mixed juries be used in cases involving overt racial issues, but these findings suggest that racial bias is actually less likely in those cases than in cases where race is not an overt element.
Same race leniency Overall the race of the defendant appeared to influence ethnic minority jurors more than white jurors, and this corresponds to the few American studies to compare white and black juror judgments. These studies found that black jurors exhibited same-race leniency towards black defendants and rated white defendants more harshly than black defendants.65 Psychological studies suggest that same race leniency among ethnic minority jurors may reflect a greater tendency on the part of ethnic minority jurors to perceive racial inequalities in the criminal justice system,66 and that where ethnic minority jurors believe courts are biased against ethnic minority defendants, their conception of fairness may motivate them to exercise same race leniency to compensate for that bias.67 In such cases, ethnic minority jurors may set the certainty bar higher before they will convict an ethnic minority defendant in order to level the playing field,68 or they may interpret the evidence differently when the defendant is from an ethnic minority group.69 The Blackfriars study suggests that same race leniency among ethnic minority jurors in this country reflects their perception that the court system is racially biased. Most ethnic minority jurors who took part in the study (68 per cent) believed that ethnic minorities are treated more harshly by the courts than white people, while most white jurors (55 per cent) disagreed with this view. While this evidence of same race leniency may seem compelling, it is important to remember that this leniency by some ethnic minority jurors did not have an impact on the verdicts of the juries on which they sat. The fact that 12 jurors must jointly try to reach a decision and that majority verdicts were possible appeared to ensure that individual biases did not dictate the decision-making of these racially mixed juries. If juries were smaller or if unanimous verdicts were required, then individual juror bias might potentially have a greater impact on jury verdicts. These findings highlight how important it is for any jury research to look beyond individual juror decisions to the decision-making of the jury as a whole. However, *Crim. L.R. 430 this decision-making study did not address whether all-white juries discriminate against defendants based on race. This is clearly a crucial question to answer, particularly as the representation study found that most juries in most Crown Courts will be all-white juries. The author is currently conducting research with all-white juries to examine this question.70
Conclusion For too many years myths about jury service have clouded perceptions and policy debates about the jury system. It can serve no purpose for jurors, court users or the legal profession to mistakenly believe that jurors are unrepresentative and are not important or clever enough to avoid serving. It is now clear that serving jurors closely reflect the diversity of their local communities and that there is no widespread avoidance of jury service by the public in England and Wales. This was true even before the recent introduction of new juror eligibility rules, which have nonetheless increased participation in the jury system. The research also provides evidence to support the Lord Chief Justice's call to trust in the common sense of the jury. Despite the fact that some jurors did show bias towards defendants based on race, the verdicts of the juries on which these jurors sat did not discriminate against defendants based on race. By laying to rest a number of long-standing myths about juries and exploring how juries make decisions, this research has also highlighted how valuable empirical research on juries can be and just how much jury research can be conducted in this country within existing legal restrictions. This article is drawn from the author's report, C. Thomas, Diversity and Fairness in the Jury System, Ministry of Justice Research Series 02/07 (2007). The full report can be downloaded at: http://www.justice.gov.uk/publications/research130607’.htm [Accessed March 18, 2008]. Crim. L.R. 2008, 6, 415-430
1.
Less than 1% of all criminal defendants in 2006 had their cases decided by a jury. Over 1.86 million defendants were proceeded against in both Magistrates and Crown Courts, with only 4.5% of these (84,012) disposed of in the Crown Courts. Of these 28,821 were potential jury trials where the defendant pleaded not guilty, although juries reached a verdict by deliberation in only 59% of these cases (17,004). Judicial and Court Statistics 2006. November 2007. Cm.7273. Tables 6.6, 6.7, 6.8, 6.9 and 7.1.
2.
See P. Thornton, “Trial by Jury: 50 Years of Change” [2004] Crim. L.R. 119.
3.
There is no empirical evidence, for instance, that the right to silence was abused by “professional” criminals or that peremptory challenges
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were leading to acquittals by stacked juries, although both arguments were used in introducing changes to the jury system. Moves to abolish juries in fraud cases were based initially on the argument that juries cannot understand complex evidence and more recently on the argument that long trials impose an unacceptable burden on jurors, although there is no research to support either contention. 4.
See Report of the Review of the Criminal Courts, (2001), Ch.5 (herein referred to as the Auld Review) and Report of the Royal Commission on Criminal Justice, 1993. Cm. 2263, Ch.1 (herein referred to as the Runciman Commission). The lack of knowledge about the working of the jury system is often falsely attributed to the introduction of s.8 of the Contempt of Court Act in 1981, which makes it a criminal offence to “obtain, disclose or solicit any particulars of statements made, opinions expressed, arguments advanced, or votes cast by members of a jury in the course of their deliberations”. This restriction does not in fact prevent most research about juries, but its existence has created confusion about what research can and cannot be conducted with jurors and contributed to an information vacuum about juries in this country.
5.
Darbyshire et al. claimed that five-sixths of those summoned in London avoid or evade jury service. P. Darbyshire, A. Maughan and A. Stewart, “What Can the English Legal System Learn from Jury Research Published up to 2001”, Appendix to Auld Review, p.58.
6.
Reported in Auld Review, Ch.5, para.13.
7.
Auld Review, Ch.5, para.11.
8.
Auld Review, Ch.5, para.23.
9.
Auld Review, Ch.5, para.60; Runciman Commission, Ch.8, paras 63 and 64.
10.
There is considerable debate over appropriate terminology used to discuss relations between people of different heritages. While social scientists here tend to favour “ethnicity” and view the concept of race as problematic, legislation in this country uses “race” (Race Relations Act, racially-aggravated offences) and “race” is widely used by social scientists in the US. This lack of consensus over terminology has rightly been described as creating a “quagmire of ambiguity”. P. Ratcliffe, “Race”, Ethnicity and Difference: Imagining the Inclusive Society (2004).
11.
Crime, Policing and Justice: the Experience of Ethnic Minorities - Findings from the 2000 British Crime Survey Home Office Research Study 223 (2001).
12.
G. Daly and R. Pattenden, “Racial Bias and the English Criminal Trial Jury” (2005) 64(3) C.L.J. 678, which reported 15 cases in which claims emerged of racist remarks during deliberations, although the racial composition of the jury was unknown in 10 of the cases, was all-white in three cases and racially mixed in two cases.
13.
Survey of 900 members of the public commissioned by the Bar Council, the Law Society and the Criminal Bar Association. “Public backing for jury ‘rock solid’, new poll shows”, Bar Council Press Release, January 30, 2002.
14.
Survey conducted on behalf of the Jury Diversity Project by MORI in its Omnibus survey of April 24-28, 2003.
15.
Lord Phillips of Worth Matravers, “Trusting the Jury” Criminal Bar Association Kalisher Lecture, October 23, 2007.
16.
M. Zander and P. Henderson, Crown Court Study, The Royal Commission on Criminal Justice Research Study No.19. (1993) (herein referred to as the Crown Court Study).
17.
J. Baldwin and M. McConville, Jury Trials (1979).
18.
In Smith (Lance Percival) [2003] EWCA Crim 283; [2003] 1. W.L.R. 2229, a black defendant convicted of assaulting a white victim appealed his conviction on the grounds that the jury selection procedures, which resulted in an all-white jury, were incompatible with his Art.6 right to a fair hearing by an impartial tribunal. The appeal was rejected on the grounds that no evidence was found of actual bias in the jury verdict.
19.
In two cases appealed to the European Court of Human Rights, ethnic minority defendants appealed against convictions by juries based on allegations that racist remarks were made in the course of the jury's deliberations. Gregory v United Kingdom (1997) 25 E.H.R.R. 577 and Sander v United Kingdom (2001) 31 E.H.R.R. 44. In Sander, the European Court ruled that the trial judge's failure to discharge a jury after a juror admitted making racist remarks about the defendant during deliberations did violate the fair trial requirements of Art.6. More broadly, it ruled that sufficient guarantees must exist to exclude any objectively justified or legitimate doubts as to the impartiality of a tribunal, and stressed that a jury must be impartial from a subjective as well as an objective point of view.
20.
To achieve this judges had sanctioned the use of challenges (see for instance Broderick [1970] Crim. L.R. 155), standby of jurors or summoning from areas known to contain substantial numbers of ethnic minority residents (see for instance Bansal [1985] Crim. L.R. 151).
21.
Ford (Royston James) (1989) 89 Cr. App. R. 278. The court also ruled that there was no principle requiring that a jury be racially balanced, that race should not be taken into account in selecting jurors, and that constructing a multi-racial jury would interfere with the element of randomness that underpins the conception of a fairly structured jury, interfere with the executive's exclusive power over jury summoning and would have to be a power granted to the judiciary by statute.
22.
On the grounds that it contradicted the principle of random jury selection and could place ethnic minority jurors in a difficult position and create divisions within juries. See Justice for All. 2002. Cm. 5563, S.7.29.
23.
Crime and Disorder Act 1998 ss.28-32, 82.
24.
The only substantive studies of the role of race in jury decision-making have been conducted in the United States. See see S. Sommers and P. Ellsworth, “How Much Do We Really Know About Race and Juries? A Review of Social Science Theory and Research” (2003) 78(3) Chicago-Kent Law Review 997.
25.
Specifically the conclusions that it was essential for ethnic minority communities to feel confidence in the criminal justice system and it was incumbent on all government institutions to ensure that their policies and practices did not disadvantage any section of the community. See W. Macpherson, The Stephen Lawrence Inquiry: Report of the Inquiry by Sir William Macpherson of Cluny (1999).
26.
Lord Chancellor's Department Research Unit Courts and Diversity Research Programme (March 2003).
27.
This is the group of jurors who attend court and are therefore available to be selected for a jury panel.
28.
Random selection of jurors is a relatively recent invention and was only introduced in England and Wales following recommendations made in the Morris Report in 1965. Report of the Departmental Committee on Jury Service. 1965. Cmnd 2627.
29.
Findings in this article are from the 2005 survey, which provides the most up to date results.
30.
The survey used the ethnic group classifications recommended by the Office of National Statistics for self-identification of ethnicity in postal surveys conducted in England and Wales. Office of National Statistics, Ethnic Group Statistics: A Guide for the Collection and Classification of Ethnicity Data, (2003) p.7.
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31.
Among those who replied to the juror summons, the overwhelming majority (82%) also answered the study questionnaire, and almost all who served (91%) answered the questionnaire.
32.
Auld Review, Ch.5, para.60.
33.
Ethnic minorities were found to be significantly under-represented among summoned jurors for Manchester Crown Square. Ethnic minorities were also significantly over-represented at one court (Great Grimsby). For details of the analysis see Thomas, Diversity and Fairness in the Jury System, MOJ Research Series 02/07 (2007), Appendix 1.
34.
While there appears to be some consensus that BME groups may be under-represented among registered voters, it is unclear which BME groups have the highest levels of nonregistration. Two studies in the late 1990s reached different conclusions. See S. Saggar The General Election 1997: Ethnic Minorities and Electoral Politics (1998) and M. Anwar Ethnic Minorities and the British Electoral System (1998). Beyond this the Electoral Commission has shown that other demographic factors (such as age, gender, class, education and geographic location) can be more influential than ethnicity in determining voter registration. See Voter Engagement among Black and Minority Ethnic Communities Electoral Commission Research Report (July 2002).
35.
Darbyshire, Maughan and Stewart, “What Can the English Legal System Learn from Jury Research Published up to 2001”, Appendix to Auld Review.
36.
For details of the analysis see Thomas, Diversity and Fairness in the Jury System, MOJ Research Series 02/07 (2007), Appendix 3.
37.
Justice for All, 2002. Cm. 5563, s.7.27.
38.
Those aged 65 to 69, MPs, clergy, medical professionals and those involved in the administration of justice. New juror eligibility rules cover all registered electors between 18 and 70 years of age who have been resident in the United Kingdom for five years: Juries Act 1974 as amended by Criminal Justice Act 2003 s.321 Sch.33.
39.
The three courts where ethnic minorities were significantly under-represented among serving jurors were Manchester Crown Square, Birmingham and Leeds. For results of the statistical analysis see Thomas, Diversity and Fairness in the Jury System, MOJ Research Series 02/07 (2007), Appendix 1.
40.
For details of the analysis see Thomas, Diversity and Fairness in the Jury System, MOJ Research Series 02/07 (2007), Appendix 5.
41.
Those summoned from an Asian background with English as a first language had the highest level of jury service among all those summoned (78%), even higher than white English-speaking members of the public (72%).
42.
Reported in Auld Review, Ch.5, para.13.
43.
Auld Review, Ch.5, paras 27-40.
44.
Justice for All, 2002. Cm. 5563, s.7.24.
45.
The survey had an average response rate of 90%.
46.
2.4% of serving jurors in Reading were of Pakistani origin compared to 2.5% in the local population; 1.2% of serving jurors at Blackfriars were of Pakistani origin, the same proportion as in the local population.
47.
The Department for Education and Skills estimates that entry level English literacy skills are low in the five wards in the Oldham area (Alexandra, Coldhurst, St Marys, St Pauls and Werneth) with the highest ESOL populations (English for Speakers of Other Languages), which fall within the Manchester Minshull Street juror catchment area. See http://www.dfes.gov.uk/readwriteplus skillsforlifesurvey [Accessed March 18, 2008].
48.
This closely reflects the findings on gender in the Crown Court Study, which included a much larger number of juries. See Zander and Henderson, Crown Court Study (1993), p.235.
49.
Twelve of the 20 are the London Crown Courts. Jurors at these London courts make up a quarter of all serving jurors, and 45% of the ethnic minority population of England and Wales live in London. The other courts are Reading, Manchester Minshull Street, Luton, Coventry, Wolverhampton, Bradford, Leicester, Birmingham.
50.
Sheffield, Leeds, Nottingham, Manchester Crown Square, Burnley, Aylesbury, Bolton, Preston, Derby, Oxford, Cardiff, Bristol and Liverpool.
51.
See “Persons tried for indictable offences at the Crown Court by outcome and ethnic appearance, selected areas, 2004” in Statistics on Race in the Criminal Justice System--2005 Home Office (2006) and Crown Prosecution Service Racist Incident Monitoring Report 2004-05, CPS (October 2005).
52.
A review of over 30 case simulation studies in the US found that many studies relied heavily on university students as participants, used incomplete or inauthentic case materials, involved insufficient numbers of participants, and did not allow for deliberation among participants. See Sommers and Ellsworth, “How Much Do We Really Know About Race and Juries? A Review of Social Science Theory and Research” (2003) 78(3) Chicago-Kent Law Review 997.
53.
All names and locations in the original case were altered to ensure anonymity of any persons involved in the original case.
54.
Once jurors were dismissed, they were asked if they would be willing to take part in the research project, that it involved watching a film of a case, deliberating for a set period and completing questionnaires. Participants were paid £20, and there was a 98% participation rate among dismissed jurors.
55.
Twenty three juries with 12 jurors, three with 11, one with 10.
56.
Under Offences Against the Person Act 1861 s.47.
57.
Under Crime and Disorder Act 1998 s.29(1)(b). The evidence of racial aggravation was that, before the defendant punched the victim (which is not disputed) it is claimed that he said “have some you Black/Paki/White bastard”. In the version with a single charge of ABH, the claim is that the defendant said “have some you bastard” before he punched the victim.
58.
The trial-to-deliberation ratio (3:1) was the same in both the original trial and the case simulation. The original trial lasted 15 hours and deliberation five hours. The case simulation film lasted 1 hour followed by 20 minutes of deliberation. The deliberation time also reflects findings from the Crown Court Study, which found that the vast majority of real juries (75%) deliberated for under an hour when the trial lasted for under half a day. Zander and Henderson, Crown Court Study, p.225.
59.
One exception is S. Sommers “On Racial Diversity and Group Decision-Making: Identifying Multiple Effects of Racial Composition on Jury Deliberations” (2006) 90(4) Journal of Personality and Social Psychology 597.
60.
A hung jury was the outcome in the original case on the ABH charge (and therefore a verdict on the charge of racially aggravated ABH did not arise).
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61.
For details of the analysis see Thomas, Diversity and Fairness in the Jury System, MOJ Research Series 02/07 (2007), Appendix 6.
62.
With the defendant charged with both ABH and Racially-aggravated ABH.
63.
On the ABH charge.
64.
For details of this analysis see Thomas, Diversity and Fairness in the Jury System, MOJ Research Series 02/07 (2007), p.175.
65.
S. Sommers and P. Ellsworth “Race in the Courtroom: Perceptions of Guilt and Dispositional Attributions” (2000) 26 Personality and Social Psychology Bulletin 1367; D. Abwender and K. Hough “Interactive Effects of Characteristics of Defendant and Mock Juror on U.S. Participants' Judgement and Sentencing Recommendations” (2001) 141 Journal of Social Psychology 603.
66.
See R.M. Sellers and J.N. Shelton “The Role of Racial Identity in Perceived Racial Discrimination” [2003] Journal of Personality and Social Psychology 84.
67.
Sommers and Ellsworth, “Race in the Courtroom: Perceptions ofGuilt and Dispositional Attributions” (2000) 26 Personality and Social Psychology Bulletin 1367.
68.
See J. Jones “Whites are from Mars, O.J. is from Planet Hollywood” in Off White: Readings on Race, Power, and Society (1997)
69.
See G.V. Bodenhausen and R.S. Wyer, “Effects of Stereotypes in Decision Making and Information-processing Strategies” (1998) 48 Journal of Personality and Social Psychology 267.
70.
Research commissioned by the Ministry of Justice Research Unit. Findings are expected to be published in late 2008. © 2009 Sweet & Maxwell and its Contributors
