Judicial Management of Juror Impropriety
| DOI | 10.1350/jcla.2014.78.1.891 |
| Published date | 01 February 2014 |
| Date | 01 February 2014 |
| Subject Matter | Article |
Judicial Management of Juror
Impropriety
Nick Taylor* and His Honour Judge Roderick Denyer QC**
Abstract The debate surrounding the utility of trial by jury is as relevant as
ever. Much criticism of the ability of jurors to carry out their task was
brought to the fore following the highly publicised Pryce trial and the
comments from Sweeney J indicating a fundamental problem in jurors’
understanding of their role. Furthermore, media attention surrounding a
steady stream of cases involving juror misconduct has called into question
whether jury trial can survive in its current form. This article recognises that
although juries are not a normative part of a fair trial, they do have con-
siderable value in enhancing public confidence in the fairness of the criminal
process, particularly through the perception of impartiality. If public support
is lost, then the value of jury might be lost with it. Whilst the Law Commission
is rightly considering how jurors might be more prepared in advance to carry
out their role effectively, this article considers the current judicial approach
to dealing with the practical issue of juror impropriety once it has occurred.
Through looking at a series of trial and appeal cases it can be seen that a
framework has developed which seeks to ensure that trials are derailed
rarely whilst the impartiality of the jury is safeguarded. It is maintained that
in emphasising both actual and apparent impartiality the vital element of
public confidence in the existing process can be preserved.
Keywords Juries; Jury management; Public confidence; Jury mis-
conduct
As the furore surrounding the Pryce trial1 illustrated, trial by jury continues
to be a fertile source of academic, professional and political debate. In 1956
Humphreys J commented: ‘I cannot bring myself to believe that there are
any persons … who would vote in favour of the abolition of trial by jury
in serious cases’.2 In 1991, Darbyshire concluded that ‘sentimental attach-
ment to the symbol of the jury is dangerous’. She added that, ‘the symbolic
function of the jury far outweighs its practical significance’.3 Reforms
following the Auld Report,4 which increased the pool of those qualifying
* Associate Professor, School of Law, University of Leeds; e-mail: N.W.Taylor@leeds.ac.uk.
** Circuit Judge.
The authors are grateful to Andrew Roberts and Dr Jacqueline Horan from the
Melbourne Law School for their helpful comments on an earlier draft of this article. The
usual caveats apply.
1 ‘Vicky Pryce jury discharged in Huhne speeding points case’, 20 February 2013,
available at www.bbc.co.uk/news/uk-21516473, accessed 5 December 2013.
2 Justice Humphreys, ‘Do We Need a Jury’ [1956] Crim LR 457, quoted in P. Thornton,
‘Trial by Jury: 50 Years of Change’ [2004] Crim LR 119.
3 P. Darbyshire, ‘The Lamp That Shows That Freedom Lives: Is It Worth the Candle?’
[1991] Crim LR 740 at 741.
4 Auld LJ, A Review of the Criminal Courts of England and Wales (London, September 2001)
ch. 5.
The Journal of Criminal Law (2014) 78 JCL 43–64 43
doi:10.1350/jcla.2014.78.1.891
The Journal of Criminal Law
44
for jury service, has generated case law,5 and the House of Lords’
conclusions in R v Mirza6 that jurors’ deliberations remain sacrosanct
likewise has generated much academic discussion and appeal court time.7
In 2005 the Department for Constitutional Affairs8 sought views on
whether the rules surrounding jury confidentiality ought to be amended
or clarified by legislation. No changes followed, but the debate was
certainly not brought to an end. In 2010 the European Court of Human
Rights determined that jury verdicts were compatible with Article 6 of the
European Convention on Human Rights despite the absence of a reasoned
verdict provided that other ‘safeguards’ were in place.9 In its 2012
Consultation Paper on Contempt of Court,10 the Law Commission sought
views on aspects of the jury with particular regard to juror misconduct and
the new social media context within which juries must operate. More
recently, further jury research by Thomas11 has underscored the need for
reform. Without doubt, scrutiny surrounding the role of the jury is
particularly acute at the moment12 given the considerable external threats
to the impartiality of jurors’ deliberations and, perhaps equally damaging,
the perception of any partiality that may serve to erode public confidence.
The jury still continue to hold the confidence of the public, seemingly
more so than any other branch of the criminal justice system, and it would
be dangerous not to respect the importance of this. It does appear
somewhat incongruous that the public have such strong faith in a system
which lacks the levels of accountability and openness seen in other public
institutions. Arguably, what encourages public support is the belief that
the process is fair. This article considers the management of jury misconduct
and impropriety as one key aspect of the framework surrounding jury trial
that promotes public confidence.
Public confidence and jury accountability
Trial by jury still retains considerable public confidence13 in part through
its representativeness 14 and also its perceived fairness.15 The first of these
5 See, e.g., Hanif v United Kingdom [2012] Crim LR 295; R v Abdroikov [2007] UKHL 37,
[2007] 1 WLR 2679; R v L [2011] EWCA Crim 65, [2011] 1 Cr App R 27.
6 [2004] UKHL 2, [2004] 1 AC 1118.
7 For example, see the major decisions in R v Momodou [2005] EWCA Crim 177, [2005]
2 All ER 571; R v Karakaya [2005] EWCA Crim 346, [2005] 2 Cr App R 5; Attorney-
General v Scotcher [2005] UKHL 36, [2005] 1 WLR 1867.
8 Department for Constitutional Affairs, Jury Research and Impropriety: A Consultation Paper
to Assess Options for Allowing Research into Jury Deliberations and to Consider Investigations into
Alleged Juror Impropriety, CP 04/05 (2005).
9 Taxquet v Belgium (App. No. 926/05, 16 November 2010).
10 Law Commission, Contempt of Court: A Consultation Paper, Law Com. Consultation Paper
No. 209 (2012) especially ch. 4.
11 C. Thomas, ‘Avoiding the Perfect Storm of Juror Contempt’ [2013] Crim LR 483.
12 J. Horan, Juries in the Twenty First Century (Federation Press: Annandale NSW, 2013).
13 J. Roberts and M. Hough, Public Opinion and the Jury: An International Literature Review,
Ministry of Justice Research Series 1/09 (2009). See also the surveys discussed in
C. Thomas, ‘Exposing the Myths of Jury Service’ [2008] Crim LR 415 at 416–7.
14 Roberts and Hough, above n. 13 at 25: ‘the general finding is that most people are very
confident that juries are representative of the community’.
15 Roberts and Hough, above n. 13, see Table 3.1, 25. See also R. J. MacCoun and
T. R. Tyler, ‘The Basis of Citizens Perceptions of the Criminal Jury: Procedural Fairness,
Accuracy and Efficiency’ (1988) 12 Law and Human Behaviour 333 at 338, Table 2.
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