Jury Service for All? Analysing Lawyers as Jurors
| Author | R. Gwynedd Parry |
| DOI | 10.1350/jcla.2006.70.2.163 |
| Published date | 01 April 2006 |
| Date | 01 April 2006 |
| Subject Matter | Article |
Jury Service for All? Analysing
Lawyers as Jurors
R. Gwynedd Parry*
Abstract Section 321 of and Sched. 33 to the Criminal Justice Act 2003
abolished many of the old restrictions on jury service eligibility previously
contained in the Juries Act 1974. The result has been to widen sig-
nificantly the pool of eligible jurors in criminal trials. This article addresses
some of the implications of allowing lawyers, including members of the
judiciary, to serve on juries, and considers the recent guidance issued to
them in order that they perform their role as jurors appropriately. It will
also reflect upon the Court of Appeal’s recent ruling in Rv Abdroikov and
Others, which considers many of the pertinent issues, including the issue of
jury bias.
Section 321 of and Sched. 33 to the Criminal Justice Act 2003 has made
it a requirement for lawyers, judges, police officers and those involved
within the administration of justice to do jury service. This reform of the
Juries Act 1974 is the implementation of Auld LJ’s recommendations in
his comprehensive report on the Criminal Justice System in England
and Wales, and in particular Chapter 5 which related to jury service
eligibility.1Auld LJ had concluded that large sections of society were not
serving on juries due to a combination of reasons, chief among which
were the provisions of the Juries Act 1974 which automatically ex-
cluded or excused sections of society from the process. Therefore, the
constituency from which jurors are randomly selected was too selective
and this in turn undermined the traditional claims that juries are repre-
sentative of the whole community.
The Government earnestly addressed these concerns by cutting a
swathe through the various categories of automatic exclusion (save for
the mentally disordered and those disqualified due to their own criminal
activities), the results of which can be found in the provisions of Sched.
33 to the Criminal Justice Act 2003. Of all the newly enfranchised
categories of jurors, perhaps the most controversial are the judges,
barristers, solicitors and others directly involved in the administration of
justice. In recognising the potentially awkward position of the legal
professionals, the Lord Chief Justice and the Chairman of the Bar saw fit
to issue some observations and guidance on how the judges and lawyers
should discharge their duty as jurors. Furthermore, the Court of Appeal
in R v Abdroikov and Others2was recently required to assess the potential
impact of lawyer-jurors from the perspective of jury bias and connected
* Barrister, Temple Chambers, 32 Park Place, Cardiff; Lecturer, Swansea University
School of Law; e-mail R.G.Parry@swansea.ac.uk.
1Review of the Criminal Courts of England and Wales by the Right Honourable Lord Justice
Auld, September 2001, available at www.criminal-courts-review.org.uk, accessed 14
January 2006 (hereinafter referred to as ‘Auld Report’).
2 [2005] EWCA Crim 1986, The Times (18 August 2005).
163
issues of trial fairness in accordance with Article 6 of the European
Convention on Human Rights.
This article explores the issues surrounding these developments, and
asks, do lawyers and judges on juries create more problems than they
solve?
The virtue of representativeness
What lies at the heart of these reforms is the perception that the strength
of the jury as an institution is largely due to the fact that one of its
fundamental characteristics is that it is a cohort of individuals selected at
random from the general population. It is because almost all members of
the community are summonable for jury service that the jury becomes
a representative body, and it is this feature that gives it its democratic
quality. Representativeness is in one sense an intrinsic value that legiti-
mises the process. On the other hand, it may equally be seen as a means
to an end, which is the facilitation of an independent and unbiased
tribunal that commands public confidence.
In the USA, the need to ensure that the jury source lists are totally
inclusive of all members of society has been a dominant theme in
academic writing.3In a country that prides itself in its rigorous ad-
herence to democratic ideals, jury representativeness has been regarded
as critical to the fairness of the process. Moreover, American legal
academics have sought to devise complex systems to ensure that each
and every jury in every trial is representative of the local community,
what might be described as jury selection by proportional representa-
tion.4However, the purported historical antecedents of the principle
that the jury should be representative of all sections of the community
have been the subject of much academic debate and scrutiny.5Up until
the late 20th century, the list of qualified jurors was limited by various
requirements primarily related to property rights and gender, and Black-
stone in his day had no qualms in recommending that only the upright,
male, ‘middling sort’ should be deemed eligible for jury service.6Indeed,
historically, ‘the jury’ took various forms depending upon the function it
was required to discharge, and, for example, the jury de medietate linguae
3 See K. S. Klein and T. D. Klastorin, ‘Do Diverse Juries Aid or Impede Justice’,
Wisconsin Law Review 553 (1999); C. A. Williams, ‘Jury Source Representativeness
and the Use of Voter Registration Lists’, New York University Law Review 590 (1990).
4 D. Kairys, J. Kadane and J. Lehoczky, ‘Jury Representativeness: a Mandate for
Multiple Source Lists’, 65 California Law Review 776 (1997); H. Fukurai et al., ‘Cross-
Sectional Jury Representation or Systematic Jury Representation? Simple Random
and Cluster Sampling Strategies in Jury Selection’ (1991) 19 Journal of Criminal
Justice 31; N. J. King and G. T. Munsterman, ‘Stratified Juror Selection: Cross-
section by Design’ (1996) 79 Judicature 273; H. Fukurai, ‘The Representative Jury
Requirement: Jury Representativeness and Cross Sectional Participation from the
Beginning to the End of the Jury Selection Process’ (1999) 23(1) International
Journal of Comparative and Applied Criminal Justice 55 at 59.
5 See P. Darbyshire, ‘The Lamp that Shows that Freedom Lives—Is It Worth the
Candle?’ [1991] Crim LR 740 at 744–5.
6 Sir William Blackstone, Commentaries IV (London, 1776) 347.
The Journal of Criminal Law
164
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