Trial by Jury: Still a Lamp in the Dark?
| Author | Laura McGowan |
| DOI | 10.1350/jcla.2005.69.6.518 |
| Published date | 01 December 2005 |
| Date | 01 December 2005 |
| Subject Matter | Article |
Trial by Jury:
Still a Lamp in the Dark?
Laura McGowan*
Abstract Under the current law, where evidence of jury impropriety has
become known following a trial, the Court of Appeal cannot investigate
jury deliberations to determine if the verdict is unsafe. This article con-
siders whether the justifications for this rule, and the safeguards present in
a jury trial, are sufficient to justify the prohibition. It concludes that they
are not. The rule is indefensible, and investigations should be permitted in
certain circumstances.
‘The jury system historically has emerged where there has been a shift
away from despotic and oligarchical governance to more democratically
inclined politics.’1It has been offered as a protection against tyranny:
‘for no tyrant could afford to leave a subject’s freedom in the hands of
twelve of his countrymen’.2The symbolic importance of the jury trial is
one of the guiding concepts against allowing investigations into jury
deliberations.3
The rule
The prohibition on the admission of evidence of jury deliberations in a
criminal trial is a common law rule. This rule has been considered a
number of times by the House of Lords and once by the Court of Appeal
in the last two years. The House of Lords, in the most important case,
considered and upheld the common law rule in R vMirza; R vConnor
and Rollock,4hereinafter referred to as Mirza. Lord Slynn explained the
rule as follows:
The prohibition on receipt of evidence takes effect from the moment the
jury is empanelled and covers not only what took place in the jury box or
the jury room but covers any statement as to what the jury believed the
attitude of other jurors to be as deduced from their behaviour in the box or
as to what the juror thought the effect of the verdict to be. Once the verdict
* Criminal law tutor at University College, London, of King’s Inn (Dublin) and Gray’s
Inn (London); e-mail L.J.M.McGowan.03@ cantab.net. The author would like to
thank Dr Jeremy Horder for his helpful comments on a draft of this article. Any
mistakes are entirely my own.
1 G. Winship, ‘Jury Deliberation: An Observation Study’ (2000) 33(4) Group Analysis
547–57 at 547, full text available at http://eprints.whiterose.ac.uk/archive/
00000219/, accessed 20 September 2005, referring to a research project on jury
deliberation led by Sally Lloyd Bostock in 1995.
2 Lord Devlin, Trial by Jury (1956) 164.
3 See generally R vMirza; R v Connor and Rollock [2004] UKHL 2, [2004] AC 1118.
Lord Hope stated ‘the right to trial by jury has a unique and vital role to play in our
criminal justice system’ (at 1146).
4 [2004] UKHL 2, [2004] AC 1118. The rule was then referred to by the House of
Lords in R vSmith; R vMercieca [2005] UKHL 12, [2005] 1 WLR 704, (2005) 69 JCL
397. The House of Lords applied the rule in Attorney-General vScotcher [2005] UKHL
36, [2005] 1 WLR 1867. Finally the Court of Appeal referred to it in R vMomodou
and Another [2005] EWCA Crim 177, [2005] 2 All ER 571.
518
is given in the presence of all the other jurors then that is the end of the
matter and the Court of Appeal will not inquire as to whether the verdict
truly reflects what the jurors thought.5
The exceptions to this rule, the justification for the rule, the safeguards
to a jury trial and some research on how a jury conducts deliberations
are all considered below.
The exceptions to the rule: what inquiries can be made?
Lord Carswell referred to the ‘sanctity of the jury deliberations’ in R v
Smith; R v Mercieca.6However the common law rule is in fact a rule of
evidence.7Strictly speaking, investigation into jury deliberation could
take place, but any resulting evidence would be inadmissible. Never-
theless, it is generally understood that neither a trial judge nor the Court
of Appeal can inquire into jury deliberations after verdict. The common
law rule will be referred to below as a rule prohibiting investigation into
deliberations or the common law prohibition.
Despite the seemingly sacrosanct nature of the common law prohibi-
tion there are a number of circumstances where inquiries can be made.
These were set out by Lord Carswell in R v Smith; R v Mercieca8and
summarised as follows:
1. An exception to the rule may exist if an allegation is made which
tends to show that the jury as a whole declined to deliberate at all,
but decided the case by other means such as drawing lots or tossing
a coin.9
2. Where the jury is alleged to have been affected by what are termed
extraneous influences, for example contact with other persons
who may have passed on information which should not have been
before the jury, inquiry can be made.
5R vMirza; R v Connor and Rollock [2004] AC 1118 at 1143. Lord Carswell in R v
Smith; R v Mercieca [2005] UKHL 12, [2005] 1 WLR 704 said: ‘The general rule is
that the court will not investigate, or receive evidence about, anything said in the
course of the jury's deliberations while they are considering their verdict in their
retiring room’.
6 [2005] 1 WLR 704 at 707.
7 See generally Lord Steyn’s speech in R v Mirza; R v Connor and Rollock [2004] 1 AC
1118.
8 [2005] 1 WLR 704.
9 The law on this point is unsettled. Lord Carswell was citing Lord Hope in R v Mirza;
R v Connor and Rollock [2004] 1 AC 1118 at 1164–5. Lord Hope stated: ‘So it is
arguable that an allegation that the jury as a whole declined to deliberate at all, but
decided the case by other means such as drawing lots or by the tossing of a coin,
can be placed into a different category . . . The law would be unduly hampered if
the court were to be unable to intervene in such a case and order a new trial’
(emphasis added). But see Lord Rodger’s speech, who reserved his opinion on this
point ([2004] 1 AC 1118 at 1180).
Further confusion is added if one considers the argument by the DPP in Mirza.
When asked to consider the facts of R vYoung (Stephen) [1995] QB 324, counsel
accepted that if a ouija board had been brought into the jury room (in the case it
was consulted in a hotel room) and determined the verdict by consulting it, the
exclusionary rule would not apply. However, the DPP went on to argue that, if the
foreman of the jury flicked a coin in the jury room to obtain a verdict, this would
be inadmissible ([2004] 1 AC 1118 at 1135).
Trial by Jury: Still a Lamp in the Dark?
519
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