What Happens in the Jury Room Stays in the Jury Room: R v Mirza, the Criminal Justice and Courts Act, and the Problem of Racial Bias
| Pages | 236-262 |
| Date | 01 April 2021 |
| Published date | 01 April 2021 |
| Author | Nicholas Goldrosen |
R v Mirza, the Criminal Justice and Courts Act, and the Problem of Racial Bias236
What Happens in the Jury Room Stays in
the Jury Room: R v Mirza, the Criminal
Justice and Courts Act, and the Problem
of Racial Bias
N G*1
A
This article argues that courts’ refusal to consider juror testimony about
deliberations and the laws restricting jurors from speaking about deliberations
prevent defendants from seeking adequate redress for juror racial bias. The article
first presents a brief history of the common law and statutory foundations of jury
secrecy under English law. I then argue that juror racial bias uniquely threatens
the right to an impartial tribunal and that other safeguards are not necessarily
adequate to ameliorate or prevent bias during deliberations. English courts have
historically upheld jury secrecy by holding that the interests of finality and candour
outweigh the injury done to a defendant by juror racial bias, as exemplified in R v
Mirza. While the Criminal Justice and Courts Act 2015 does make some changes to
jury secrecy law — mainly by allowing jurors to report some forms of misconduct
that occur during deliberations — this article argues that the Act inadequately
protects defendants. The Act’s reporting provisions are overly complex, largely
non-adversarial, and too focused on enabling the prosecution of jurors who
commit misconduct. I argue that a reform of this Act to more explicitly focus on
* MPhil Candidate, Institute of Criminology, University of Cambridge. BA (Williams College). I am
grateful to the editors of the Cambridge Law Review for their helpful comments. ncg36@cam.
ac.uk.
Cambridge Law Review (2021) Vol VI, Issue i, 236–262
protecting defendants from juror misconduct — and in particular, juror racial bias
— is necessary to better secure defendants’ fair trial rights.
Keywords: law of juries, criminal procedure, racial bias and the law, jury secrecy, fair trial rights
I. I
The pithy tourism slogan for the city of Las Vegas — “what happens in Vegas, stays
in Vegas”1 — would be an apt slogan for the English jury room, too. The criminal
law, of course, relies on various forms of compartmentalisation and regulated
disclosure of information. For example, judges prevent juries from considering
inadmissible evidence, so that the jury might see only what is legal and relevant.
With regards to juries, the English law restricts everyone, including the courts
themselves, from examining what occurs when the jurors retire and deliberate.2
Jury secrecy in the English legal system is maintained by two legal instruments — a
prohibition on inquiry into the jury room and a prohibition on speaking out from
the jury room. The former, Mansfield’s rule, prohibits courts from considering
juror testimony to undermine or overturn a conviction. The courts cannot, in a
legal sense, ‘see’ what occurs in the jury room. As to the latter, jurors face criminal
penalties they face if they disclose their deliberations. The jury room becomes a
space set apart, legally speaking.
This secrecy becomes problematic when something goes awry in the jury
room. After all, one important thing that happens in the jury room does not stay
inside of it — the verdict. A jury’s decision-making, though secretive and based
on a limited universe of information, has real consequences for the defendant. If
a juror commits misconduct, the available remedies are limited by jurors’ inability
to report the issue and courts’ inability to grant relief based on juror testimony.
Given the historic and present racial injustices in the criminal legal system, one of
the most concerning scenarios is when a juror makes racially prejudiced remarks
during deliberations. This type of bias is anathema to the impartial tribunal to
which all defendants are entitled, but jury secrecy obstructs the court from giving
1 Samantha Shankman, ‘A Brief History of “What Happens in Vegas Stays in Vegas’ The Week
(New York, 1 October 2013) https://theweek.com/articles/459434/brief-history-what-happens-
vegas-stays-vegas accessed 3 May 2021.
2 With apologies to the Welsh, I use ‘English legal system’ and variants thereof throughout this Arti-
cle to refer to the unified criminal legal system of England and Wales. While the Welsh govern-
ment has some devolved powers with regard to criminal justice, it does not have such powers over
any matters at issue in this Article, such as juries or criminal procedure.
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