In the coming months, we will be publishing a series of ‘module reviews’, providing a brief outline of our first-year modules at Newcastle University to help students get a basic understanding of each topic. In the month of September, we will be looking at the module typically labelled by most universities as ‘English Legal System’ but named ‘Legal Institutions and Methods’ at Newcastle.
In the penultimate review of this series, we will be reviewing two key types of legal personnel in the court system – judges and juries. Furthermore, we will also be looking at options outside the court system, known as alternative dispute resolutive (ADR).
Disclaimer: all information in these Module Reviews is taken from our own notes and research. Please do not cite this article in your own work.
Juries
Before studying law, I was unsure of whether juries even existed in England and Wales, or whether they were only a feature of the US legal system, having only seen them in dramatic American legal films and series. However, juries are in fact found in the Crown Court and High Court in England and Wales.
A jury consists of twelve jurors, who are called at random from the local community to carry out jury duty. Whilst some might argue that jury service is routinely avoided by the middle-class, clever or retired, Cheryl Thomas (2007) states that this is a myth; there are in fact very strict criteria for exemption from jury service under the Juries Act 1974 and subsequent legislation, including having previously committed an offence or having served on a jury within the last two years. Furthermore, jurors can be aged anywhere between 18-75, making them representative of all age groups within society.
Whilst judges can advise the jury to help them come to a guilty or not guilty verdict, they cannot compel juries to come to a certain decision or force them to follow the law. This is a principle known as jury equity, established in Bushell’s Case (1670) – juries may acquit a defendant, even if the law would seem to demand a guilty verdict. This was seen in R v Ponting (1985); the defendant, Clive Ponting, a civil servant, leaked information relating to the 1982 Falklands War to an MP, and when he was tried under the Official Secrets Act 1911, he sought sympathy from the jury, arguing that his actions were in the public interest. Despite the judge directing the jury that Ponting had no defence in law, the jury found him not guilty.
With the growing use of technology in society, the jury system has had to adapt to prevent the use of mobile devices and the internet from impacting the jurors’ duties. In Attorney General v Dallas (2012), a jury member used the internet to do research on the case despite warnings from the judge against it and was sent to prison for six months. Under more recent legislation, the Criminal Justice and Courts Act 2015 makes it an offence to research a trial and share information with other jurors. Furthermore, judges can now make an order for jurors to surrender their electronic communications devices.
Advantages of Jury Trials
Public Participation - jury service allows the ordinary citizen to participate in the administration of justice, with Lord Denning stating it provides the "finest lesson in citizenship". The Home Office in 1998 went as far as to say that allowing guilt or innocence to be decided by a jury is "the sign of a healthy and democratic society".
Best Judges of Fact - it could be argued that juries are better equipped to assess certain elements of a trial, such as the credibility of witnesses or dishonesty. For example, being more representative of society than a single judge, juries are arguably better suited to the 'reasonable man' test frequently used in criminal trials. Furthermore, juries are less likely to become case-hardened and trial-weary, unlike judges, who hear trial after trial throughout their careers.
Separation of Responsibility - juries help strike a balance between those who determine the law (judges) and those who determine the facts (jurors), giving effect to the separation of powers.
Openness & Intelligibility - the use of lay-people in the justice system requires the prosecution to refrain from using complex legal jargon and make their case clear and understandable to the average person, making the law more open and accessible.
Disadvantages of Jury Trials
Cost & Time - it is estimated that a trial in the Crown Court costs five times that in the Magistrates. This is often because jury trials last much longer, meaning defendants spend months on remand and witness' recollection weakens over time.
Preverse Verdicts - often verdicts reached by jurors are overturned or defy evidence. For example, in Grobbelar v News Group Newspapers (2002), the jurors' award of £85,000 was found to be an 'injustice' and reduced to £1. A Baldwin and McConville study also found that, of 500 trials, 25% of acquittals were questionable, with Derbyshire (1991) arguing that jury equity can be seen as "rewriting the law".
Prejudicial Jurors - despite Article 6 of the European Convention of Human Rights conferring the right to a fair trial by an impartial tribunal, there are many examples of juries being anything but. This includes Gregory v UK (1995), in which one juror had been said to be making racist remarks, and the trial that went ahead was found to have not infringed the rights of the defendant.
Compulsory Service - often seen as an obligation rather than a positive experience, meaning jurors may not take delivering justice seriously.
Distress for Jurors - jurors can suffer a lot of distress in some cases. For example, following the trial of serial killer Rosemary West in 1995, some jurors required counselling.
Judges
As we looked at judges briefly as a part of the various justice system models in the previous module review, this section will focus more specifically on what judges do as part of their role.
In Jones v National Coal Board (1957), five key elements of a judge’s role were given:
To hear evidence
Ask questions, but only to clear up confusion
Ensure advocates follow procedural rules
Exclude irrelevant or repetitious matter
Evaluate the facts
Whilst this saw judges take on an ‘umpire’ role, in more recent years, judges have been expected to be much more involved in the trial process (in particular following the Woolf Reforms in 1997), partaking in active case management and encouraging the use of ADR before disputes come to court. However, one thing a judge cannot do is pressure the jury; whilst it is part of their job to clear up confusion for the jury and assist them in making their decisions, for example by summing up proceedings, in R v McKenna (1960), a conviction was overturned on the basis that the judge had placed too much pressure on the jury to return a particular verdict.
Where there is concern over tampering or intimidation of jurors, judge-only trials known as ‘Diplock courts’ may be put to use to prevent such occurring. Under s.44 of the Criminal Justice Act 2003, this may occur where there is evidence of a real and present danger that jury tampering would take place if the trial were to go ahead, and where this tampering would be so substantial as to make it necessary for the interests of justice to conduct the trial without a jury. Judges themselves may make an order to discharge the jury under s.46 of the same act where they are satisfied that jury tampering has taken place and that continuing the trial without a jury would be fair to the defendant. Despite the Act allowing judge-only trials to take place where the complexity or length of the trial by jury would threaten the interests of justice (for example, in complex fraud cases where a jury may not understand the law), this was abolished under the Protection of Freedoms Act 2012, ultimately protecting the historic freedoms of the jury trial.
Alternative Dispute Resolution (ADR)
ADR is an umbrella term used to cover a number of methods by which parties considering a legal dispute can come to a settlement out of court. Amongst these are negotiation, mediation and arbitration.
Negotiation
Negotiation is simply what it says on the tin – parties and their lawyers negotiate to come to an agreement.
One positive aspect of this is that negotiations are always made ‘in the shadow of the law’, meaning that there is always the option to go to court if a decision cannot be made. Furthermore, being out-of-court, negotiations allow parties to find common ground and reach an outcome that is beneficial to both of them.
However, negotiation often runs on a win-lose approach, turning what should be a fair arrangement into an adversarial ‘tug-of-war’. This can often be seen where there is a finite asset to be divided between parties, for example splitting £100,000 between a divorcing couple could result in lawyers using unfair tactics such as lying to discover the ‘bottom line’ of the other party and get an outcome that is best for their client rather than fair to all.
Arbitration
Unlike negotiation, arbitration involves parties going to a neutral third party, an arbitrator, and agreeing to be bound by the decision of that person. Commonly, parties will agree to use an arbitrator in the event of a dispute when they enter a contact together.
One of the key benefits of arbitration is that it is a much cheaper form of dispute resolution than going to court. If we look at the ‘wealth effect’ discussed in the previous module review, which suggests that parties are placed at a disadvantage in court if they are less wealthy, a cheaper form of dispute resolution such as arbitration created fairness and parity between the parties. Arbitration can also be very desirable to large businesses as proceedings are carried out in private, preventing any damage to the reputation of companies which may occur in a public hearing.
However, arbitration does have its weaknesses that can a result in an outcome no better than one reached in court. Like negotiation, parties can still participate in ‘tug-of-war’ tactics, causing and delays and costs by refusing to cooperate. Furthermore, arbitrators have no power to compel the parties to attend proceedings, again causing inconvenience, and arbitrators who specialise in a particular field may frequently be busy, delaying the arbitration process.
Mediation
Mediation is similar to arbitration in that an impartial third party, a mediator, assists parties come to an agreement, however it is ultimately the parties that come to a decision and the decision made is not binding.
Arguably, mediation is beneficial because the decisions reached are tailor-made and therefore more likely to be long-term, as the state cannot intervene with the law if the decision reached is agreed by the parties. Being outside of court, mediation also allows parties to air issues that aren’t just legal but emotional, meaning parties get more out of the process than simply a legal decision. Again, mediation is much cheaper than a court dispute, using one mediator rather than two lawyers for each party.
However, there is scope for argument that the process is not entirely fair. Not only could it be argued that mediators can be impartial and influence parties (for example through body language or leading questions), if parties lack bargaining power, in the instance of smaller parties taking on large corporations, they may lack negotiation skills and feel weaker on a more psychological level. Furthermore, the tailor-made solutions reached in mediation could actually turn out a worse result for one party than that achieved in court, as the process arguably ignores the legal rights of individuals on the basis that an agreement is reached.
This is just a basic outline of the key personnel in the trial system and ADR, providing a starting point for your studies on these topics. In the concluding English Legal System module review next week, we will be discussing the issues of equality and diversity within the legal profession.
Comments