Are juries fair?

Once again trial by jury is coming under scrutiny.

Boris Johnson had promised a Royal Commission on Criminal Justice. It was never established. The former Justice Secretary Dominic Raab introduced a much mocked “Bill of Rights Bill” which contained an odd clause declaring that trial by jury was a right, except when it wasn’t. Mr Raab was sacked, his Bill was dropped and the appetite for legislation about criminal procedure faded.

However, times have changed. Against the background of a shrinking economy and a growing backlog of Crown Court cases Lord Leveson has been asked to conduct an “Independent Review of Criminal Courts.”

And this time, it seems, the government is likely to do something significant. It has juries in its sights.

Leveson is not coming to the review cold. Ten years ago his “Review of Efficiency in the Criminal Courts” made numerous recommendations, most of which were implemented. In that review Leveson hinted very strongly that he favoured far more radical changes, and in particular the abolition of the right to trial by jury in either way offences:

“It is” wrote Leveson in 2015, “of course implicit in a scheme of ‘either-way’ offences that – depending on the seriousness and other circumstances of the case – some cases simply do not merit the more elaborate, costly and time-consuming procedures of the Crown Court.”

In 2015 such changes were outside the scope of his review, but Leveson’s current terms of reference now require him to consider reforms aimed at:

“… reducing demand on the Crown Court by retaining more cases in the lower courts.

This could include:

• • The reclassification of offences from triable-either-way to summary only.
  • Consideration of magistrates’ sentencing powers.
  • The introduction of an Intermediate Court.
  • Any other structural changes to the courts or changes to mode of trial that will ensure the most proportionate use of resources.”

There is much to be said about such changes but if you want to make a formal response to his consultation I’m afraid you are too late, though if you email independentreviewcriminalcourts@justice.gov.uk Lord Leveson may still consider what you say. His recommendations for what the government calls “long term reform” are expected by late spring.

However, the identity of the reviewer and the terms of reference themselves, leave little room for doubt about what those recommendations are expected to be.

It is all but inevitable that they will include curtailing, and possibly even abolishing, the right to trial by jury for “either-way” offences: that is, offences where, at present, either the Defence or the Magistrates themselves can insist on trial by jury. The proposed “intermediate” court will probably consist of a judge and two magistrates, with jurisdiction to pass sentences up to 2 years imprisonment.

Money is very tight and trial by jury is very expensive. An intermediate court would probably be cheaper and quicker than trial by jury, although the need to have a fair and effective appeal procedure for such cases may mean the savings are less than anticipated. But whatever benefits it might bring to the exchequer, such a change will not do anything to improve justice. Without wishing to denigrate magistrates, some of whom are of a high calibre, virtually no practitioners with experience of both the Magistrates and Crown Courts would consider that trial by magistrate is fairer than trial by jury.

That said, I am no longer convinced that trial by jury is always the best way to decide serious criminal cases.

It is good to involve ordinary members of the public in the criminal process, and the jury system does (on the whole) still retain public confidence: a 2024 You Gov poll found that 63% of those asked had either “a fair amount” or “a great deal” of trust in the jury system. Public confidence in the judiciary has been consistently much lower (around 43% had a fair amount or a great deal of trust in the judicial system according to another 2024 You Gov poll).

There is a respectable argument that a system that has evolved over the course of centuries will probably have many advantages over supposedly more rational innovations. Juries should certainly not be casually abandoned in the quest for efficiency.

There is also a disreputable argument that juries – by virtue of their ability to acquit “in accordance with their conscience” – are somehow indispensable guardians of our liberties: “the lamp that shows that freedom lives” to use Lord Devlin’s oft-quoted humbug. Oddly enough their equivalent ability to convict in defiance of both the law and the evidence is seldom mentioned.

If better justice, rather than “reducing demand on the Crown Court” were the objective of a review then perhaps Leveson would start by looking at more serious, indictable only, offences. Either-way offences tend – on the whole – to be relatively simple to decide. Was that punch reasonable self-defence? Was that behaviour “dishonest” according to the standards of right-thinking people? Was that driving far below the standard of an ordinary prudent motorist? Such questions do not have “objectively” right answers, they are matters of opinion upon which different people will often have differing views and those of 10 or 12 people are likely to be a far better reflection of society’s values than those of a single judge, or a couple of magistrates. If there is a good case for juries it is in deciding questions such as these. Similar considerations apply to some sexual cases where the issue is whether a complainant consented, or whether the defendant’s belief in consent was “reasonable.”

Where guilt depends on determining purely objective facts, and particularly where it depends on interpreting expert evidence, the case for juries is far weaker.

In his 2015 Review Leveson did, in fact, touch on the point:

“Juries cannot and should not be expected to understand and interpret complex scientific concepts. This is important for several reasons, but certainly in order to avoid unnecessary use of limited court resources, and in order to prevent juries reaching perverse decisions which might contribute to a loss of confidence not only in specific scientific areas but more fundamentally in the system of trial by jury.”

In the next paragraph he seemed to contradict himself:

“This is not to say that opposing scientific views should not be placed before the jury. Instead, this should be restricted to only those circumstances where it genuinely is an issue, and efforts made to minimise the number of contentious scientific questions in relation to which a jury is asked to make a decision.”

It was “rare” Leveson wrote, “to have a case where a large part of the complex technical or scientific evidence is not common ground.” He went on to make various suggestions for procedural tinkering, which have led, at best, to very modest reforms in the way expert evidence is presented in criminal cases.

And reforms aimed at improving the standard of expert evidence – important though they may be – miss the more fundamental point that Leveson himself identified.

If juries “cannot and should not be expected to understand” complex scientific concepts, then a jury trial in which the outcome depends on such understanding can hardly be anything but unfair. What is the point of putting scientific views before a jury which cannot understand them? I agree with Leveson that cases turning on contentious scientific evidence are not particularly common, but it is cold comfort for an innocent defendant facing a serious charge – mass murder, say – to be told “Sadly the jury won’t be able to understand the critical evidence in your case, but don’t worry, Lord Leveson thinks that doesn’t happen very often. Try not to look shifty in the witness box and you may still have a chance.”

Whether it happens rarely or not, the idea that 12 randomly selected people should ever be required to decide anyone’s guilt, and especially the guilt of someone charged with the most serious offences, on the basis of evidence that they don’t understand is nonsensical. Verdicts in such cases must instead be reached either by misunderstanding the science, or by ignoring it and concentrating on evidence that jurors can follow, or by ignoring the evidence altogether. However it is done the result can only be a travesty of justice. Trial by combat was fairer, but that was abolished in 1819.

Juries are routinely warned not to let their own emotions affect their verdicts. They are also generally given a direction (recommended in the Crown Court Compendium, an authoritative guide for trial judges) that:

“The presence or absence of emotion or distress when giving evidence does not provide a reliable indication of whether the person is telling the truth or not.”

But do juries take much notice of such directions? Who knows, but I’m afraid advocates, in the heat of a trial, may still be tempted to invite juries to assess witnesses, including defendants, on “the presence or absence of emotion.” Thus, for example, Nick Johnson KC’s very first question to Lucy Letby in his cross-examination at her first trial was:

“Is there any reason that you cry when you talk about yourself, but you don’t cry when talking about these dead and seriously injured children?”

If the science is all a bit hard to follow, how much easier to judge a case on whether the defendant cries appropriately during their evidence.

The time has come to ask if jury trial is ever fair for cases which depend to a significant extent on disputed expert evidence. At the very least, defendants should be entitled, as they are in most other common law jurisdictions, to ask for a trial by judge alone.

This is not because all judges are necessarily able to understand complex scientific evidence any better than jurors. Some will not, and some jurors might be brilliant scientists. And judges are anything but infallible. They will have their own prejudices. They may themselves misunderstand or misinterpret complex evidence, and they will certainly make mistakes, just as juries do. But at least a judge’s decision, unlike that of a jury, must be explained in a reasoned and public judgment which can then be challenged on appeal. A misunderstanding of the evidence will then have a higher chance of being noticed and corrected.

Part of the problem for anyone trying to appeal a wrongful conviction – at any rate in England and Wales – is the almost mystical obeisance paid by the Court of Appeal to a jury’s verdict. No matter that the verdict may be surprising or seemingly against the weight of the evidence; no matter that it might be based on evidence that the jury cannot be expected to have understood or critiqued. In the absence of admissible fresh evidence the Court of Appeal will not interfere unless there has been some error in the trial process. Thanks in part to Leveson’s 2015 review juries are now routinely given written legal directions and usually provided with a series of questions providing a “route to verdict.” But a correctly directed jury which has heard admissible evidence is still free to reach its verdicts in any way it sees fit.

Even when some part of the evidence given at trial becomes discredited after conviction the Court of Appeal may, and quite often does, decide that the discredited evidence was in fact of peripheral importance. That is so even though nobody is allowed to know what evidence or arguments in fact swayed the jury. Indeed, the Court of Appeal acknowledged (in a capital case, Armstrong (1922) 16 Cr.App.R. 149 at 159) as long ago as 1922 that knowing how jurors reached their decision might greatly undermine the whole edifice of jury trial:

“It may be that some jurymen are not aware that the inestimable value of their verdict is created only by its unanimity, and does not depend upon the process by which they believe that they arrived at it. … If one juryman might communicate with the public upon the evidence and the verdict, so might his colleagues also; and, if they all took this dangerous course, differences of individual opinion might be made manifest, which, at the least, could not fail to diminish the confidence that the public rightly has in the general propriety of criminal verdicts.”

It is an extraordinary justification of trial by jury: it matters not how the verdict has been reached, what matters is simply that it was unanimous; and individual jurors should keep their mouths shut. That was 1922, (and Armstrong was hanged without pursuing the point any further), but the position is in some ways even worse today. Verdicts are no longer unanimous and jurors who reveal the secrets of the jury room are likely to be committing a criminal offence.

Since the jury will have given no reasons for its verdict, and individual jurors will face punishment if they reveal what those reasons were, the Court of Appeal’s assessment of the significance the jury attached to discredited evidence may well be wrong. A reasoned judgment would demonstrate where and to what extent a judge had relied upon unreliable, discredited or simply misunderstood evidence.

In 2012 the then President of the Supreme Court, Lord Neuberger, gave a lecture in which he explained the importance of judges giving proper reasons for their decisions:

“Judgments are the means through which the judges address the litigants and the public at large, and explain their reasons for reaching their conclusions. Judges are required to exercise judgement – and it is clear that without such judgement we would not have a justice system worthy of the name – and they give their individual judgement expression through their Judgments. Without judgement there would be no justice. And without Judgments there would be no justice, because decisions without reasons are certainly not justice: indeed, they are scarcely decisions at all.”

If Lord Neuberger was correct that “decisions without reasons are certainly not justice,” it follows that decisions by juries, which never give reasons, are not justice.

As a criminal lawyer the Family Division is an alien environment. But many family cases require judges to decide what are essentially criminal allegations, for example of child abuse, albeit applying a lower standard of proof than in the criminal courts. The system is far from perfect, but I have repeatedly been struck by the comparative willingness of the Court of Appeal to overturn the decisions of the family courts, particularly when it feels that first instance judges have given flawed or inadequate judgments.

A single example will have to suffice: Re T [2023] EWCA Civ 757, in which, after a 10 day trial, an experienced and well-respected family court judge made findings that a girl, T, had been sexually abused some years earlier. The parties had to wait 4 months after making their final submissions for the judge to announce his decision, which was given orally and took around one hour to deliver. He found the central allegation of rape proven. The alleged perpetrator (“S”) and T’s mother appealed. The Court of Appeal overturned the judge’s findings and was highly critical of the judgment:

“I agree with the appellants’ submissions that the omissions from the judgment are extensive and significant, in particular the absence of any analysis of the ABE interview, or any assessment of credibility and reliability, or any detailed analysis of the appellants’ evidence, or the evidence of the safeguarding lead, or any reference to Dr Mohammed’s report, or any real consideration of the detailed submissions made on behalf of the parties. There was some analysis of the reliability of T’s allegations, but given the omissions in the judgment it was inevitably incomplete. The analysis of the evidence was manifestly insufficient, with crucial aspects of it not mentioned at all, and the judge’s explanation for his findings was perfunctory. The assertion in the judgment that S’s case was a bare denial completely failed to do justice to the nuanced evidence he gave both in four statements and nearly a day of oral evidence, and the lengthy submissions filed on his behalf. Anyone reading the judgment – be it the parties, the public, an appellate court, professionals working with the family, or in later years the children themselves – would have no idea how the judge assessed the complex evidence he heard, why he preferred some parts of the complex and contradictory evidence and rejected others, or why he reached his conclusions on the very serious – life-changing – allegations.”

The original judge had in fact explained, at considerable length, why he reached his decision. Yet the case was sent back to the lower court to be resolved by a different judge, because the original judgment was both flawed and “perfunctory.”

Contrast that with what would have happened if the same case were heard by a jury. Nobody would know what mistakes the jury had made. Assuming its reasoning was perfunctory, or worse, nobody would be any the wiser. The defendant would be expected to take one for the team, accepting perhaps a lengthy term of imprisonment. Perhaps a whole life term.

The recent rape case of Kahn Abdul [2023] EWCA Crim 1477 illustrates the point. During the jury’s deliberations one juror contacted the judge to complain that the other jurors appeared to be judging the defendant by the colour of his skin. She wrote a note to the judge:

“I don’t feel that the trial has been fair to Mr Khan because it seems the jury has racially profiled him without even considering the evidence. I have not felt comfortable for the last two days at all, from the moment we went into initial deliberation. All other 11 members within 15 minutes had made a decision. This did not sit right with me, nor did it did it make sense a two-week trial led to a 15-minutes decision.”

The judge decided to ask the other jurors if they felt able to decide the case on the evidence without racial bias. To nobody’s great surprise they all said that they did. Thus reassured, the judge allowed the trial to continue. The juror who had complained eventually asked to be excused, saying “please excuse me, I simply can’t do it no more,” and once she was discharged the remaining 11 jurors quickly returned a unanimous guilty verdict.

After the trial the juror who had complained and been discharged wrote to the Crown Court giving more details about what had happened:

“… early in the trial I heard a few jury members talking as we were leaving court and overheard them say “it’s the same kind”, “they should all be deported, it would be easier” following this comment they laughed and giggled and I was left speechless with my head hanged down. After hearing these words and the trial resuming, I was left disgusted but not sure what to do as we were not allowed to discuss the case. What shocked me even more was that before we even got into deliberation the case was being discussed by the others in the jury, making passive remarks on a daily basis. They were discussing openly and they are going to give a guilty verdict for Mr Khan which I thought was very unjust. I did not speak to anyone about this as I did not know what to do as we are under oath.

“On the 12th April 2023 we went into deliberation and within 15 minutes the jury found Mr Khan guilty. There was a lot of pressure from certain jury members who were stronger and I felt like others just felt forced to follow suit. I was the only person who said I did not agree with the decision I was being forcefully persuaded by other more stronger members very aggressively….in my opinion he [the defendant] deserved another trial on the basis that all the evidence was not considered and that the judge/jury was biased & racist & that it wasn’t fair.”

The Court of Appeal simply shrugged its collective shoulder and declared that the convictions were safe. It was not that they did not believe the juror who complained: they simply saw no need to investigate what had happened at all. In a paragraph of astonishing complacency William Davis LJ explained why not:

“The high point of the juror’s allegations of racial bias was her overhearing members of the jury making comments that appeared to have a racial connotation as they were leaving court at an early stage of the trial. Whether these comments were directed at the applicant in particular or were merely more generally derogatory is impossible to say. The juror’s letter does not allege any further reference to race. She speaks of jurors discussing what the verdict would be prior to their retirement. She refers to some jury members being stronger in character than others who placed pressure on other members of the jury. Her core complaint – just as in the note she sent on the morning of 13 April – was that the other members of the jury reached a verdict very quickly in a case where she thought that there was some merit in the defence. This does not require any further investigation by the CCRC. The letter does not provide any basis for a conclusion that the jurors who convicted the applicant were or might have been biased.”

He cited an earlier case with approval:

“… it is a necessary and integral part of the jury system that the deliberations of a jury must remain confidential. Without that general rule, the jury system would be seriously undermined. Those summoned to perform jury service would do so in a state of constant anxiety as to whether anything said during their deliberations would, without more, become the subject of speculation and perhaps investigation.”

It didn’t matter that a defendant called “Kahn Abdul” was tried by a jury full of racists, some of whom had (jokingly?) suggested that “they should all be deported,” who had made up their mind to convict at the start of the trial.

So it seems that a necessary and integral part of the jury system is that nobody should know if the jury doesn’t understand the evidence, and nobody should know that, in a racially charged case, the jury contains a number of racists. The jury has an inalienable right to convict accordance with its prejudices.

If it really is “a necessary and integral part of the jury system” that a verdict returned by a racist jury should be allowed to stand; or that a verdict returned by a jury that hasn’t understood the scientific evidence should, by some legal fiction, be considered safe, then perhaps it is time that we asked ourselves some more fundamental questions about the role of juries in the criminal justice system.