Time to Drop Majority Jury Verdicts
This week, the charity group, Appeal, gave stronger voice to those advocating for the abolition of majority decisions when it comes to jury verdicts.
A report published last Wednesday found that majority verdicts had facilitated 56 miscarriages of justice in England and Wales, with the actual number potentially being much higher.
Examples include numerous high profile cases such as Andrew Malkinson who was released from prison last year, Barry George who was wrongly convicted of murdering Jill Dando, and Winston Trew, one of the Oval Four.
The rules do currently allow for majority convictions in cases where 10 out of the 12 members of the jury are aligned. While the outcome of many trials is decided unanimously, the report also showed that 15% of convictions arise because of majority verdicts, and this covers the whole gamut of offences right up to murder.
The unanimity requirement was scrapped in 1967 and, in some respects, that decision makes a lot of sense. After all, unanimity amongst jurors makes it a lot harder to secure a conviction and criminal law does not require 100% certainty. The burden of proof that is used in the criminal context is “beyond reasonable doubt”, and it is not outrageous to suggest that a majority of 10 out of 12 secures that high threshold.
Nevertheless, the current system does mean that legitimate doubts are ignored. As Winston Trew, one of the people who have suffered as a result of a majority verdict, pointed out:
“Two jurors in my case were not convinced of my guilt, but their doubts were dismissed. Had the majority verdict rule not been in place, I would not have been convicted for crimes I did not commit; nor would I have spent nearly 50 years, most of my adult life, trying to clear my name. Today, the majority verdict rule is considered to be the harbinger of wrongful convictions and should be scrapped.”
One of the most serious barriers to reform is the ability to carry out proper academic research of jury behaviour.
The Contempt of Court Act 1981 goes so far as to criminalise talking about deliberations in the jury room. The ostensible aim behind that piece of legislation is a good one, in the sense that members of a jury can speak with confidence and do not have to fear that their comments will be reported in the press.
However, the law as it stands not only hampers research but can also perpetuate wrongful convictions.
The report by Appeal offers evidence of cases where members of juries pointed out serious allegations of discrimination that occurred within the deliberation room. While those allegations did lead to appeals by prisoners, the Contempt of Court Act meant that the allegations were never seriously investigated.
Nisha Waller, one of the co-authors of the report, pointed out that:
“Jurors are the only decision-makers in the criminal justice system not subject to research. Even when jurors have raised concerns about racism and prejudice in deliberations, the courts have refused to investigate this. Juries are a vital component of the criminal justice system. How they function can be improved – but not if they are exempt from scrutiny.
“The law should allow for academic research with real juries in real cases in a way that would both protect juror anonymity and allow for informed policymaking.”
The lack of jury openness in England and Wales has thankfully not completely forestalled research, as rules in the U.S. permit more access to juries.
Louisiana was one of the states where, until 2020, majority verdicts by juries were still allowed. Research by The Advocate, a newspaper, found that 56% of the convictions that were ultimately overturned had been reached by way of majority verdict.
Of course the racial politics of the U.S. are vastly different to those of the UK but the question itself is surely worth exploring and, at the moment, that is simply impossible.
At this juncture, it is also worth pointing out that the same report by Appeal showed that majority verdicts in England and Wales were first introduced as a means to undermine the influence of ethnic minority and working class members of juries.
In response to the findings, the Ministry of Justice said:
“Jury trials have been shown to deliver fair and impartial results in successive academic studies. While jurors are directed that their verdict must be unanimous at the start of any case, independent judges may decide to accept a majority decision where this is in the interest of justice.”
Unfortunately, this statement fails to take into account how difficult it is to carry out proper academic research in this area and also the significant miscarriages of justice identified by Appeal.
It seems trite to say, but at the very least we should be given the opportunity to understand our own criminal justice system. This is the minimum that we deserve and would go a long way towards identifying a whole host of reforms that may be well overdue.
Louisiana ultimately outlawed majority verdicts for serious crimes and, given the growing evidence in England and Wales, this might be a good place to start here if we are to prevent future miscarriages of justice.
This week on the podcast, a shipping law case offers a chance to think about what courts should and should not consider in the course of an appeal.
Episode link: https://uklawweekly.com/2024-uksc-14/
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Marcus