How do they reach a verdict?
At the end of the trial the Judge will erious
um up the case to the Jury. Full details of what guidance is given to Judges in relation to this can be found in the Crown Court Benchbook. The summing up will happen after there have been closing speeches from the Prosecutor and the defence lawyers.
Normally, the Judge will speak to the lawyers without the jury before the summing up to check that there is agreement as to what the jury should be told.
The summing up can be split into two parts – the legal directions (a description of what the charge is, what has to be proved and any special diretions relevant to the particular case – for example, the special need for caution in cases of identification).
The other part of a summing up is a summary of the facts of the case. This is not the Judge reading his or her notes of the evidence, but should be an even-handed summary of all the evidence that the jury has heard.
HHJ Madge, a Judge at Harrow Crown Court, wrote an article from a Judge’s point about what the purpose of a summing up is and how he approaches it. An example from two high-profile cases are here (from 1993) and here (from 2010).
It is important that the judge gets the summing up right so that the jury have a balanced picture of the evidence and proper directions on the law. If the Judge gets this wrong and the defendant is convicted, then this can be a ground for an appeal to the Court of Appeal.
In some cases that are particularly complex, of where a range of verdicts may be open to the jury, the Judge may give the jury a written document called a ‘route to verdict’ document. This is a series of questions that the jury should ask themselves in order to come to their verdict. An example of a ‘route to verdict’ can be found at page 24 of this judgment from the Court of Appeal.
When the Judge has finished the summing up, the jury will go to a private room to consider their verdict. They have to surrender their mobile phones. Many years ago juries would be kept in the room until a verdict was reached, or if they could not reach a verdict late in the day, then be kept together in a hotel overnight. This has now changed and juries will be sent home at the end of the Court day (normally about 4.15pm) and told that they should not talk about the case until they come back the next day and are back in their room with the other jurors.
What reasons do juries give?
Juries do not give reasons. When they are ready to give their verdict, they will be asked in court whether they find the defendant ‘guilty’ or ‘not guilty’. That is the only thing that the foreperson of the jury will say.
Juries are not asked their reasons and it is in fact illegal for them to say afterwards how they voted or why they came to the verdict that they did.
Isn’t it unfair if no reasons are given? How do we know that they reached the right decision?
The system is based on trusting the jury to faithfully follow the Judge’s directions and ensure that they come to a decision in accordance with the oath they have taken.
Most lawyers think that the jury system works and it is often seen as a useful check on an arbitrary or oppressive prosecution (as juries are entitled to find someone not guilty not because they think the person is innocent, but because they think the defendant should not be prosecuted).
However, it is fair to say that many people think that the fact that no reasons are given means that there is a real risk that innocent people may be wrongly convicted (or the guilty acquitted) not due to the evidence, but because of irrelevant considerations.
What are majority verdicts?
The jury will be told when they first retire that they must reach a unanimous verdict. Since 1974 juries have been allowed, in certain circumstances, to reach a majority verdict. This is a verdict of 11-1 or 10-2. If some jurors have been discharged during the trial, perhaps because of illness, then if there are 11 jurors there can be a verdict of 10-1. If there are 10 jurors, then 9-1 is acceptable. If there are 9 or fewer jurors then the verdict has to be unanimous.
The minimum period of time that the jury have to have been thinking about their verdict (‘in retirement’) before a jury can return a majority verdict is 2 hours 10 minutes. In practice, Judges will give a jury longer than that. The general rule is that the longer and more complicated the case, the longer the Judge will give the jury before giving a majority direction. Sometimes it will be several days in a particularly serious case.
When the Judge gives a majority direction, s/he will tell the jury that they should try and reach a unanimous verdict. The jury will then go and think about it and can return a majority verdict if the numbers are as above.
In court if the verdict is guilty, then the jury will be asked what the voting figues are, so as to check that the jury have reached a lawful majority verdict. If the verdict is not guilty, then the jury won’t be asked for the figures. The reason for this is that it is thought undesirable, if there is an acquittal, that there should be on record that some of the jury thought the defendant was guilty.
What is a ‘Watson Direction’?
If it is clear that the jury are struggling to reach a verdict, then a Judge can (but is not obliged) give a ‘Watson Direction‘ (sometimes called a ‘give and take’ direction). This is in the following terms “‘Each of you has taken an oath to return a true verdict according to the evidence. No one must be false to that oath, but you have a duty not only as individuals but collectively. That is the strength of the jury system. Each of you takes into the jury box with you your individual experience and wisdom. Your task is to pool that experience and wisdom. You do that by giving your views and listening to the views of the others. There must necessarily be discussion, argument and give and take within the scope of your oath. That is the way in which agreement is reached. If, unhappily, [ten of] you cannot reach agreement you must say so“.
It is very important that Judges do not put pressure on juries to reach a verdict due to the risk that those jurors in the majority will feel bullied into changing their verdict.
What role does a jury play in sentencing?
None. Unlike in some jurisdictions (for example, America), English juries have never had any say in the sentencing of the defendant.
Juries have the power to add a ‘rider’ to their verdict. This is sometime called a ‘recommendation of mercy’. It is where the jury state in addition to their verdict that they feel that the defendant should be treated leniantly because of the circumstances. The Judge is not obliged to reflect this, but almost always will.
One example of this can be found here. These are very rare, in part because juries are not told that they are permitted to do this.