How do Juries decide a case?

How do Juries decide a case?

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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.

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Dan is a barrister at 2 Dr. Johnson’s Buildings practising in crime.

16 COMMENTS

  1. Thank you for this. This is really useful information and very well explained. I wondered whether jurors were allowed to go home after each day and this clarifies that point. Can I ask though about a jury returning a guilty verdict to manslaughter, rather than murder? Would they have to ask the judge’s permission to do this beforehand, if the charge was originally for murder or do they have the power to overturn a charge of murder to manslaughter?

    And when found guilty of murder, can I just confirm that 14 years is the minimum sentence a judge can give and life, meaning life, is the maximum still? Or does life never mean a full life term nowadays and a maximum number of years applies instead, to represent a “life” sentence?

    • Thanks. In relation to the jury’s ability to return a verdict of manslaughter, it is up the judge as to whether s/he directs the jury that they can consider manslaughter as an alternative.

      The case of Coutts decided that if manslaughter was a possible alternative verdict, the the jury must be told to consider it. If the jury are not told, then they wouldn’t know that manslaughter was an alternative.

      If the case is about, say, a pub fight where the death was caused by one punch, then the prosecution may say it was murder and the defence may say it was self-defence. A judge would have to tell the jury that they must consider whether the defendant intended to kill or cause really serious harm (required for murder), or whether the intent was not there and therefore the proper verdict is manslaughter.

      If however the case involved, say, a contract killing where the victim was shot twice in the head at point blank range, then different options apply. If the defence was that it wasn’t him, but someone else who did the killing, then the judge would not have to ‘leave manslaughter as an alternative’ as there is no real question that it was murder – if you shoot someone in the head in those circumstances then you are clearly intending to kill.

      In relation to sentencing, the only absolute requirement is that a life sentence is imposed (see here for more details). In all but the most serious cases (about 60 people currently), there is a tariff set. There are guidelines, but there is no minimum length of the tariff.

      It must be remembered that if a 14 year tariff is set, this does NOT mean that the individual will be released after 14 years. It just means that they will be eligible for release – the decision will the that of the Parole Board, who will only direct a release if they are satisfied that the person presents no risk to the public. Even when someone is released they have to stay in contact with probation and can be re-called to prison without being convicted of a further crime – hence why it’s called a life sentence. For the rest of the persons life they are subject to the sentence.

  2. Can you tell me what one should do – as a juror – if the judge directs you to return a verdict you do not agree with? So if the judge says you must find a defendant not guilty but you believe he/she is definitely guilty. Thanks.

  3. Hi Dan,

    Thanks for the great article.

    I did Jury duty in the 90s and was elected foreperson because I was the only one who took any notes!

    I don’t think Juries work very well, from my experience.

    I started by taking a straw poll and everybody said “guilty”, because they wanted to get it over with and go home early (single parents with kids, self-employed workers who couldn’t afford the time off etc, or plain not bothered). I then spent 3 hours convincing the jurors that there was plenty of reasonable doubt (much like the Rolf Harris case), and got a unanimous “not guilty”. What would have happened if I was not there?

    Did all the Rolf Harris trial jurors vote with their emotions, because there seems to be plenty of inconsistencies in the prosecution evidence if this article is to be believed: http://www.libertarianview.co.uk/current-affairs/rolf-harris-beyond-reasonable-doubt

    It seems to me that most on my case assumed the defendant was guilty, because he looked guilty (dishevelled hair, leather jacket. tattoos etc). Their intuition said so. (think fast and slow, Daniel Kahneman, cognitive biases etc). Nobody was thinking slow on my Jury.

    I think the Rolf Harris jury were also voting with their intuition and emotions.

    Then there was the need to think critically and follow the arguments (“real” argumentation), something that the Jurors are not good at, but the barristers are very good at. However, the barristers use their critical thinking and argumentation skills to spin the best story for the prosecution or defence to influence the the jurors emotions. The Jurors don’t stand a chance.

    Then there is the issue of “reasonable doubt”, which I believe is defined as a specific probability in civil cases, but not considered in jury cases because juries wouldn’t understand how to define and combine the probabilities (I am currently reading up on Bayes Theorem ;-)).

    So I think we should have “professional” Jury forepersons, trained in critical thinking and argumentation (like the barristers), who act as impartial facilitators, helping the jury understand how to think (but not what to think). They should also understand the processes. For example, I wasn’t aware until after the case that I could ask questions during court proceedings. That would have been useful to know!

    What do you think?

  4. Hi Dan,
    I have a question. Will jurors be excused from a particular trial if they know the parties or information on the case?
    Thanks.

    • The general rule is that anyone with any connection to the parties in the case would be excused from that jury.

  5. Hi Dan

    If you had a jury of 8 people who find you guilty and 4 that you find you not guilty, does this mean they have to return a not guilty verdict? I have had this ongoing argument for many months so I’d like you to clarify if possible, thanks.

    rgds
    Chris

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