Subduing the jury

E.P. Thompson

It was nice to be awoken on 12 November by the BBC informing us that the Queen’s Speech would announce measures ‘to strengthen the jury system’. It is, after all, a very ancient English institution for which we feel a ritualistic affection. And it is good to know that our betters are taking care of it.

There have been a lot of measures to ‘strengthen the jury system’ in recent years. In 1967 the Criminal Justice Act abolished the unanimity rule and introduced a majority verdict (at ten to two). This was presumably to bring the jury in line with the metric system and the decimalisation of money. Then measures were taken to rationalise the archaic system of defence challenges and to reduce their effectiveness. The number of peremptory challenges allowed to the defence had already, in 1948, been reduced from 20 to seven. In the Criminal Law Act of 1977 they were further reduced to three. Meanwhile, in 1973, the Lord Chancellor, Lord Hailsham, by an Order in the law vacation, had struck out the ancient practice of listing the occupations of jurors summoned onto the panel.

Two further measures were taken in the compendious 1977 Criminal Law Act. In an unobtrusive clause (which eluded Parliamentary notice) the most ancient form of jury in English history – the jury of inquest – was shorn of effective powers. And in a sweeping series of clauses, the option of trial by jury – or, in the old language, ‘putting oneself on one’s country’ – was removed in many categories of case where the option had previously been open. Such cases, which include many offences against public order, in which, of course, the evidence of the Police is usually decisive, are now tried summarily before the stipendiary magistrates.

Few cases have been more important in the history of jury rights than what is known as Bushel’s Case (1670). This is the case of the Quakers, Penn and Mead, indicted at the Old Bailey in that they did preach and speak to persons in the street assembled, by reason whereof a great concourse and tumult of people a long time did remain and continue, in contempt of the King and his law, and to the great terror and disturbance of his liege subjects. Bushel was the intransigent juror who refused to allow his fellow jurymen to be intimidated into bringing in a verdict of guilty in those terms, but would bring in a verdict of guilty of preaching only. Mr Bushel was directly bullied by the whole bench:

Alderman Sir J. Robinson: I tell you, you deserve to be indicted more than any man that hath been brought to the bar this day ...

Mr Justice May: Sirrah, you are an impudent fellow ...

The Recorder: You are a factious fellow: I will set a mark on you ...

The Mayor: I will cut his nose ...

This did not sufficiently strengthen the jury, so they were hauled off to prison for the failure to convict. On appeal, the jury was vindicated, and the precedent was established of the jury’s power to determine its own verdict, free from the threat of punishment. But if William Penn were to preach at Gracechurch Street today, Mr Bushel and his fellows would be unable to afford him the protection of their special verdict, since the case – as a public order offence – would not come before a jury at all.

The ink of the Criminal Law Act, 1977, had scarcely dried before an even more remarkable resource of jury-strengthening was disclosed to a startled British public. I must suppose that the ‘ABC Case’, under the Official Secrets Acts, is sufficiently fresh in memory for me to be able to dispense with rehearsing the details. There was never any question of the three defendants (the journalists, Crispin Aubrey and Duncan Campbell, and the former signals corporal, John Berry) meditating passing any information to ‘the enemy’ – except (an important qualification) insofar as the British Security Services have always regarded the British public as the enemy. The ABC Trial was intended to be a sensational public show trial, and a condign warning against any ‘whistle-blowers’. In the event, it was (for the prosecution) a sensational anticlimax. One reason for this was the scandal occasioned by the revelation of jury-vetting.

What occasions surprise is not the fact that vetting had taken place, but the shamefaced way in which the fact came out. On the opening of the trial, the distinguished counsel for the defence, Jeremy Hutchinson QC, visited the court to obtain a sight of the panel. In a casual conversation with a court officer Lord Hutchinson learned that – more than two months before – the prosecution had applied privately to a judge in chambers for the panel list, in order to scrutinise the members. In the face of pressure from the legal profession the Attorney-General suddenly released to the Times ‘guidelines’ authorising jury-vetting, which he had secretly issued four years before to senior police and the Director of Public Prosecutions – without the knowledge of Parliament or the Bar.

These guidelines instructed the Police that there were ‘certain exceptional types of case of public importance’ in which, in order to ‘ensure the proper administration of justice’, jury-vetting might take place. Such cases were gestured at as those involving terrorists, criminal gangs, or ‘serious offences where strong political motives were involved’. In these cases it was held proper to identify and remove from the jury persons of ‘extreme political beliefs’. Checks to identify such persons should involve the use of the data-banks of the central criminal records computer at Hendon (which has a capacity for storing records on a mere forty million people); a check on Special Branch records; and further checks on jurors by the local CID.

What vetting signifies became a little clearer in the autumn of 1979 at the opening of the trial of four anarchists. The trial judge authorised jury-vetting by the prosecution, and allowed the defence to engage private detectives (out of legal aid funds) to undertake its own investigation of the panel. When this unsavoury business became too expensive, he ordered instead that an edited version of the prosecution’s information gained from police records (but not from Security records) should be passed on to the defence. The gleanings of the police computer were duly leaked by some responsible person to the press, and the public had a brief glimpse of the extraordinary miscellany of fact, trivia and malicious gossip stored at the taxpayer’s expense. Of a panel of 93, more than one-fifth had entries on central police files. Some were for trivial and long-expired offences which could never have constituted disqualification for jury service – for example, a 14-year-old fine of £5 for a minor theft at work. Others were dignified in the records because their children or kin were reputed to have had associations with ‘criminals’. Another was listed as having resided at an address reputed to be a squat. Yet others were listed because they had been the victims of a crime, or had made complaints against the Police.

It was left to the incoming Conservative Attorney-General to regularise the procedures of jury-vetting by a Practice Direction, to introduce a few emollient formalities, and to lower the profile of the issue so that it is now accepted as ‘normality’. It can be seen that this is not a party-political question. No one can be accused of partisan zeal. ‘Ensuring the proper administration of justice’ is a consensual duty in which Lord Hailsham and Labour’s Attorney-General Sam Silkin laboured alongside each other, while the pupating leadership of the SDP (then in Mr Callaghan’s Cabinet) averted their faces – or perhaps did not. All have shared in the work of ‘strengthening the jury system’ by diluting the unanimous verdict, removing offences to summary jurisdiction, limiting the challenges of the defence, and extending the scrutiny of the panel by the prosecution (with the aid of police information-storage of a miscellaneous and uncontrolled kind).

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E.P. Thompson discusses the following:

Verdict according to Conscience: Perspectives on the English Criminal Trial Jury, 1200-1800 by Thomas Andrew Green. University of Chicago Press, 409 pp., £28.95, August, 0 226 30610 0
Fraud Trials Committee Report, chaired by Lord Roskill. HMSO, 2 vols, 245 pp. and 61 pp., £9 and £4.50, 0 11 380008 8 and 0 11 380009 6
‘Criminal Justice: Plans for Legislation’. HMSO, Cmnd 9658, £2.80, March 1986.
‘Criminal Justice Bill’. HMSO, 110 pp., £8.10, 14 November