Subduing the jury

E.P. Thompson

In the previous article we discussed the unusual concern of the past 14 years to ‘strengthen’ (or subdue) jury practices, some of which date back hundreds of years. There has always been another resource of jury ‘strengthening’, which is jury-packing. A disquisition on this ancient British practice would require a further essay, much longer than the present one. Jury-vetting is not the same thing as jury-packing, although the first may prepare for the second. Whether packing does or could take place in contemporary English practice is a matter remarkably obscure. The Police may properly inspect the panel against their records, in order to remove disqualified persons, and in the course of this scrutiny much other information will come to light, which may or may not be passed on privily to the clerk of the court or to the prosecution. Of one thing we may be certain: the current monitoring of practice by the Director of Public Prosecutions (reported in Command Paper 9658) will tell us nothing that the Police (or ACPO) does not wish the public to know.

What panel scrutiny – or, in sensitive cases, the more elaborate investigations of vetting – allows is the exercise of the Crown’s right of peremptory challenge or ‘stand-by’, to remove obnoxious jurors from the panel. The Report of the Roskill Committee is anodyne and confusing on the matter of challenge, largely because of the failure to present it in any historical perspective. It is my duty therefore to attempt a brief correction.

In looking into this matter I was intrigued to find that every one of the critical cases still cited today as precedents governing the contemporary practice of challenge and stand-by arose in the course of highly-charged political cases in the period 1790-1848. I refer in particular to Rex v. O’Coigly (1798), Rex v. Edmonds and ensuing appeal (1820, 1821), and to several Chartist cases in 1848.

Father James O’Coigly, a Catholic priest, was a United Irishman who, sometimes disguised as ‘Captain Jones’ was travelling in England in the year of the Irish rebellion, as courier to the ‘Jacobin’ underground. With Arthur O’Connor and others, he was arrested when about to board ship for France, and a sensationally seditious address was found in his pocket, welcoming a French invasion in support of British liberty. It led to a dramatic ‘state trial’ and there was much sparring by both sides in selecting the jury. The defence made several challenges for cause of potential jurors. One of these, Mr Raikes, was proved to have gone up to the prisoners before the trial, ‘looked them all steadfastly in the face ... clenched his fist, and exclaimed “damned rascals!” ’ ‘That is no cause of challenge,’ exclaimed the Attorney-General (who led the prosecution): ‘We are getting here into prodigious irregularity, and I feel it my duty to protect the Gentlemen of the Jury against this sort of attack.’ In the end, Mr Raikes did not serve on the jury, but there was clearly a strong opinion among judges and counsel for the prosecution that to shake one’s fist in the face of the prisoners before a trial did not constitute cause for challenge on grounds of ‘unindifferency’. Any loyal gentleman, confronted with imputed Jacobins, should be expected ta do much the same: but any gentleman must also be presumed to have that liberality of mind which would allow him to be persuaded in the course of the trial that the imputation of Jacobinism had been brought on these particular prisoners in error.

The course of this challenge was confused and did not establish a ruling precedent. Rex v. O’Coigly is remembered by lawyers now for its ruling on the adjacent issue of the Crown’s right of challenge or ‘stand-by,’ which was here argued at length and determined in a way which governs practice to this day. The Crown was disallowed any right of peremptory challenge, but must always show cause: however, by a sweet legal fiction, it may postpone showing cause by calling on the juror to stand by to the end of the panel, and then challenging for cause only if the rest of the panel is exhausted – which seldom, if ever, takes place. In the result, the Crown was effectively awarded an unlimited number of peremptory challenges. As for Father O’Coigly, he was convicted and hanged.

As regards the defence, in the first half of the 19th century the position was this: it had, in its quiver, the right of 20 peremptory challenges. Thereafter it might only challenge for cause. And by a series of decisions it became established (in lay language) that such challenge – if in the matter of prejudice, bias, ‘unindifferency’ – may only be for particular bias against particular defendants. Prejudice of a more general nature might not be allowed as cause. Moreover, challenge for cause might only be allowed to proceed through the means of questioning a potential juror in court (an interrogation known as voir dire) if good reason for cause to question was first shown to the court, which, at its discretion, might then permit questioning. And, further, the proof of a juror’s bias should be founded upon extrinsic evidence and not on interrogation alone.

It is notorious that English and United States court practice has handled this matter in different ways. If we take the procedural question out of its context, there is much to be said for the logic of the English resolution. Let us suppose the prisoner to be charged with arson. Now we cannot expect it to be likely that we will find a jury which has no opinion as to the rights and wrongs of arson. Therefore we should not permit a juror to be interrogated as to his opinion of this offence, under the implication that an adverse view of arson – or even of the particular episode of arson coming under trial – is evidence of bias against the prisoner. Unless the juror can be proved to have said that he or she believes the defendant to be a foul arsonist, a disgust for arson carries no imputation of bias.

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