Subduing the jury
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.
In politically sensitive contexts this logic does not wear so well, however. Examine the case of Rex v. Edmonds and Others (1820). This was a trial for conspiracy, before a special jury, at Warwickshire Assizes. The defendants included the venerable Major John Cartwright, the ‘Father’ of English Reformers; the editor of the Radical Black Dwarf, T.J. Wooler; and Edmonds, the secretary of the Birmingham reformers. Their offences arose out of the same context as the Peterloo meeting in support of manhood suffrage: seditious agitation, disorderly demonstrations, the election of a popular ‘representative’ for the unenfranchised city of Birmingham. The defendants were convicted, and either imprisoned or fined. There was an appeal to King’s Bench in 1821. One ground of appeal concerned the defence’s challenge for cause. At his trial Wooler had sought to examine jurors on voir dire as to whether they had expressed any opinion in the case. The court, presided over by the Lord Chief Baron, had refused to allow the questions. In judgment, Abbot, Lord Chief Justice, upheld the Lord Chief Baron. An opinion as to the general guilt of radical agitators, and as to the need to bring them to punishment, could in no way be shown to be a cause for disqualification. Only ‘a preconceived opinion of their personal guilt, or a determination to find them guilty’ could be shown as cause: and this must be proved by extrinsic evidence, not by voir dire interrogation.
I am not arguing the evident fact that arson and sedition are different orders of offence. I am pointing to a narrower fact, which is that bias expressed by jurors against Radicalism may be inseparable from a bias against particular defendants, in a way in which bias against arson may not. Arsonists, rapists, murderers and highwaymen rarely advertise, publish and demonstrate on behalf of their intentions before committing their offences, whereas Radicals, Freethinkers, Chartists, advocates of birth control, suffragettes, and so on, commonly did (or do): and it was often this advocacy, rather than any other overt act, which constituted, in the eyes of the law, the offence. There was no way in which Warwickshire jurors in 1820 could express hostility towards Radicalism without also expressing a particular hostility against these notorious leaders of the cause of Reform.
The decision in Rex v. Edmonds, however, established the ruling precedent which is still cited in disputed cases to this day. It was enforced and further defined in two cases arising from the Chartist agitation of 1848, Regina v. Cuffey and Regina v. Dowling. In the year of revolutions, Chartism reached its last peak of agitational presence. In London a monster meeting was convened for 10 April, with the intention of presenting yet one more mass petition for universal male suffrage. The Government professed to believe that an insurrection was threatened and prepared for it in full military style. This included the raising of a prodigious number – perhaps a hundred and seventy thousand – special constables. This was a levée en masse of London’s bourgeoisie and petty bourgeoisie, placed in arms and under orders against London’s working class.
The prisoners at the trials which came up at the Central Criminal Court the following September were Chartists and Irish Confederates accused of insurrectionary preparations in the confused aftermath of 10 April. The clearest decision in the matter of voir dire arose in the case of Dowling, a young Irish portrait-painter. Kenealy, his counsel, declared that he wished to examine every one of the jurors on the voir dire to find out whether they had served as special constables:
Mr Justice Erie: Have you any cause?
Kenealy: That he does not stand indifferent.
Attorney-General: That is no cause. You must state a particular cause.
Kenealy: I have reason to believe that he is a special constable and has prejudged this case. It is perfectly notorious that the great majority of the inhabitants about here were sworn as special constables. I have no special instructions with regard to this gentleman ... and cannot therefore prove the fact aliunde.
Mr Justice Erie: Then I must refuse the application.
Kenealy: Am I to understand your lordship to say that I am not to be allowed to examine upon the voir dire? Am I to understand that the right is to be taken away from the people of England?
He was, indeed, so to understand. And this ruling was upheld on appeal. Dowling was duly convicted by a jury of special constables, and sentenced to 20 years’ transportation.
The cases – O’Coigly through Edmonds to Dowling– are those cited in Halsbury and in all compendiums of contemporary law, as establishing the rule as it lies today. Each of these decisions came out of a context of political conflict, in which the authorities sought to ‘strengthen’ the operation of the jury system in the interests of ‘the better administration of justice’. When we are told – as the Roskill Committee tells us, and as without doubt Conservative Law Officers will argue in coming debates on the Criminal Justice Bill – that the defence is losing little in losing its ancient rights of peremptory challenge (to be reduced now from three to nil), since the right of challenge for cause remains unimpaired, it is essential to remember, first, that the law’s definition of ‘cause’ excludes all general prejudice (political, racial, gender, religious etc), and, second, that since the defence is barred from questioning the juror on voir dire (unless with prior cause shown), it is unlikely that cause can ever come to light.
American practice is vastly different. Our jury systems are like a tree with a strong common trunk, but on one side a bough has been lopped off, so that today only a vestigial challenge for cause is allowed to the English defence, while on the other side is a flourishing American branch, heavily-laden with challenges on voir dire examinations. Thus jury selection in England became a formal and expeditious matter, rarely occupying as much as an hour, in which voir dire is rare, whereas on the other side of the Atlantic there was, by the late 19th century, a heavy branch of practice indeed. In the Haymarket case (the ‘Chicago Anarchists’). selection of a jury involved examination, mainly on voir dire, of 981 panellists, over a period of 21 days; and in the trial of Jacob Sharp, in the New York Aldermanic corruption cases of 1886-7, 2100 panellists were summoned, 1196 were examined, and 22 days were spent in jury selection. These procedures, only a little abbreviated, continue in many states today.
This has altered the jury system, when considered within the expectations of our political future. And altered it irrevocably. We cannot go back. We could not now import protracted voir dire procedures into English courts, because they would run athwart inherited expectations. The jurors, every woman and every man, would have their backs put up by such interrogation. They would feel it as an insult to their integrity, as well as a breach of British reticence as to the privacy of opinion. Any attempt in this direction can be counterproductive for the defence. When Lilburne was on trial in 1649 and was presented with a juror whom he did not know by person or report, he scanned him closely and then said: ‘He is an honest man, and looks with an honest face: let him go.’ The juror, so flattered, was the more ready to acquit. It is a trick which counsel still understand today. There is, moreover, some suggestion that clumsy exercises in vetting can also be counterproductive. Vetted juries returned acquittals in the ‘Anarchists’ (1979), Cyprus signalmen and Clive Ponting cases. Perhaps they were put on their mettle to show that they were not cat’s-paws of the Crown?
We may take the point of expectations further than that. Because jury selection in England has been procedurally abbreviated, the dominant expectation in our political culture has become this: the jury is, or ought to be, a random selection of our peers. That is what ‘a fair trial’ is now thought to be. Now an exact historian might argue that American practice is closer to ancient precedent: the selected 12 must be ‘good men and true’, ‘of good repute’ ‘men of a clear reputation’. Moreover, it was 12 men from whom, by an elaborate system of challenge, it was possible to remove persons of known bias against or affiance to either party.
The history is not, then, if we are exact, one of merely random selection. That is why the poor old Roskill Committee got itself so confused. For the record is this. Trial by jury, drawing upon a limited pool of male householders in the much smaller communities of the past, allowed both sides to find out a great deal about the panel; and it was upon this investigation that instructions to challenge could be made. When Lilburne’s jury was in selection in 1649 he asked the court: ‘I do not know the faces of two of the men that were read to me ... Will you let me have some friends by me that are citizens of London, that know them, to give me information of their qualities and conditions? For without this, truly, you may as well hang me without a trial.’ Move on a hundred and fifty or two hundred years. In politically sensitive trial after trial, it can be observed, from the Treasury Solicitor’s papers or from the trial record, that both sides were busily employed in investigating the panel. The Crown’s resources were of course greater, and their inquiries more thorough. But even in John Frost’s trial in 1840 defence counsel had inquired into all but five of the panel of 318, and had noted objections to 160. This amounted to an exhaustive survey or canvass, and there was no suggestion that this involved any impropriety.
The scrutiny of the panel is, then, ancient and venerable practice. So what is all this present pother about? It is this. The opportunity for the defence to scrutinise or influence the selection of the jury is being closed, while the prosecution’s scrutiny and means of influence are enlarged. In England the number of peremptory challenges open to the defence has been reduced from 20 to seven, to three and now nil. But challenge for cause (which we are grandly told remains untampered with) was lopped off and sealed by 1848, when voir dire interrogation was limited to a vestigial survival, and the definition of ‘cause’ excluded matters of general bias. Meanwhile the constituency from which panels are drawn has changed out of recognition. Gone are the close communities in which a householder’s reputation might be quickly learned. Panels today are drawn from vast and anonymous catchment areas: the defence is presented with faceless names drawn from an electoral list, a meaningless swathe of names and addresses, from which the one point of purchase – the ‘additions’ or occupations – was struck out in 1973 by Lord Hailsham’s pen. The defence today is blindfold, unless it should resort to hiring expensive ‘private eyes’ to lurk around the streets and ask questions of neighbours – a practice prohibitive in cost and offensive to our privacy. For this reason, in recent years, the peremptory challenge has been used rather rarely by experienced counsel, and – if used at all – most often in an effort to adjust the number of women or perhaps of blacks or of young or old people on a jury.
For the prosecution it is a different question altogether. ACPO, the DPP and successive Attorney-Generals have come up with jury-vetting, with scarcely a reproof from the judiciary. As the resources of Police and Security enlarge, more and more sophisticated methods of machine-storage and retrieval of records are available to the prosecution. At the press of a few keys, the Police can routinely open a huge and crazily-distorted screen to view the panel: a squatter, an associate of Trotskyists, the mother of a girl supposed to associate with ‘criminals’, or a citizen who has committed the aggravated offence of actually complaining about the Police. This information may routinely be passed on, with a nod and a wink, to the prosecution or the officers of the court. In politically sensitive cases, where the Attorney-General’s and ACPO’s Practice Directions authorise vetting, there may be added the impertinent and often erroneous records of the Special Branch, CID and perhaps Security Services, which may be fed to the prosecution, enriched by the products of Britain’s growth industries: spying, mail-interception and telephone-tapping.
Meanwhile, the Crown’s right of peremptory challenge (disguised as ‘stand-by’) remains unlimited: that is, its ability, upon secret and prejudicial information, to water the jury. Even the Roskill Committee, for all its gross confusions, must be acquitted of such partiality. It suggested that if the defence’s right of peremptory challenge were to be abolished, then the occupations of jurors should go back on the lists, and the prosecution’s right of stand-by (without cause) should also be abolished: ‘Unquestionably, in our view, it would be necessary for both sides to be treated in the same way.’ But our betters these days have no patience with even the fictions of fair play. Neither recommendation will be found in the Criminal Justice Bill. In truth, they are frightened by a democratic jury. They are afraid that it might shy at oppressive prosecutions, and throw the DPP into the ditch. It did so, after all, in the Cyprus signals trial and the Clive Ponting case. This is the real occasion for these measures in the Bill.
Well, that is it. The fraudulent operation of the Roskill Committee is over. On the prompting of a committee of judges, senior police and accountants, another portion of our liberties is to be chipped away. As Mr Walter Merricks said, in his admirable Note of Dissent in the Roskill Report, ‘my colleagues seem to find trial by jury an anomaly.’ In fact, the Report of the Roskill Committee is more explicit: ‘Society appears to have an attachment to jury trial which is emotional or sentimental rather than logical.’ The Committee itself shows a marked preference for summary jurisdiction and trial by tribunals, and for verdicts ‘delivered by persons qualified by training’. We are to be governed by experts for our own good.
One must grope back in our history – perhaps for several hundred years – to come upon a time which had less true respect for the values of democracy than we – or our ‘experts’ – have now. The defence’s peremptory challenge, Mr Merricks notes, may be ‘difficult to defend in strict logic: it is but one feature of a complex and not wholly logical system in which the checks and balances have evolved over a long period.’ What enrages our betters is that some of these checks inhibit them.
They do not like old things. They are the ‘projectors and adventurers, the alchymists and empirics’, of modern times. They are concerned with ‘the proper administration of justice’, a thing to be administered by them to us. They are the Gradgrinds of government offices and the Militants of the MOD or MI5, commuting from Richmond and from Sussex villages to their departments, meditating benignly on more expert measures of social control. They are the Fordists of bureaucracy, who wish to engrave over the portals of our law courts: ‘History is bunk.’
They are the culturally-deprived of our time, and it would be unfair to mock them for their disabilities. Two basic propositions of democracy are so bizarre to their atrophied faculties that they really cannot comprehend them. The first is that there could be occasions when laws are judged by the public to be oppressive, or when the subject requires a defence against the Crown (or organs of the state). In our history it is at precisely such moments that the jury has interposed the power of its verdict. Clive Ponting’s case has shown this function to be not wholly obsolete.
The defence of the subject against the over-mighty state was once regarded – by such men as Sir William Blackstone and Thomas Jefferson – as a crucial function of the jury, elevating it to a high place among the defining institutions of a political democracy. For Alexis de Tocqueville the American jury was an ‘eminently republican element in government’ which ‘places the real direction of Society in the hands of the governed’. I know of only one old judge, long retired from practice, who even understands this language today. And he – Lord Devlin – now writes in elegiac tone. Thirty years ago he could still say that ‘the jury is the lamp that shows that freedom lives.’ In 1978, he warned of the gathering signs ‘that the jury has another half-century or so of life to be spent in the sort of comfortable reservation which conquerors, bringing with them a new civilisation, assign to the natives whom they are displacing.’
The second proposition is beyond the comprehension not only of our betters but of almost any of us in these latter days. It is the quaint archaic notion that anyone – randomly selected – might be able to perform a human sized office or role. We have less sense of ourselves than villagers in Medieval times, who rotated parish offices, or 18th-century tradesmen who could find it in themselves to defy the Attorney-General and the Bench. The jury is perhaps the last place in our social organisation where any person, any citizen, may be called upon to perform a fully adult role. It has not been shown that our fellow citizens have failed, when placed in the jury box. They appear, when they find themselves there, to undergo some inexplicable reversion to premodern modes, and to find in themselves resources to fulfil the responsibility. But the very idea of it is ‘illogical’ and absurd. Only a crank could possibly suggest such a direct exercise of democracy today. Indeed, although as a historian I have to confess that the thing has worked, I can scarcely comprehend it myself.
As for the matter of challenges, no doubt our betters will have their way. For decades only a handful of MPs have shown any zeal for our rights or liberties. All major parties have shared in the complicity. Nor could we try to fight our way back by importing voir dire across the Atlantic. The defence could never compete with the Hendon Police Computer and the data-banks of Security. Our only way now is to opt for the random jury, with defined rights of peremptory challenge equal to both sides (and the abolition of the fiction of stand-by). The panel should be selected by statistical criteria of randomness. There should be impartial scrutiny of court practices, and penalties imposed for collusion between the Police and the prosecution (or court officers) in manipulating the panel. How this could be best effected I must leave to qualified persons, who would not include ACPO or the DPP. In politically or racially sensitive cases we might experiment with some voir dire interrogation for a trial period.
But I am no ‘projector or adventurer’. I would trust a little in the devices inherited from our ancestors. I will be satisfied with the abolition of vetting, the closing-down of their infernal data-banks, the dismantling of their invasive devices for the interception of our privacy, the restoration of the powers of the jury of inquest, the return of certain excluded categories to the option of trial by jury, and the regeneration of some sense of independence (or at least some sense of shame) amongst the judiciary. This might best be effected by a Commission to Inquire into Serious Fraud upon the People’s Rights and Liberties, from which politicians, police and judges would be disqualified.
This is not to say that the old system was beyond all possibility of reform. There could be more preparation for our rights and our duties as jurors in our schools. It may be argued that 18 is too young to fulfil the role, that literacy qualifications might be more scrupulous, or even that, for some modern types of case, qualifications might be required in numeracy. And education might go further still. Aspirant judges might be transported for a probationary period to New South Wales, to sit at the feet of Mr Justice Powell, and study notions of truth and of impartiality now obsolescent in our island courts. I would be willing, for a modest fee, if the Lord Chancellor so wishes, to prepare an annual examination for all the judiciary in the people’s rights and precedents, although I fear that a great many vacancies would ensue upon the Bench. And the Attorney-General has my permission to circulate, gratis, a copy of this article to all electors, not forgetting the Police. But these notions savour a little of the zealot. For the moment, randomness – and confidence in our fellow citizens – is enough.