Court of Appeal vs Juries

Since the introduction of the Court of Criminal Appeal in 1907, there has been something of a battle between two schools of thought as to how much discretion the Court should have in quashing jury verdicts. 

On the one hand, some judges have believed that, as we operate a system of justice based on jury verdicts, we should abide by those verdicts unless there is an extremely good reason for overturning them.

The other school (and I make no apology for stating my opinion that this is the correct one) is that, while juries may work very well most of the time, occasionally, they will inevitably make mistakes and convict someone when there is really insufficient evidence to do so.

These two positions can be summed two statements:

1949, Lord Chief Justice, Lord Goddard said:

“If there is evidence to go to the jury, and there has been no misdirection, and it cannot be said that the verdict is one which a reasonable jury could not arrive at, this court will not set aside the verdict of guilty which has been found by a jury”.

Whereas  in 1964 a JUSTICE Committee said:

“it seems absurd and unjust that verdicts which experienced judges would have thought surprising and not supported by really adequate evidence should be allowed to stand for no other reason than that they were arrived at by a jury.”

The following year The Interdepartmental Committee on the Court of Criminal Appeal (Donovan Committee) agreed and the Criminal Appeal Act 1966 gave the power for the Court to:

…”quash a conviction where the verdict was ‘under all the circumstances of the case unsafe or unsatisfactory’ ”.

What is Lurking Doubt?

In 1968, there was a case referred to as ‘Cooper’, in which the principle of ‘Lurking Doubt’ was introduced. The judge, Lord Widgery, said:

“This is a case in which every issue was before the jury and in which the jury was properly instructed, and, accordingly, a case in which this court will be very reluctant indeed to intervene.

…However, now our powers are somewhat different, and we are indeed charged to allow an appeal against conviction if we think that the verdict of the jury should be set aside on the ground that under all the circumstances of the case it is unsafe or unsatisfactory. 

That means that in cases of this kind the court must in the end ask itself a subjective question, whether we are content to let the matter stand as it is, or whether there is not some lurking doubt in our minds which makes us wonder whether an injustice has been done. 

This is a reaction which may not be based strictly on the evidence as such: it is a reaction which can be produced by the general feel of the case as the court experiences it. “

Such a position was not universally taken by Appeal judges, some feeling that overturning a jury decision should not be taken too lightly.

Lord Chief Justice Bingham, in 2000, also qualified the “lurking doubt” and “uneasiness” terms by adding:

…“If, on consideration of all of the facts and circumstances of the case before it, the Court entertains real doubts whether the appellant was guilty of the offence of which he has been convicted, the Court will consider the conviction unsafe.”

You can see that this stance requires more than a “gut feeling” but includes an examination of the facts of the case, including transcripts of the trial.

This is an eminently sensible approach which I firmly believe should be adopted by the Court of Appeal today.

In 2012, Lord Chief Judge said something similar but with a much more critical slant. After dismissing the more simplistic concept of “lurking doubt”:

…“it is not open to the court to set aside the verdict on the basis of some judicial hunch …”,

he admitted that the application of it:

“requires reasoned analysis the evidence… which leads to the inexorable conclusion that the verdict is unsafe”.

So, while Lord Judge seemed more dismissive of the concept of Lurking Doubt, and set a higher bar (perhaps a little too high) for the level of evidence required, he was still essentially conceding that a reasoned analysis of the evidence is required and, if deemed to be sufficient, the conviction should be quashed. He referred to research by Professor Leonard Leigh which concluded that those cases which had invoked “lurking doubt” had indeed been subject to such scrutiny. And not merely a ‘collective judicial hunch’.

One-sided Hunches

It has to be said, however, that, on the other side of the coin, collective judicial hunches are often what has caused the potential miscarriage of justice. In sexual assault cases, the requirement for corroboration has been abandoned. Now what the jury is often left with are a complainant claiming the defendant’s guilt, and a defendant protesting their innocence – one person’s word against another. In the absence of any other strong evidence either way, the jury is asked to give a verdict based on who they believe. What is this if not a collective judicial hunch? 

If the jury decide they believe the Complainant, a potentially innocent Defendant is faced having been found guilty on the basis of a collective judicial hunch on the part of an inexperienced jury, yet a Court of Appeal refusing to quash a it because the collective judicial hunch of highly experienced judges is deemed insufficient.

Conclusion – more than just a hunch

In spite of the last paragraph, it is easy to understand why the Court of Appeal might be reluctant to overturn a jury verdict on the basis of instinct alone, no matter how accurate the instinct of experienced judges may be. But that has never really been the issue; both the Runciman (Royal) Commission and Lord Bingham accepted that more would be needed, but both (and even Lord Judge) implied that the Court of Appeal should be open to accepting such evidence. 

That means allowing the Claimant and his lawyers, or the CCRC, to present evidence from the trial, together with any new evidence they have managed to gather, and submit to the Court of Appeal such anomalies that they believe make the jury verdict unsafe. 

The instincts of people experienced in their field, when examined, often have a justifiable basis. While that, on its own, may not be sufficient to quash a guilty verdict, if supported by evidence from the trial which suggests that they are right, Court of Appeal Judges should exercise their right, and their duty, to quash it.

n.b. If you would rather watch (or listen to) a video than read a blog post, you can do so at the bottom of this post.

Juries or no juries

With the huge backlog of criminal cases and concomitant long delays suffered by both defendants and victims, there has been increased discussion about the necessity for juries for criminal trials.
(They are not used for civil cases, where a single judge is considered either adequate or even preferable).

Discussion about juries has usually led to lists of pros and cons and a conclusion as to whether we should retain them or ditch them. From what I’ve seen, most lawyers tend to conclude that juries remain the best option – and leave it at that.

What hasn’t been discussed so much is whether the cons could be rectified and the jury system improved? (Of course, by “cons” I mean points against, not “defendants who are convicted”!)

Improve not replace

If we are to keep trial by jury for serious criminal cases, that does not mean they should not be improved. There are a number of ways I can suggest, but foremost among these is that, in my view, Juries should be required to give reasons for their verdicts.

This means that, as in some other countries, jurors should have to explain which bits of evidence, or route to verdict, they relied on to come to their decision.

Little research

Despite the hundreds of years of having a jury system, there has been remarkable little research into this critical facet of justice.

Understanding the detail of how juries arrive at their verdicts is hampered by section 8 of the Contempt of Court Act 1981:

F2(1)Subject to subsection (2) below, it is a contempt of court to obtain, disclose or solicit any particulars of statements made, opinions expressed, arguments advanced or votes cast by members of a jury in the course of their deliberations in any legal proceedings.

In other words, jury members cannot talk about their verdicts or their deliberations, and no-one else is allowed to ask them.

Such research as there is therefore relies on:

1. evidence from other countries where jurors CAN talk about it
2. numerical data – numbers of convictions, under certain conditions etc.
3. Simulated trials where the fake jurors can be quizzed as to their thinking

But each of these methods has its drawbacks.

1. evidence from other countries does not necessarily translate directly to England and Wales
2. You can only draw inferred conclusions from numerical data; you can’t really know why they are as they are
3. Simulated trials can only provide a small amount of data based on the limitations of those trials.

How do we know if Juries work?

Proponents of the jury system will often tell you how successful juries are at finding the right verdict. But how do we know? 

You can’t even look to the number of successful appeals, as the current (dysfunctional) Court of Appeal doesn’t actually consider whether a jury decision was right or not. 

Essentially, juries are treated as infallible and the Court of Appeal only allows appeals where new evidence is presented which the jury did not see (and are therefore excused of blame.)

How do we know there was not discrimination, prejudice, confirmation bias, lack of understanding of the issues, or of the judge’s directions, or whether they understood them but ignored them anyway, bullying of weaker-minded jurors, etc?

Additionally, if a jury initially cannot reach even a majority verdict but, after the judge asks them to continue deliberating, they return a verdict – what happened? 

Who changed their minds, and why? 

[This begs the question about whether we should revert to requiring a unanimous jury verdict to convict (yes, we should) bit that is for another post].

When a defendant’s liberty and future depends on whether jurors are strong-minded or not, easily persuadable or bullyable by other jurors to not, such questions are very important.

Prejudice and Variability of competence

Research presented by Cheryl Thomas (Ministry of Justice Research Series 1/10 February 2010) shows a range of issues which should be of concern, including:

1. wide differences in verdicts when the defendant or alleged victim was of different ethnic origin, 
2. worrying lack of comprehension of judge’s directions
3. jurors who looked at their cases on the internet (despite warnings that they should not), especially if they were higher profile cases
4. confusion about how jurors should report impropriety of fellow jurors

Most or all of these issues would be remedied by the jurors having to explain the reasoning behind their decisions, as they do in some other countries.

Problems with Appeals

The Criminal Cases Review Commission (CCRC) is the (supposedly) independent body charged with discovering miscarriages of justice and sending them back to the Court of Appeal when a first appeal had failed.

I say “supposedly independent” because the cases they refer are bound by the same rules as other cases. 

In other words, the Court of Appeal has to be persuaded that any new evidence presented (which, as I’ve said, is required) would have been sufficient to change a jury’s decision had they known about it at the time.

One of the main problems is that, if you do not on know on what basis the jury arrived at its decision, how is the CCRC or the Court of Appeal to know what would have changed its mind?

If the jury had a number of what is known as ‘routes to verdict’ suggested in the judge’s summing up, the jury may have only taken one of them but it would not be known which one. 

[This is why it is a mistake to suggest that the judge’s summing up provides the jury’s reasons – it does not. At best, it provides options but if the verdict seems strange, it explains nothing.]

Even if the CCRC present fresh evidence which would, in fact, have changed the verdict, the fact that they cannot prove it and the Court of Appeal can simply refer to a different route, means that the appeal is likely to fail. 

Had the jury given its reasons and disclosed its route to verdict, an appeal which was dismissed could have resulted in a true miscarriage of justice being remedied.

An Opposing view

For balance, I will point to a paper by Burd & Hans in Cornell, USA who wrote a paper entitled “Reasoned Verdicts: Oversold?” in which they purport to look at the evidence for and against.

They conclude with a “not sure but probably not” slant, on the basis that there has not been sufficient research into the benefits so better the devil you know.

 However, their reasoning is somewhat bizarre. e.g. this quote:

The procedural difficulties associated with reasoned verdicts may out- weigh the potential benefits. We described the experience in Spain, for example, where substantial numbers of cases have been overturned as the courts found jurors’ written documentation of their reasoning to be inconsistent or insufficient. 

So they seem to find fault with potential miscarriages of justice being overturned because it was discovered that the jurors reasons for convicting were inconsistent or insufficient?

That sounds to me like an excellent argument IN FAVOUR of reasons for verdicts.

Not Guilty?

The argument for jurors having to give reasons is especially strong when the verdict is”Guilty”. However, for those who consider that too many guilty perpetrators of a crime are “getting away with it”, the argument for reasoned verdicts may also help with “Not Guilty” verdicts.

Conclusion

If the discussion is about Juries v Judges, the latter do already give reasons for their verdicts. If it is considered necessary or advisable for them, why should it be different for juries. 

I have not, so far, come across a half-way compelling argument against it.

There is no valid reason why juries should be exempt from the general eagerness for accountability in all other areas of official life. Politicians, judges, lawyers,… are all accountable. In fact, it was notable that in his first speech as Prime Minister Rishi Sunak stressed that his government would be “accountable”. And yet, juries, with a power to radically affect a possibly innocent person’s life, are not. It makes no sense.

Proper research into the effectiveness of the jury system and where further improvements may be made is severely hampered by the secrecy under which verdicts are discussed and delivered.

It could be that it is the very fact of our ignorance about the effectiveness of the jury system that frightens some people who fear that discovering how they came to a perverse decision may unlock a Pandora’s box of problems.

This is no reason to prevent it. If we were to discover that juries were, after all, pretty unreliable, the sooner we know about it, and can fix it, the better.

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Why Juries should give reasons for verdicts – Video version

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For another take on this subject, see “Jury trial – should juries give reasoning for their verdict?” by Spoken Injustice.