We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
Published online by Cambridge University Press: 02 January 2018
In recent years various developments in the system of trial by jury in England and Wales have given rise to comment and concern. One such development was the abolition by s. 13 of the Criminal Justice Act 1967 of the rule, said to have existed for over 600 years, that a jury must be unanimous in order to reach a verdict. These provisions are now contained in s. 17 of the Juries Act 1974 which allows for majority verdicts where there are no more than two dissentient voices to be returned under certain circumstances. The change in the unanimity rule has been criticised as striking at the root of the principle of proof of guilt beyond reasonable doubt and has been interpreted by some as being the first step on the slippery slope to jury verdicts by simple majority, a development which would do even more to undermine the principle of proof beyond reasonable doubt and might also lead to the complete abolition of trial by jury.
1. For general surveys see Andrews, J. A. ‘Uses and Misuses of the Jury’ in Glaze-brook, P. R. (ed) Reshaping the Criminal Low (London, 1978) pp. 37–56 Google Scholar; Freeman, M. D. A. ‘The Jury on Trial’ (1981) 34 CLP 65 Google Scholar.
2. See Freeman op. cit. pp. 68–71.
3. For a discussion of the historical background of the present system of trial by jury in Scotland, see Willock, I. D. The Jury in Scotland (Stair Society vol 23, Edinburgh, 1966), especially pp. 217–233 Google Scholar. It is important to emphasise that Scots law has always used some form of majority decisions for verdicts of guilty, as some writers are of the view that the pre-1967 unanimity rule applied to Scotland. See e.g. J. A. Andrews ‘Legal Realism and the Jury’ [1961] Crim LR 758: ‘One of the best established rules in the criminal law books is the necessity for jury verdicts to be unanimous. This is one of the cornerstones of British justice.’
4. Smith, T. B. ‘Scotland: The Trial Process’ in Coutts, J. A. (ed), The Accuccd: A Comparative study (London, 1966) p. 72 Google Scholar; Criminal Procedure in Scotland (Second Report) (Thomson Report) Cmnd 6218 (1975), para. 51.05.
5. 1964 JC 25 at 27.
6. On the argument that a not proven verdict has been returned in some cases where the accused would have been convicted rather than acquitted had that verdict not been available. See McNicol v HMA, at 27, per Lord Justice-General Clyde; Thomson Report, para. 51.12.
7. Sir Walter Scott is recorded as having written about a case: ‘the jury gave the bastard verdict, not proven. I hate that Caledonian medium quid. One who is not proved guilty is innocent in the eyes of law’, cited by Willock op. cit. p. 217.
8. Willock, op. cit. pp. 218–222 Google Scholar.
9. Willock, op. cit. pp. 223–224 Google Scholar, draws attention to the mistake of confusing not proven and non liquet. Willock believes that there does not appear ever to have been a firm rule in Scotland that every individual juror must vote one way or another, though it should be said that it is unknown in modern practice for individual members of a jury to refuse to cast a vote. However, given the mode of constituting a jury verdict of guilty in Scotland, any refusal of a juror to vote at all would be equivalent to a vote for acquittal.
10. McPhelim v HMA 1960 JC 17 at 22. The dangers of expressing the rule as to jury verdicts in terms of majority voting are illustrated by the case of Lord Advocate v Nicholson 1958 SLT (Sh Ct) 17, where the jury found the accused guilty ‘by a majority’. Defence counsel inquired as to the size of this majority and received the reply from the jury foreman that six members of the jury had voted for guilty, five for not guilty and four for not proven. The sheriff ordered that a verdict of not guilty be recorded. For further discussion and criticism of the Scottish rule see G. Maher ‘Reasonable Doubt and the Jury’ 1983 SLT (News) 97–100.
11. Mackay v HMA 1944 JC 153 at 156. Although this case concerned trial by jury during wartime emergency provisions when juries were seven in number, it has been cited as authority for the more general proposition stated in the text: see Renton and Brown Criminul Procedure according to the Low of Scotland (4th edn by G. H. Gordon, Edinburgh, 1972) p. 128.
12. Thomson Report, para. 51.12. The majority's conclusion was that with a jury of twelve a verdict of guilty should require at least seven votes, though a verdict of not guilty would need only six or even less. Thus if a jury were to split six for guilty, three for not guilty and three for not proven, the accused was to be acquitted.
13. See e.g. R v Davison (1860) 2 F & F 250; R v Randall [1960] Crim LR 435; R v Robinson (1975) 60 Cr App Rep 108.
14. (1866) LR 1 QB 289 (Court of Queen's Bench); 390 (Exchequer Chamber).
15. [1935] AC 462 at 481.
16. The justification of the present rule of English law that a verdict of not guilty does not follow from the failure of the prosecution to establish its case tends to be silently assumed rather than explicitly advanced. For this reason it is not thought that all possible defences of the rule have been identified here.
17. For a discussion of the logic of acquittal see MacCormick, Neil Legal Resoning and Legal Theory (Oxford, 1978) pp. 41–52 Google Scholar. But it is at least implicit in MacCormick's argument that justifiable systems of proof depend upon moral principles and not simply considerations of deductive logic. For a perceptive discussion of MacCormick's views see Alida Wilson ‘The nature of legal reasoning: a commentary with special reference to Professor MacCormick's theory’ (1982) 2 LS 269, especially at pp. 284–285.
18. This was the notorious mistake made by the US Supreme Court in the much criticized case of Coffin v US 156 US 432 (1895), discussed by Sir Rupert Cross Evidence (5th edn, London, 1979) p. 122.
19. Cross, op. cit. The idea that presumptions, including the presumption of innocence, are determinative of the issues to which they apply is brought out by Katzner, Louis I. ‘Presumptivist and Nonpresurnptivist Principles of Formal Justice’ (1971) 81 Ethics 253, at pp. 257–258 Google Scholar.
20. Other important principles of the criminal process have their rationales in considerations other than that the innocence of the accused has been established. Friedland, Martin (Double Jeopardy (Oxford, 1969) pp. 3–5)Google Scholar sees the justification of the rule against double jeopardy and the derived plea of autrefois acquit in the prevention of harassment of the accused by the state. He quotes the justification given by Black, J in the American case Green v US 355 US 184, 187–188 (1957)Google Scholar:
‘The underlying idea, one that is deeply ingrained in at least the Anglo-American system ofjurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarassment, expense and ordeal and compelling him to live in a continaing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.’
21. Friedland, op. cit. pp. 21–29 Google Scholar, is highly critical of the refusal of English law to permit a plea of autrefois acquit when a jury has been discharged, even where the discharge is improper. However he does not consider the separate question whether failure of the jury to agree should result in a verdict of not guilty as opposed to giving rise to a plea of autrefois acquit.
22. (1866) LR 1 QB at 311. See also Lush J at 324–325.
23. For discussion of this point see Andrews, op. cit. [1961] Crim LR 758, especially at pp. 760–762 Google Scholar.
24. (1866) LR 1 QB at 395.
25. Friedland, op. cit. p. 22 Google Scholar; Archbold, Criminal Pleading, Evidence and Practice (40th edn, London, 1979) p. 447 Google Scholar.
26. Devlin, P. Trial by Jury (revised edn, London, 1966) p. 52 Google Scholar.
* This paper is a remote descendant of a more general paper on theoretical aspects of trial by jury. A number of colleagues have given me the benefit of their views, but special thanks are due to Chris Docherty, Jim Murdoch and Professor J. A. Andrews.
