Juries and reasoned verdicts

In this post I want to sketch out some preliminary thoughts about juries and reasoned verdicts. I am especially interested in whether there are compelling arguments of principle in favour of a requirement to give reasons for a verdict. In doing this, I recognise that there is currently no such duty in the common law or statute (indeed, quite the opposite). Nor can such a duty be deduced from the jurisprudence of the European Court on Human Rights (see Taxquet v Belgium 926/05 [2010] ECHR 1806 (16 November 2010), in which the court emphasises the need for the jury verdict to be understandable to the defendant, rather than for it to be accompanied by reasons).

The basic idea is that an appropriate judicial direction, considered in the context of the evidence, provides an information base from which the reasons for a verdict might be inferred. For an example of shortcomings in this regard see Condron v UK 35718/97 [2000] ECHR 191 (2 May 2000), in which the ECtHR found a violation of Article 6 on the basis of a deficient direction on the right to silence under section 34 of the Criminal Justice and Public Order Act 1994, and the impossibility of establishing the weight given by the jury to the defendant's silence in the light of the deficient direction.

I should add that reasoned verdicts have also been considered over on the UK Criminal Law Blog, and I recommend that to readers.

 

I want to suggest that there are a number of factors which support a specific duty to give reasons.

 

Candour in public functions

In a liberal democracy, people have a legitimate expectation that in their dealings with public bodies, which impact their rights, liberties and responsibilities, they will be given candid, comprehensible (and justifiable) reasons for the decisions of those bodies. Where the reasons for a decision lack justification, they can be challenged. It is right that public bodies account for their decisions. This is not just about the extent to which we do / should trust public bodies and the extent to which a duty of candour enhances the quality of decision-making. There is an argument to be had about that, but not here. Rather, I want to emphasise the idea that when a public body gives an account of its conduct, it is demonstrating respect for the people with whom it directly deals, and to the public at large.

There can be few more momentous public decisions than a verdict in a criminal case. Such a decision calls strongly not just for justification (the verdict should be correct), but for the justification to be articulated with candour and clarity. We require such candour and clarity in a range of other criminal justice processes (eg, reason giving on arrest; particularisation in indictments). A process which requires a defendant to infer the reasons for a decision appears to be deficient in this context. Moreover, magistrates give reasons for verdicts (though there is no exact equivalent of the judicial direction, which makes the case for a distinct reason-giving process more compelling).

In addition, I have been using Anthony Duff's fabulous 'Answering for Crime' recently. Duff's account of the criminal law emphasises its communicative nature. In this context, the trial involves citizens calling one of their number to account, and asking for an explanation from that individual for their behaviour. It seems to me that a basic duty of reciprocity (as well as the need to retain what Duff refers to as 'moral standing'), would require those who do the calling to account, to give an account of their own decision-making.

 

The objection from intimidation does not bite here

One of the arguments in favour of jury secrecy is protection from intimidation. The argument goes that if the deliberations of the jury are exposed to scrutiny, jurors may be put under pressure by, for example, unscrupulous associates of a defendant. Jurors clearly merit protection in this regard, both as a basic right and also as a quid pro quo of performing a demanding citizenly function. However, it is not clear that reasoned verdicts enhance the risk of intimidation. First, the verdict is delivered, by definition, at the end of deliberations, by which point if there was going to be any intimidation, it would most probably already have happened. Reasoned verdicts make the position no worse in this respect. Moreover, intimidation is arguably more likely to be an issue if ongoing deliberations are revealed, such that particular views become associated with particular individual jurors. By contrast, the reasoned verdict would both be a collective product, and would not of itself expose the views of individual jurors while deliberations were ongoing.

 

 

The integrity of sentencing

A guilty verdict does not always tell us a great deal other than that the prosecution has made out its case to the required standard. However, that verdict may be based on a variety of interpretations of the evidence (and in fact, it is by no means clear that all jurors will share the same one). The judge may sentence on the basis of any reasonable interpretation of the facts which are consistent with the evidence and verdict. There is no guarantee that this interpretation will be the same as that / those of the jury. (See, for example Solomon and Triumph (1984) 6 Cr App R (S) 120.) It may be less favourable to the defendant than that / those of the jury, which seems problematic and to undermine the paramountcy of the jury as finders fact. Not only does the judge's interpretation form the basis for the sentence given, but it also provides the justification for subsequent public comment on the behaviour of the defendant and the character which it apparently evidences. This may be at odds with how the jury saw the behaviour.

 

Focus on the evidence

The extent to which jury verdicts are driven by the evidence has no doubt been a subject of discussion and controversy for as long as there have been juries. More recently, these issues have occupied UK researchers in a variety of ways. Work has been done, for example, on the degree of apparent consistency between verdicts and evidence, on the propriety or otherwise of jury equity (the capacity of a jury to deliver a verdict manifestly at odds with the evidence), on the effect of race on jury decision-making, and, in the context of rape, on the possible impact of 'rape myths' on juries. We also find ourselves currently in the middle of a storm which shows little sign of abating, caused by the impact of technology on jurors' ability to access information beyond that presented at trial. There is a fear that technology is placing jurors beyond the control of judges. The fear is well-founded (see for example AG v Fraill [2011] EWCA Crim 1570 and AG v Dallas [2012] EWHC 156 (Admin)) but identifying the appropriate response will be contentious. I do not want to pursue the question of how to address the issue of jurors' access to technology, other than to suggest that the genie is out of the bottle, and if it is a problem, creating new offences is not a complete solution. (It is encouraging in this respect to see the Law Commission floating a more holistic set of solutions, of which a new offence may form part.) For now, suffice it to suggest that the need to produce a reasoned verdict, located in the context of fuller juror education, may provide an additional incentive, if one is needed, for jurors not to go rogue, and to focus exclusively on the evidence.

 

 

To conclude for now …

I'll sign off for now with the perennial academic's complaint that our knowledge and understanding of juries is inevitably hindered by the difficulties for research posed by section 8 of the Contempt of Court Act 1981 and the inscrutability of deliberations. To that extent, it is difficult to know whether there are significant issues with the quality of jury decision-making, and whether reasoned verdicts could form part of a remedy (there are certainly plausible counter-arguments to those I have suggested above). But that lack of knowledge is in itself a problem. Moreover, what purposes does such a blanket approach to inscrutability serve? Insofar as it serves to maintain some kind of mystique, I am not sure that mystique need be a key aspiration for a mature democracy and it is certainly at odds with the need for accountability in the decision-making of public bodies.

 

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5 comments

  1. […] a case and whether they should give reasons. There’s also a good piece by Ben FitzPatrick here that triggered […]

  2. […] of juries’ verdicts. Against this background, Ben Fitzpatrick, an academic at York Law School, suggests that there are good arguments in favour of requiring juries to give reasoned verdicts. His blog post is well worth reading. Something that particularly struck me was his suggestion […]

  3. […] of juries’ verdicts. Against this background, Ben Fitzpatrick, an academic at York Law School, suggests that there are good arguments in favour of requiring juries to give reasoned verdicts. His blog post is well worth reading. Something that particularly struck me was his suggestion […]

  4. To whom exactly should juries be accountable to though? Public bodies are clearly accountable to the public at large and publish reports to fulfill that duty (there are of course exceptions for national security etc.) To me it seems the main issue of accountability for Duff would be that of the jury to the person they are passing sentence on (in keeping with his idea of communicative punishment), which would presumably lead to a large rise in the number of appeals, as if we make such deliberations available to defendants this would presumably have to factor into appeal decisions/advice.

    Would jury decisions be altered if they knew even their collective verdict would be subject to some form of public scrutiny? Even if we’re assuming anonymity within whatever document was produced how about after the trial? There are clear laws against jurors discussing private jury deliberations after the fact, would that remain in place with the official ‘reasons for the decision’ document being the only source? How would this affect the appeals system, as opening the door on jury deliberations has to lead to pressure to create some sort of measure to hold the jury collectively to account at the court of appeal to clarify aspects of their decision.

    How about the Jury nullification and majority verdicts? Both cases would certainly engender increased interest in the exact nature of the jury’s deliberations and who exactly said what and for what reason (particularly for majority verdicts on high profile cases). Social media being what it is you’d be treading a very fine line if juries could talk about their decision after the case. There’s a lot more potential for confusion and accidentally breaching whatever Section 8 was changed to saying if jurors were allowed to talk about the content of their reasoning document but not anything else than if the law simply states ‘you may not talk about jury deliberations or else’.

    1. Thanks for these excellent points Marcus. I agree that we do need a sense of ‘to whom’ the jury is accountable. In Duff’s relational terms, perhaps the jury are accountable to the defendant ‘as’ a tribunal sitting in judgment on him or her, and accountable to the public ‘as’ our representatives in the criminal process.
      Whether the fact of having to give reasons would affect the decision itself is I suppose not something we can answer fully, given our very limited knowledge of what goes on. But, if the effect of having to give reasons is to cause the jury to focus on the evidence, that would seem to be presumptively a positive effect.
      As for nullification, I don’t want to underestimate its constitutional significance, and I recognise that a nullification which was explicitly reasoned – something along the lines of – (though hopefully a bit longer in practice!) – ‘we decline to convict because this law is oppressive / the application of the law in this case is oppressive’ would be very interesting to say the least. (It’s worth bearing in mind that jury equity cuts – at least in principle – both ways – a jury might acquit or convict against the evidence. It’s not all about standing up to the oppressive state.)
      I agree that giving reasons could have a range of consequences (which arguably, taken together, make it less likely that this kind of change would go ahead!). The publication of reasons might well provide source material for appeals which would not otherwise have been available – my sense is that that is a good thing. I recognise that there would be associated administrative costs.
      The relationship between the published reasons and the legitimacy / lawfulness or otherwise of other modes of disclosure of deliberations is an interesting point. I am going to give that some more thought.
      Thanks very much again for the comments.

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