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Jury Trial To-day

Published online by Cambridge University Press:  16 January 2009

R. M. Jackson
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Extract

Juries are divided into juries of presentment and juries of issue; this paper is concerned with the latter kind, commonly called trial juries. Modern writers are singularly chary of committing themselves to any opinion about juries. The eulogies of Blackstone are definitely unfashionable. The current opinion is perhaps on these lines: jury trial in civil cases is sometimes satisfactory and sometimes most unsatisfactory, and hence the restriction of jury trial has been a wise development; however, there is much to be said for jury trial in criminal cases and (in the past, at least) in cases where the liberty of the subject is concerned. If juries have in the past protected persons against political oppression, and if the conditions under which they did so are still existing or reasonably possible, then we have a point of such importance that it should receive priority in discussion.

Type
Research Article
Information
The Cambridge Law Journal , Volume 6 , Issue 3 , November 1938 , pp. 367 - 380
Copyright
Copyright © Cambridge Law Journal and Contributors 1938

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References

1 Bl. Comm. iii, 379; iv, 343.

2 The writer has described the decline in jury trial, 1 Modern Law Rev. pp. 132 el seq. The mode of trial in civil cases is settled by rules made under the Supreme Court of Judicature (Consolidation) Act, 1925, s. 99 (1)(h), which apparently gives power to take away any rights to a jury: Kodak, Ltd. v. Alpha Film Corporation, Ltd. [1930] 2 K. B. 340Google Scholar. The writer, in 1 Modem Law Bev. 141, doubts the accuracy of this view. It should be noted that restriction in jury trial in the King's Bench Division was made by statute (Administration of Justice (Miscellaneous Provisions) Act, 1933), and not by rules made under the Judicature Act of 1925.

3 Campbell, Lives of the Lord Chancellors, 5th ed. vol. vii, 35.

4 Campbell, op. cit. viii, 376.

5 Campbell, op. cit. ix, 94.

6 Campbell, op. cit. vii, 400.

7 Campbell, op. cit. ix, 189.

8 ‘When questions evolved by political agitation are raised between the subject and the crown … it is conceived that, by the wit of man, no system could be devised more fitter’ than jury trial: Broom, , Constitutional Law (1885), pp. 156–7Google Scholar.

9 Article on Jury in Encyclopaedia Britannica, 11th ed. (1911), and Jenks, , Book of English Law (1936), pp. 97 and 167Google Scholar.

10 [1893] 1 Q. B. 142.

11 19 State Trials 1153.

12 19 State Trials 1002.

13 19 State Trials 1030.

14 Sutton, Personal Actions at Common Law, 90–91; Dialogue on Crogate's Case, Holdsworth, History of English Law, ix, 417.

15 Book of English Law (1936), 167.

16 22 State Trials 357.

17 22 State Trials 754, 786.

18 22 State Trials 1189.

19 26 State Trials 529.

20 Doubts were set at rest by 3 Geo. 3, c. 25 (1730), repeated in Juries Act, 1825, s. 30.

21 Tidd, , King's Bench Practice, 9th ed. (1828), 789Google Scholar.

22 Committee on Juries, Minutes of Evidence, Cd. 1913/6818, Questions 2579 et seq.

23 Kenny, Outlines of Criminal Law, 15th ed. 564.

24 Either party can ask for (and in practice get) a special jury; the rule is that the party who applies must pay the cost, £12 12s., unless the judge certifies that the case is suitable for a special jury, in which case the extra costs will be payable by whoever is ordered to pay the costs.

25 After trade unions had obtained a better 1egal standing in 1875, they turned their attention to advocacy of reform of the law, for they had suffered badly under the English legal system. The measures advocated included reform of the jury system: Webb, , History of Trade Unionism, 1920 edn. p. 367Google Scholar.

26 These figures were obtained by going through the records of canvassers at election times; those acquainted with the organization of election campaigns know that the estimate of votes definitely ‘for’ and definitely ‘against’ is reasonably accurate.

27 [1934] 2 K. B. 164.

28 Prof. Laski, in 4 Howard Journal 260, regrets that our official Judicial Statistics do not distinguish ‘political’ crime; it is unfortunate that this information is not available, but I do not see how the Home Office could label cases as ‘political’ when a judge or the Home Secretary would, if the occasion arose, insist that the wrong in question was merely a common crime.

29 Halsbury, Laws of England, 2nd ed. vol. 19, p. 303; this large panel was summoned for the trial of Mile End Guardians in 1908. The proportion of women must equal the total proportion of women to men in the Jurors' Book.

30 Report of Committee on Juries, Cd. 1913/6817, paras. 106, 107; Minutes of Evidence, Cd. 1913/6818, Questions 1155 et seq.

31 The fairness or otherwise of the panel can be considered beforehand, since the names (with occupations and addresses) are arranged alphabetically, and this list must be available for at least seven days before the sitting of the Court: Common Law Procedure Act, 1852, ss. 106, 107; Juries Act, 1870, s. 16. In practice challenges are very rare.

32 Committee on Juries, Minutes of Evidence, Cd. 1913/6818, Question 3640.

33 [1930] 1 K. B. 467, Scrutton, L.J. at 475, Greer L.J. at 481, Slesser L.J. at 491Google Scholar.

34 [1931] A. C. 333, Blanesburgh, Lord at 349, Viscount Hailsham at 339Google Scholar.

35 Cole v. De Trafford (No. 2) [1918] 2 K. B. 523, Scrutton, L.J. at 638Google Scholar.

36 [1935] A. C. 346, Viscount, Sankey L.C. at 356, Lord Atkin at 370Google Scholar.

37 Sutherland v. Stopes [1925] A. C. 47Google Scholar.

38 Committee on Juries, Minutes of Evidence, Cd. 1918/6818, Questions 2407 et seq.

39 A careful reading of Mechanical, etc. Co. & Lehwess v. Austin [1935] A. C. 346Google Scholar, suggests that the jury gave the plaintiffs far more damages for the wrongful use of the invention than they had been prepared to accept for an out-and-out sale of the patents.

40 [1930] 1 K. B. 467; [1931] A. C. 333.

41 History of the Criminal Law, i, 566 et seq.