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Jury trial, continental style

Published online by Cambridge University Press:  02 January 2018

Roderick Munday
Roderick Munday*
Affiliation:
Peterhouse, Cambridge
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Extract

Strange events are occurring in the world of the jury. At a time when English confidence in the institution is on the ebb, a phenomenon evidenced both in the titles of recent jury studies - The Jury Under Attack and Taking Liberties- and in a steady stream of skeptical commentaries, it is reported that in Japan the Bar Federation is set to call for the restoration of jury trial, first introduced by a law of 1926 but suspended after an experimental period in 1942. Spain has a new Constitution that imposes a duty on the legislature to institute jury trial, an undertaking currently under examination by the Spanish Ministry of Justice. And in South Africa, recent calls for a more representative justice system have prompted the editor of the South African Law Journal, Professor Ellison Kahn, to devote a tetralogy of articles to consideration of the reintroduction of jury trial within that jurisdiction.

Type
Research Article
Information
Legal Studies , Volume 13 , Issue 2 , July 1993 , pp. 204 - 224
Copyright
Copyright © Society of Legal Scholars 1993

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References

1. Findlay & Duff (eds) The Jury Under Attack (1988, London).

2. Enright & Morton Taking Liberties. The Criminal Jury in the 1990s (1990, London).

3. The most influential in recent times has been Penny Darbyshire's The Lamp that Shows that Freedom Lives–Is it worth the Candle? [1991] Crim LR 740, a paper presumably inspired by her experience serving on a jury: Notes of a Lawyer Juror (1990) 140 NLJ 1264; (1990) The Independent, 28 September.

4. (1992) 142 NLJ 995. The history of the Japanese jury is outlined in Noda, Introduction to Japanese Law (1976, Tokyo) pp 137–8.

5. Art 125 of the 1978 Constitution provides: ‘Las ciudadanos podráh ejercer la acció populary participar en la Administración de Justicia mediante la instituctión del Jurado, en la formay con respecto a aquellos procesos pennies qu la ley determine, asi como en los Tribunales consuetudinariosy tradicionales.’

6. Restore the Jury? or Reform? Reform? Aren't Things Bad Enough Already? (1991) 108 SALJ 672; (1992) 109 SALJ 87,307 and 666 (to be concluded). See also Huebner ‘Who decides? Restructuring Criminal Justice for a Democratic South Africa?’ 102 Yale LJ 961, 970–5 (1993).

7. Mail on Sunday, 21 June 1992, pp 1 and 3.

8. Serious Fraud, Long Trials and Criminal Justice The 1992 Child & Co Lecture (Typescript copy kindly supplied by the author).

9. (1992) 142 NLJ 885.

10. Leigh & Zedner A Report on the Administration of Criminal Justice in the pre-Trial Phase in France and Germany (1992, HMSO).

11. For more detailed consideration of these matters, see Munday ‘Réflexions histonques et comparatives sur le procès par jury’ in P. Legrand (ed), Common law: d'un siècle l'autre (1992, Montreal) pp 489–524; Schnapper ‘Le jury francais aux XIXéme et XXéme siècles’ in Voies nouvelles en histoire du droit. La justice, la famille, la répression pénale (XIVème–XXème sièclcs) (1991, Pans) pp 241–312.

12. On Belgium and Denmark, see Munday, supra, pp 509–14; Anderson Lay Judges and Jurors in Denmark, 38 Am J Comp L 839 (1990).

13. See, eg, De l'esprit des lois, Book XI, ch 6 (Paris, 1961 ed Gamier).

14. See, eg, Duvergier de Hauranne Du jury anglais et du jury fraçais (1827, Paris).

15. Cited in Esmein Précis élémtntaire de l'histoire du droit fraçais de 1789 à 1814 (1908, Pans) p 98.

16. For an account of this tribunal's activities, see Munday Justice and Terror: The Role of the French Revolutionary Lawyer (1989) 153 JP 324. The tribunal's records are edited in Fayard La justice réolutionnaire. Chronique de la Terreur (1987, Pans). The revolutionary frenzy did not however grip every remote French province: eg, Schnapper, L'activilé' du tribunal criminal de la Vienne (1792–1800) in op cit, pp 223–40.

17. In 1790 both Sièyes and Duport laid proposals for a civil jury before the Constituent Assembly. Duport's project was based on the English model. But independent ideas on the subject were unbelievably complicated–juries of 18 members, five-sixths of whom initially would be paid lawyers, until such time as a simple and comprehensible French Civil Code was introduced. As one author remarked, the latter proposals were more ‘the product of a political metaphysician than those of a statesman.’ For a general survey of the issue, see Desjardins, Sièyes et le jury en matière Civile (1869, Aix). The issue generated some enthusiastic pamphleteering: eg M. T* de Saint-Ge*Tribut d'un Républicain sur l'organisation des jurés (n.d.)–‘le chef d'ocuvredu siècle, le bienfait le plus précieux pour les peuples, et, j'oserai le dire, peut-étre le sad signe d'une réghération.’ (p 3). As late as 1870 there were fresh moves to introduce a civil jury: see, eg, Saglier, De l'application du jury m matière civile (1870, Pans).

18. See Demartial Dujury d'accusation (1887, Besançon) for an account of the grand jury in France, 1792–1808, and on the proposals of 1870 for its revival.

19. For a detailed account of the Emperor's complex dealings with the issue of the jury, see Cruppi's Napoléon et le jury (1896, Paris).

20. See eg, de Lacuisine, De l'esprit public duns l'institution du juri et des moyens d'en empĕcher la ruine (1845, Paris) p 49, n 1.

21. The polling of 75 courts in 1808 produced 22 in favour of retention of the jury, 30 in favour of its suppression, and 23 abstentions.

22. See, eg, J-B. Selves Résultat de l'expérience contre le jury fraçais (1808, Paris); Explication de l'ongine ct du secret du vrai jury (1811, Paris).

23. Des vices dc l'institution du jury en France (1804, Paris), esp pp vi and 123.

24. The writer has sometimes wondered whether Napoleon's decision to retain the jury had anything to do with his having won a case before Lord Ellenborough and a special jury at Westminster Hallin 1803. For a full account of the case, see The Trial of Jean Peltier (1803, London), a trial that provoked what was widely agreed to be Sir James Mackintosh's finest speech (Mme de Staël, Dix Années d'Exil (1821, Paris) pp 53 and 58; Anon A Cursory view of Sir Jams Mackintosh (1804, Dublin).

25. That is, the official responsible for explaining the proposals laid before the legislative body.

26. To be fair, the jury's introduction in France was primarily the product of ideas relating to the sovereignty of the people. This may explain why, following the jury's introduction virtually by popular acclaim in the Decree of 30 August 1790, merely a year later a further law was passed that emphasised the sovereign rule of the jury and provided that there was to be no appeal from a jury's verdicts and no clemency or powers of pardon should apply in respect of them (Law of 16 September 1791). A Decree of 15 May 1793 and a Senatus-Consultus of 16 Thermidor Year X, whose provisions were retained in the Code of 1808, lifted these restrictions. (Early French legislation is not readily available to an English readership. Almost all the pre-1808 legislation is reproduced in Bourguignon Manuel du juri (1827, Paris) pp 136–192).

27. Indeed, as Napoleon declared before the Conseil d'Etat on 16 prairial, Year XII: 'On ne peut se dissimuler qu'un Gouvernement tyrannique aurait beaucoup plus d'auantage avec des juris qu'auec des juges, qui sont moins à sa disposition et qui lui opposeraimtplus de résistance.' Napoleon's general distrust of independent legal institutions is neatly illustrated in the unpublished imperial decree of 3 March 1806 which would have transformed the Paris Law Faculty into a residential institute where selected pupils would be groomed as future high functionaries, devoted to the régime. Half the free place students would have been chosen from amongst the sons of judges.

28. France has never been firmly wedded to the notion of unanimity. Thus as early as 1788, a law of 19 Fructidor Year V provided that, although for the first 24 hours of its deliberations(!) the jury should seek unanimity, after that period it became permissible to render a majority verdict.

29. The magistrates were accorded an even greater say in 1824, when they were granted the power to overrule a majority jury verdict by a mere majority decision of their number (law of 24 May 1824). This power of the court to intervene was only removed by a law of 18 June 1869. Until then, judicial intervention was the subject of repeated legislative enactments. Thus, a law of4 March 1831 restricted it by providing that the court could not interfere if the jury majority was greater than seven. The monarchy revived the broad principle (law of 9 September 1835), but the 1848 burst of revolutionary fervour again reduced the scope for judicial intervention by increasing the majority of jurors needed for a conviction to nine (law of 6 March 1848). Then, in 1853 simple majority verdicts were reintroduced and intervention by the court again became widespread, save that the court was only empowered to remit cases for a second verdict, that was treated as final, at the next sessions of the assizes (law of 9 June 1853).

30. It could be noted that in Belgium, where the assize jury can convict by a majority, a second judicial deliberation still takes place and, depending upon the circumstances, the judges can either override the jury's guilty verdict (art 351, Code d'Instruction Criminelle) or remit the case to the next assizes for a new trial (art 352, ibid.)

31. In a caustic, fictional account, René Benjamin described the cour d'assises as ‘le plus grand des théátres de Paris’: Lo COW d'assises. Ses Pompes et scs oeuurcs (1928, Paris) p 33. France's exotic legal import has always been surrounded by at least as much conscious formality as its English counterpart. Thus, the old Criminal Code, the Code d'instnrction criminelle, required the foreman of the jury, when delivering the jury's verdict, ‘to stand up, place his hand upon his heart and declare, “Upon my honour and conscience, before God and my fellow man, the jury's verdict is…”’ The previous Code des délits et dts peines, promulgated on 3 Brumaire Year IV (24 October 1796), was even more ritualistic, providing that each juror should appear in court individually, in the absence of the others, to make his formal declaration.

34. Although French commentators appear not to have taken this point, these first provisions that allowed for judicial intervention in the jury's deliberations, foreshadow in some measure the important reforms of 1932 and 1941: see infra, p 212.

33. Cf Schnapper, supra p 312: ‘le jury n'est plus qu'une institution vénérable ct délicieusment démodéc… (qui) a gangé, en sérhité et en paix, une paix qui ressemble à celle des cimctirres’ (a judgment spiced with just a dash of hyperbole). In fact, the outrage recently aroused by the acquittal of Mme Gamier, against all the evidence, at the cour d'assises dc la Marne, argues against such cosy complacency: see Le Monde, 17-18 November 1992 and Munday “The Lump that shows that Freedom Livesy' in France (1993) 157 JP 339”.

34. Prior to 1832 it is said that acquittals at the assizes were running at about 60% and public concern was considerable. Although the number of convictions rose sharply after 1832, extenuating circumstances were found by the jury in up to 67 or 69% of cases: Faustin Hélie, Traité d'instruction criminelle (1858, Paris) vol 8, p 233. For the published views of one specimen juror, see Anon Du jury (1819, Paris).

35. It may be possible to argue that the detection of extenuating circumstances by the jury constitutes a kind of finding of fact. The distinction may yet survive: see Vouin La Cour d'acsises françise de 1808 à 1958 in Méianges Huguenay (1964, Sirey) p 228.

36. See notably the decision of the Court of cassation of 25 March 1836, Journal du Palais, 1836.2.177, and the detailed discussion of the case law in Beudant, De l'indication de la loi pénale dans la discussion devant le jury (1861, Paris) esp pp 185–202.

37. See, eg Fournez, Des circonstances tris atténuontes (1885, Riom).

38. See de Lacuisine De l'influence légitime de la magistrature sur les déisions du juri (1847, Paris) pp 33 ct seq. Abolition of the summing-up was first unsuccessfully proposed in France in 1851; Belgium had disposed of this institution by a Decree of 19 July 1831.

39. See infra, text accompanying notes 44%.

40. Eg Lenôtre, Babet l'empoisonnuse ou l'empoisonnée (1927) p 43. It is often said that this reform was passed following a memorable clash between the great advocate, Lachaud, and the President of the Court at the trial of Marie Bitre in 1880, after the judge had shown a pronounced leaning towards conviction of the accused. One recalls the incident related in Zola's feuilleton, La Mystéres de Marseille (1867) Part 1, ch 10 ‘Les auusations énergiques du magistrat curent un effet déJastreux.’ The issue has contemporary English resonances: see eg, Wolchover Criminal Trials: Curtailing the Judge's Summing-up Function (1986) 83 LSG 363; Should Judges Sum up an the Facts? [1989] Grim LR 781.

41. Faustin Hélie Traité l'instruction criminelle (1867, Paris) 2nd edn, vol VIII, p 164. See also Brissaud & Béchade-Labarthe Les attributions nouvelles du jury criminal (1932, Paris) p 17.

42. Jurors appear to have desired this reform long before it was instituted. Indeed, it was not uncommon for juries to write either to the press or to the Minister of Justice explaining their more aberrant decisions in terms of their being forbidden to take part in settling the punishment of convicted defendants: see eg, Revue pénitentiaire 1922, 570 and 823. The reform had for long enjoyed legal support (see, eg, Guyho Les jurés ‘maítres de la peine’ (1908, Pans)) and had already been implemented in Belgium by a law of 23 August 1919 (see now art 364, Belgian Code d'instruction criminelle). For the celebrated French advocate, René Floriot, the 1932 legislation indeed provided the ideal balance: see La cour d'assises en France in Le jury face au droit pénal moderne (1967, Brussels) pp 225-8. But the author, Marcel Jouhandeau, writing of his experiences as a juror has pointed out that, not surprisingly, this was also the hardest question for the jury to deal with: Trois crimes rituels (1962, Pans) p 85.

43. The idea was far from novel. It had been canvassed, for instance, by Tempier, Etudes sur le jury (1847, Marseille) pp 73–4.

44. Eg, Garçon Faut-il modifier la composition ct les attributions du jury? Rev dr pén et de crim, 1954-55 p 455. Cp Mimin La pripotence du jury D 1958 Chr 1,3; Vouin, Le destin de la cour d'assiscs fraçaise in Le jury face au droit pénal moderne (1967: Brussels) pp 136–7.

45. Eg, Toulemon, La Question du Jury (1930, Sirey) esp pp 279–89.

46. This continuity is rightly stressed by Vouin, supra.

47. Enright & Morton, op cit p 144.

48. For good general accounts, see Esmein A History of Continental Criminal Procedure with Special Reference to France (1914, London); Martin Crime and Criminal Justice Under the Third Republic. The Shame of Marianne (1990, Baton Rouge) ch 5. Elsewhere, some statements have to be treated with care. For instance, Knittel & Seiler The Merits of Trial Jury [1972] CLJ p 324 claim that the Vichy Government was responsible for the abolition of trial by jury: a palpable inaccuracy. Enright & Morton, op cit p 143 suggest that it is ‘unusual’ that French jurors consider the sentence together with the court: considered globally, this statement is questionable.

49. The same can be said of Belgium and Denmark where, again, the legislature has displayed a willingness to break with the traditional structures; see Munday, supra, pp 513–518.

50. This aspect is especially brought to the fore in Schnapper, supra.

51. See, eg, Toulemon, op cit, pp 84 et seq. The practice continues to be criticised: see Chazal Les magistrats (1978, Paris) pp 157–9.

52. Although la correctionnalisation has been the dominant trend, from time to time proposals have pressed in the opposite direction, arguing that all offences should be tried by jury. The idea was floated in 1848, the Year of Revolutions, but stifled by a most discouraging report by the eminent President of the Court of cassation, Portalis. The idea was broached again in the 1880s and in 1899, but, to the relief of French criminal lawyers, not implemented. See notably Charmeil, De l'institution du juge en France (1885, Grenoble) esp pp 55–63.

53. See Brissaud & Béchade-Labarthe, Les attributions nouvelles du jury criminal (1932, Paris), who see these statistics as part of the proof that the legislation of 1932 was ‘la résultante inéluctable d'une lente évolution’ (p 5).

54. For a masterly account of two particular robber bands, see Richard Cobb's ‘La Routedu Nord: Banditry on the Border and in the Belgian Departments 1795-1798’ in Paris and its Provinses 1792-1802 (1975, Oxford) pp 141–210.

55. See notably arts 706-16,706-25 and 698-6 C. proc.pén. During the composition of this paper Max Frérot, a former leader of Action directe and members of Iparretarrak, the Basque separatist organisation, have been tried in Paris before special assize courts for a variety of outrages: Le Monde, 13 October 1992, p 14, 14 October 1992, p 10 ff; 4 November 1992 p 12 ff.

56. See Cass, 25 November 1841, S 42.1.93 (Ch réun). Significantly, the Court of Cassation reached this decision contrary to clear advice it received from the procurreurgénéral.

57. Criminal Justice Act 1988, s 38. See Smith & Hogan Criminal Law (7th edn, 1992) p 713. Although their motivation is not particularly rooted in opposition to the jury, the Lord Chancellor's Department National Mode of Trial Guidelines (1990) is designed to ensure that cases are not unnecessarily committed for trial before the Crown Court, a tendency which has begun to cause concern: see Hedderman & Moxon, Magistrates' Court or Crown Court?Mode of Trial Decisions and Santencing (HMSO, 1992).

58. The Distribution of Criminal Business between the Crown Court and Magistrates' Courts (1975) Cmnd 6323.

59. See now Northern Ireland (Emergency Provisions) Act 1991. One is tempted to draw a very loose parallel between the difficulties in maintaining jury trial in Northern Ireland and those experienced in parts of France. In Corsica, a fully-fledged French department, it has in recent years proven extremely difficult to assemble juries; indeed, in Upper Corsica (Haute-Corse) the winter assizes of 1967 had to be abandoned owing to the impossibility of summoning a full jury panel. Corsica, of course, presents a special case. Since the time of the Genoese occupation, the tradition of the vendetta, the code of silence and a system of private justice have exerted pronounced influence on the Corsican outlook. (See Wilson Feuding, Conflict and Banditry in Nineteenth Century Corsica (1988, Cambridge) esp pp 280–5). Family and clan loyalties are strong, and within a tight-knit society where everybody is likely to know one another and where violence is far from unknown, it is easy to see that there exist particular disincentives for citizens to come forward to perform their civic duty as assize court jurors. The law has for some time been a target for separatists in Upper Corsica. In 1985 the apartment occupied by the Procurerur de la République was bombed. More recently, in October 1987 an explosive charge was thrown into the precincts of the Palace of Justice and in December 1987 the villa traditionally placed at the disposition of the First President of the Court of Appeal at Bastia was demolished by a powerful explosion. For a number of years, at the beginning of each legal session a suspiciously high proportion of Corsican citizens summoned for jury service reported sick. The 100-franc fine they incurred, if their excuse was adjudged unconvincing, hardly afforded an effective deterrent. Criminal lawyers express concern. Alternative venues can of course be found for trials, but the fear in a department in active political ferment is that, if trial for serious crime in Corsica becomes impossible for want of a jury, this may ultimately encourage a return to the old ways and to a system of vendetta and private justice.

60. Bourne (1953) 36 Cr App R 125; Robbins [1988] Crim LR 744.

61. Eg, Cooke v DPP [1992] Crim LR 746.

62. Recent research seems to confirm contemporary French suspicions, even detecting ‘a pattern of jurors’ prejudices': Donovan Justice Unblind, the Juries and the Criminal Class in France 1825-1911 (1981) 15 J Social History 89, 103.

63. Sir Robert Mark first claimed that too many were escaping conviction: In the Office of Constable (Glasgow, 1979) p 285. Zander responded in a series of papers - Are Too Many Criminals Avoiding Conviction? (1974) 37 MLR 28; The Acquittal Rate of Professional Criminals: A Reply (1974) 37 MLR 444; Acquittal Rates and Not Guilty Pleas [1974] Crim LR 381. Zander's data were however questioned by Baldwin & McConville, The Acquittal Rate of Professional Criminals: A Critical Note (1974) 37 MLR 439. There has always been controversy over the true position (detailed in Enright & Morton, op cit, pp 132-5), but the truth may be both elusive and largely irrelevant: it is public perception of the situation that matters, and this author's estimate is that Sir Robert Mark's rhetoric has carried 4 the day.

64. The following statistics are given in Merle & Vitu, Traité de droit criminal(l967, Paris) at s 1103: These statistics may cast additional light on Leigh & Zedner's recent opinion that France's low acquittal rates and apparent paucity of miscarriages of justice are ‘the product of the care taken in the initial stages of the criminal process’ (A Report on the Administration of Criminal Justice in the Pre-Trial Phase in France and Germany (1991, HMSO) pp 71–2).

65. Women became eligible to sit on juries only in 1944. For tart comment on this reform, see Jouhandeau Trois crimes rituels (1962, Paris) pp 87-8.

66. See statistics quoted supra, n 64.

67. Art 359, C proc pén. No matter how substantial the majority for conviction may have been, the President of the Court is only permitted to announce that it has been reached by a majority of ‘at least eight votes’, art 360.

68. The process of balancing judicial and lay elements within the tribunal has its fascination, but possesses no real counterpart in English number-juggling. English jury trial having developed from principles of unanimity and judicial non-intervention, difficulty was encountered here in introducing majority verdicts in 1967.

69. The Field of Comparative Low 1949 lxi JR 16.

70. For some discussion of these problems see Watson Legal Transplants: An Approach to Comparative Low (1974, Edinburgh) pp 15 ff.

71. See Comparative Low and English Low's Char& Evidence Rules (1993) OJLS forthcoming.

72. See, eg Trial of John Bishe (1605), reported in Paley Baildon (ed) Hawarde's Reportes del Cases in Camera Stellata 1593–1609 (1894, privately printed) pp 231-2: a case of barratry at Grinstead Assizes.

73. Only in Bushell's case (1670) Vaughan 135 was it established that juries were not to be punished for exerting their independence.

74. Eg, Beattie Crime and the Courts in England 166–1800 (1986, Oxford) pp 327-9 and 385-7; ‘London Juries in the 1690s’ in Cockburn & Green (eds) Twelve Good Men and True. The Criminal Trial Jury in England 1200-1800 (1988, Princeton) pp 234-7; Roberts, ‘Juries and the Middling Sort: Recruitment and Performance at Devon Quarter Sessions, 1649–1670’ in ibid, p 200; Cockburn, ‘Twelve Silly Men? The Trial Jury at Assizes, 156C1670’ in ibid, p 169.

75. A convincing account is given by Landsman, The Rise of the Contentiow Spirit: Adversary Procedure in Eightmth Century England, 75 Corn L Rev 497 (1990).

76. See, eg, Griew, Summing up the Law [19891 Crim LR 768,774; Cooper, How to Confuse the Jury (1990) Crim LJ 125; Diane Birch, note to Clifton [1986] Crim LR 399; Hodgetts A Systems Anabst on a Jury (1990) 140 NLJ 1269. See also Reid [19921 Crim LR p 821 per Lord Browne-Wilkinson.

77. The matter is helpfully reviewed in Wolchover, Should Judges Sum up on the Facts? [1989] Crim LR 781, and Criminal Trials: Curtailing the Judge's Summing-UP Function (1986) 83 LSG 363.

78. O'Donnell (1917) 12 Cr App R 219,221 per Lord Reading CJ.

79. Banons [1967] Crim LR 60. As the Court of Appeal sometimes points out, juries can react against this: Bircham (1972) CAT 4415/A/71, p 6per Lawton LJ.

80. Blackley [1963] Crim LR 443.

81. Mitchell and Jones [1960] Crim LR 21 1. See also Evans (1990) Times, 22 May.

82. The Last Serjeant (1952, London) p 288. A point which is not normally made is that the judge's view may be coloured by evidence unavailable to the jury-evidence excluded in the absence of the jury at various stages of the proceedings, or even the list of the defendant's previous convictions which will necessarily be before the judge, if not the jury, throughout the trial. This is not dissimilar to the objection once made by some authors to the French reform of 1932, that the procedure made possible the continuation of the trial in the absence of the prisoner and the public: Mannheim, supra, p 114.

83. History of the Criminal Law, (1883, London) vol I, p 455.

84. (1987) 137 NLJ p 98. See also Anthony Scrivener QC in ‘Counsel’ (April 1991) at p 9.

85. Eg, Lord Rawlinson A Price Too High (1989, London) pp 50-5 and 251.

86. Eg, Watts [983] 3 All ER 101, 104 per Lord Lane CJ; McInnes [1989] Crim LR 889; Swaysland (1987) Times, 15 April.

87. [1990] 2 All ER 975.

88. DPP v Stonehouse [1978] AC 55,88 per Lord Edmund-Davies; Gent [1990] 1 All ER 364.

89. Larkin [1943] 1 KB 174, 176 per Humphreys J; Black (1963) 48 Cr App R 52.

90. They are concisely stated by Humphreys J in Larkin, supra.

91. Only in rare cases is it open to a trial judge to question the jury on the reasons for its verdict. The jury, however, is not obliged to answer such questions and the judge is entitled to disregard their answer (Whittle [1974] Crim LR 487). See general discussion in Solomon and Triumph (1984) 6 Cr App R (S) 120. Such questioning, it is emphasised, will rarely be permissible: Heckstarl-Smith [1989] Crim LR 742.

92. See discussion in Stockdale & Devlin, Sentencing (1987, London) ss 7–11.

93. Thompson [1977] NI 74. See generally Hogan & Walker, Political Violence and the Law in lreland (1989, Manchester) ch IV.

94. South African experience may provide faint evidence that the demand for reasoned verdicts grows once judges and assessors retire together. Although Union legislation did not require judges to give reasons, the Appellate Division came to insist on reasons being given, particularly after the introduction of appeals on the facts in 1948: Ellison Kahn, supra n 6 pp 94-5 and 98.

95. As Darbyshire has pointed out, the importance of these arguments can be overestimated: The Lamp that Shows that Freedom Lives [1991] Crim LR 740.

96. The problem of weighting has required protracted thought. Thus, in Belgium, where the court retires with the jury only to consider sentence (art 364, Code d'instruction criminelle) in a bid to prevent jurors being unduly intimidated by the opinions of the legal members of the tribunal, the order in which the fifteen members of the tribunal should express their views is specified in the Code: the jurors speak first, beginning with the youngest, and then the members of the court state their opinion, beginning with the most junior. Decisions on the punishment, like those affecting guilt, are reached by a simple majority.

97. For a general description of Belgian procedure, see Munday op cit. n 11 pp 513-6. France, as we have seen, adopted this procedure in 1932.

98. See Anderson, supra, n 12, pp 857–8.

99. Sunday Telegraph (1992) 18 October.

100. Supra, n 10 p 67.

101. The Royal Commission's Crown Court Survey (1992) 142 NLJ 1730.

102. See Plucknett The English Trial and Comparative Law (1952, Cambridge) p 40; Groot ‘The Thirteenth-century Criminal Jury’ in Cockburn & Green (eds), Twelve Good Men and Tnue (1988, Princeton) pp 3-35.

103. Eg, Langbein The Criminal Trial before the Lawyers, 45 U Chi L Rev 263,291–5 (1978).

104. See Trois crimes rituels (1962, Paris) pp 83 ff. French judges, however, do not necessarily see this relationship in the same light, eg, Lequenne Des juges et des hommes (1951, Paris) esp pp 148–9.

105. Interestingly, picked out by Jouhandeau, op tit p 85 as the toughest aspect of the jurors' task.

106. Judges, Legislators and Professors (1987, Cambridge) p 38.

107. Blackstone, Commentaries, III xxiii; IV xxvii.

108. Ford u Blurton (1922) 38 TLR 801,805.

109. Trial by Jury (1956, London) p 164.

110. ‘The Twelve Men’ in Tremendous Trifles (1909, London).

111. Hamson The English Trial and Comparative Law (1952, Cambridge) p 13.

112. A Sentimental Journey through France and Italy (1768, London) ch I.