How can you get a fair trial if judges also sit on the jury?

How can you get a fair trial if judges also sit on the jury?

Observations for judges on being called for jury service

Lord Chief Justice letter to the Judiciary

Dear Judge,

You will be aware that section 321 of the Criminal Justice Act 2003 came into force on 5 April 2004. The effect of section 321 is to bring into effect schedule 33 which removes the entitlement to be excused from jury service, as of right for a number of people. Judges are amongst the categories of people who are no longer entitled to be excused from jury service, as of right.

The purpose of this letter is to give some guidance to judges who are called for jury service. Both judges conducting trials and judges summoned should bear its contents in mind. This is an initial view. It is not binding on trial judges if and when issues arise as a result of a member of the judiciary being on a jury.

When a judge serves on a jury he does so as part of his duty as a private citizen. It is not appropriate for me to issue guidance as to how a private citizen should conduct his or herself in a jury room. Nevertheless, I am aware that many members of the judiciary are anxious about what to do if they find themselves on a jury and I offer the following observations of my own in the hope that they will be of some assistance.

The initial point is that judges are expected to comply with the law. If judges are called for jury service they should undertake this duty, unless they can demonstrate 'good reason' as to why they should not serve as summoned. Section 9 Juries Act 1974 provides that if any person who has been summoned to attend as a juror shows to the satisfaction of the summoning officer that there is good cause why they should be excused from attending, the summoning officer may excuse that person. A more common course of action is for the summoning officer to allow a deferral of the date on which a juror has to attend for jury service under section 9A Juries Act 1974.

The Lord Chancellor has issued guidance to the Jury Central Summoning Bureau when considering deferral applications and applications to be excused and I enclose a copy of this guidance. This guidance makes clear that only in extreme circumstances, will a person be excused from jury service. Paragraph 18 deals specifically with applications made by members of the judiciary. It states that members of the judiciary or those involved in the administration of justice who apply for excusal or deferral on grounds that they may be known to a party or parties involved in the trial should normally be deferred or moved to an alternative court where the grounds for exclusion may not exist. If this is not possible, then they should be excused.

A judge should make an application for deferral where he has significant judicial commitments which would make it particularly inconvenient for him to do jury service at the time he was called to do so. I would only expect judicial commitments to be a reason for deferral where, if there was no deferral, there could be a significant interference with the administration of justice. An example of where such an application may be appropriate would be where the judge is involved in a heavy trial, which had been fixed for some time and where the judge had conducted pre-hearings such as PII applications. Involvement in a case with custody time limits implications may also be a 'good reason' for deferral. Whenever a judge is summoned for jury service at a time when he would otherwise be sitting as a judge he should at once consult with his Presiding Judge (or in the case of a High Court Judge his Head of Division) before deciding whether to seek deferral because of the existence of significant judicial commitments.

However, in the absence of special circumstances, the fact that a judge has sat as a juror in a court should not be regarded as disentitling him from sitting in that court or any other appellate court in future, providing that he does not hear the case on which he sat as a juror or any connected case. Where a judge does sit as a juror he must thereafter have nothing more to do with the case or any connected case in his judicial capacity.

Where a judge serves as a juror the time served will count as sitting time for the purpose of calculating the annual sitting requirement. If the judge is a High Court judge or above and he defers jury service to the vacation, the time served will count as sitting time for the purposes of calculating compensatory leave.

It is normally inappropriate for a juror to have any special knowledge of any person involved in the trial. This applies primarily to witnesses and defendants, but may also apply to knowledge of the judge and legal representatives involved in the trial. As a result, if a judge receives a summons to serve as a juror at his home court or a court where he usually sits, he may apply not to serve there as a juror. The first step for the jury summoning officer receiving such an application will be to look at whether the difficulty could be overcome by deferral, and if so whether the date of service could be deferred. If this would not rectify the difficulty the jury summoning officer will then consider whether the judge could undertake jury service at a different court. The normal rule is that a juror is not expected to travel more than one and a half hours from home in order to serve and it is not expected that members of the judiciary will be forced to exceed this in order to find an alternative court.

Where a judge attends a court for jury service and finds that he is a member of a jury panel where he is familiar with the judge presiding, a legal representative, the defendant or a potential witness he should raise the matter with the judge presiding, in the normal way through the jury bailiff or member of the court staff, if he considers his familiarity could interfere with his responsibilities as a juror. If the trial judge receives such a communication from the juror judge he should deal with the matter in exactly the same way as he would deal with the matter in the case of any other juror. The trial judge may consider it appropriate to show the note to counsel and seek assistance as to the appropriate course of action. It will not normally be a good reason for a judge not to serve on a jury where he knows the jury bailiff or other court staff.

It is a matter of discretion for an individual judge sitting on a jury whether he should disclose the fact of his judicial office to fellow members of the jury. Whilst it may not be appropriate to volunteer such information immediately, either to fellow members of the jury or to the judge presiding in the case, it is neither necessary nor appropriate to conceal this fact. It is for each jury to decide who to elect as foreman, but judges should have in mind that judges who serve as jurors should expect to be treated as equal members of the jury and should not be accorded any special status on account of their judicial office.

The duty of all jurors is to comply with the jury oath and give a true verdict according to the evidence. Judges who serve as jurors should be mindful of the fact that jurors play a different role in the trial from the judge. All jurors must follow directions given to the jury as to the law. Judges should avoid the temptation to correct guidance they perceive to be inaccurate as this is outside the scope of their role as jurors. They should also have in mind the fact that they have not been party to all the legal argument and may not therefore have all the information available as to the correct legal position. In common with all jurors, judges may however, ask the judge presiding any relevant question through a jury note in the normal way. Nothing in this guidance detracts from the ability of judges sitting as jurors to bring their general knowledge of life to bear on the deliberations of the jury.

The Lord Chief Justice of England and Wales