Jury Vetting
Principle
Article 6(1) ECHR requires trial by an independent and impartial tribunal.
(Archbold 16-57)
The principles which are generally to be observed are:
- members of a jury should be selected at random from the panel, subject to any rule of law as to right of challenge by the defence;
- the Juries Act 1974 and the Juries (Disqualification) Act 1984 identify those classes of person who alone are disqualified from or ineligible for service on a jury. No other class of persons may be treated as disqualified or ineligible; and
- the correct way for the Crown to seek to exclude a member of the panel from sitting as a juror is by the exercise in open court of the right to request a stand by or challenge for cause.
The parties to any jury trial may inspect a copy of the panel from which the jury in their trial will be chosen, in order to:
- enable the parties to inquire about members of the panel; and
- decide whether any should be challenged
There are 2 types of jury vetting (checks):
- a criminal records office (CRO) check in accordance with <Home Office Circular 43/1988> (random check) or the Annex to the Attorney General's Guidelines on Jury Checks 88 Cr App R123 at 125 (Archbold 4-218 ) (specific check); and
- an "authorised jury check" which may involve a CRO check, Special Branch records check and sometimes a Security Services check. An "authorised jury check" can only be authorised by the Attorney General in accordance with the Attorney General's Guidelines on Jury Checks. 88 Cr App R 123 at 124 (Archbold 4-214).
Guidance
Criminal Records Office (CRO) Checks
Parliament has proved safeguards against jurors who may be corrupt or biased by:
- the provision of majority verdicts; and
- the Juries Act 1974 which provides a sanction of a criminal offence for a disqualified person to serve as a juror.
Whilst the omission of a disqualified person from the panel is a matter for court officials, only the police are able to search criminal records in order to ascertain whether a jury panel includes a disqualified person. This is part of their usual function of preventing the commission of offences.
Random Checks
Each quarter, Crown Court officials submit to their local police, for a CRO check, a pre-determined number of names from those called for jury service in each Crown Court centre.
This procedure does not involve The CPS save that, if the police consider that an offence has been committed under Section 20(5)(c) of the Juries Act 1974, the police will seek advice from the local CPS office.
For prosecutions under Section 20(5)(c) of the Juries Act 1974 refer to <Offences against public justice elsewhere in this guidance>
Checks in Specific Cases
A Chief Constable or the Director of Public Prosecutions may require a CRO check of the names of potential jurors in any case where a Chief Constable or the DPP considers that it would be in the interests of justice so to do: see the Annex to the Attorney General's Guidelines on Jury Checks, 88Cr App R 123 at 125 ( Archbold 4-218).
A Chief Constable may require a CRO jury check, in accordance with the Annex to the Attorney General's Guidelines on Jury Checks, without reference to The CPS. However, it is accepted that in many cases the advice of the local CPS will be sought.
A Chief Constable's request for advice on a jury check in accordance with the Annex to the Attorney General's Guidelines on Jury Checks will be dealt with by the CCP/(ACCP London), Head of HQ Division, or designated officer.
If The CPS officer at level E or above considers that the case falls within the provisions of paragraph 1 of the Annex to the Attorney General's Guidelines on Jury Checks, the officer may advise that a check of previous convictions of the potential jurors should be undertaken.
Defence Request for a Jury Check
The defence will not have access to the information available to the prosecution but may wish to:
- have the panel checked for disqualified persons; or
- seek assistance in obtaining information regarding the right to challenge.
The Attorney General will consider requests, made by defence counsel through the Director of Public Prosecutions, for assistance in obtaining information in cases falling within the guidelines.
The Association of Chief Police Officers' recommendations indicate that, if requested by the Director of Public Prosecutions, Chief Constables will check criminal records on behalf of the defence.
In either case the results of such checks will be sent to the Director of Public Prosecutions who will treat them in accordance with the guidelines.
Authorised Jury Checks
There are certain exceptional types of cases of public importance for which the provisions as to majority verdicts and disqualifications of jurors may be insufficient to ensure the administration of justice. In these, it is in the interests of justice that there should be further safeguards against the possibility of bias. Checks which go beyond the investigation of criminal records may be necessary.
- national security, where the evidence is likely to be heard in camera, in whole or in part; or
- a terrorist case.
Challenging Jurors
The methods of replacing one or more of the prospective jurors called into the box are:
- for the prosecution to ask a juror to stand by; or
- for either the prosecution or the defence to challenge for cause; or
- for the judge to use his discretionary power to remove a juror.
The circumstances in which it would be proper for the Crown to exercise its right to stand by a member of the jury panel are:
- to remove a manifestly unsuitable juror, but only if the defence agree; and
- to remove a juror in a terrorist or security case in which the Attorney General has authorised a check of the jury list, but only on the authority of the Attorney General.
For the Attorney General's Guidelines on the exercise by the Crown of its right to stand by, see 88 Cr App R123 ( Archbold 4-250 and 4-251).
Improper Approaches to Jurors
Section 8 of the Contempt of Court Act 1981 (Archbold 28-90) provides that it is an contempt of court to seek information from a juror as to what occurred in the jury room.
If an investigation by the police is required, the CCP/(ACCP London) should be consulted before further enquiries are made.
In the past, it was the practice for the Attorney General to issue a "letter of comfort" to enable police to interview jurors. This was to assure the officers that they would not be prosecuted for offences contrary to Section 8 of the Contempt of Court Act 1981. However, following the cases of (R v McCluskey (1994) 98 Cr.App.R.216), (R v Mickleburgh (1995) 1 Cr.App.R.297) and (R v Young (1995) 2 Cr.App.R.397,) the Attorney General no longer issues letters of comfort.
The cases confirm the absolute prohibition in Section 8 of the Contempt of Court Act 1981 and the sanctity of the jury's deliberations. However, the courts have defined "deliberations" narrowly. Any investigation surrounding the jury's stay at a hotel, as for example in R v Young, would not fall foul of Section 8 Contempt of Court Act 1981.
These cases therefore confirm that there is no restriction on the police interviewing the jurors as long as the investigation is limited to matters outside the "jury's deliberations", as defined in the above cases. Clear guidance must be given to the police, as otherwise they are potentially liable to a prosecution contrary to Section 8. In the light of the difficulties it would be prudent for an officer of senior rank to undertake this task.
The cases also emphasise the necessity for the consent of the Judge to be obtained before the jurors are approached. This consent will only be valid if the Judge is still seized of the case.
The Registrar of Criminal Appeals has raised concern at the lack of a procedural framework to allow for judicial supervision of police investigations into allegations of intimidation of jurors following an acquittal suspected to be "tainted".
This contrasts with the situation when the judge is still seized of a case, when his consent must be sought, or following a conviction, when the consent of the Court of Appeal is required before the police are entitled to approach and interview jurors.
Having consulted with the Lord Chief Justice, the Registrar has proposed a procedure whereby the police make an application to the relevant Crown Court manager, who will then pass the application to the Registrar, who will allocate the matter to a Lord Justice of Appeal to determine.
The Director is in agreement with the proposal; however, a formal response from the police is awaited (November 2001.)
Although this proposal cannot be seen as a requirement under common law or statue, it provides a degree of protection and supervision for investigating officers thus reducing the risk of prosecution under section 8 of the Contempt of Court Act 1981. In addition, it serves to ensure that such enquiries are only undertaken in appropriate circumstances.
Procedure
CRO Checks
Upon receiving a request for advice regarding the making of a CRO jury check, a CPS officer of Level E or above will:
- consider whether the case falls within the provisions of paragraph 1 of the Annex to the Attorney General's Guidelines on Jury Checks (Archbold 4-218) . If so, a jury check may be authorised;
- notify the Director of Public Prosecutions of the decision. A record of such cases will be kept by the Director's secretary; and
- if the said officer is not a Chief Crown Prosecutor or Head of Division (eg Casework Directorate), notify the Chief Crown Prosecutor (and any other intermediary line manager) or Head of Division of the decision.
If the CRO check reveals that a potential juror is disqualified:
- the police shall be informed that they can communicate the information to the appropriate officer of the Crown Court direct; and
- the police shall send a copy of the notification to the authorising CPS officer
If the court cannot be notified by the police because the information arrives too late:
- the information will be given to the authorising CPS officer; and
- The CPS officer will advise prosecuting counsel as to the names of those jurors legally disqualified from sitting and instruct him to challenge for cause.
If the CRO check reveals that a potential juror should be challenged for cause, or that he is manifestly unreliable:
- the information shall be sent to the authorising CPS officer;
- if that officer is not a Chief Crown Prosecutor or Head of Division, he/she must inform the Chief Crown Prosecutor (and any other intermediary line manager) or Head of Division;
- The CPS officer must advise counsel of the outcome, instruct him to challenge for cause, or seek the agreement of the defence to have the juror stood-by and
- The CPS officer will keep a note of such cases and notify the Director of Public Prosecutions' secretary so that records can be maintained.
You should exercise considerable care in cases were a CRO check suggests a juror may be disqualified because:
- the police are not in possession of that individual's date of birth; and
- the information obtained may therefore concern an identically named individual other than the juror.
A sensitive issue arises where a potential jury member:
- is discovered to have previous convictions which do not disqualify him from jury service; or
- where the CRO file contains material information other than records of convictions; and
- the relationship between the information established and the nature of the case to be tried is such that the panel member should be stood-by for the Crown if called to the jury box. < See R v Mason (1980) 71 Cr.App.R.157> (Archbold 4-213) which confirms the lawfulness of adopting such a course.
The authorising CPS officer should refer to the matter to the Director, Casework, who will decide upon the information to be given to counsel.
The information obtained should be given direct by the Director, Casework or Chief Crown Prosecutor to counsel personally. The information must not be passed to others.
The obligation to inform counsel should not be delegated, for example, to a court clerk or caseworker.
Authorised Jury Checks
The request by the Director, Casework to the Attorney General for an authorised jury check should, if at all possible, accompany the papers requesting the consent to proceedings.
The following procedure must be adopted in all cases where a full jury check has been authorised:
- at the appropriate time in the case preparation, the Director, Casework (or his nominee) will ask the police to carry out the necessary checks;
- the police will transmit personally any relevant information obtained to the Director, Casework (or his nominee);
- the Director, Casework (or his nominee) will advise the Legal Secretariat to the Law Officers as to the position;
- the Legal Secretariat will consult the Attorney General, who will make a decision and instruct the Legal Secretariat to inform the Director, Casework (or his nominee) of any juror who should be asked to stand by;
- the Director, Casework (or his nominee) will supply to counsel at the trial the name(s) of any juror(s) who will be asked to stand by;
- the Director of Public Prosecutions' secretary will keep a note of the cases where an authorised jury check is made and cases where the right to stand by has been exercised;
- a record is to be kept by the Director of Public Prosecutions of the use made by counsel of the information passed to him and the jurors stood down; and
- a copy of that record will be sent to the Attorney General to enable him to monitor the operation of the guidelines.
No use is to be made of the information obtained as a result of an authorised jury check except:
- as may be necessary in direct relation to; or
- arising out of
the trial for which the check was authorised.
Useful Links
Archbold 16-57
Archbold 4-218
Archbold 4-214
< Offences against Public Justice (Section 12)> elsewhere in this guidance
Archbold 4-216
Archbold 4-250
Archbold 4-251
Archbold 28-90
Archbold 4-218
Archbold 4-213
R v McCluskey (1994)98 Cr.App.R.216
R v Mickleburgh (1995) 1 Cr.App.R.297
R v Young (1995) 2 Cr.App.R.397
R v Mason (1980) 71 Cr.App.R.157
Further Information
Home Office Circular 43/1988
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