Protecting the Innocent and Rolling Back Racism and Classism: APPEAL recommendations

The jury system is a crucial part of the criminal justice system in England and Wales. Juries can be a powerful safeguard against an overreaching state and have the potential to bring much needed diversity of experience to decision-making in this country’s courtrooms. But like any other criminal justice institution, the jury system can be improved.

In the wake of last week’s launch of “Doubt Dismissed”, a report on the links between juries, racism, classism and wrongful convictions, APPEAL is calling for the following two reforms.

1.     Restore the requirement that all jurors agree that someone is guilty in order to convict them of a crime

APPEAL is calling for the restoration of the requirement that the votes of all jurors are needed to find a person guilty for two reasons:

First, to protect the innocent accused:

Wrongful convictions have occurred in majority and unanimous jury decisions. But when one or two jurors are not prepared to vote for guilt and a majority verdict is permitted, this explicitly demonstrates that the jury is not sure beyond a reasonable doubt that the person is guilty, or in the current legal language, that the jury as a whole is not “sure” that the person did the crime.

To argue otherwise is to suggest that the dissenting jurors in cases like Andrew Malkinson’s and the other 55 exonerated individuals we have so far identified, were unreasonable. The other 10 jurors are not to blame for Andy’s conviction, but the 2 dissenters were not only reasonable – they were right. The fact that wrongful convictions have resulted from split juries demonstrates that the majority verdict rule can and does silence reasonable jurors in conviction cases.

That our justice system ensures equality of arms is a myth and the jury unanimity requirement was one of the few measures that served to begin to make up the balance, a practical expression of what the presumption of innocence actually means. The prosecution has greater access to resources and information, they wield significant influence and have the weight of the police and Crown Prosecution Service behind them. In a system where the fairness of cases presented to juries is not guaranteed, ignoring the votes of two jurors further disadvantages the accused and heightens the risk of wrongful convictions.

(Our recommendation is for the reinstatement of the principle of unanimity for conviction only. Our archival research revealed that majority verdicts were introduced with conviction-oriented intentions and our extensive casework has shown us that the criminal justice system is already biased in favour of the prosecution.)

Second, in acknowledgment of the racist and classist intent that was behind the sudden change to the law in 1967 that discounted the votes of two jurors

Our research demonstrates that majority verdicts were introduced in 1967 guided by racist and classist intent, and with no evidence for their necessity.

The oft-stated pretext for the change of law was that criminal elements could bribe a juror into voting not guilty – but minimal evidence existed that this was in fact a problem.

Archival documents found by APPEAL exposed a different concern. The concern was the widening of the pool of people eligible for jury service would lead to an erosion of the “calibre” of jurors, who would no longer be “middle class, middle brain,” that “coloured” jurors had a lower “standard of intelligence and education” and that immigrants did not understand the English “way of life” such that they would be “incapable of comprehending the significance of questions at issue.” Jury diversity was therefore seen to be incompatible with the principle of unanimity.

Basically, the quid pro quo for allowing a wider jury pool that included Black, Brown and working-class people was to then ignore two votes on any serving jury, as a sort of insurance policy against their views actually impacting the jury decision.

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The legal establishment will argue that these reforms are not needed as according to judges and lawyers, the majority verdict rule is “working.” The question is “working for who?” Certainly, it can speed up trials and lead to more convictions.

Majority verdicts lead to more than 1,100 convictions annually. It is not good enough to say they are working well because lawyers and judges think so. In the wake of the Post Office scandal and Andrew Malkinson’s exoneration, we cannot be complacent about whether our system is adequate to the task of convicting the guilty and acquitting the innocent.

Given the racist and classist antecedents of the majority verdict law and their links with wrongful conviction cases, lawmakers must consider whether convicting people where a jury does not agree on the verdict can any longer be justified.

2.     Render the jury system more transparent by allowing access to evidence about how juries are working

In England and Wales, we know little about how real juries make decisions in real cases. We could learn so much about how mistakes are made if we better understood jury decision-making. The jury system can only be strengthened if we are willing to scrutinise it through research and informed policy-making.

Section 8 of the Contempt of Court Act should be amended to allow for controlled academic study of real jury decision-making. This is the only way that problems in the jury system can be detected and rectified. Other jurisdictions allow this and have made important discoveries that have enabled judges and lawyers to better provide for fairness in the jury room.

In addition, more data on majority verdicts, jury composition and voting splits needs to be made available so that we can determine whether majority verdicts are more common in convictions that have been overturned or thrown into doubt. Such data would also allow us to determine whether the votes of minority jurors are more likely to be side-lined by majority verdicts, as was the case with convictions by majority verdict in the United States. The Crown Courts must capture more comprehensive data in this area, and appeal bodies must capture data on verdict types of cases under their review.