Tried by our own peers

Andrew Malkinson’s exoneration in July last year rightly raised doubts about the credibility of the police and Crown Prosecution Service. But the jury, who determined his guilt, was untouched by scrutiny. Malkinson firmly asserts that his jury is not responsible for his wrongful conviction; crucial evidence indicating his innocence was withheld from them. However, we should not ignore that Malkinson would have been acquitted if not for the court accepting a majority jury verdict.

 

The requirement that a jury reach a unanimous decision was abolished in England and Wales through the 1967 Criminal Justice Act – a departure from a centuries-old legal tradition. Now, a defendant can be convicted or acquitted when up to two jurors disagree.

 

In July 2022, Naima Sakande and I began an investigation at legal charity APPEAL, examining majority verdicts in England and Wales. Our motivation stemmed from earlier developments in the US, where the Supreme Court (Ramos v Louisiana, 2020) outlawed majority verdicts and recognised their racist origins – a decision which followed years of campaigning.

 

The US movement was propelled by ground-breaking research which revealed that majority verdicts were strategically introduced in Louisiana in 1898 to curb the votes of African American jurors and expedite convictions to facilitate free prison labour. Recently emancipated black people were described as unable to discern truth from lies and easily ‘corrupted by bribes’. The people of Louisiana decided that jury rules must be ‘radically changed’ if ‘negroes’ are to sit on juries.

 

After exploring hundreds of archived Home Office documents, our investigation reveals a similarly troubling pretext behind this change in England and Wales.

 

“Immigrants would be bad jurors”

 

Like 1890s Louisiana, 1960s Britain was a time in which ‘race’ and ‘economy’ were central to political decision-making. After World War Two, Britain recruited thousands of workers from its West Indian and South Asian colonies. These workers were confronted with racist attacks and police brutality, leading to widespread public unrest and so-called ‘race-riots’. This unrest was not blamed on white racism, but on the culture of ‘coloured’ immigrants.

 

Governments introduced successive legislation limiting ‘coloured’ immigration, while anti-racist activists organised against racism. The state perceived Black Power groups as a particular threat, leading the then Home Secretary, Roy Jenkins, to establish the ‘Desk’ in 1967 – a police unit designed to infiltrate Black Power. Activists campaigned for major criminal justice reforms, even contending that black defendants ‘must be tried by their own peers’.

 

During this post-war period of ongoing public anxiety about immigration, the Home Office appointed a Departmental Committee on Jury Service (‘the Morris Committee’) in 1963, to consider who should qualify for jury service.

 

At the time, only householders of high-valued properties qualified. Despite recently renewed property revaluations drastically increasing the jury pool, this criterion was in focus as an area of reform as it disproportionately excluded women. The Committee also considered equating the jury pool with the electoral register, which would hugely diversify juries.

 

While some contributors argued that juries should be modernised, many were concerned that including the ‘labouring classes’ and ‘coloureds’ on juries would taint the ‘calibre’ of jurors due to their perceived lack of intelligence. The Society of Town Clerks noted that property revaluations had already:

 

‘…brought into the jury category almost every council house . . . includ[ing] a considerable proportion of the labouring classes who because of their lower standard of education, do not make the best type of juror’.

 

New ‘coloured’ Commonwealth migrants and women were also the target of assumed intellectual incapability. High Court Judge Mr Justice Thesiger contended:

 

‘I do not think a juror on rape or robbery need be able to read… . But on the long fraud cases a young housewife or some West Indian bus conductor may be wasting their time.’

 

Resistance to ‘coloured’ jurors was also expressed under the pretext of concerns about their unfamiliarity with English culture, fearing that white English defendants would be misunderstood by non-white jurors. The Committee therefore recommended a five-year minimum term of residency for prospective jurors, justifying this on the basis that:

 

‘Until they have become familiar with and assimilated to the English way of life, immigrants would be bad jurors. An immigrant may experience more than the ordinary amount of difficulty in deciding whether an English witness is lying…’ 

 

Akin to the characterisation of black jurors in 1890s Louisiana, the Committee therefore framed new Commonwealth migrants as unable to discern truth from lies, relying mostly on the anecdotes and generalised fears of those who submitted evidence.

 

While majority verdicts were not in the Committee’s terms of reference, some contributors were worried that jury diversity would make unanimous decisions unachievable. Lord Devlin, a High Court Justice, who described juries as ‘predominantly male, middle-aged, middle-minded, and middle-class’, captured this concern in his book, Trial by Jury, cited during the Committee:

 

‘It might be dangerous so long as the unanimity rule is retained, to equate the jury franchise with the right to vote… . The approach to unanimity is helped to some extent by a system which draws its juries from a central bloc of the population… it is no doubt right that juries should be taken out of the middle of the community where safe judgement is more likely to repose.’

 

The white, male, middle-class jury was therefore viewed by some commentators as necessary for unanimity and ‘safe judgement’. Nevertheless, the Committee recommended that the jury pool be modernised to reflect the electoral register. However, the Committee warned that the unanimity requirement made their recommendations which were designed to exclude ‘incompetent persons’ even more important.

 

‘Nobbling’ or not?

 

Under Labour Prime Minister Harold Wilson, Roy Jenkins began pitching for majority verdicts following his appointment as Home Secretary in 1965 – six months after the Morris Committee proposals.

 

Jenkins is considered a progressive figure, known for outlawing discrimination through his Race Relations Act. Nonetheless, he banned US Black Power activist Stokely Carmichael from Britain in 1967 and his establishment of the ‘Desk’ makes him directly responsible for the surveillance of Black Power. Likewise, he oversaw the use of his Race Relations Act to prosecute anti-racist activists.

 

Jenkins’ primary justification for majority verdicts was to prevent ‘nobbling’ – the bribery or intimidation of jurors. Reflecting discourse from the Morris Committee around the competence of working-class and migrant jurors, Jenkins also argued that ‘cranks’ – poorly educated dishonest people – were likely to incorrectly acquit defendants.

 

Jenkins contended that ‘nobbling’ was a widespread issue, but he only identified a few cases over a period of years. Jenkins rejected several proposals for an inquiry into ‘nobbling’, leaving many MPs concerned that he was making a serious decision on insufficient grounds, weakening safeguards against wrongful conviction.

 

Despite handling only a few cases of suspected ‘nobbling’, the Metropolitan police supported Jenkins’ proposal. During the Morris Committee, the Met expressed concern that there had been a ‘deterioration in the quality of jurors’. The Association of Chief Police Officers argued that ‘urban’ juries had deteriorated as the ‘professional classes moved their homes out of the cities’, which coincided with the settlement of Commonwealth migrants in inner-cities.

 

Jenkins was in ongoing consultation with Scotland Yard about his proposal, which is worrying considering the state of the Met at the time. Several scandals involving police corruption had recently been uncovered, including ‘disappearing’ documents and planting of evidence. This was followed by several police-driven ‘fit ups’ during the racially charged ‘mugging crisis’. A notable example is the Oval Four case involving Winston Trew, a prominent Black Power activist who was wrongfully convicted in 1972.

 

Interestingly, Winston had only two black jurors and received two ‘not guilty’ votes. But Jenkins claimed that criminal cases were ‘so carefully sifted’ by the police and prosecution that ‘the only ones coming before the jury’ were those with ‘a considerable body of evidence of guilt’. He therefore dismissed any possibilities of corruption and withholding of evidence – issues which were central to the wrongful majority convictions of Trew and Malkinson.

 

Diversify juries, desert unanimity

 

In a 1967 House of Commons debate, several MPs, proposed their reasons for voting in favour of Jenkins’ proposal. During the debate Charles Fletcher Cooke MP argued that majority verdicts were a necessary response to the diversifying jury pool with respect to race, class, and gender. He echoed the issues raised throughout the Morris Committee, concerned that an English ‘noblemen’ might be judged by ‘common clay’. Fletcher Cooke saw juror diversity as a barrier to agreement, advocating for majority verdicts to facilitate decision-making, in effect, by side-lining minority voices. This justification was given by others during the debate, including Conservative MPs Mr Miscampbell and Mr Doughty.

 

While Jenkins’s justifications for majority verdicts reveal only subtexts of race and class, some MPs explicitly supported his proposal based on a desire to dilute the influence of ‘coloured’ and working-class jurors.

 

The jury cannot be exempt from scrutiny

 

For decades, ‘nobbling’ has been accepted as the justification for majority verdicts – a practice which leads to over 1,000 convictions annually. Our investigation reveals that this legal change occurred without sufficient evidence of ‘nobbling’ and against a backdrop of concerns about the changing face of Britain.

 

Given that the unanimity requirement was abolished without clear necessity and in some part based on racist and classist assumptions, not guilty votes should not be dismissed as meaningless. Unless we are claiming that dissenting jurors are always unreasonable, their votes inherently represent reasonable doubt. Indeed, the dissenting jurors in Malkinson’s and Trew’s cases were right.

 

The remaining jurors are not at fault, but the good value of juries should not exempt the jury system from scrutiny.