Jurors in England and Wales have come under repeated criticism in recent years for the ways they’ve carried out their duties. In late March, a jury member at Carlisle Crown Court was fined £1,000 for playing on his phone during a trial in what the judge described as “blatant contempt of court”. In November 2017, a jury was dismissed at Winchester Crown Court after what one newspaper described as “an extraordinary row” between judge and jury. Some jurors have even been imprisoned for carrying out illicit research into the case before them.

In the past there were a number of ways to punish jurors – some of which still stand today.

Attaint

In medieval England, if it was suspected that a jury of 12 had returned an inaccurate verdict in a civil trial, the case could be reheard by a 24-strong jury. If the second jury disagreed with the first jury’s verdict, the first jury would be punished. This procedure was called the attaint.

Initially, punishment under the attaint meant imprisonment and the destruction of the jurors’ homes and lands, although by the end of the 15th century this had been replaced with perpetual infamy and a fine. The attaint never seems to have been used on criminal juries, and by the end of the 16th century it seems to have stopped being used even in civil trials. The system was formally abolished in 1825.

Embracery

Chief Justice Vaughan famously ruled in 1670 that jurors could not be punished simply for returning a verdict which the trial judge disagreed with. He was happy to punish jurors in some circumstances, however, having convicted two jurors of “embracery” the previous year.

Embracery occurred where threats or bribes were used in order to encourage jurors to return a favourable verdict. It was an offence both to try to “embrace” a juror and to be “embraced” when actually serving as a juror.

One embracer was convicted as late as 1975, although the Court of Appeal complained that a simple charge of contempt of court would have been better. This stopped any further prosecutions for embracery, and the offence was formally abolished in 2010.

Perverting the course of justice

Perverting the course of justice as a juror is a broader offence than embracery, but it works in a similar way. It’s possible both for the person interfering with a jury, and for a juror who accepts a bribe or is otherwise compromised, to be punished. The offence still exists today, but prosecutions of jurors for perverting the course of justice have always been rare.

As recently as 2011, the Court of Appeal made reference to the option of prosecuting jurors under this offence where a juror had been communicating with a defendant, but judges seemed satisfied with the more conventional charge of contempt of court made against the juror.

Contempt of court – and new offences

Contempt of court is a broadly defined offence, consisting essentially of anything which undermines the authority of the court. A famous example of jurors punished for contempt came in 1670, when several jurors – including their foreman, Edward Bushel – were imprisoned for refusing to convict a pair of Quaker preachers. The Court of Common Pleas, ruling in Bushel’s case, held that juror punishment in these circumstances was unlawful. But the fact that judges could not longer punish jurors simply for returning verdicts with which the judges disagreed doesn’t mean that jurors are completely protected from contempt proceedings today.

In recent years, several jurors have been imprisoned for contempt after disobeying clear judicial instructions not to go online in order to find additional evidence in the cases they are trying.

In 2015, four new criminal offences were created relating to independent research done by jurors. These new offences were intended to “send a message” to potential jurors that the government takes juror misconduct very seriously. It is now a criminal offence – triable by jury – for anyone acting as a juror to:

• Research the case they are trying as a juror.
• Disclose the product of any such research to a fellow juror.
• Act in any other way which demonstrates an intention to reach a conclusion based on something other than the evidence presented in court.
• Solicit or disclose the details of the jury’s deliberations to people who were not on the jury.

In September 2017, the foreman of a jury was sentenced to four months’ imprisonment after going online to research some of the details of the case he was trying.

Rebukes from the bench

Beyond these formal kinds of punishment which are still possible, it’s also possible for judges to simply rebuke their jurors. In 1917, a group of jurors were kept in a state of virtual imprisonment after a falling out with their judge. They were told they would never serve on another jury, but that they must still report for jury service for several weeks, on pain of punishment under the contempt laws if they failed to attend.

In the case in November 2017, the jury at Winchester Crown Court was warned that they should not bully each other during their deliberations. Before they were discharged, they wrote a note to the court, complaining that:

Collectively we feel we have had no opportunity to defend ourselves and our integrity which has further implications on us personally and professionally.

But while these jurors might feel slighted, at least they did not have to face formal sanctions. As the trial judge explained to them, it was his responsibility to keep an eye on any misconduct, and to find some way to “flush it out”.

Kevin Crosby, Lecturer in Law, Newcastle University

This article was originally published on The Conversation. Read the original article.

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