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Jury Vetting

Principle

Article 6(1) ECHR requires trial by an independent and impartial tribunal (Archbold [2013] 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 Bureau (CRB) check which is now automatically conducted on each juror to assess qualification against jury service criteria. This is carried out via a computer link established between the Police and HM Courts and Tribunals Service (HMCTS). To note - Home Office Circular 43/1988 has now been cancelled by Home Office Circular 047 / 2003. No replacement circular is in place, and as a result jury checks are still undertaken on a 100% basis;
  • a further, more detailed check may be required in some instances and is known as an "authorised jury check" which may involve a Criminal Records Bureau (CRB) 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.

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Guidance

Criminal Records Bureau (CRB) 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.

Checks in Specific Cases

A Chief Constable or the Director of Public Prosecutions may require a CRB 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, 88 Cr App R 123 at 125 (Archbold [2013] 4-275, Appendix A -282).

A Chief Constable may require a CRB 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/DCCP, Heads of Casework Divisions, 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.

Additionally, there may be occasion where a Chief Constable has reason to believe that it is unlikely that an authorised check may be desirable or proper; in these circumstances the Chief Constable should refer the matter to the DPP with a view to his having the conduct of the prosecution at an early stage. The DPP will then make nay appropriate application to the Attorney General.

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 R 123 (Archbold [2013] 4-304 and 4-306, Appendix A -282).

Improper Approaches to Jurors

Section 8 of the Contempt of Court Act 1981 (Archbold [2013] 28-73) provides that it is a 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 or DCCP 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 R397 the Attorney General no longer issues letters of comfort.

The cases confirmed 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.

These cases clearly establish 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.

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Procedure

CRB Checks

As all CRB checks are now conducted automatically and have been since 2001, the CPS will have no role in the making of such checks.

However, the CPS could possibly receive a request for advice regarding the making of a CRB jury check. The CPS officer of Level E or above should in the first instance contact the Court concerned directly to verify whether the usual check has been conducted.

If an additional check is requested, the CPS officer will need to consider whether the request falls within the provisions of paragraph 1 of the Annex to the Attorney General's Guidelines on Jury Checks. If so, a jury check request will need to be sent to the Attorney General via the Director of Public Prosecutions as per the procedure below.

Authorised Jury Checks

The request by the Director of Public Prosecutions 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 of Public Prosecutions (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 of Public Prosecutions (or his nominee) via Private Office;
  • the Director of Public Prosecutions (or his nominee) will advise the Attorney General's Office of the position;
  • 'lawyers at the Attorney Generals Office will consult the Attorney General, who will make a decision and instruct the lawyer to inform the Director of Public Prosecutions (or his nominee) of any juror who should be asked to stand by;
  • the Director of Public Prosecutions (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, in relation to the trial for which the check was authorised: 

  • directly, as may be necessary; or
  • arising out of.

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Useful links

Archbold [2013] 16-57
Archbold [2013] 4-275
Offences against Public Justice (section 12)
Archbold [2013] 4-304
Archbold [2013] 4-306
Archbold [2013] 28-73 
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

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Further Information

Home Office Circular: 047 / 2003 can be found at:
http://www.homeoffice.gov.uk/about-us/corporate-publications-strategy/home-office-circulars/circulars-2003/047-2003/

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