Jury Vetting

Updated: 10 July 2018|Legal Guidance

Contents

Introduction

In some circumstances, the parties to the case can challenge the empanelment of a juror through ‘Stand By’ or ‘Challenge to Cause’, full details of which are set out in this document. However, this would generally be an exceptional course and the prosecution should only exert its right to do so where it is essential and on the basis of the clearly defined criteria set out below.  

Principle

Article 6(1) ECHR requires trial by an independent and impartial tribunal.

The general principles are: 

  • Members of a jury should be selected at random from the panel, subject to any rule of law as to right of challenge.
  • The Juries Act 1974 identifies 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.
  • 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 procedure for objecting to potential jurors is contained in the Criminal Procedure Rules 25.8 and the prosecution must announce the exercise of its right before the juror completes the oath or affirmation.

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.

Guidance

Overview of Jury Checks

There are 2 types of checks that can be made on a jury member: 

  1. A Disclosure and Barring Service (DBS) check (formerly known as the CRB check), which is now automatically conducted on each juror to assess qualification against jury service criteria.
  2. A further, more detailed check may be required in exceptional cases (as set out below), which require authorised checks to provide further safeguards against the possibility of bias. This is known as an ‘Authorised Jury Check’, which may involve a DBS check, Special Branch records check and sometimes a Security Services check. This may only be authorised by the Attorney General in accordance with the Attorney General's Guidelines on Jury Checks (“the AG’s Guidelines”).

Parliament has provided a safeguard against jurors who may be corrupt or biased by as the Juries Act 1974 makes it 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. See the case of Mason [1981] QB 881, where the practice of vetting jurors by checking their criminal records was approved by the Court of Appeal.

Checks in Specific Cases

A Chief Constable or the Director of Public Prosecutions may require a DBS 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 AG’s Guidelines.

A Chief Constable may require a DBS jury check, in accordance with the AG’s Guidelines, 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 AG’s guidelines on Jury Checks will be dealt with by the CCP/DCCP, Heads of Casework Divisions, or designated officer.

If the CPS lawyer at Level E or above considers that the case falls within the provisions of the AG’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 the bringing of a prosecution at an early stage. The DPP will then make any 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.

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 National Police Chief’s Council (NPCC) 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 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. 

This approach was confirmed by the Court of Appeal in the case of McCann [1991] Crim. L.R 136, where it was held that the jury vetting in accordance with the Attorney General’s Guidelines and the exercise by the Attorney General of his right to stand by were constitutional and properly conducted in the instant case.

Procedure

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 there is a jury check request: 

  • At the appropriate time in the case preparation, the Director of Public Prosecutions (or her 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 her or his nominee) via Private Office.
  • The Director of Public Prosecutions (or her or his nominee) will advise the Attorney General's Office of the position;
  • The Attorney General’s Office will consult the Attorney General, who will make a decision and inform the Director of Public Prosecutions (or her or his nominee) of any juror who should be asked to stand by.
  • The Director of Public Prosecutions (or her 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 Private Office of the Director of Public Prosecutions 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 her or him and the jurors stood down.
  • A copy of that record will be sent to the Attorney General to enable him or her to monitor the operation of the guidelines.
  • The Director of Public Prosecutions will write to the Presiding Judge for the area to advise him or her that this is being done. 

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.

However, this information may be used for the prevention of crime or as evidence in a future criminal prosecution.

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.
  • For either the prosecution or the defence to Challenge for Cause.
  • For the judge to use his discretionary power to remove a juror. 

Prosecution to ask a juror to Stand By

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. An example of the sort of exceptional circumstances which might justify Stand By is where it becomes apparent that the juror selected for service to try a complex case is in fact illiterate or would for any reason find it difficult to follow the case.
  • 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 and where the information afford strong reasons for believing that a particular juror might be a security risk, be susceptible to improper approaches or be influenced in arriving at a verdict. 

Challenges for Cause

This can be made by either the prosecution or defence and may either be a challenge to the whole panel of jurors (challenges to the array) or to an individual juror (challenges to the polls).

Whilst the common law power of challenges to the array is preserved by the Juries Act 1974, it is now almost inoperative and is of historical significance only. 

With regards to challenges to the polls, a juror can be challenged on the grounds of bias, which would cause him to be unsuitable to try the case. For example, where he has expressed hostility to one side or connected to one side in some way. 

Procedure: 

  • Any challenges for cause shall be tried by the judge before whom the accused is to be tried. See Section 12(1)(b) of the Juries Act 1974.
  • The challenge must be lodged before the juror is sworn (Rule 25.8 of the Criminal Procedure Rules) and cannot be exercised during the course of the trial. See the case of Morris (1991) 93 Cr App R 102.
  • The burden of proof is on the challenging party and the judge may order that the hearing shall be in camera or in chambers. See Section 118(2) of the Criminal Justice Act 1988.
  • The challenging party must provide prima facie evidence at the time that the challenge is made. This approach was confirmed in the case of Chandler(No 2) [1964] 2 QB 322.

Judges’ discretionary power to remove a juror

The judge has a residual discretion to exclude a juror selected by the initial ballot. The discretion should be exercised where an individual juror is incompetent to act but counsel do not challenge or exercise the right of stand by. For example, when a judge notices that a member of the panel is infirm or has difficulty in reading or hearing. This residual discretion was confirmed by the Court of Appeal in the case of Ford [1989] QB 868.

However, the Court also confirmed that judicial intervention should not undermine the random nature of jury selection or influence the overall racial composition of the jury. The Court held that the trial judge was right to conclude that he should not order a multiracial jury to be empanelled.

Juror Misconduct

For further information, please see the legal guidance chapter on Juror Misconduct Offences.