Jury selection: the facts

This is not how it happens in England and Wales

Following the Ched Evans verdict, you can read my analysis of the case here, the hysteria continues completely unabated by anything so unhelpful as facts and reality - please read the post above that was taken from Twitter. Today, I read outrage on Twitter at how women jurors are abused by the courts who require them to answer person questions about being assaulted by men in open court prior to being allowed to sit on a jury.

As I said in my post on the Ched Evans case, it is this sort of uninformed nonsense that will put people off reporting crimes not the reality, because the reality is that this sort of thing simply does not happen in the UK, despite claims by some on Twitter.

Blame the judges

Let’s look at the claim quickly. First, we see it’s posted by somebody called “Shawna Gore” – sounds like an American name to me and sure enough a very quick search on Facebook reveals that this person works in Miami. Last time I checked Miami wasn’t in England and Wales, much less England and Wales. In the very first sentence we see reference to a “defense attorney”. Note the spelling of “defense” and the use of “attorney”, neither of which are common in the UK. The account the continues with an account of being asked questions by the “defense attorney” about whether they have ever been assaulted by a man.

In ye olden days, the defence had the right to challenge a juror without any reason being given. This could be used to create favourable juries, e.g. and all male jury in rape cases. That right was abolished by section 118 of the Criminal Justice Act 1988. The Crown retains the right, but exercises it rarely and mostly only in cases involving national security.

The defence may still challenge a juror if there is a good reason, typically where the person is not eligible to serve under section 1 of the Juries Act 1974, or who are disqualified under Schedule 1 of the same Act. Questions can be asked of the juror but only after the party challenging has laid a foundation of fact such as to give rise to a prima facie case that supports the challenge. When questioned, the cross-examination must be limited to the jurors qualification to serve or the “leaning of his affection”, which I believe means his or her personal feelings/knowledge of the defendant or another witness in the case. The cross examination must not touch upon whether the juror has previously been convicted of an offence or whether he or she has previously expressed a hostile opinion on the guilt of the defendant.

The Criminal Practice Directions, at 26D.2 and the Crown Court Bench Book make clear that a judge must not exercise his or her power to exclude jurors from particular sections of society, such as women or particular ethnicities.

I'm sorry but I don't believe you

So, could the questioning of 12 women as to whether they have previously been victims of assault happen in England and Wales? The answer must be “no”. Because before a juror can be questioned the challenger must present evidence supporting the challenge, there is thus no procedure in this country to allow a section of the jury to be arbitrarily challenged in the way described.

Further, while the Crown can challenge without reason that power is regulated by the Attorney General’s Guidelines and are used almost exclusively in cases involving national security.

Finally, while a judge can prevent a juror sitting there are again rules preventing that power being used arbitrarily to exclude sections of society.

Whether the procedure described in the original post is used in the USA I do not know, but it is clear that those using it to show that the system in England and Wales (and particularly in the Ched Evans case) is rigged against women are being misleading. Those claiming to have witnessed it happening in E&W have either witnessed a gross breach of the law or are not being honest about what they saw.

What I suspect happened is that a judge asked potential jurors whether there is a reason they cannot serve on this jury. In my experience, judges typically give people an opportunity to speak privately with the judge about their reason but I note the Crown Court Bench Book recommends judges ask jurors to write a note for him and that discussion of the reason is done away from the hearing of others jurors. That is a very different proposition to potential jurors being asked personal and intrusive questions about their personal lives.