Subduing the jury

It was nice to be awoken on 12 November by the BBC informing us that the Queen’s Speech would announce measures ‘to strengthen the jury system’. It is, after all, a very ancient English institution for which we feel a ritualistic affection. And it is good to know that our betters are taking care of it.

There have been a lot of measures to ‘strengthen the jury system’ in recent years. In 1967 the Criminal Justice Act abolished the unanimity rule and introduced a majority verdict (at ten to two). This was presumably to bring the jury in line with the metric system and the decimalisation of money. Then measures were taken to rationalise the archaic system of defence challenges and to reduce their effectiveness. The number of peremptory challenges allowed to the defence had already, in 1948, been reduced from 20 to seven. In the Criminal Law Act of 1977 they were further reduced to three. Meanwhile, in 1973, the Lord Chancellor, Lord Hailsham, by an Order in the law vacation, had struck out the ancient practice of listing the occupations of jurors summoned onto the panel.

Two further measures were taken in the compendious 1977 Criminal Law Act. In an unobtrusive clause (which eluded Parliamentary notice) the most ancient form of jury in English history – the jury of inquest – was shorn of effective powers. And in a sweeping series of clauses, the option of trial by jury – or, in the old language, ‘putting oneself on one’s country’ – was removed in many categories of case where the option had previously been open. Such cases, which include many offences against public order, in which, of course, the evidence of the Police is usually decisive, are now tried summarily before the stipendiary magistrates.

Few cases have been more important in the history of jury rights than what is known as Bushel’s Case (1670). This is the case of the Quakers, Penn and Mead, indicted at the Old Bailey in that they did preach and speak to persons in the street assembled, by reason whereof a great concourse and tumult of people a long time did remain and continue, in contempt of the King and his law, and to the great terror and disturbance of his liege subjects. Bushel was the intransigent juror who refused to allow his fellow jurymen to be intimidated into bringing in a verdict of guilty in those terms, but would bring in a verdict of guilty of preaching only. Mr Bushel was directly bullied by the whole bench:

Alderman Sir J. Robinson: I tell you, you deserve to be indicted more than any man that hath been brought to the bar this day ...

Mr Justice May: Sirrah, you are an impudent fellow ...

The Recorder: You are a factious fellow: I will set a mark on you ...

The Mayor: I will cut his nose ...

This did not sufficiently strengthen the jury, so they were hauled off to prison for the failure to convict. On appeal, the jury was vindicated, and the precedent was established of the jury’s power to determine its own verdict, free from the threat of punishment. But if William Penn were to preach at Gracechurch Street today, Mr Bushel and his fellows would be unable to afford him the protection of their special verdict, since the case – as a public order offence – would not come before a jury at all.

The ink of the Criminal Law Act, 1977, had scarcely dried before an even more remarkable resource of jury-strengthening was disclosed to a startled British public. I must suppose that the ‘ABC Case’, under the Official Secrets Acts, is sufficiently fresh in memory for me to be able to dispense with rehearsing the details. There was never any question of the three defendants (the journalists, Crispin Aubrey and Duncan Campbell, and the former signals corporal, John Berry) meditating passing any information to ‘the enemy’ – except (an important qualification) insofar as the British Security Services have always regarded the British public as the enemy. The ABC Trial was intended to be a sensational public show trial, and a condign warning against any ‘whistle-blowers’. In the event, it was (for the prosecution) a sensational anticlimax. One reason for this was the scandal occasioned by the revelation of jury-vetting.

What occasions surprise is not the fact that vetting had taken place, but the shamefaced way in which the fact came out. On the opening of the trial, the distinguished counsel for the defence, Jeremy Hutchinson QC, visited the court to obtain a sight of the panel. In a casual conversation with a court officer Lord Hutchinson learned that – more than two months before – the prosecution had applied privately to a judge in chambers for the panel list, in order to scrutinise the members. In the face of pressure from the legal profession the Attorney-General suddenly released to the Times ‘guidelines’ authorising jury-vetting, which he had secretly issued four years before to senior police and the Director of Public Prosecutions – without the knowledge of Parliament or the Bar.

These guidelines instructed the Police that there were ‘certain exceptional types of case of public importance’ in which, in order to ‘ensure the proper administration of justice’, jury-vetting might take place. Such cases were gestured at as those involving terrorists, criminal gangs, or ‘serious offences where strong political motives were involved’. In these cases it was held proper to identify and remove from the jury persons of ‘extreme political beliefs’. Checks to identify such persons should involve the use of the data-banks of the central criminal records computer at Hendon (which has a capacity for storing records on a mere forty million people); a check on Special Branch records; and further checks on jurors by the local CID.

What vetting signifies became a little clearer in the autumn of 1979 at the opening of the trial of four anarchists. The trial judge authorised jury-vetting by the prosecution, and allowed the defence to engage private detectives (out of legal aid funds) to undertake its own investigation of the panel. When this unsavoury business became too expensive, he ordered instead that an edited version of the prosecution’s information gained from police records (but not from Security records) should be passed on to the defence. The gleanings of the police computer were duly leaked by some responsible person to the press, and the public had a brief glimpse of the extraordinary miscellany of fact, trivia and malicious gossip stored at the taxpayer’s expense. Of a panel of 93, more than one-fifth had entries on central police files. Some were for trivial and long-expired offences which could never have constituted disqualification for jury service – for example, a 14-year-old fine of £5 for a minor theft at work. Others were dignified in the records because their children or kin were reputed to have had associations with ‘criminals’. Another was listed as having resided at an address reputed to be a squat. Yet others were listed because they had been the victims of a crime, or had made complaints against the Police.

It was left to the incoming Conservative Attorney-General to regularise the procedures of jury-vetting by a Practice Direction, to introduce a few emollient formalities, and to lower the profile of the issue so that it is now accepted as ‘normality’. It can be seen that this is not a party-political question. No one can be accused of partisan zeal. ‘Ensuring the proper administration of justice’ is a consensual duty in which Lord Hailsham and Labour’s Attorney-General Sam Silkin laboured alongside each other, while the pupating leadership of the SDP (then in Mr Callaghan’s Cabinet) averted their faces – or perhaps did not. All have shared in the work of ‘strengthening the jury system’ by diluting the unanimous verdict, removing offences to summary jurisdiction, limiting the challenges of the defence, and extending the scrutiny of the panel by the prosecution (with the aid of police information-storage of a miscellaneous and uncontrolled kind).

The new measures in the Criminal Justice Bill, published on 13 November, are therefore strictly on course. They will strip from jury trial more categories of offence, including criminal damage and common assault and battery (Clauses 24 and 25). Clause 83, the right to challenge jurors without cause (when selecting the jury from the panel), is now to be abolished. The legally illiterate – that is, most of us – will suppose this to be even-handed. In fact, this is a unilateral pre-emptive strike against the defence’s 800-year-old right to peremptory challenge. For (as we shall see) the Crown does not have a right to peremptory challenge, but, instead, an equally effective right of ‘stand-by’, which is to remain unlimited and uncontrolled.

These measures are introduced with the awesome authority of the Roskill Committee. We can be assured that everything has been looked into, all evidence taken, and that the jury system will be strengthened accordingly. Yet one must note that here a little transplant operation has been done. For the Roskill Committee was, in fact, the Fraud Trials Committee, and its brief was to recommend ‘just, expeditious and economical disposal’ of ‘criminal proceedings in England and Wales arising from fraud’.

Fraud is a complex area, and in these days of City and computer crime becomes every year more complex. I am unqualified to comment on the Roskill Committee’s exertions in this area. But the extensive attention given to the jury’s role (two chapters out of eight in the Report, as well as a supplementary volume of confected studies) takes it far beyond its brief – perhaps on the prompting of the Lord Chancellor? The Committee does not, in fact, offer any evidence to show that juries in complex fraud cases have returned incompetent or perverse verdicts. Instead, it marshals hypotheses from simulated situations to present a plausible case that a random jury might not have the powers of comprehension or skills in numeracy to sustain its functions. These arguments, which led towards the need for expert assessors and the recommendation of a special Fraud Trials Tribunal, are relevant to the issue of fraud and to fraud alone. I will leave this issue aside, noting only that the Law Society and other expert bodies emphatically dissent from any measure which would abolish jury trial in fraud cases. Their arguments, summarised in the Report by Mr Walter Merricks in a Note of Dissent, seem to me to be sound. The point which concerns me is that, even if a case might be made for the replacement of jury trial by assessors in certain categories of fraud case – proposals which do not find a place in the Criminal Justice Bill – the arguments for this have no bearing whatsoever upon the jury in its other roles and functions.

The transplant operation was done in the White Paper ‘Criminal Justice’, Command Paper 9658. This commended the ‘powerful analysis’ of the Roskill Committee, and extended its recommendation that the defence’s right of peremptory challenge should be abolished in fraud trials to all jury trials. Not a scintilla of evidence in support of this extension of the particular into the general has been offered. ‘The Government,’ Command Paper 9658 intoned benevolently, ‘has no desire to interfere unnecessarily with a long-established right,’ and then proceeded to recommend measures for exactly such unnecessary interference.

The justification for these measures, if any, must be looked for in the special findings of the Roskill Committee. Seven members sat with Lord Roskill: an eminent chartered accountant, an information-technology expert, a former Chief Inspector of Constabulary, a circuit judge, a former chairman of Courtauld’s, and the vice-chairman of Shropshire County Council. The seventh was Mr Walter Merricks, secretary of the Professional and Public Relations Committee of the Law Society, whose most cogent Note of Dissent on all the Committee’s findings regarding the jury has already been mentioned: I will graciously allow him to stand by for the rest of these proceedings.

Without doubt Lord Roskill’s Committee was eminently qualified to consider complex fraud. The members knew much about offences against the rights of money. Their qualifications to survey and make recommendations on the long-established rights, practices and traditions of the English and Welsh peoples are less evident. Not one of them appears to be qualified as a historian, and I do not notice any historians who were called to give evidence. (An exception should be made for Lord Devlin, whose contributions to legal history have been distinguished, and whose evidence – which has not been published – appears to have run directly contrary to the Committee’s recommendations.) Of course, the historical profession may be faulted for not volunteering to come forward. But then we supposed that the Committee was concerned with its purported brief – contemporary complex fraud – and did not know that a transplant operation was in progress, by which its findings would be fraudulently employed against our liberties. The rest of what I have to say must therefore be a belated submission to a defunct committee.

The Roskill Committee found historical matters to be tedious, and meriting less than a page in their Report. They also found them to be a source of irrevelant passions: ‘Our task has been to look at this emotive topic dispassionately in the light of the evidence presented to us.’ Since history might be ‘emotive’, it could be excluded from evidence. The level of historical reference may be exemplified by a footnote (p.125) where the Report is discussing the defendant’s right of peremptory challenge. This reads: ‘At common law each defendant charged with a felony could make up to 35 challenges; over the years it declined from 20 in 1509, to seven in 1948 when the right of challenge was extended to misdemeanours.’ The casual eye receives the notion of a steady ‘decline’. In fact, the level of defence challenges without cause remained stable at 20 – not, I think, from 1509 but from 22 H. 8 c. 14 (1541-2) – for over four hundred years. During which long and often tempestuous period the administration of justice did not fall apart. The erosion of jury rights and the intrusion upon its practices belong to the past four decades, and especially to the last fifteen years. Our betters prefer to take very brief views of history.

The jury is a very ancient creature, almost as old as the Monarchy and as old as Parliament. It is also a very odd beast. No one would even dream of inventing such an institution today, least of all a Roskill Committee. There is no single, A to Z, exhaustive and scholarly history of the jury, partly because it is a chameleon-like creature, which has altered its colour and shape in differing contexts. Excellent local studies are now being done, in the burgeoning history of crime and legal practice. Perhaps the most ambitious attempt to present jury history as a whole is Thomas Andrew Green’s Verdict according to Conscience.

The book is subtitled ‘Perspectives on the English Criminal Trial Jury, 1200-1800’. It sets out briskly and well in difficult Medieval terrain, begins to falter in the 17th century, and collapses in a heap with exhaustion – an exhaustion which the reader shares – in the 18th century. This is partly because Professor Green’s ‘perspectives’ keep shifting their bearings. In Medieval England he is concerned to examine both theory and practice; he interrogates the existing scholarship with respect, and adds his own interesting samplings of the records. He reveals an institution with surprising vigour, which the Crown (with its slender administrative resources) was forced to come to terms with, and which played a remarkable role in softening the inelastic laws of homicide. Thereafter his point of view becomes more theoretical and ideological. There are some valuable sections (for example, on the Quaker cases after the Restoration): but he is increasingly inattentive to the actual composition of juries, their modes of summoning, their practices, and prefers to rehearse the arguments in Whig and Tory tracts. His treatment of the critically important libel and sedition cases of the late 18th century is an anti-climax – he appears to be at a loss in the political and social context, and even to lose confidence in his own theme. As for the practice of 17th and 18th-century juries, we will do better to go directly to the scholars whose work he has borrowed from – Cockburn, Langbein, Douglas Hay, and especially J.M. Beattie’s Crime and the Courts in England, 1660-1800.

Never mind. Verdict according to Conscience gathers a great deal together in one place, has many shrewd pages and much patient exposition. It will be a resource for many historians, and Professor Green deserves our thanks. His recurrent theme – that of ‘jury nullification’ of the rigours of the law (a practice sometimes tolerated or even connived at by the Bench) – is profoundly relevant to the current debate. But, strangely, he omits to follow his own insights through into any explicit engagement with Patrick Devlin’s brilliant Blackstone Lecture, ‘The Power without the Right’, published in The Judge (1979), which ought to be the bench-mark from which any discussion of the jury’s role must start.

We have got our noses pressed too close against the window-pane, as historians often do. Let us stand back and take the scene in. The jury system is, to a social historian, a very remarkable institution. Beginning as a group of knowledgeable persons (or ‘inquest’), who could report their findings to the officers of the Crown, it has survived immense changes in political life and administration – not as a fictive or vestigial sign but as an active element in the judicial process.

During its 800-year life it has shed some functions and acquired others, evincing a quite unusual flexibility – from ancient juries of presentment, the homages of courts leet and baron, and the Regarders and homage of forest courts, to the formalities of the jury box today. Even more remarkable, it is an institution, or presence, or tradition – which is it? – which is in some part secret and impervious to research. The actual deliberations of the jury may not be disclosed, and sustained accounts of them are few and imperfect.

What, indeed, is the jury? A legal expert may tell us how it is summoned, and, less exactly, what are its powers. But a social historian cannot be so certain. To be a juror is to have thrust upon one a temporary office, to which is attached an inherited weight of rules, practices and expectations; and this weight transforms an office into an imposed (and often internalised) role. This role is exercised for a day, or a week, or for three months, and then as suddenly as it was adopted, it falls away once more. Seen in this way, the jury is less an institution than a practice, or a place amidst adjacent judicial practices: a place through which generation after generation flows, inheriting the practices of their forerunners, yet inheriting these with little formal instruction, and practising the role in the light of expectations brought with them into the jury box and shared by the public outside.

When considered in this aspect, the jury may be viewed in two ways. as theatre and as expectations as to role. The emphasis, in theatre, is upon the practice, and in expectations it is upon the inherited political culture. By ‘theatre’ I don’t only mean the evident theatre of the courtroom process – and the space allocated to the several parties (judge, prisoners, counsel and jury). Despite the theatricality of some 17th and 18th-century trials, the jury’s space could be surprisingly informal in this. Early 18th-century form prescribed only that ‘these Twelve Men standing near may hear all that is said and produced on either Part, and may ask what Questions they please of the Witnesses.’ Or, in an account of 1767: ‘as the custom is now, they sit among the crowd, undistinguished, and it is not easy to know them from the rest of the spectators.’ This promiscuous arrangement occasioned inconvenience ‘when they consult on giving their verdict without going out of court’. Yet this very inconvenience emphasised that part of their role in the theatre which had to do with their being members of the general audience of the public, albeit members especially qualified with voices.

The place in the theatre has been that of a lay presence conferring legitimacy upon the process, but sometimes at a cost which authority has found it hard to bear. For by their very presence (and the power of their verdict), they have profoundly modified the entire play. Judge, prosecution, defence, have addressed their words to them, sought to overawe or confuse them, or to move them to mercy: and this has shaped the form of the drama and dictated its lines. Because of the jury’s presence, the mysteries of the law must be broken down into lay language – law must be made to appear rational and even, on occasion, humane. This is so deeply assumed that its importance may easily be neglected. Take the jury away – in 1686 or 1796 or 1986 – and the entire judicial process would have been – or would still be – altogether re-cast.

John Lilburne, the leader of the Levellers in London, had a superb sense of the theatre’s possibilities. On his third trial for his life, in 1653, ‘he called them his honourable Jury, and said they were the keepers of the Liberties of England; and will make it appear that the Jury are the Judges of the Law as well as of the Fact.’ In his previous trial, in 1649, he had played the jury against the judges in a drama which explicitly solicited the applause of the audience in the theatre. When Lilburne claimed that the jury were judges of law as well as fact, the presiding judge interposed a denial. Swinging upon the bench, Colonel Lilburne replied: ‘You that call yourselves judges of the law are no more but Norman intruders.’ And when he closed his defence, he returned to the point: ‘You judges sit there, being no more, if the jury please, but ciphers to pronounce the sentence, or their clerks to say Amen.’ The audience in the court ‘with a loud voice cried “Amen, Amen” and gave an extraordinary great hum, which made the judges look something untowardly about them, and caused Major-General Skippon to send for three fresh companies of foot soldiers’.

It is inadvisable, if you are on trial for your life, to treat judges in this way. Grand drama in this style was possible only in a period of revolutionary ferment, when the legitimacy of Parliament, law and judges were all in question. And perhaps honest John Lilburne was a little fortified, in 1653, by the knowledge that outside the courtroom there were said to be six thousand London citizens, many of them former soldiers of the New Model Army, who had thoughtfully provided themselves with bludgeons and cutlasses to use upon judges and jury if the verdict should displease them. Not even Securicor could be hired for such a service today.

Lilburne’s acquittals remind us that a trial of sensitive political moment attracted an audience, not only in the courtroom, but in the nation outside. When the jury foreman pronounced the verdict of not guilty in 1649, ‘the whole multitude of people in the Hall, for joy of the Prisoner’s acquittal, gave such a loud and unanimous shout, as is believed was never heard in Guildhall, which lasted for about half an hour without intermission; which made the Judges for fear turn pale, and hang down their heads; but the Prisoner stood silent at the bar, rather more sad in his countenance than he was before.’ The acclamations spread to the streets, and bonfires were lit throughout the city. Similar scenes were witnessed on the acquittal of the Seven Bishops (1688), the acquittal of printers and publishers of Junius’s Letters (1770), and the acquittal of Thomas Hardy and his fellow reformers in 1794. Jurors in such cases could be drawn in triumph through the streets, feasted and toasted, or be commemorated on medals and token coinage.

Enough of ‘theatre’. By ‘expectations’ I mean the notions of the jury’s role and responsibilities handed on over successive generations which flow through this place or theatre. This belongs, clearly, to political culture. It is a culture in which people are socialised in a hundred formal – but mainly informal – ways: by parents, teachers, discussions in alehouses or coffee-bars, in trade unions or political parties, by reading trial reports or watching Perry Mason or The Rockford Files on TV – perhaps even historians pass on a little. But this is not the same as the casual response which might be made by the man or woman in the street to a questionnaire on jury rights. Most people would like to wriggle out of the duty. But selection for actual jury service can concentrate the mind amazingly; presence in that theatre can be fiercely educative; and people discover within themselves capacities to fulfil a role which they had never anticipated.

This political culture is, of course, always changing. Memories of rights are lost and are then rediscovered. And I may have entered this discussion from an over-optimistic perspective. The record of the ‘humanising’ role of the jury over centuries is incontestable; jury ‘nullification’ or the mitigation of the offence by ‘pious perjury’ in criminal trials – finding a verdict of guilty but of a lesser offence than would have been capital – must have saved tens of thousands from the gallows. Moreover, the uncertainty as to a jury’s verdict must have prevented more thousands of oppressive prosecutions from ever being launched. But since William Hone’s acquittals in 1817, juries in cases with a markedly political tone have disappointed civil libertarians more often than they have cheered them. Radicals, Chartists, Freethinkers, trade-unionists, socialists, suffragettes, Communists – all had reason to complain of the partiality of British juries.

This is because real juries (as distinct from jury theory) have operated in a real context of class perceptions and conflict. It would be absurd to say that the jury was invented by ‘bourgeois liberalism’ to suit the convenience of the bourgeoisie, for it was invented at a time when the bourgeoisie was not yet a glint in feudalism’s eye. But the assumption by the jury of a new and critical role – that of inhibitor of oppressive process and defender of the subject against the Crown or the organs of the state – was the expression of a particular moment (which stretches from the 17th to the early 19th century) when the middling sort of people (from whom juries, and especially London juries, were drawn) found themselves to be repeatedly at issue with the aristocracy and Court.

The stubborn jury which acquitted Lilburne in 1653 – and then defended its verdict before the Council of State – was made up of two haberdashers, two woollen-drapers, a leather-seller, salter, bookbinder, grocer, brewer, tallow-chandler and two undescribed. For some hundred and fifty years London juries in politically sensitive cases continued to have a profile like this: they were empanelled from lesser gentry, shopkeepers, master tradesmen, merchants and dealers – a social stratum which included many with some ‘independence’ from the lines of interest and patronage. The jury which acquitted of treason one of the London Corresponding Society leaders, Dr Robert Crossfield, in 1796 was made up of two merchants, two masons, a corn factor, sugar baker, wine merchant, coachmaker, carpenter, bookseller, distiller and tailor. While the members of working trades represented on such panels were not journeymen or labourers (who were debarred by property qualifications), some may have been small masters or contractors. The London jury reached down to the ‘petty bourgeoisie’, among whom – contrary to stereotypes – Radical and Painite ideas moved strongly.

Already a sour note of dissent can be heard, however. The post-Waterloo Radical movement was bringing into action a class of persons who had no more chance of being called for jury service than had the blacks in Mississippi. When Brandreth and his follows awaited trial at Derby for their part in the Pent-ridge Rising of 1817 – all of them stockingers and disfranchised working men – the political theorist among them was Thomas Bacon, an old ‘Jacobin’ of the 1790s. A correspondent wrote in alarm to the Home Secretary: ‘Old Bacon has been telling the prisoners they are not tried by their Peers, but by men of property. I name this to show you what dreadful principles these men have taught their unfortunate children.’

The unfortunate children of the poor taught their own children the same dreadful principles, and so alternative expectations about juries – as promoters of class injustice – were formed within the political culture of the working class. Twenty years on, and the situation was rank with class antagonism. Chartists expected (and sometimes received) more fair play and mercy from judges than from juries, made up – in the country – from farmers and publicans, and in the towns from the ‘shopocracy’. When John Frost and his fellows were convicted, in 1840, for their part in the rising of Chartist miners at Newport, there was of course no miner on the jury – nor was it likely that a miner would serve as a juror for the next hundred years. The jury which convicted Frost was made up of five farmers, and a haberdasher, butcher, ironmonger, baker, miller, grocer and coachmaker.

Freethinkers in Victorian times equated trial by jury with ‘trial by bigotry’. It should therefore occasion no surprise that Chartist, free-thought, trade-union or early Labour publications are not filled with panegyrics of the system: nor should we expect them from suffragettes who always faced all-male juries. What is perhaps surprising is that the principle of jury trial – as trial by one’s peers or equals – was still generally upheld by the disenfranchised. The Chartists of North-East England in 1839 declared: ‘We have made up our minds ... to stand by the trial by jury as constituted by Alfred the Great.’ When William Cuffey, a black tailor (the son of a slave) and respected London Chartist leader, was tried for treason in 1848, he objected that ‘the jurors were not his equals, as he was a journeyman mechanic’ After conviction, and while awaiting his sentence of transportation, he addressed the court with the greatest composure: ‘This has not been a fair trial, and my request was not complied with to have a jury of my equals. But the jury as it is I have no fault to find with; I dare say they have acted conscientiously.’ Throughout his trial he appealed to ‘the rights of the working classes’ to enter into full citizenship. It did not occur to him to notice the matter of his colour.

Thus in the years after 1832 the political culture of Britain acquired a new working-class dimension, but the social profile of the jury remained unchanged. A jury of the middling sort of people, which in 1649 or 1794 still watchfully confronted the ‘Crown’, now turned itself about and confronted the challenge of democracy from their social inferiors. Perhaps this may explain why the jury survived into the 20th century almost immune from the rationalisations imposed by Utilitarians in other areas. The jury’s ancient legitimacy proved to be a useful resource in the control of working-class movements.

And so it remained, for most purposes, until 14 years ago. Until 1972 qualification for jury service came with the payment of rates (£30 p.a. in London, £20 elsewhere). This tied jury service to householder-ratepayers, excluding wives, lodgers, co-habiting adults including adult children, and many categories of non-rate-paying tenant. The English and Welsh jury until 1972 excluded the majority of the adult population and was, in Lord Devlin’s admirable account in 1956 (Trial by Jury), ‘predominantly male, middle-aged, middle-minded and middle-class’. (Before the admission of women householders in 1919 it had of course been exclusively male.) In 1972, some special categories apart, admission to jury service became in effect co-terminous with admission to the electoral roll.

A great deal can be explained by this. Many senior police and some judges and politicians faced this inrush of vulgar democracy into the courts with ashen faces and palpitating hearts. We were told, by Sir Robert Mark, by the Association of Chief Police Officers (ACPO) and others, that the rate of acquittals was rising steeply, that jurors were being suborned by Mafia-like gangs, and that professional criminals were becoming immune from effective prosecution. Subsequent inquiry has shown much of this ‘evidence’ to have been flawed (or even faked). There is no dramatic disparity between the record of jury performance before and after 1972. Of course, like every human institution ever studied by historians, the jury is not immune from frailties and improper pressures (whether from criminal gangs or from the Crown). But the anti-jury lobby has functioned incessantly since 1972, and has scored repeatedly with those measures to ‘strengthen’ the jury which I have already reported. The Roskill Committee’s fraudulent transplant operation and the current Criminal Justice Bill are the latest products of this exercise. After eight hundred years our betters have decided to bring the jury under their condign control.

This article concludes in the LRB of 18 December 1986.