Criminal Jury Old and New : Jury Power from Early Times to the Present Day [1 ed.] 9781906534080, 9781904380115

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The Criminal Jury Old and New JURY POWER FROM EARLY TIMES TO THE PRESENT DAY

John Hostettler John Hostettler is a solicitor, legal biographer and historian whose subjects have included Sir James Fitzjames Stephen, Sir Edward Coke, Sir Matthew Hale, Thomas Erskine and Lord Halsbury. He has written widely for the legal press, including as a regular contributor to the weekly journal Tustice of the Peace. A former magistrate, he played a leading role in the abolition of t10gging in British colonial prisons. He has also served as chair of Social Security Appeals Tribunals. He holds the degrees of BA, MA, LLB (Hons), LLM and PhD (London) and is a member of the Royal Society of Literature.

The Criminal Jury Old and New JURY POWER FROM EARLY TIMES TO THE PRESENT DAY

John Hostettler John Hostettler is a solicitor, legal biographer and historian whose subjects have included Sir James Fitzjames Stephen, Sir Edward Coke, Sir Matthew Hale, Thomas Erskine and Lord Halsbury. He has written widely for the legal press, including as a regular contributor to the weekly journal Tustice of the Peace. A former magistrate, he played a leading role in the abolition of t10gging in British colonial prisons. He has also served as chair of Social Security Appeals Tribunals. He holds the degrees of BA, MA, LLB (Hons), LLM and PhD (London) and is a member of the Royal Society of Literature.

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The Criminal Jury Old and New

The Criminal Jury Old and New Jury Power from Early Times to the Present Day Published 2004 by

WATERSIDE PRESS DomumRoad Winchester 5023 9NN Telephone 01962 855567; UK Local-rate call 0845 2300 733 E-mail enquiries@ watersidepress.co.uk Online bookstore www.watersidepress.co.uk Copyright © John Hostettler 2004. No part of this book may be reproduced, stored in any retrieval system or transmitted in any form or by any means, including via the Internet, without prior permission. The right of John Hostettler to be identified as its author has been asserted by him pursuant to the Copyright, Designs and Patents Act 1988. ISBN Paperback 1 904380 11 5 Cataloguing-in-publication data A catalogue record for this book can be obtained from the British Library Printing and binding Antony Rowe Ltd, Eastbourne Cover design Waterside Press.

Other books by John Hostettler The Politics of Criminal Law: Reform in the Nineteenth Century (1992) Barry Rose Thomas Wakely: An Improbable Radical (1993) Barry Rose The Politics of Punishment (1994) Barry Rose Politics and Law in the Life of Sir James Fitzjames Stephen (1995) Barry Rose Thomas Erskine and Trial by Jury (1996) Barry Rose Sir Edward Carson: A Dream Too Far (1997) Barry Rose Sir Edward Coke: A Force for Freedom (1997) Barry Rose At the Mercy of the State: A Study in Judicial Tyranny (1998) Barry Rose Lord Halsbury (1998) Barry Rose The Red Gown: The Life and Works of Sir Matthew Hale (2002) Barry Rose Law and Terror in Stalin's Russia (2003) Barry Rose With Brian P. Block:

Hanging in the Balance: A History of the Abolition of Capital Punishment in Britain (1997) Waterside Press Voting in Britain: A History of the Parliamentary Franchise (2001) Barry Rose Famous Cases: Nine Trials that Changed the Law (2002) Waterside Press

John Hostettler

The Criminal Jury Old and New Jury Power from Early Times to the Present Day CONTENTS 1 Introduction

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2 Origin and Early Growth of Jury Trial

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3 Tudor and Stuart Political Control

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4 The Jury in the Interregnum.

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5 Juries after the Restoration

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6 Jury Influence at its Zenith: The 18th Century

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7 Crim.inal Law Reform.: The 19th Century

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8 Attacks on the Jury: The 20th Century

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9 Conclusion

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Bibliography

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Index

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WATERSIDE PRESS WINCHESTER

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The Criminal Jury Old and New

Acknowledgetnents I am indebted to Dr Richard Vogler, Senior Lecturer in Law at the University of Sussex, for his helpful advice and guidance during the writing of this book. His keen interest and comments have been invaluable. Any errors that remain are entirely my own. I also wish to thank the staff of the British Library and the London Library, the Sussex University Library and the Public Record Office for their courtesy and help throughout the research undertaken for the writing of this book John Hostettler October 2004

Glossary and Key Historical References Accusing jury The Assize of Clarendon (below) provided that from each hundred 12 men of good repute and no criminal record - and four lawful men of every vill (i.e. each township or village) - were to report people in the locality accused or notoriously suspected of serious crimes. Over time, they were also known as the 'presenting jury' or 'grand jury' (below).

Actus reus The physical aspects within the definition of a criminal offence. Assizes Originally regional criminal courts dealing with the most serious crimes. They were abolished by the Courts Act 1971 and replaced by the Crown Court in 1972. Assize of Clarendon In 1166 the Assize established the accusing jury (above). People accused or notoriously suspected of serious crimes were taken before the sheriff in the shire (county) court or brought before the itinerant royal judges when they visited the area. In either case they faced being sent to trial by ordeal. (Chapter 2) Benefit of clergy Device concocted by the Church whereby a convicted prisoner would be set free if he or she could read the first verse of Psalm 51 (the so-called 'neck verse'). The benefit was not available to women until 1624 and treason was never 'clergyable'. In Tudor times it was provided that the benefit could not be claimed more than once, leading to branding for the purposes of future identification. Abolished by statute in 1827. Blood feud Vengeful violence by the family of a victim of crime - against the alleged perpetrator - particularly in Anglo-Saxon times. In tight communities this might work well, but feuds were often 'self-feeding' and could lead to warfare and anarchy. Kings tried to prevent them by an alternative arrangement known as wergild (below). 'Bloody Assize' In 1685 the Duke of Monmouth unsuccessfully attempted a rebellion in the West Country. Lord Chief Justice Jeffreys presided at the Assizes in the major towns of the area where alleged rebels were prosecuted. He constantly browbeat accused and witnesses alike and sentenced large numbers of people to death without a fair trial. (Chapter 5) Canon law See Civil law (below). Challenge for cause All or any potential members of a jury may be challenged for cause, i.e. objected to by the defence on the basis of a sound reason. This might include that he or she is

John Hostettler

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not qualified to serve or is suspected of partiality. Challenges are tried and determined by the judge. Challenge for cause should be contrasted with 'peremptory challenge' (below). Civil law In the context of this book, Roman law as opposed to the common law of England. Commonwealth The period of Oliver Cromwell's rule of England from 1649 - when the country was declared to be a republic - to 1653. (Chapter 4) Compurgators People who swore to the innocence and character of an accused person in order to secure his or her release. Abolished by the Assize of Clarendon (above) in 1166. Constructive treason A doctrine - invented by the judges - that a conspiracy to do some act in regard to the King which might endanger his life was itself treason, even though not defined as such until the Treason Act 1795. Court of Common Pleas Higher court dealing with actions between subject and subject as distinct from monarch and subject which occurred in the Court of King's (or Queen's) Bench. Criminal Justice Act 1855 Statute that first introduced either-way offences, since when most such cases were (and are) dealt with in local magistrates' courts rather than at the Crown Court (formerly Assizes and Quarter Sessions) before a judge and jury. (Chapter 8) Dame Alice Lisle As part of the 'Bloody Assize' (above), Dame Alice Lisle, widow of Judge Lisle, was charged with concealing a rebel at her home. After ruthless 'cross-examination' by Judge Jeffreys he told the jury to find her guilty and she was beheaded. (Chapter 5)

De bono et malo In the earliest days of jury trial prisoners were said to put themselves into the hands of the community 'for good and ill'. De odio et alia To avoid trial by battle an accused could claim an allegation had been made 'from hate and spite' - and buy from the King a writ to have a jury decide that issue. Either-way case A case that may be tried in the Crown Court by a jury or before magistrates subject to a preliminary procedure known as mode of trial. Today there are some 30 main types of either-way offence, comprising around 700 individual crimes from simple theft to offences involving violence and certain sexual offences. England's 'Bloody Code' Byword for the 200 or so offences that became punishable by death under a series of statutes from 1723 onwards. (See Chapter 6)

Ex officio By virtue of office. Ex officio oath Used by the Star Chamber and other prerogative courts, this oath required a prisoner to 'convict himself' by confessing to an unspecified crime levelled by an undisclosed informer. It was abolished by the Long Parliament in 1640. Eyre Until the early fourteenth century judges visited the counties every seven years to hold a General Eyre and make searching inquiries about local government and the administration of justice. This generated fear with some people fleeing rather than face the judges. Felony At common law every serious crime was a felony if conviction allowed forfeiture of the lands or goods of the offender and the penalty was capital punishment. Now redundant. Fox's Libel Act Statute of 1792 which established the right of juries to decide as a matter of law whether or not a writing was libel and not merely that it had been published. (Chapter 6) Glorious Revolution To avoid Catholic succession to the throne as plotted by James 11, the Whigs and the Tories invited William, Prince of Orange, to replace James and enforce the Protestant religion. He landed in Devon in 1688 enabling a non-violent revolution. (Chapter 5)

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Grand jury The grand jury (also known as the 'accusing' or 'presenting' jury) was established by the Assize of Clarendon in 1166 to present alleged offenders from the neighbourhood for trial for the most serious crimes. It came to