It is a common feature of American courtroom drama that a defence attorney moves to remove a juror that they do not like the look of. Many clients wonder whether the same type of challenge can take place in an English courtroom.
The Jury Pool
In some circumstances there can be a challenge to the entire jury pool, this can happen in cases where local emotion is running so high that it would not be appropriate to try the case at the usual crown court center.
An example of this was the trial of Jon Venables and Robert Thompson, who were later convicted of the murdering two-year old Jamie Bulger in Merseyside. Their hearing was held not in the usual place, Liverpool Crown Court, but Preston.
In other cases there may be challenges to jurors with a particular characteristic, so in the Hillsborough trial that took place earlier in 2019 the 100 potential jurors were handed a questionnaire asking for any reasons why they cannot sit on the jury, including potential links to the disaster, victims, police or criminal justice agencies.
They were also asked whether they or any close family members or friends were fans of Liverpool, Everton, Sheffield Wednesday or Nottingham Forest football clubs.
It is quite usual in trials for potential jurors to be read a list of witnesses in the case, to ensure no juror with a personal connection is sitting.
There can be no challenge to the array of a jury, so for example because it is all-male, or lacking in racial balance.
Challenging an individual juror
A challenge to an individual juror is referred to as a ‘challenge for cause’ (section 12 Juries Act 1974). Challenge can be made both by prosecution and defence (there is also a prosecution power to ‘stand by’ a juror, but this is not considered in this article).
A challenge can be on the basis that the person is not eligible for jury service or for some other reason (the right to challenge without cause was abolished some years ago).
A challenge should be made before the juror is sworn, although the court has permitted a small degree of latitude (R. v. Harrington, 64 Cr.App.R. 1, CA.)
In practice, a successful challenge for cause is very rare.
Should we be concerned about juror bias?
Many people make observations about jury composition; an example we hear regularly is that a female jury is more likely to acquit in a rape case.
In truth, we do not know whether this and other claims are valid or not given the lack of research into jury decision making.
In our view, minds should be focused much more on first-class case preparation and advocacy rather than abstract notions of perceived juror bias, particularly when there is not a great deal that can be done about it anyway.
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