The History of English Legal System Essay

Custom Student Mr. Teacher ENG 1001-04 20 July 2016

The History of English Legal System

I would like, therefore to discuss about the History of The Juries System, the roles and the composition of Juries System on how it was brought to the ENGLISH LEGAL SYSTEM. Firstly the modern jury derives out of the ancient custom of many ancient Germanic tribes whereby a group of men of good character was used to investigate crimes and/or judge the accused. The same custom evolved into the Vehmic Court system in medieval Germany. In Anglo-Saxon England, juries investigated crimes. After the Norman Conquest in 1066, some parts of the country preserved juries as the means of investigating crimes.

The use of ordinary members of the community to consider crimes was unusual in ancient cultures, but was nonetheless also found in ancient Greece. The modern jury trial evolved out of this custom in the mid 12th century during the reign of Henry II. Juries, usually 6 or 12 men, were an “ancient institution” in some parts of England. (“Henry II” 286) Members consisted of representatives of the basic units of local government—hundreds (an administrative sub-division of the shire, embracing several vills) and villages.

Called juries of presentment, these men testified under oath to crimes committed in their neighborhood and indicted. The Assize of Clarendon in 1166 caused these juries to be adopted systematically throughout the country. The jury in this period was “self-informing,” meaning it heard very little evidence or testimony in court. Instead, jurors were recruited from the locality of the dispute and were expected to know the facts before coming to court. The source of juror knowledge could include first-hand knowledge, investigation, and less reliable sources such as rumor and hearsay.

Between 1166 and 1179 new procedures including a division of functions between the sheriff, the jury of local men, and the royal justices ushered in the era of the English Common Law. Sheriffs prepared cases for trial and found jurors with relevant knowledge and testimony. Jurors ‘found’ a verdict by witnessing as to fact, even assessing and apply information from their own and community memory — little was written at this time and what was: deeds, writs, were subject to fraud. Royal justices supervised trials, answered questions as to law and announced the court’s decision which was subject to appeal.

Sheriffs executed the decision. These procedures enabled Henry II to delegate authority without endowing his subordinates with too much power. (“Henry II” 293) In 1215 the Roman Catholic Church removed its sanction from all forms of ordeal — procedures by which suspects were ‘tested’ as to guilt (e. g. , the ordeal of hot metal was applied to a suspected thief by pouring molten metal into his hand, if the wound healed rapidly and well, it was believed God found the suspect innocent, if not then guilty). With the ordeals banned, establishing guilt would have been problematic, had England not had forty years of judicial experience.

Justices were accustomed to asking jurors of presentment about points of fact in assessing indictments; it was a short step to ask jurors if the accused was guilty as charged. (“Henry II” 358) An early reference to a jury type group in England is in a decree issued by Aethelred at Wantage (997), which enacted that in every Hundred “the twelve leading thegns together with the reeve shall go out and swear on the relics which are given into their hands, that they will not accuse any innocent man nor shield a guilty one.

The resulting Wantage Code formally recognized legal customs that were part of the Danelaw . The testimonial concept can also be traced to Normandy before 1066, when a jury of nobles was established to decide land disputes. In this manner, the Duke, being the largest land owner, could not act as a judge in his own case. [ One of the earliest antecedents of modern jury systems are juries in Ancient Greece, including the city-state of Athens, where records of jury courts date back to 500 BCE.

These voted by secret ballot and were eventually granted the power to annul “Unconstitutional Law”, thus introducing judicial review. In modern systems, law is “self-contained” and “distinct from other coercive forces, and perceived as separate from the political life of the community,” but “all these barriers are absent in the context of classical Athens. In practice and in conception the law and its administration are in some important respects indistinguishable from the life of the community in general.

” In 1730, the British Parliament passed the Bill for Better Regulation of Juries. The Act stipulated that the list of all those liable for jury service was to be posted in each parish and that jury panels would be selected by lot, also known as sortition, from these lists. Its aim was to prevent middle-class citizens from evading their responsibilities by financially putting into question the neutrality of the under-sheriff, the official entrusted with impaneling juries. Prior to the Act, the main means of ensuring impartiality was by allowing legal challenges to the sheriff’s

choices. The new provisions did not specifically aim at establishing impartiality, but had the effect of reinforcing the authority of the jury by guaranteeing impartiality at the point of selection. The example of early 18th century England legal reform shows how civic lotteries can be used to organize the duties and responsibilities of the citizen body in relation to the state. It established the impartiality and neutrality of juries as well as reiterating the dual nature of the citizen-state relationship… 1 CRIMINAL TRIALS

-juries hears 1% of criminal cases -tried by 12 jurors and a judge in Crown Court -Juries are Sole Arbiters of Fact (Bushell’s’ case, which will explained below) -Juries decides whether the defendant should be found guilty or not guilty CIVIL TRIALS -Juries in civil case has declined less than 1% -tried by 8 jury in (County Court) and 12 Jury in (High Court) juries were restricted to 4 areas; defamation, malicious prosecution, fraud and false imprisonment -Juries decide the defendant liability and the amount of damages to be awarded

A Basic Summarisation of the Different Trial and their role held by the Jury Nevertheless, the independence of the jury has given recognition from the case of Bushell’s Case (1670), this case established that the jury were the, “sole judges of fact, with the right to give a verdict according to their conscience, and could not be penalized for taking a view of the facts opposed to that of the judge”. This case was a benefit to the legal system, as previously judges would try to intimidate or even bully juries into convicting a defendant, particularly where the crime had political implications.

Therefore the importance of the jury system is that it could acquit a defendant, even when the law demanded a guilty verdict and it showed defendants that the trial by jury was not only a protection against injustice but also a loophole whereby real criminals could escape from “2. Besides that this rule remains today with a more modern examples stating that judges must respect the independence of the jury as in R v McKenna(1960) this case” the judge had threatened the jury, who had been

deliberating for about two and quarter hours, that if they did not return a verdict of guilty within another ten minutes they would be locked up all night”, hence Justice Cassels stated it is a cardinal principle of our criminal law that in considering their verdict, concerning as it does, the liberty of the subject, a jury shall deliberate in complete freedom, uninfluenced by any promised, unintimidated by any threat, because they still stand between the Crown and the subject, and they are still one of the main defences of personal liberty”3.

The Jury System is considered as a need because it is a significance part of the English legal system, although only a minority of the cases is tried by the jury in these days. In a sense it plays an important role in ensuring that the criminal justice system works for the assistance of the public rather than for the benefit of disproportionate leaders.

It promotes not only a fair criminal justice system but also a healthy society, where political leaders cannot misuse criminal justice system to silence their opponents, hence according to LORD DEVLIN which he has wrote on 1956 “trial by Jury is more than an Instrument of Justice and more than a wheel of the Constitution; it is the lamp that shows that freedom lives”4. Moreover, as many scholars and practitioners have commented over the centuries, the common law jury that develops in Britain was branched in other parts of the world as a UNIQUE INSTITUTION.

Therefore Juries are, it brings all together a small group of lay people whom are assembled on a temporary basis for the purpose of deciding whether an accused person is guilty of CRIMINAL act or which of two sides should prevail in a CIVIL dispute. Hence, the jurors are untutored in the formal discipline of law and its logic, besides that they hear and see confusing and challenging evidence and they were provided with instructions, most of the time only in a oral form, about easily understood legal concepts and sent into a room alone to decide a verdict without further help from the professional persons who developed the evidence.

5 Therefore the Juries service is a public duty that citizens should readily undertake, in practice, it is made compulsory, and failure to act/perform one’s civic responsibility is subject to the sanction of a ? ,1000 fine. Now, we may examine the eligibility and the selection process of the Juries, since it has also certain requirements need to be fulfilled. The basic requirements for a Jury Service are that a person must be aged between “18-70” and must have been a resident in the United Kingdom for atleast 5years.

Therefore jurors are selected at random from the electoral register, which is the responsibility of a Central jury Summoning Bureau (CJSB) and the name are generated by the computer, for those who are not registered to vote and the homeless will not be selected. After the selection process, more than 12 people will be called by the Summoning Officers to be “officially” selected as the ‘panel’ of the case, but according to some certain circumstances those people are excused or disqualified for the certain reasons….

On the part of the excusals, those whom prior to the Criminal Justice Act 2003, such would be “The Juries Act 1974” stated those whom are eligible for excusals are those being part of a profession such as legal professionals, Member of Parliament and Doctors, but as result of Para 3 of Schedule 33 to the Criminal Act 2003,has removed the members of the judiciary and lawyers from the classes of those ineligible to eligible to serve as a Juries which can be seen in the case of R v Abdroikof (2007) and R v Williamson (2007), besides that, the AULD REVIEW recommended that everyone should be eligible except for those who are mentally disordered, those who have criminal conviction for more than 5 years. Evaluating whether the Jury System is an Outmoded Method of Determining Judgments and whether It should be removed or reformed To answer the following question that rose above, we should weight up the “arguments for and against” the Jury System in the English Legal System. Firstly, there are several arguments for the Jury system in England that I would like to raise….

According to (Spooner,1852) “The central plank of trials within a jury based system is this: “No free man shall be captured, and or imprisoned, or disseised of his freehold, and or of his liberties, or of his free customs, or be outlawed, or exiled, or in any way destroyed, nor will we proceed against him by force or proceed against him by arms, but by the lawful judgement of his peers, and or by the law of the land” . 6 For an illustration, the Jury System reflects a democratisation of justice compared to a purely judicial system, it is merely necessary to consider the Socratic judgments of antiquity, or the very wide latitude given to Japanese judges today. The freedom of action and interpretation that is held by one individual in these cases has two primary problems. Firstly, justice is hugely dependent on the competence and impartiality of one person, with a single point of failure for corruption to be introduced.

Secondly, judges have been of high social status throughout history, and thus can be criticised as having a possible lack of intuition and empathy with poorer defendants. This illustration is a practical example for the need of the Jury system. In addition, the jury is likely to have a greater experience of contemporary cultural trends and pressures then a judge who has spent 30-40 years in intense study of the law, and a correspondingly greater understanding and empathy with the actions of the parties involved in the case. A jury also often has far less of a stake in political issues…. Moreover the United Kingdom does have a somewhat unhappy history relating to judge-only proceedings, through the actions of the Northern Ireland ‘Diplock’ courts.

The Diplock courts were set up in 1972, with the brief of effectively intervening against terrorism. This very assumption could be seen to reflect the view that a purely judge based system was more likely to convict in these cases, and thus reflects the importance of jury trial in other cases. The Diplock courts, as might have been expected, then proceeded to be involved in several extremely contentious convictions, notably that of Christy Walsh. In this case, several sections of the trial were criticised for unfairness during the trial itself, with the defence faced by a judge apparently uninterested in this (British Irish Rights Watch, 2006)7. Therefore the Jury system could be fresh defence of injustice….

According to Peter Jefferson, “We all know that permanent judges acquire an esprit de corps; that, being known, they are liable to be tempted by bribery; that they are misled by favor, by relationship, by a spirit of party, by a devotion to the executive or legislative; that it is better to leave a cause to the decision of cross and pile than to that of a judge biased to one side; and that the opinion of twelve honest jurymen gives still a better hope of right than cross and pile does. ”8, this can be easily illustrated by the role of Lord Chancellor is the head of the judiciary and has a major role in the selection of judges, however he is also a member of the cabinet and the position is a political appointment decided on by the Prime Minister and the position has been strongly criticised as being involved in too many different functions of the State, besides that It has also been suggested that the Lord Chancellors selections of judges and also his special adviser could be biased because Lord Chancellor selected his special adviser from a small group he already knew, comprised mostly of white males.

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