Attorney-General's Guidelines
Exercise by the crown of its right of stand-by

 

1. Although the law has long recognised the right of the Crown to exclude a member of a jury panel from sitting as a juror by the exercise in open court of the right to request a stand-by or, if necessary, by challenge for cause, it has been customary for those instructed to prosecute on behalf of the Crown to assert that right only sparingly and in exceptional circumstances. It is generally accepted that the prosecution should not use its right in order to influence the overall composition of a jury or with a view to tactical advantage.

2. The approach outlined above is founded on the principles that (a) the members of a jury should be selected at random from the panel subject to any rule of law as to right of challenge by the defence, and (b) the Juries Act 1974 together with the Juries (Disqualification) Act 1984 identified those classes of persons who alone are disqualified from or ineligible for service on a jury. No other class of person may be treated as disqualified or ineligible.

3. The enactment by Parliament of s. 118 of the Criminal Justice Act 1988 abolishing the right of defendants to remove jurors by means of peremptory challenge makes it appropriate that the Crown should assert its right to stand by only on the basis of clearly defined and restrictive criteria. Derogation from the principle that members of a jury should be selected at random should be permitted only where it is essential.

4. Primary responsibility for ensuring that an individual does not serve on a jury if he is not competent to discharge properly the duties of a juror rests with the appropriate court officer and, ultimately, the trial judge. Current legislation provides, in ss. 9 and 10 of the Juries Act 1974, fairly wide discretions to excuse or discharge jurors either at the person's own request, where he offers 'good reason why he should be excused', or where the judge determines that 'on account of physical disability or insufficient understanding of English there is doubt as to his capacity to act effectively as a juror'.

5. The circumstances in which it would be proper for the Crown to exercise its right to stand by a member of a jury panel are: (a) where a jury check authorised in accordance with the Attorney-General's guidelines on jury checks reveals information justifying exercise of the right to stand by in accordance with para. 9 of the guidelines and the Attorney-General personally authorises the exercise of the right to stand by; or (b) where a person is about to be sworn as a juror who is manifestly unsuitable and the defence agree that, accordingly, the exercise by the prosecution of the right to stand by would be appropriate. An example of the sort of exceptional circumstances which might justify stand-by is where it becomes apparent that, despite the provisions mentioned in para. 4 above, a juror selected for service to try a complex case is in fact illiterate.

Jury checks

1. The principles which are generally to be observed are (a) that members of a jury should be selected at random from the panel, (b) the Juries Act 1974 together with the Juries (Disqualification) Act 1984 identified those classes of persons who alone are either disqualified from or ineligible for service on a jury; no other class of person may be treated as disqualified or ineligible, and (c) the correct way for the Crown to seek to exclude a member of the panel from sitting as a juror is by the exercise in open court of the right to request a stand-by or, if necessary, to challenge for cause.

2. Parliament has provided safeguards against jurors who may be corrupt or biased. In addition to the provision for majority verdicts, there is the sanction of a criminal offence for a disqualified person to serve on a jury. The omission of a disqualified person from the panel is a matter for court officials but any search of criminal records for the purpose of ascertaining whether or not a jury panel includes any disqualified person is a matter for the police as the only authority able to carry out such a search and as part of their usual function of preventing the commission of offences. The recommendations of the Association of Chief Police Officers respecting checks on criminal records for disqualified persons are annexed to these guidelines.

3. There are, however, certain exceptional types of case of public importance for which the provisions as to majority verdicts and the disqualification of jurors may not be sufficient to ensure the proper administration of justice. In such cases it is in the interests of both justice and the public that there should be further safeguards against the possibility of bias and in such cases checks which go beyond the investigation of criminal records may be necessary.

4. These classes of case may be defined broadly as (a) cases in which national security is involved and part of the evidence is likely to be heard in camera, and (b) terrorist cases.

5. The particular aspects of these cases which may make it desirable to seek extra precautions are (a) in security cases a danger that a juror, either voluntarily or under pressure, may make an improper use of evidence which, because of its sensitivity, has been given in camera, (b) in both security and terrorist cases the danger that a juror's political beliefs are so biased as to go beyond normally reflecting the broad spectrum of views and interests in the community to reflect the extreme views of sectarian interest or pressure group to a degree which might interfere with his fair assessment of the facts of the case or lead him to exert improper pressure on his fellow jurors.

6. In order to ascertain whether in exceptional circumstances of the above nature either of these factors might seriously influence a potential juror's impartial performance of his duties or his respecting the secrecy of evidence given in camera, it may be necessary to conduct a limited investigation of the panel. In general, such further investigation beyond one of criminal records made for disqualifications may only be made with the records of police Special Branches. However, in cases falling under para. 4(a) above (security cases), the investigation may, additionally, involve the security services. No checks other than on these sources and no general inquiries are to be made save to the limited extent that they may be needed to confirm the identity of a juror about whom the initial check has raised serious doubts.

7. No further investigation, as described in para. 6 above, should be made save with the personal authority of the Attorney-General on the application of the Director of Public Prosecutions and such checks are hereafter referred to as 'authorised checks'. When a chief officer of police has reason to believe that it is likely that an authorised check may be desirable and proper in accordance with these guidelines he should refer the matter to the Director of Public Prosecutions with a view to his having the conduct of the prosecution from an early stage. The Director will make any appropriate application to the Attorney-General.

8. The result of any authorised check will be sent to the Director of Public Prosecutions. The Director will then decide, having regard to the matters set out in para. 5 above, what information ought to be brought to the attention of prosecuting counsel.

9. No right of stand-by should be exercised by counsel for the Crown on the basis of information obtained as a result of an authorised check save with the personal authority of the Attorney-General and unless the information is such as, having regard to the facts of the case and the offences charged, to afford strong reason for believing that a particular juror might be a security risk, be susceptible to improper approaches or be influenced in arriving at a verdict for the reasons given above.

10. Where a potential juror is asked to stand by for the Crown, there is no duty to disclose to the defence the information on which it was founded; but counsel may use his discretion to disclose it if its nature and source permit it.

11. When information revealed in the course of an authorised check is not such as to cause counsel for the Crown to ask for a juror to stand by but does give reason to believe that he may be biased against the accused, the defence should be given, at least, an indication of why that potential juror may be inimical to their interests; but because of its nature and source it may not be possible to give the defence more than a general indication.

12. A record is to be kept by the Director of Public Prosecutions of the use made by counsel of the information passed to him and of the jurors stood by or challenged by the parties to the proceedings. A copy of this record is to be forwarded to the Attorney-General for the sole purpose of enabling him to monitor the operation of these guidelines.

13. No use of the information obtained as a result of an authorised check is to be made except as may be necessary in direct relation to or arising out of the trial for which the check was authorised.

Annexe: Recommendations of the Association of Chief Police Officers

1. The Association of Chief Police Officers recommends that in the light of observations made in Mason [1981] QB 881 the police should undertake a check of the names of potential jurors against records of previous convictions in any case when the Director of Public Prosecutions or a chief constable considers that in all the circumstances it would be in the interests of justice so to do, namely (i) in any case in which there is reason to believe that attempts are being made to circumvent the statutory provisions excluding disqualified persons from service on a jury, including any case when there is reason to believe that a particular juror may be disqualified, (ii) in any case in which it is believed that in a previous related abortive trial an attempt was made to interfere with a juror or jurors, and (iii) in any other case in which in the opinion of the Director of Public Prosecutions or the chief constable it is particularly important to ensure that no disqualified person serves on the jury.

2. The association also recommends that no further checks should be made unless authorised by the Attorney-General under his guidelines and no inquiries carried out save to the limited extent that they may be needed to confirm the identity of a juror about whom the initial check has raised serious doubts.

3. The association further recommends that chief constables should agree to undertake checks of jurors on behalf of the defence only if requested to do so by the Director of Public Prosecutions acting on behalf of the Attorney-General. Accordingly if the police are approached directly with such a request they will refer it to the Director.

4. When, as a result of any checks of criminal records, information is obtained which suggests that, although not disqualified under the terms of the Juries Act 1974, a person may be unsuitable to sit as a member of a particular jury the police or the Director may pass the relevant information to prosecuting counsel, who will decide what use to make of it.