Jury vetting: right of stand by guidelines
Attorney General's jury vetting guidelines on when to use of right of stand by and what procedure to follow.
The exercise by the Crown of its right of stand by (update 2012)
In 1988 the defence right to challenge jurors without cause was abolished, the prosecution right to do so was, however, retained. This means that the prosecution can object to a potential juror without giving any reason. It is recognised that this is an exceptional power and so the Attorney General, therefore, issues guidance to prosecutors on its use.
In essence, the use of the right of stand by is limited to those cases which involve national security or terrorism. The guidelines outline the circumstances in which it is appropriate for the prosecution to exercise this power and the procedure which is to be followed. The guidelines make clear that the authority to use this power is limited to the Attorney General.
Previous versions of the guidelines included an annex prepared by the Association of Chief Police Officers (ACPO) on the conduct of inquiries into a juror’s previous convictions. This is now done automatically by Her Majesty’s Courts Service and therefore the ACPO guidance is no longer relevant and, in consequence, is not included in these 2012 guidelines.
The Attorney General has issued the following guidelines on the exercise by the Crown in England and Wales of its right to stand by. The guidelines update the previous guidelines issued in 1989 to coincide with the implementation of the Criminal Justice Act 1988 s.118, which abolished the right of peremptory challenge. These updated guidelines are to have effect from the 27th November 2012. The Attorney General has also issued amended guidelines on jury checks.
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 identifies 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 to s.10 of the Juries Act 1974, fairly wide discretion to excuse, defer or discharge jurors.
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.11 of the guidelines below 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.
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 identifies 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,
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 - they will check criminal records for the purpose of ascertaining whether or not a potential juror is a disqualified person.
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 my 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) security and terrorist cases in which a juror’s extreme beliefs could prevent a fair trial.
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 personal 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 the police. However, a check may, additionally be made against the records of the Security Service. 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 or the prosecutor 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. In those cases in which the Director of Public Prosecutions believes authorised checks are both proportionate and necessary, the Director will make an application to the Attorney General.
8 The Director of Public Prosecutions will provide the Attorney General with all relevant information in support of the requested authorised checks. The Attorney General will consider personally the request and, if appropriate, authorise the check.
9 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. The Director will also provide the Attorney General with the result of the authorised check.
10 Although the right of stand by and the decision to authorise checks are wholly within the discretion of the Attorney General, when the Attorney General has agreed to an authorised check being conducted, the Director of Public Prosecutions will write to the Presiding Judge for the area to advise him that this is being done.
11 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.
12 Information revealed in the course of an authorised check must be considered in line with the normal rules on disclosure.
13 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.
14 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. The information may, however, be used for the prevention of crime or as evidence in a future criminal prosecution, save that material obtained from the Security Service may only be used in those circumstances with the authority of the Security Service.
Earlier guidelines can be found at the National Archives