Two in-depth studies by the UCL Jury Project (in 2007 and 2010) have demonstrated that empirical research about how the jury process works can be successfully conducted with juries in our courts. And this research has contributed to the way judges approach directions.
The Myth of section 8
We could speculate on the reasons Lord MacDonald made this comment, but I think the explanation lies in the fact that, like so many others before him, he fell into the trap of believing the “Myth of section 8”.
Section 8 of the Contempt of Court Act 1981 makes it a criminal offence to “obtain, disclose or solicit any particulars of statements made, opinions expressed, arguments advanced or votes cast by members of a jury in the course of their deliberations.”
For over three decades since it was introduced, commentators have routinely and incorrectly claimed that section 8 makes research with actual jurors “impossible” if not “illegal” in this country. This is simply untrue.
Section 8 prevents one specific thing: individual jurors in individual cases telling someone outside the jury what they or their fellow jurors said in their deliberating room.
Where does the confusion come from?
The main error people make about section 8 is to think that if you could just ask a juror (or hear) what was said in deliberations this would explain how the jury system works. But this fundamentally misunderstands how juries and jury research works.
For example, we can all agree that juries should not be racially biased. What section 8 prohibits me as a researcher from doing is waiting around at a court until an all-white jury convicts a black defendant and then asking those jurors: “Did the you convict the defendant because he was black?”
Those jurors who consciously believed they did convict the defendant because he was black are highly unlikely to tell me so. More importantly, because we are not always consciously aware of all the factors that affect our decisions, this question is impossible for most people to answer reliably.
So this approach can never answer whether juries in this country are systematically biased against defendants based on their race. This means section 8 is actually a good thing because it prevents us from conducting bad jury research that can be highly misleading.
But then how do you answer the question about juries and racial bias?
We did two things. First we reconstructed an actual case on film and then asked a large number of real juries at court to try the case. They all saw the identical case, shot for shot and word for word. The only difference was that some juries saw a black defendant, some a white and others an Asian defendant. Then we also examined every single actual jury verdict in every Crown Court in England and Wales from 2006-08, and calculated the conviction rate based on the race of the defendant. In both instances there was no evidence that juries were systematically biased against defendants based on race.
Existing jury research
Since 2002, we have conducted extensive research with real juries at numerous courts around the country fully within the legal parameters of section 8. That research has already been able to answer numerous questions:
- Who does jury service and are they representative of local communities?
- Do male and female jurors decide cases differently?
- Do juries refuse to convict defendants of certain offences?
- Is there a postcode lottery in jury trials?
- Is it true that juries acquit more often than they convict in rape cases?
- Do jurors understand the jury process?
- Are juries trying cases based on the evidence and law?
- Do jurors understand judges’ legal directions?
- Do juries want more information about how to conduct deliberations?
- Are jurors affected by media coverage of their cases?
- How many jurors search the internet for information about their cases?
- Do jurors know what to do about improper conduct?
We are now researching:
- How exactly are jurors using the internet?
- How do jurors interpret the internet use rule?
- What would jurors do if something improper happened during trial?
- What kind of deliberation guidance do juries want?
- Do jurors find written directions helpful?
- What do juries think about judges’ summing up?
- What effect does pre-recorded or live link evidence have on juries?
- What effect do other special measures have on juries (screens, intermediaries, etc.)?
- What effect does hearsay and anonymous evidence have on juries?
- What tools can be given to jurors to help them understand and do their job to the best of their ability?
So the idea that section 8 somehow prevents us from understanding how the jury system works is nothing but a myth. And it is time to lay that myth to rest once and for all.
So why do people continue to believe the myth?
Two groups are responsible for perpetuating the myth of section 8 and seem to take every opportunity to argue for its repeal: journalists and (some) academics. The media presumably do this because they would like to broadcast interviews with jurors about what was said in the deliberating room, especially in controversial cases. It is therefore not very surprising that Lord MacDonald’s statement has been repeated widely in the press (including the Times, Daily Mail, Telegraph, Express, Scottish Herald, Huffington Post, and the Society of Editors). Academics who continue to claim it is impossible for them to do jury research reveal a worrying lack of understanding and approach to research.
Both groups are misguided
Those who would like to repeal section 8 would do well to consider seriously the clear and strong views of jurors themselves on this issue. Almost all jurors (82%) said they felt very strongly that jurors should not be allowed to speak about what happens in deliberations.
How to conduct jury research
Appearing with Lord MacDonald on the Today programme was the former Lord Chief Justice, Lord Woolf. He was less willing to suggest that jury research was impossible or needed, saying: “Some very carefully organised, responsible research may be a good thing, but it would have to be treated with great care.”
It certainly does and it certainly is.
All the research carried out by the UCL Jury Project has to meet what we call the “3 Rs test”: is it realistic, reliable and responsible?
Most research that calls itself jury research is in fact not done with actual jurors but with volunteers or students. A fundamental principle of all our research is that it is done exclusively with actual juries at Crown Courts.
Another problem is that sample sizes are often not large enough or representative enough to draw any reliable conclusions. In our 2010 study, Are Juries Fair?, we based our findings on over half a million charges against all defendants, which resulted in over 68,000 jury verdicts.
Jury research carries substantial responsibilities. First and foremost researchers must never put jurors in a position where they could disclose information and commit a criminal offence.
It is also crucial that research is conducted in close consultation with those ultimately responsible for the jury system: HMCTS, Ministry of Justice and the judiciary. In my experience this has never resulted in any unwarranted interference. Instead it has ensured that the research is rigorous and useful.
According to crime science expert Ronald Clarke: “Merely seeking to explain and understand is to fiddle while Rome burns.” In our research we also believe it is important to test possible solutions to jury problems. Our current research tests out possible new tools to help jurors better understand the jury process.
The future of jury trials and research
Our understanding of juries cannot be based on a single case, like the first Vicky Pryce trial. That jury was unable to reach a verdict, and research clearly shows that this is highly exceptional. When juries are asked to deliberate and reach a verdict, they do so 99.4% of the time.
The future of trial by jury needs to be based on reliable empirical evidence about what jurors do, what they think and what helps them do their job to the best of their ability. Not a single exceptional case.
And nothing in the current law prevents jury research in this country that will help achieve this.
Cheryl Thomas is Professor of Judicial Studies at University College London’s Faculty of Laws. She is also the Director of the UCL Jury Project and Co-Director of the UCL Judicial Institute.