The ‘English’ Approach to Criminal Jury Trials; Stacking the Deck in Favor of the Prosecution

In the Spring of 1981, I spent the semester at the Institute of Judicial Administration, Birmingham University, England, studying the English criminal jury trial. My research led to the publication in 1983 of a work entitled, “Tightening the Reins of Justice in America; A Comparative Analysis of the Criminal Jury Trial in England and the United States”, hereinafter “Tightening”. The book contains a transcript of the trial of David Fisher in the Crown Court in Birmingham, England, in February 1981 including transcription of matters not normally recorded in England, such as the jury selection process and speeches of counsel.Since that time various changes have occurred in the English criminal jury trial with respect to hearsay, character evidence, and the admissibility of silence in the face of police interrogation. When added to the already substantial pro-prosecution bent of English criminal jury practice, e.g., no jury vetting, less than unanimous verdict, the English criminal jury practice has now gone over the cliff in favor of the prosecution. In short, for those criminal defense attorneys who believe the deck is stacked against him in the United States, the position of the barrister defending an accused in England is much, much worse.The enactment of the Criminal Justice Act 2003 brought with it major changes with respect to both hearsay and character evidence, not surprisingly vastly increasing the admissibility of both against the criminal defendant. As part of the process of training lawyers and judges in the effect and scope of the new approach of the Criminal Justice Act 2003, J.R. Spencer authored two monographs. The first, entitled Evidence of Bad Character, appeared in 2006, hereinafter “Character”. The second entitled Hearsay Evidence in Criminal Proceeding, followed two years later, hereinafter “Hearsay”.For me, the Criminal Justice Act 2003 was the last straw. The Introduction to Character contains a comment equally applied to hearsay that “radical critics [have] condemned [the current state of the law] as unduly favourable to the guilty.” I moved from viewing the English approach as providing possible insights for “Tightening the Reins of Justice in America” to nothing but a clear sellout to prosecution forces and the caving in to the unholy insidious influence of the civil law inquisitorial approach. The channel tunnel and EU membership carry a high price if you are accused of a crime in England.The purpose of this article is to describe in broad strokes many of the aspects of the English criminal jury trial practice favoring the prosecution in comparison to practice in the United States. For those criminal lawyers not immersed in English practice, the transcripts of the court’s Summing-Up and the testimony of a police officer basically reading from his notebook will be particularly illuminating. The article is not comparative; it is generally assumed the reader is fully acquainted with the approach taken within the United States with respect to each area.A caveat. Over the years as an academic, I have been disappointed on numerous occasions when a person primarily schooled in a different legal culture opines on complex matters of evidence and trial practice within the United States. On such occasion, I frequently conclude that the author just doesn’t get it. Now I am commenting on the English criminal jury trial practice placing myself in the same position. Accordingly, consistent with the purpose of the article to expose criminal defense attorney’s generally to the approach of our special friends across the pond, this article is written more in the form of an overview descriptive survey than an analytical research tool.