The recent contempt proceedings brought by Mr. Justice Johnson against Rajiv Menon KC has drawn attention to the principle of Jury Equity. This principle empowers Jurors to give verdicts ‘according to their conscience’ (Warner, para 16). Mr. Menon has been accused of informing Jurors in a hearing about this power which legal representatives in England and Wales are barred from doing (Warner, para 19). Analysing Mr. Menon’s case could reveal valid arguments regarding the subversion of the Right to a Fair Trial: either emanating from the act Mr. Menon is accused of, or the contempt proceedings brought against him in the course of ‘effectively representing’ his client—a notable prerequisite for fair trials. Nevertheless, this blog is concerned with how Jury Equity in England and Wales undermines the Right to a Fair Trial.

Before proceeding, Jury Equity may not even exist in England and Wales. The Juries Act 1974, S20C prohibits Jurors from trying matters ‘otherwise than on the basis of the evidence’. Jurors also swear an oath to give their verdict according to evidence, and trial Judges instruct Jurors to follow legal directions, consistent with the Crown Court Compendium, Chapter 1-3 and 4-1. Despite these, Saini J and Lord Justice Edis made unequivocal declarations in Warner (para 16), and Webster & Ors (para 51), from which one can conclude that Jury Equity exists in the Law of England and Wales. This blog begins with this presumption.

Although Article 6 of ECHR is usually deployed to argue for the fair trial of Defendants, the Right to a Fair Trial is also necessary for Complainants in criminal trials. The Equality of arms principle under Article 6 requires that each party in a trial be able to present their case under conditions that do not substantially disadvantage them in relation to their opponent (see para 92 of Guide on Article 6). Therefore, issues that disadvantage Complainants in trials should be treated with similar earnestness as those that disadvantage Defendants.

Jury Equity does not disadvantage Defendants because, where defendants could be unfairly imprisoned by Jurors (i.e. where they have no case to answer), trial Judges are allowed to acquit (R v Galbraith). This serves as a procedural safeguard and ensures a fair trial for Defendants.

However, Jury Equity disadvantages Complainants. For example, Jury Equity means that trial Judges can leave decision-making to Jurors even where the evidence clearly shows the Defendant’s guilt (Webster & Ors, para. 51). Also, Jury Equity allows Jurors acquit defendants in defiance of Judges’ legal directions (see Bramwell). By doing this, Jury Equity undermines the Judges’ legal direction, which is a procedural safeguard that prevents the arbitrariness of lay Juries (para 116 of Guide on Article 6). Where procedural safeguards are undermined, Article 6 is breached (para 36).

Where a trial falls short of the required standard of fairness (for example, if Jurors disregard the Judge’s direction as outlined above), the trial may still comply with Article 6 if there is a possibility of an appeal (Alconbury, para 87). In theory, Juries’ decisions can be appealed on the grounds of procedural unfairness, making the Jury trial process appear Article-6-compliant. Nonetheless, in practice, the Jury trial process is not Article-6-compliant because it is impossible for appellants to prove Juries have disregarded evidence and legal direction given Jury secrecy law, and that Juries are not expected to give reasons for their verdicts (p 614). And assuming Jury Equity is permitted, such a disregard would be found to be lawful in the appeal of a Jury’s decision.

Finally, where defects in a decision-making process are negligible, the process may still be Article-6-compliant if, holistically, it reaches the required standard (para 29). Nevertheless, evidence and Judges’ legal directions are so critical in criminal trials that disregarding them torpedoes the fairness of the trial altogether.

The infeasibility of appealing Juries’ decisions also means Jury trials, as they are currently held, fall short of the Article 6 standard. To remedy these identified defects in the current system, this essay suggests that Jury Equity be outlawed, and that Juries be mandated to provide the reasoning behind their verdicts. This recommended arrangement would be preferable to the current one, where it appears like the Court of England and Wales is playing an unserious game of ‘cheat’, and entrapped advocates like Mr. Menon KC are left to suffer the real life consequences in their attempt at effectively representing their clients.