Criminal lawyers watching Steve McQueen’s Mangrove on the BBC last year may have raised an eyebrow or two during the scenes at the Old Bailey. Lawyers are used to seeing their TV counterparts do things they would never see in their practice, yet in this case it was not an inaccuracy that stood out, but the wholly accurate portrayal of a process that is now extinct in England and Wales.

In 1970, when the trial of the Mangrove Nine took place, the defence had a right to remove up to seven jurors per defendant without giving any reason for doing so (a “peremptory challenge”). Each defendant exercised that right to the full extent, striking a total of 63 jurors from the panel in an attempt to ensure that as many of the jurors as possible were black (ultimately there were two black jurors out of 12).

Peremptory challenges – a history

The starting point for jury selection is that jurors are selected entirely at random. There are some limited circumstances in which parties can intervene in that selection process. The prosecution or defence can challenge a juror “for cause” after their name has been drawn by ballot and before they are sworn (see section 12 of the Juries Act 1974). The challenging party must then prove the reason for their challenge and the trial Judge decides whether the juror is unsuitable to try the case, for example because they are related to a party or have expressed hostility to one side or the other. In addition the Judge can exercise a discretionary power to remove a juror without either party challenging, and the prosecution still has a right to ask a juror to stand by (see below).

For a long time, defendants also had the right to make peremptory challenges. The number of challenges available was once unlimited, before being reduced to 20 and then to seven challenges per defendant. In 1977, it was reduced further to three, before being abolished entirely by the Criminal Justice Act 1988 (the ‘1988 Act’).

When debating the Criminal Justice Bill in 1987, the House of Lords considered the historical background to this right. Lord Denning suggested that the right had been necessary when this jurisdiction still had the death penalty:

In Blackstone's time peremptory challenges were allowed only in felonies, not in misdemeanours. In felonies, the punishment was capital. The number of challenges was not limited at all and the accused man could not give evidence himself. He could not be represented by counsel. Of course, in favour of life, peremptory challenges could be and were exercised by the man who was threatened with capital punishment.

He went on to suggest that peremptory challenges were rare when jurors were all male, middle-aged and middle class, but that they came back into use when women began to sit on juries and advocates attempted to get all-male or all-female juries. That, he said, is what motivated the reduction of the number of available challenges to seven.

Lord Roskill, on the other hand, claimed that the right had been historically necessary, as:

The Stuart Kings and their law officers used to pack juries… In the last century there was the notorious Peter the Packer in Ireland, who left no stone unturned to see that juries would convict.

The apparent rationale behind the challenges, therefore, was that it was an important safeguard where a defendant’s life was on the line, or where there was a practice of state actors influencing the selection of a jury. Such a right was not necessary, the argument went, if there were sufficient confidence in the fairness and the randomness of jury selection. It appears that in 1988 Parliament had such confidence.

Right of stand-by

Those watching Mangrove carefully might also have remarked on the prosecution barrister’s objection to the selection of a juror. While it is not clear whether the prosecution did in fact object to the selection of a black juror in that trial, this power was certainly available to the prosecution.

In fact, it still is. It survived the 1988 Act largely on the basis that the use of stand-by would in practice be limited to very specific cases. There was at least some anecdotal evidence (for example, from Lord Wigoder in the 1987 House of Lords debate) that prosecutors would on occasion ask jurors to stand by for spurious reasons, although others said there was good reason for keeping the right and those reasons were reflected in the guidelines that were drafted in conjunction with the Bill. They limited stand-by to two cases: (1) those involving terrorism or national security; and (2) where a juror is manifestly unsuited for jury service.

The current version of the Attorney General’s guidance limits the exercise of the right further, to cases “(a) 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.” The Attorney General must give personal authority for there to be a limited investigation into the jury panel, and the Director of Prosecutions will then write to the Presiding Judge to advise him that the authorised check is being conducted. Before any prosecution counsel can exercise the right of stand-by on the basis of information found, the Attorney General must again give personal authority.

Evidently the Guidelines restrict the use of stand-by to extremely limited circumstances, and require a Presiding Judge to be notified. It is somewhat odd, however, that when the position was changed in 1988 the legislation did not provide for a more formal process, involving real judicial oversight. It is now commonplace for an individual’s interests to be represented where secret information is being canvassed, through the use of special advocates and closed hearings. However it has not been suggested that such procedures be employed where the Attorney General had authorised the use of stand-by. Instead, there remains some reliance on the honesty of the prosecuting authorities.

The racial composition of juries

Might there have been other benefits to peremptory challenges for defendants, beyond those suggested in the House of Lords? In the Mangrove Nine trial, before the jury were empanelled, Ian MacDonald argued that there should be an all-black jury. In the dramatisation, this argument was dismissed within seconds, but in reality the application took two days. The argument was that defendants should be tried before a jury of their peers, with references made to old cases allowing Welsh defendants to have a Welsh jury, and Italian merchants to be tried by half-Italian jurors. The application was unsuccessful, hence the defendants’ use of peremptory challenges to try to achieve the same result.

On the whole, UK courts have been reluctant to intervene with regard to the racial make-up of juries. After several cases in the 1980s, it was settled in Ford [1989] QB 868 that the racial composition of a jury could not of itself found a challenge to the panel. There is no principle that a jury should be racially balanced and a judge is not permitted to use discretionary powers over the composition of the jury in order to obtain such a balance. In Smith [2003] EWCA Crim 283, this position was re-considered and confirmed in the light of the Human Rights Act 1998 and Article 6 of the European Convention on Human Rights.

It was re-affirmed more recently in R v Bridge [2019] EWCA Crim 220, in which Sweeney J said at [43]:

In our multi-racial and multi-cultural society juries have, time and again, shown themselves well capable, whatever their racial composition and whatever the race of the accused, of acting responsibly and discharging their duty of determining whether an accused is guilty or not guilty in accordance with the evidence.

Jurors are not permitted to discuss what occurs in the deliberation room, so there is little empirical data on the extent to which juries do in fact act responsibly in discharging their duty. Professor Cheryl Thomas QC (Hon) has provided some valuable insight in her studies ‘Diversity and Fairness in the Jury System’ (2007) and ‘Are juries fair?’ (2010). In addition to an analysis of the available data on the backgrounds of jurors and defendants in the Crown Court, she carried out case simulations in which the ethnicities of the jury, the defendant and the complainant were alternated. The results suggested that – on the whole and subject to some caveats – jury pools were representative of the catchment area, and juries did not discriminate on the basis of race.

Still, there is no way of knowing whether a particular jury has successfully discarded any bias it may or may not have had. Any assessment of the fairness of this non-intervention principle will depend on the confidence someone has in the impartiality of a random selection of 12 members of the UK public.

The American way

Perhaps the courts would have taken a different approach if peremptory challenges for defendants had persisted, and the prosecution’s use of stand-by had remained relatively untrammelled.

A natural comparison can be drawn with the US system, where peremptory challenges still exist for both defendants and the prosecution, with the number of challenges allowed differing according to the jurisdiction and the type of case. In some cases, jury selection can be a lengthy and very involved process, as both sides will ask jurors a long list of questions in “jury questionnaires”, before attempting to have unsuitable jurors struck “for cause” (for example, saying that a juror has some prejudice against the defendant). If the Judge does not accept the cause, the parties will selectively deploy their peremptory challenges on members of the panel, in an attempt to arrive at the most favourable 12 people possible. In the trial of OJ Simpson, for example, jury selection alone took two months, and the parties knew a huge amount of information about each person in the jury pool.

Given that many jurisdictions in the US still have the death penalty, following Lord Denning’s logic it could be argued that this is an important safeguard for capital defendants. Yet the prosecution’s reciprocal power could also be used against them. The fairness of the exercise of that power depends substantially on the fairness of the (often elected) District Attorney.

Unfortunately, there have been examples of prosecutors in the US seriously misusing their powers. The deliberate use of peremptory challenges against black jurors led the United States Supreme Court to intervene in Batson v Kentucky, 476 US 79 (1986), concluding that the State could not deny someone participation in a jury on account of their race. It has been necessary to refine this principle further, for example in Miller-El v Dretke, 545 US 231 (2005), adding that if it appears a prosecutor is purposefully striking black jurors from the jury, and their alternative reasons for the challenges do not stand up to scrutiny (e.g. the same reasons could apply to white unchallenged jurors), then this could lead to a conviction and death sentence being overturned.

The peremptory challenge in the US is therefore a double-edged sword. On the one hand, defendants can use it to remove jurors that may have prejudices against them. On the other, if the prosecution have the same power then there is always a risk they will misuse it – and it would be scant consolation that you might find out about it and be able to get your conviction overturned many years later.

Undoubtedly US criminal lawyers will be alarmed by the UK system, in which – for the most part – we do not know anything about our jurors. For those of us here who are used to that approach, however, it is no less alarming to contemplate protracted jury selection and arguments over the make up of a jury. We may be better off with the mystery of a randomly selected panel. There will always be room for doubt as to how fair and free of bias any jury could possibly be, but that doubt will remain in any system. As lawyers, perhaps we should accept the random jury we are presented with, and appeal to the fairness of those 12 individuals. We may not know their prejudices, but we can still encourage them to be discarded.