LSM (Legal System and Methods) – Short Notes

Civil Justice System (CJS)

▪ In the UK, there are two types of justice system that is, criminal and civil justice system.

▪ Civil justice system means, a platform where, private disputes are resolved for example, contract
law, property law, commercial law, tort law and family law.

▪ On the other hand, criminal justice system means, crimes committed against the state/society.

▪ Lord Bingham stated that “a well-functioning CJS, will uphold the rule of law (ROL)”

▪ In order to evaluate the CJS, the World Justice Project (WJP), stated that “there are 5 essential
ingredients required”:
1) Accessibility
2) Affordability
3) Effectiveness
4) Cultural Competence
5) Impartiality

▪ It is the responsibility of the government to ensure that the citizens are provided with access to
courts and they are able to fight their cases. (strong connection between accessibility and
affordability)

▪ Hence, in order to provide an effective access to justice, the government introduced the Legal Aid
and Advice Act 1949. This ensured that the citizens were provided with the monetary aid at the
expense of public (taxation).

▪ Thereafter, in 1980s, the legal aid system in the UK, developed into one of the most comprehensive
schemes in the world and those who could not afford the court fees, were provided legal aid through
the advice centres.

▪ Further, in 1990s, the legal aid expanded to such an extent that the yearly GDP for civil cases went
up to 2 billion pounds. This also increased the concept of litigation amongst the citizens.

▪ In view of the above, since the citizens started to take unfair advantage, the government reduced
the legal aid and started to shift the policy in 2012 by introducing Legal Aid, Sentencing and
Punishment of Offenders Act (LASPO). This Act of parliament, reduced the legal aid funding in
major cases, specifically family law and also led to the closure of many advice centres which
provided assistance to the people.

▪ LASPO had cut down 60% of the legal funding (in civil cases mostly) and this primarily affected
the most vulnerable sectors of the society (the poor).
Effects of LASPO:
 ▪ As LASPO was introduced, it was seen that there are many effects which created an impact on the
citizens.
1) Citizens who are unable to afford, they will take law in their own hands and commit crimes.
2) Corruption will increase in the country.
3) Litigates in Person will increase which means that the citizens will have to fight their own cases
which in return increases the burden of the courts as they are not aware of the legal knowledge
as well.
4) Citizens who are unable to afford will suffer from mental health problems such as stress,
depression, anxiety and also commit suicide. (leads to instability in society and economic
problems).

▪ When LASPO was introduced, different committees such as the House of Commons Committee,
the Justice Committee and the Audit Committee published their reports and identified that LASPO
had many aims and objectives such as to reduce litigation, provide legal aid to those who belonged
to the vulnerable sectors, cut-down on the budget and also reduce the burden of the courts.
However, it was concluded by the committees that LASPO had achieved only one aim that was
saving the expenditure of the government.

View of Government:
▪ As per the government, it was highlighted that the main purpose of LASPO was to reduce the
budget and also the fact that providing legal aid in civil cases was not a pre-requisite.
View of Courts:
▪ In the case of Witham, Sir John Laws stated, “Every citizen has a fundamental and constitutional
right to access to courts.”
▪ In the case of R (Daly) it was stated that there are three major components for access to justice
(access to courts, access to legal advisor and access to confidentially communicate with the legal
advisor). However, since the courts are below the government, they are bound by it and cannot
challenge LASPO.
View of ECtHR:
▪ In the case of Airey v Ireland, a lady was denied legal representation and she raised Article 6 of
HRA1998 (Human Rights Act). The ECtHR rejected her claim and stated that providing legal aid
in civil cases is not mandatory.
Conclusion on LASPO:
▪ Access to justice was the prime issue which the government was trying to solve with legal aid
which was fundamentally curbed via LASPO. Thus, it was a bad law.

Civil courts v ADR

• In terms of the Civil courts, they are expensive, time consuming and inefficient which was evident
since the 18th century, when Charles Dickins mentioned in his novel, Bleakhouse, that the primary
issue in access to justice is the cost of paying fees to the lawyers.

• Thereafter, in 1996, Lord Woolf, published his report, “Access to Justice” where he highlighted
that the primary issue is the adversarial behaviour of the lawyers (how the lawyers charge high fees
and try to delay the cases as long as possible in order to grab more and more fees) and the problems
of cost, complexity and delays were interlinked with each other.
• (However, since only the opinion of a judge isn’t enough to bring change to the system, the
government came out with their own report called the Middleton Report, which backed the view
of Lord Wolf). The entire report was confirmed through the Middleton Report that Lord Woolf was
accurate in stating that the burden of the courts should also be reduced by introducing ADR
(Alternate Dispute Resolution).

• Based on the analysis of Lord Woolf, the government, revamped the entire system by introducing
the Civil Procedures Rules 1999 where 5 major changes were made:
1) Language was simplified where certain Latin words were removed replaced with English words
(to allow layman to understand). For example, Writ was changed to Form and Plaintiff was
changed to Claimant.
2) Pre-Action Protocols were introduced where basic directions were given to the citizens as to
what the court expects in terms of the trials and the rules and regulations. (so that the lawyers
can’t over-charge the clients).
3) Overriding Objectives were introduced where case management was given to the judges instead
of the lawyers where the judges were told to resolve the cases on the basis of proportionality
(this was to ensure the timely disposal of cases.)
4) Encouraged the use of ADR (Solving matters outside the courts).
5) IT Tracks were introduced such as small track, fast track and multi-track. (every case was
divided on the basis of money like a 10,000 pounds’ case and 5,000 pounds’ case were
separated. This was done to increase efficiency by informing the judges how long each case
should take).

• After the implementation of CPR, the result was negative that is, the civil courts remained
expensive, time consuming and effective (and thus, CPR 1999 failed to accomplish what it set out
to do that is, increase access to justice) and in 2012, Lord Justice Jackson published another report
where he stated that there should be an introduction of fixed cost (of court procedures). However,
his report was also unsuccessful and again civil courts are expensive, time consuming and
ineffective.

• Thereafter, in 2016, Lord Justice Briggs, put forward certain recommendations that there should be
an online court so that, the burden of the courts would be reduced with minimum lawyers. However,
there were certain criticisms such as:
1) Mostly people are not aware of/have knowledge of the modern technology. Also, people may
not have access to modern technology like laptops
2) Online courts can also lead to a threat (the influential party can threaten the weaker party by
giving directions online without the judge knowing).
3) Lack of transparency of justice as courts are to be open and public
4) If there are no lawyers, justice will not be prevailed (increased concept of LIPs).

• These recommendations, were not implemented until COVID-19 hit the entire world where courts
were obligated to transition to online courts but as of today, the courts have reverted back to
physical courts.

▪ Since civil courts had multiple issues, the citizens transitioned towards Alternative Dispute
Resolution (ADR) methods which are out of court settlements. Some of the examples of ADR are:
1) Mediation (the decision of the mediator is NOT legally binding).
2) Negotiation
 3) Arbitration (the decision of the mediator IS legally binding)
4) Conciliation
5) Ombudsmen
The most preferred method within this is mediation, where a third party mediator tries to resolve the dispute
between the parties and the decision is NOT legally binding.

Development of mediation:
Judiciary:
▪ The judiciary developed mediation by offering free of cost court attached, mediation schemes due
to which, approximately 5% cases went to mediations and 2/3rd cases were resolved.
Courts:
▪ In the case of Cowl v Plymouth, Lord Woolf as a sitting judge, encouraged the use of ADR. In the
case of Dunnett v Railtrack, the judges penalised the parties by not awarding legal costs (because
the parties denied resorting to ADR). In the case of Halsey, the courts held that mediation should
not be mandatory and parties cannot be denied legal costs.
▪ In Thakkar v Petal case, the courts held that if the parties themselves are delaying their case and
wasting the courts time, then the court can deny legal costs and encourage ADR.
Government:
▪ The government favoured mediation to such an extent that they made it mandatory specifically for
those who opted for legal aid.
Advantages of ADR:

ADR was favoured by all the forums because there are many advantages of ADR:
▪ Less time consuming, not legally binding, cost effective, flexible, reduces burden of the courts and
most importantly, its private. Privacy is important because it maintains confidentiality and prevents
the parties’ reputation from being harmed.
Disadvantages of ADR:
▪ The biggest disadvantage is privatisation of justice where the concept of vanishing trials was
witnessed that is, the parties would file a suit and at the time of hearing, the case would have been
resolved (the disputes were being resolved on the basis of factual and not legal basis and so the
judges and the courts were unaware on what legal grounds the disputes were being resolved).

Genn Vs Menkel Meadow:

▪ This led to an entire debate between the two philosophers: Genn and Menkel Meadow as to whether
ADR increases access to justice (refer to the statement from notes).
▪ Genn believed that ADR restricts access to justice. Menkel believed that ADR increases access to
justice because we have different types/examples of ADR.
▪ Another debate was that if all cases go towards ADR, should it be of concern or not. According to
Menkel Meadow, if all cases go towards ADR, it is of no concern as it is an evolutionary process.
On the other hand, Genn criticised and stated that if all cases go towards ADR, the ROL will be
threatened and common law will deteriorate. Therefore, a balance has to be created between civil
courts and ADR where complicated cases should be dealt in the civil courts and simpler cases
should be resolved/decided through ADR, which will complement the entire Civil Justice System
rather than contradicting it.
 Judicial Precedent

▪ Judicial precedent means the decision made by judges (also known as common law). In case, a
similar case appears than the judicial precedent will have to be followed in all current and future
cases.

▪ Judicial precedent promotes certainty, predictability and consistency. This is because once the facts
are decided in a case, then it becomes easier for the other judges to apply that decision.

▪ There are two types of precedents:

1) Persuasive precedents: This is where the judges can choose to follow if the logic is sound or
not. There are three sources of persuasive precedents: lower court’s decision (for example:
supreme court’s decision is binding on the high court but high courts decision isn’t binding on
the supreme court), decision of (courts) another country and orbiter statements (other things
said by judges that aren’t relevant to the case (Rust v Abbey) (Ivey v Genting Casinos) (R v
Ghosh).
2) Binding precedents: Binding precedent is based on the notion of stare decisis. This means that
the judges have to follow the decision (stand by what has been decided) (Willers v Joyce)
▪ In order to determine if the decision is binding or persuasive, first we need to identify the courts
hierarchy:
✓ Vertical hierarchy:
o Supreme Courts
o Court of Appeal (CoA)
o Divisional Courts (High Court)
o Lowers Courts

▪ This means that the higher courts decision has to be followed by the lower courts and there is no
exception to it. However, there was one person who challenged this i.e. Lord Denning where he
raised two campaigned:
1) Per Incurim this was raised in the case of Broome v Cassel where the decision made in Rookes
v Bernard was incorrect when Broome on appeal the supreme court rejected the claim and
stated that the campaign will be UNSEC.
2) Lapsed rule campaign this was raised in the case of Milliangoes where the decision made in
Havana Railways was outdated the precedents was that damages could only be paid in pounds
but since it’s not a stable currency anymore it was decided that case should be overruled
however the campaign was UNSEC as the entire notion of hierarchy would be disrupted.
Horizontal hierarchy:
▪ In terms of horizontal hierarchy, each court has to follow their own past decisions BUT every court
has their own history.
✓ Supreme Court:
o Prior to 1898, the Supreme Court was not bound by horizontal hierarchy but in
1898, the case of London Street Tramways came about and they placed a
 restriction upon themselves as certainty in law is more than individual hardships.
Later on in 1966, the Supreme Court realised that, if the laws are not developed, it
will become stagnant and therefore, the Supreme Court requested the Lord
Chancellor to grant them practise statement where ultimate power was granted to
the Supreme Court, that they can change their own past decisions whenever they
feel right to do so.

o However, the judges will use the practise statement rarely and this was scene in
multiple cases. The first time practise statement was used after 6 years in case of
Herrington v British Railways where the precedent set in Addie v Dumbreck was
overruled.

o In the case of Milliangoes, the precedent set in Havana Railways was overruled.
Moreover, in the case of Pepper v Hart, the ban on Hansard was uplifted.

o In the criminal cases, the practise statement is used more rarely as a person’s liberty
is at stake. Therefore, the first time, practise statement was used after 20 years in
the case of R v Shivpuri, where the precedent set in Anderton v Ryan was
overruled. The Supreme Court judges stated that, “If a serious error embodies our
house, the sooner it is corrected, the better.”

✓ Court of Appeal (CoA):

o Court of Appeal is ALWAYS bound by horizontal hierarchy unless they could
prove one of the exceptions laid down under Young v Bristol Aeroplane and the
exceptions are:
1) If there is a conflicting decision, between Supreme Court and Court of Appeal,
the decision of Supreme Court will be followed.
2) If there are two conflicting decisions, between Court of Appeal, then the judge
can choose either one but preferably the latest one.
3) Per Incurim (it was narrowly defined by Sir Raymond in the case of Morelle v
Wakeling that a decision made in forgetfulness of some binding authority or
without due care.

o However, Lord Denning once again challenged this and raised a campaign in the
cases of Gailee v Lee and Tiverton Estates, but the other judges did not support
him. He raised another campaign, in the case of Davis v Johnson where he won
with the majority of 3:2 but the Supreme Court affirmed the Young’s rule.

Judges as Law-makers

▪ In a democratic society, a representative is elected and they make the laws which are enforced on
the citizens. On the other hand, judges are selected in nature and therefore, they lack the democratic
deficit. However, William Blackstone introduced the “Declatory Theory” where the judges are only
declaring the law and not developing the common law. However, this theory was weak and had
loopholes as judges are the ones developing the common law (practise statement cases).
▪ Later on, Lord Reid and Lord Nicholas, stated that, “we do not live in fairy tales, Judges do make
the law” and “they are responsible to develop the common law according to the social needs”.
▪ Sometimes the judge refrain from making the law specifically in matters of Public Policy with the
following cases as examples:

1) R v Clegg (whether armed forces should be granted more powers than self-defence).
2) C v DPP (whether the old maxim of “Doli Incapax” should be abolished).
3) ReW (whether a homosexual couple should be allowed to adopt a child).
4) Nicklessen case (whether mercy killing should be allowed or not).

▪ There are certain scenarios where the judges HAVE to intervene and amend the law, even if they
are Public Policy matter as can be seen in the case of R v Brown where sadomasochists, were
inflicting pain on each other for sexual gratification. Therefore, the judges vitiated the consent and
made them liable under OAPA.

▪ If the judges are developing the common law, it is faster and more efficient as compared to the
process of developing/amending laws in the parliament because the parliament does not have the
time nor expertise and the best example was seen in the case of R v R, where martial rape was
criminalised overnight due to the role of women in the society. This proves that the entire concept
of judicial precedent works in a systematic manner and not in a haphazard situation. And the top
most court i.e., the Supreme Court has the power to change the decision.

ECHR (European Convention of Human Rights)

▪ The European Convention of Human Rights (ECHR) was signed between the countries and based
on this, the European Court of Human Rights (ECtHR) was created where all the international cases
for Human Rights are addressed.

▪ Since UK was a Dualist state, they were NOT BOUND by the European Convention UNTIL they
enacted the Human Right Act 1998 where they incorporated all the articles of the ECHR and
specifically emphasise on the Section 3 of the HRA where “All local law shall be in line with the
Human Rights.” This created a lot of confusion as to whether Supreme Court and ECtHR were on
the same level of importance/judicial precedent or not. However, this relationship was clarified
through Section 2 of the HRA which stated that, “Take into account all the decisions of the ECtHR.”

▪ This led to a lot of confusion between the supreme court judges where they thought that they are
bound by the decisions made by the ECtHR while on the other hand, some of the judges thought
that they will only consider the decisions made by the ECtHR once. Later on, this was clarified by
Lord Irvine in his speech that the parliaments intention was ONLY to CONSIDER the decisions of
the ECtHR and NOT be bound by them.

▪ Some of the cases prove that the approach of the judges has changed overtime. In the case of
Alconbury, the Supreme Court held that in special circumstances, the decision of ECtHR should
be followed and this decision was followed in the case of Ullah.
▪ A different approach was taken by the UK Supreme Court, in the case of R v Horncastle, that
whether accepting hearsay evidence breaches Article 6 of the HRA 1998 (Right to fair trial). This
case was overturned by the ECtHR, that hearsay evidence CAN NEVER be admissible in the court.

▪ Interestingly, in the case of Al-Khawaja v UK, the ECtHR, reconsidered the decision of Supreme
Court and stated that hearsay evidence CAN BE considered in EXCEPTIONAL circumstances.

▪ Lord Phillips, clarified the relationship between Supreme Court and ECtHR, that they work in a
“Constructive Dialogue” where they will respect each other and take a flexible approach
(Manchester City Council v Pinnock).

▪ In the recent decision of R (Hallam), the Supreme Court chose to follow the precedent of the
Supreme Court rather than the ECtHR.
✓ SC and ECtHR operate on the basis of mutual respect.

Statutory Interpretation
• The purpose of statutory interpretation is to interpret the true intentions of the Parliament. It is
difficult to interpret the laws because of its ambiguity, complexity, broad terminology and change
of language etc.

• Rule of Interpretation: They are needed for consistency and certainty in the interpretation of law.

▪ The judges are responsible to interpret the statutes so that the Parliaments intention is derived
(Sussex Peerage Claim).

▪ The interpretation of the statutes was extremely difficult because of the broad terminology,
ambiguous terms, change of language overtime and also the use of complex words. Therefore, the
judges, created certain Rules of Interpretation in order to make it easier for them to apply the
statutes. This also promoted certainty and consistency in law.
1) Literal Rule: This rule meant that the judges will apply the ordinary, dictionary meaning of the
word even if it leads to absurdity. Some of the examples are: Fisher v Bell, R v Harris and R v
Maginnis.

2) Golden Rule: The golden rule is the modification of the literal rule where if the literal rule leads
to absurdity, the judges may modify the words of the statute in order to promote justice (Grey
v Pearson). An example of the use of golden rule was seen in the cases of Adler v George and
Re Sigsworth, where, if the judges applied the literal rule, it would have led to absurdity and
therefore, they modified the words of the statute in the case of Re Sigsworth, that next of kin
only when he has NOT killed has the deceased.

3) Mischief Rule: This is the oldest approach to statutory interpretation and it involved judges to
take several steps in order to reach an interpretation. The judges will consider the mischief or
the problem that the Parliament was trying to solve whilst enacting the statute. A classic
 example was seen in the case of Smith v Hughes where the Section 1 of the Street Offences
Act was creating a problem and in order in curb the solicitation, the judges had to apply the
mischief rule.

4) Purposive Approach: The purposive approach was introduced by Lord Denning where he stated
that certain aids to interpretation shall be used and a wider meaning should be applied. The
purposive approach required the use of extrinsic aids (Hansard Case Laws, Documents or
Newspapers) and intrinsic aids (Amble and Pre-amble) and read into the words of the statute
to derive the true intention of the Parliament (Pepper v Hart). Another important case in which
the courts adopted a purposive approach was R (Quintaville) which required research on human
embryos. The courts held that a wider interpretation needs to be made not because of the
ambiguous terms but because the scientific and medical technology had advanced from the
time the statute was enacted. This approach was time consuming and the judges did not apply
very often.
The influence of European Union on Statutory Interpretation:
▪ The ECA 1972 was signed and UK officially became part of the European Union where EU law
became superior than the local law. However, UK statutes were very precisely drafted and therefore
the literal rule was the best approach which was applicable but on the other hand EU statutes were
broadly drafted where the judges had to fill in the gap themselves and apply a wider interpretation
therefore they had to apply the purposive approach.

▪ As of today, Brexit occurred where UK officially stepped out of the European Union and local law
became superior, hence, now the judges will revert back to applying the most favorite approach i.e.
the literal rule.
Rules of language:

▪ In order for the ease of judiciary, the judges have created certain rules of language,
1) Ejusdem Generis: This meant that if a list of words is followed by a general word then it is
limited to the type of the listed words [Powell case]
2) Noscitor a Sociis: This means that a word is known by the company it keeps [Pengally v. Bell
Punch] for example, right and spring (have diff meaning unless used in a sentence)
Impact of Human Rights Act 1998:
▪ In accordance with section 3 of the HRA all local law has to be in line with the human rights and
if there is a case of human rights the judges will apply the traditional rules of interpretation and if
it not applicable then the judges have three additional rules of interpretation specifically for human
rights,
1) Reading In: which means that you incorporate certain words in the statutes to make it
compatible
2) Reading Out (delete certain words from the statute to make it compatible with the human rights)
3) Reading Down (narrow down the meaning of the words to make it compatible with the human
rights

▪ The example of this was seen in the case of [Ghaiden v. Mendoza (2004)] where certain sections
of the Rent Act were incompatible and the judges applied a wider interpretation where it was also
criticized that the judges have blurred the distinction between making the law and interpreting the
law.
 ▪ According to section 4 of the HRA, the judges can issue a ‘declaration of incompatibility’ (DOI)
where they send a signal to the parliament but does not nullify the statute and it is completely up
to the parliament to amend the statute. It is used as a last resort because it builds up a lot of political
pressure on the parliament but as of today around 49 times the judges have issued ‘declaration of
incompatibility’ in multiple cases such as [Bellinger v. Bellinger] [R v. A] [R v. Mental Health
Tribunal] [ R v. Secretary of State for International Development]

The Jury
▪ A jury is a group of citizens who decide a particular case and the decision is known as the verdict
of the case. Usually, 12 jurors are randomly selected and they decide the cases on factual basis
only.

▪ The verdict of the jury CANNOT be questioned by the judges, and their decisions are considered
to be independent in nature (Buschell’s case)

▪ Juries are used in the Crown Court for criminal trials on indictment.

▪ The role of the jury is to decide matters of fact and the decision of the jury CANNOT be criticised
or penalised by the judge if they disagree with it.

▪ The selection process of the jury is at random where prior to 1972, a citizen had to be a property
owner to qualify for the jury which usually underrepresented females and young people. Therefore,
the juries act now states that anyone can be a part of the jury service from the age of 18-75 years.
This also meant that there was a diversity as even the professionals were allowed to be part of the
jury.
➢ The jurors can be held liable for wrongful decisions via Contempt of Court.
➢ R v Mirza: (Racial Prejudice) Pakistani defendant went to UK and he was charged with
being involved in indecent assault. A jury was called and Mirza requested an interpreter to
converse with the jury. They played/conspired against him with the impression that mirza
is useless and he is guilty. 11 jurors conspired against him and declared him guilty on the
other hand, the one juror informed the judge that the jurors were being unfair but the court
didn’t question the verdict of the juror and held the defendant liable.
➢ AG v Scotcher- the juror was charged with contempt of court.
Decision-making process of the Jury:
▪ The decision of the jury is considered to be final and they are not required to give reasons for their
decisions but it is an offense to disclose the information. In the case of R v Mirza, a Pakistani
defendant was charged for an indecent assault and during the trial, he requested for an interpreter
to help him based on this, the majority of the jurors decided that the defendant should be guilty but
in actual, the jury was influenced from racial prejudice. In a contrasting case of AG v Scotcher, the
juror was held liable because they had disclosed the jury deliberation.
Jury Misconduct and the Internet:
▪ Jurors must decide a case solely based on the evidence presented in the court and they are not
allowed to carry out their own research or rely on other information. The problem arises due to the
 use of modern technology and widespread use of internet. Only 7% of the jurors looked at the
internet which was prohibited.
▪ In the case of AG v Dallas, a juror was imprisoned for 6 months because she used the internet
research during the trial. Later in the cases of AG v Davey and AG v Beard. The high court found
both the jurors liable for contempt of court because Davey had researched and Beard had tweeted
on the internet.

▪ In the recent case of Solicitor General v Stoddart, the jurors were held liable as they conducted
internet research on the background of the defendant during a burglary trial.
Reform of the Law:
▪ The Criminal Justice and Courts Act 2015, has created four new criminal offenses of juror
misconduct. These offenses were as follows:
1) Research by Jurors
2) Sharing Research with Jurors
3) Jurors engaging in other Prohibited Content (researching on victim and victim’s family
background for example).
4) Disclosing Jury Deliberations
Race and Jury Fairness:
▪ It is important in a criminal justice system that the jury should be diverse so that it gains public’s
confidence. In the 1980s, there were several attempts by judges to create a multi-racial jury but in
the case of R v Ford, it was decided that the judges are under no obligation to empanel a multi-
racial jury. It was decided that since the jury is randomly selected, the jury is diversified and
balanced.

▪ It was recommended by Lord Justice Auld that the jury should be having at least three members
from the ethnic minorities and at least 1 is from the same ethnicity as the accused or victim.
However, this recommendation was not implemented by the government.

▪ In the case of R v Smith, it was held that ‘Right to Fair Trial’, has not been interpreted as a right to
alter the random selection of the jurors to ensure a racial mix (there is no breach of right to fair trial
if the jury lacks diversity).
Disadvantages of Trial by Jury:

There are multiple disadvantages of trial by jury which are as follows:

1) The jury can be biased and also tamper the evidences.
2) The jury can be influenced/threatened or bribed or intimidated into delivering a non-
guilty/guilty verdict.
3) They lack the legal expertise and knowledge as compared to a magistrate or an advocate.
4) They are deciding the cases on factual basis, which ignores the legal part.
5) The jurors can also be too quick in making their decisions which can sometimes be
irrational/inaccurate/hasty (and thus may threaten ROL)

Rape, Fraud and Civil cases:

▪ In civil cases, section 69 of the Senior Courts Act, limited trial by jury to four areas i.e., defamation,
fraud, malicious prosecution and false imprisonment.
 ▪ Within this, it was also criticised that for defamation cases trial by jury should be removed because
they are too complex and costly (Spiller v Joseph).

▪ In fraud cases, trial by jury was abolished as it was very difficult for the jury to understand complex
fraud trials.

▪ For rape cases, it was suggested that juries should not be deciding rape cases as there are many
stereotypes and myths attached to rape and therefore, it trial by jury was abolished in rape cases. It
was also witnessed through a mock trial where mock jurors were prejudicial in rape cases in which
the victim already the attacker.

Jury Around the World:

▪ South Africa, abolished trial by jury by 1969. Similarly, India also abolished trial by jury by 1959.

▪ In France, there is a difference in trial by jury, where most serious criminal cases/offences are heard
in Cour d’assissies. And the concept is that the trial will be conducted with 6 jurors and three
professional judges (to prevent the verdict being decided only on factual basis and ensure the
application of legal principles and knowledge)

▪ In USA, there are many differences where firstly, trial by jury is a constitutional right owing to
their 6th Amendment. Moreover, they also have a concept of Grand Jury which consists of 12-23
members and they will decide without the presence of a judge during the trial (later, the verdict is
reviewed by the judge to make a final decision). The process of jury selection is also very elaborate
as they (judges and advocates), ask questions from the jurors in order to determine whether they
are able to comprehend/understand the basics of the case. Even though it is a lengthy process, it
maintains fairness of the jury.