Grand jury

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https://en.wikipedia.org/wiki/Grand_jury 

 

A grand jury is a jury—a group of citizens—empowered by law to conduct legal proceedings, investigate potential criminal conduct, and determine whether criminal charges should be brought. A grand jury may subpoena physical evidence or a person to testify. A grand jury is separate from the courts, which do not preside over its functioning.

Originating in England during the Middle Ages, grand juries are retained in only two countries, the United States and Liberia.  Other common law jurisdictions formerly employed them, and most others now employ a different procedure, referred to as a preliminary hearing, that does not involve a jury. Grand juries perform both accusatory and investigatory functions. The investigatory functions of grand juries include obtaining and reviewing documents and other evidence, and hearing sworn testimonies of witnesses who appear before it; the accusatory function determines whether there is probable cause to believe that one or more persons committed a particular offense within the venue of a district court.

In Ireland, for a period, they also functioned as local government authorities:

"They fixed the salaries of public officers; they regulated prisons and houses of correction; they levied funds for the support of hospitals; they made and repaired roads and bridges, and they framed accounts of the expenses incurred in these matters... They determined what public works should be undertaken — what price should be paid for them, and who were the individuals that should undertake them, and be responsible for their completion. They settled the amount of the local taxation of the county, and, under their direction, it was levied from the actual occupiers of the land."

In Japan, the Law of July 12, 1948, created the Kensatsu Shinsakai (Prosecutorial Review Commission or PRC system), inspired by the American system.

The grand jury (from the French word grand meaning "large") is so named because traditionally it has more jurors than a trial jury, sometimes called a petit jury (from the French word petit meaning "small"). A grand jury in the United States is usually composed of 16 to 23 citizens, though in Virginia it has fewer members for regular or special grand juries.

Purpose

The function of a grand jury is to accuse persons who may be guilty of a crime, but the institution is also a shield against unfounded and oppressive prosecution. It is a means for lay citizens, representative of the community, to participate in the administration of justice. It can also make presentments on crime and maladministration in its area. Traditionally, a grand jury consists of 23 members.

The mode of accusation is by a written statement of two types:

1. in solemn form (indictment) describing the offense with proper accompaniments of time and circumstances, and certainty of act and person, or
2. by a less formal mode, which is usually the spontaneous act of the grand jury, called presentment.

No indictment or presentment can be made except by concurrence of at least twelve of the jurors. The grand jury may accuse upon their own knowledge, but it is generally done upon the testimony of witnesses under oath and other evidence heard before them. Grand jury proceedings are, in the first instance, at the instigation of the government or other prosecutors, and ex parte and in secret deliberation. The accused has no knowledge nor right to interfere with their proceedings.

If they find the accusation true, which is usually drawn up in form by the prosecutor or an officer of the court, they write upon the indictment the words "a true bill" which is signed by the foreperson of the grand jury and presented to the court publicly in the presence of all the jurors. If the indictment is not proven to the satisfaction of the grand jury, the word ignoramus or "not a true bill" is written upon it by the grand jury, or by their foreman and then said to be ignored, and the accusation is dismissed as unfounded; the potential defendant is said to have been "no-billed" by the grand jury. If the grand jury returns an indictment as a true bill (billa vera), the indictment is said to be founded and the party to stand indicted and required to be put on trial.

Origins

The first instance of a grand jury can be traced back to the Assize of Clarendon in 1166, an Act of Henry II of England. Henry's chief impact on the development of the English monarchy was to increase the jurisdiction of the royal courts at the expense of the feudal courts. Itinerant justices on regular circuits were sent out once each year to enforce the "King's Peace". To make this system of royal criminal justice more effective, Henry employed the method of inquest used by William the Conqueror in the Domesday Book. In each shire, a body of important men were sworn (juré) to report to the sheriff all crimes committed since the last session of the circuit court. Thus originated the more recent grand jury that presents information for an indictment. The grand jury was later recognized by King John in Magna Carta in 1215 on demand of the nobility.

The grand jury can be said to have "celebrated" its 800th birthday in 2015, because a precursor to the grand jury is defined in Article 61, the longest of the 63 articles of Magna Carta, also called Magna Carta Libertatum (Latin: "the Great Charter of Liberties") executed on 15 June 1215 by King John and by the Barons. The document was primarily composed by the Archbishop of Canterbury, Stephen Langton (1150–1228). He and Cardinal Hugo de Sancto Caro developed schemas for the division of the Bible into chapters and it is the system of Archbishop Langton which prevailed. He was a Biblical scholar, and the concept of the grand jury may possibly derive from Deuteronomy 25:1: "If there be a controversy between men, and they come unto judgment, that the judges may judge them; then they shall justify the righteous, and condemn the wicked." (King James Version) Thus the grand jury has been described as the "Shield and the Sword" of the People: as a "Shield for the People" from abusive indictments of the government – or malicious indictments of individuals – and as the "Sword of the People" to cut away crime by any private individual; or to cut away crime by any public servant, whether in the judicial, executive, or legislative branches.

Notable cases

On 2 July 1681, a popular statesman, Anthony Ashley Cooper, 1st Earl of Shaftesbury was arrested on suspicion of high treason and committed to the Tower of London. He immediately petitioned the Old Bailey on a writ of habeas corpus, but the Old Bailey said it did not have jurisdiction over prisoners in the Tower of London, so Cooper had to wait for the next session of the Court of King's Bench. Cooper moved for a writ of habeas corpus on 24 October 1681, and his case finally came before a grand jury on 24 November 1681.

The government's case against Cooper was particularly weak – the government admitted that most of the witnesses brought against Cooper had already perjured themselves, and the documentary evidence was inconclusive, and the jury was handpicked by the Whig Sheriff of London. For these reasons the government had little chance of securing a conviction, and on 13 February 1682, the case was dropped when the grand jury issued an ignoramus bill (a finding of deficient evidence), rather than comply with the king's intent of a true bill (a grand jury indictment).

The grand jury's theoretical function against abuse of executive power was seen during the Watergate scandal. In United States v. Nixon, the U.S. Supreme Court ruled eight-to-zero on 24 July 1974 (Justice William Rehnquist who had been appointed by Nixon recused himself from the case) that executive privilege applied only to the legislative and judicial branches – and not to grand jury subpoenas – thus implying a grand jury constituted protections equivalent to a "fourth branch of government". The second Watergate grand jury indicted seven lawyers in the White House, including former Attorney General John Mitchell, and named President Nixon as a "secret, un-indicted, co-conspirator". Despite evading impeachment by resigning from office, Nixon was still required to testify before a grand jury.

Similarly, in 1998, President Clinton became the first sitting president required to testify before a grand jury as the subject of an investigation by the Office of Independent Counsel. The testimony came after a four-year investigation into Clinton and his wife Hillary's alleged involvement in several scandals including Whitewater and the Rose Law Firm. Revelations from the investigation sparked a battle in Congress over whether or not to impeach Clinton.

By jurisdiction

England and Wales

The sheriff of every county was required to return to every quarter sessions and assizes (or more precisely the commission of oyer and terminer and of gaol delivery), 24 men of the county "to inquire into, present, do and execute all those things which, on the part of our Lord the King (or our Lady the Queen), shall then be commanded them". Grand jurors at the assizes or at the borough quarter sessions did not have property qualifications; but, at the county quarter sessions, they had the same property qualification as petty jurors. However, at the assizes, the grand jury generally consisted of gentlemen of high standing in the county.

After the court was opened by the crier making proclamation, the names of those summoned to the grand jury were called and they were sworn. They numbered at least 14 and not more than 23. The person presiding (the judge at the assizes, the chairman at the county sessions, the recorder at the borough sessions) gave the charge to the grand jury, i.e. he directed their attention to points in the various cases about to be considered which required explanation.

The charge having been delivered, the grand jury withdrew to their own room, having received the bills of indictment. The witnesses whose names were endorsed on each bill were sworn as they came to be examined, in the grand jury room, the oath being administered by the foreman, who wrote his initials against the name of the witness on the back of the bill. Only the witnesses for the prosecution were examined, as the function of the grand jury was merely to inquire whether there was sufficient ground to put the accused on trial. If the majority of them (and at least 12) thought that the evidence so adduced made out a sufficient case, the words "a true bill" were endorsed on the back of the bill. If they were of the opposite opinion, the phrase "not a true bill", or the single Latin word ignoramus ("we do not know" or "we are ignorant (of)"), was endorsed instead and the bill was said to be "ignored" or thrown out. They could find a true bill as to the charge in one count, and ignore that in another; or as to one defendant and not as to another; but they could not, like a petty jury, return a special or conditional finding, or select part of a count as true and reject the other part. When some bills were "found", some of the jurors came out and handed the bills to the clerk of arraigns (in assizes) or clerk of the peace, who announced to the court the name of the prisoner, the charge, and the endorsements of the grand jury. They then retired and considered other bills until all were disposed of; after which they were discharged by the judge, chairman, or recorder.

If a bill was thrown out, although it could not again be referred to the grand jury during the same assizes or sessions, it could be preferred at subsequent assizes or sessions, but not in respect of the same offense if a petty jury had returned a verdict.

Ordinarily, bills of indictment were preferred after there had been an examination before the magistrates. But this need not always take place. With certain exceptions, any person would prefer a bill of indictment against another before the grand jury without any previous inquiry into the truth of the accusation before a magistrate. This right was at one time universal and was often abused. A substantial check was put on this abuse by the Vexatious Indictments Act 1859. This Act provided that for certain offences which it listed (perjury, libel, etc.), the person presenting such an indictment must be bound by recognizance to prosecute or give evidence against the accused, or alternatively had judicial permission (as specified) so to do.

If an indictment was found in the absence of the accused, and he/she was not in custody and had not been bound over to appear at assizes or sessions, then process was issued to bring that person into court, as it is contrary to the English law to "try" an indictment in the absence of the accused.

The grand jury's functions were gradually made redundant by the development of committal proceedings in magistrates' courts from 1848 onward when the (three) Jervis Acts, such as the Justices Protection Act 1848, codified and greatly expanded the functions of magistrates in pre-trial proceedings; these proceedings developed into almost a repeat of the trial itself. In 1933 the grand jury ceased to function in England, under the Administration of Justice (Miscellaneous Provisions) Act 1933 and was entirely abolished in 1948, when a clause from 1933 saving grand juries for offences relating to officials abroad was repealed by the Criminal Justice Act 1948.

Scotland

The grand jury was introduced in Scotland, solely for high treason, a year after the union with England, by the Treason Act 1708, an Act of the Parliament of Great Britain. Section III of the Act required the Scottish courts to try cases of treason and misprision of treason according to English rules of procedure and evidence. This rule was repealed in 1945.

The first Scottish grand jury under this Act met at Edinburgh on 10 October 1748 to take cognisance of the charges against such rebels as had not surrendered, following the Jacobite rising of 1745.

An account of its first use in Scotland illustrates the institution's characteristics. It consisted of 23 good and lawful men, chosen out of 48 who were summoned: 24 from the county of Edinburgh (Midlothian), 12 from Haddington (East Lothian) and 12 from Linlithgow (West Lothian). The court consisted of three judges from the High Court of Justiciary (Scotland's highest criminal court), of whom Tinwald (Justice Clerk) was elected preses (presiding member). Subpoenas under the seal of the court and signed by the clerk were executed on a great number of persons in different shires, requiring them to appear as witnesses under the penalty of £100 each. The preses named Sir John Inglis of Cramond as Foreman of the Grand Jury, who was sworn first in the English manner by kissing the book; the others followed three at a time; after which Lord Tinwald, addressing the jurors, informed them that the power His Majesty's advocate possessed before the union, of prosecuting any person for high treason, who appeared guilty on a precognition taken of the facts, being now done away, power was lodged with them, a grand jury, 12 of whom behoved to concur before a true bill could be found. An indictment was then preferred in court and the witnesses endorsed on it were called over and sworn; on which the jury retired to the exchequer chambers and the witnesses were conducted to a room near it, whence they were called to be examined separately. Two solicitors for the crown were present at the examination but no one else; and after they had finished and the sense of the jury was collected, the indictment was returned a "true bill", if the charges were found proved, or "ignoramus" if doubtful. The proceedings continued for a week, in which time, out of 55 bills, 42 were sustained and 13 dismissed.

Further Acts of Parliament in the 19th century regarding treason did not specify this special procedure and the Grand Jury was used no longer.

Ireland

In Ireland, grand juries were active from the Middle Ages during the Lordship of Ireland in parts of the island under the control of the English government (The Pale), that was followed by the Kingdom of Ireland. They mainly functioned as local government authorities at the county level. The system was so-called as the grand jurors had to present their public works proposals and budgets in court for official sanction by a judge. Grand jurors were usually the largest local payers of rates, and therefore tended to be the larger landlords, and on retiring they selected new members from the same background.

Distinct from their public works function, as property owners they also were qualified to sit on criminal juries hearing trials by jury, as well as having a pre-trial judicial function for serious criminal cases. Many of them also sat as magistrates judging the less serious cases.

They were usually wealthy "country gentlemen" (i.e. landowners, landed gentry, farmers and merchants):

A country gentleman as a member of a Grand Jury...levied the local taxes, appointed the nephews of his old friends to collect them, and spent them when they were gathered in. He controlled the boards of guardians and appointed the dispensary doctors, regulated the diet of paupers, inflicted fines and administered the law at petty sessions.

From 1691 to 1793, Dissenters and Roman Catholics were excluded from membership. The concentration of power and wealth in a few families caused resentment over time. The whole local government system started to become more representative from the passing of the Municipal Corporations (Ireland) Act 1840. The growing divergence of opinions can be seen in the House of Commons debate on 8 March 1861 led by Isaac Butt.^[25] Grand juries were eventually replaced by democratically elected County Councils by the Local Government (Ireland) Act 1898, as regards their administrative functions.

After the formation of Irish Free State in 1922, grand juries were not required, but they persisted in Northern Ireland until abolished by the Grand Jury (Abolition) Act of the Parliament of Northern Ireland in 1969.

United States

Main article: Grand juries in the United States

The Fifth Amendment to the Constitution of the United States reads, "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury ..."

A grand jury investigating the Arcadia Hotel fire in Boston, Massachusetts in 1913

In the early decades of the United States, grand juries played a major role in public matters. During that period counties followed the traditional practice of requiring all decisions be made by at least 12 of the grand jurors, (e.g., for a 23-person grand jury, 12 people would constitute a bare majority). Any citizen could bring a matter before a grand jury directly, from a public work that needed repair, to the delinquent conduct of a public official, to a complaint of a crime, and grand juries could conduct their own investigations.

In that era most criminal prosecutions were conducted by private parties, either a law enforcement officer, a lawyer hired by a crime victim or his family, or even by laymen. A layman could bring a bill of indictment to the grand jury; if the grand jury found that there was sufficient evidence for a trial, that the act was a crime under law, and that the court had jurisdiction, it would return the indictment to the complainant. The grand jury would then appoint the complaining party to exercise essentially the same authority as a state attorney general has, that is, a general power of attorney to represent the state in the case.

The grand jury served to screen out incompetent or malicious prosecutions. The advent of official public prosecutors in the later decades of the 19th century largely displaced private prosecutions.

While all states currently have provisions for grand juries, today approximately half of the states employ them and 22 require their use, to varying extents. The constitution of Pennsylvania required, between 1874 and 1968, that a grand jury indict all felonies. Six states (Oklahoma, Nebraska, New Mexico, North Dakota, Nevada, and Kansas) allow citizens to circulate a petition in order to impanel a grand jury.

An American federal grand jury has from 16 to 23 jurors, with twelve votes required to return an indictment. All grand jury proceedings are conducted behind closed doors, without a presiding judge. The prosecutors are tasked with arranging for the appearance of witnesses, as well as drafting the order in which they are called, and take part in the questioning of witnesses. The targets of the grand jury or their lawyers have no right to appear before a grand jury unless they are invited, nor do they have a right to present exculpatory evidence. Possibly as a result, there is a running joke in the legal profession that a grand jury could "indict a ham sandwich" if the prosecutor asked. Some sources state the joke originated from a quote by Sol Wachtler in 1985, but it is found in a newspaper article from 1979, attributed to an unnamed "Rochester defense lawyer".

Canada

Grand juries were once common across Canada. The institution of British civil government in 1749 at Nova Scotia brought the judicature system peculiar to that form, and the grand jury was inherent to it. A similar form derived in Quebec from the promise of the Royal Proclamation of 1763 that a faithful copy of Laws of England would be instituted in the North American possessions of the Crown. Archival records are found that document the presentments of a grand jury in Quebec as early as 16 October 1764. One of the chief complaints was related to the jury trial, and the use of language. The desire for English law was a driver for the division in 1791 of Quebec, as it was then known, at the Ottawa river into Upper Canada and Lower Canada, as each of the two groups (French and English) desired to maintain their traditions. In point of fact, the second law passed in Upper Canada relates to (petit) jury trial. This was continued so that Chapter 31 of the 1859 Consolidated Statutes of Upper Canada specifies the constitution of Grand and Petit Juries in the province (now known as Ontario). The colony at St. John's Island, ceded by France in 1763, and separated on 30 May 1769 from Nova Scotia, became Prince Edward Island on 29 November 1798. Prince Edward Island derived its grand jury from its administrative parent between 1763 and 1769, Nova Scotia, as did Sunbury County when it was split off in 1784 to become the Colony of New Brunswick. The Colony of British Columbia, when it was formed on 2 August 1858, instituted a grand jury, along with the Colony of the Queen Charlotte Islands (1853–1863) and the Colony of Vancouver Island (1848–1866) when the latter were absorbed by the former.

Old courthouses with the two jury boxes necessary to accommodate the 24 jurors of a grand jury can still be seen. The grand jury would evaluate charges and return what was called a "true bill (of indictment)" if the charges were to proceed. or a verdict of nolle prosequi if not. The practice gradually disappeared in Canada over the course of the twentieth century, after being the subject of extended discussions late in the 19th. It was ultimately abolished in 1984 when the Nova Scotia courts formally ended the practice. Prince Edward Island maintained a grand jury as recently as 1871.

Australia

The grand jury existed in New South Wales for a short period in the 1820s. The New South Wales Act 1823 (UK) enabled the establishment of quarter sessions, as a subsidiary court structure below that of the Supreme Court. Francis Forbes, Chief Justice, reasoned that this entailed the creation of quarter sessions as they existed in England. Thus, inadvertently, trial by jury and indictment by grand jury were introduced, but only for these subsidiary courts. Grand juries met in Sydney, Parramatta, Windsor and other places. This democratic method of trial proved very popular, but was resented by conservatives. Eventually, conservative elements in the colony were successful in having these innovations suppressed by the Australian Courts Act 1828 (UK). George Forbes, a member of the Legislative Council, unsuccessfully moved for the reintroduction of grand juries in 1858, but this was thwarted by the Attorney-General and the Chief Justice.

In South Australia and Western Australia, grand juries existed for longer periods of time. In South Australia, the first grand jury sat on 13 May 1837, but they were abolished in 1852. In Western Australia, by the Grand Jury Abolition Act Amendment Act 1883 (WA), grand juries were abolished (section 4: A Grand Jury shall not be summoned for the Supreme Court of Western Australia, nor for any General Quarter Sessions for the said Colony). This 1883 abolition Act was itself abolished by the Criminal Procedure and Appeals (Consequential and Other Provisions) Act 2004 (section 5: The Grand Jury Abolition Act Amendment Act 1883 is repealed).

The Australian state of Victoria maintained, until 2009, provisions for a grand jury in the Crimes Act 1958 under section 354 indictments, which had been used on rare occasions by individuals to bring other persons to court seeking them to be committed for trial on indictable offences. Grand juries were introduced by the Judicature Act 1874 and have been used on a very limited number of occasions. Their function in Victoria particularly relates to alleged offences either by bodies corporate or where magistrates have aborted the prosecution.

New Zealand

New Zealand abolished the grand jury in 1961.

Cape Colony

Trial by jury was introduced in the Cape Colony by Richard Bourke, Lieutenant Governor and acting Governor of the colony between 1826 and 1828. The acting Governor, who was later influential in the establishment of jury trial in New South Wales, obtained the consent of the Secretary of State for the Colonies in August 1827 and the first Charter of Justice was issued on 24 August 1827.

Jury trial was brought into practical operation in 1828 and the 1831 Ordinance 84 laid down that criminal cases would be heard by a panel of nine, selected from males aged between 21 and 60, owning or renting property to a value of £1.17s (37 shillings) per annum or having liability for taxes of 30 shillings in Cape Town and 20 shillings outside the town. Black (i.e. non-white) jurors were not entirely excluded and sat occasionally. This is not to imply, however, that juries did not operate in an oppressive manner towards the Black African and Asian residents of the Cape, whose participation in the jury lists was, in any event, severely limited by the property qualification. The property qualification was amended in 1831 and 1861 and, experimentally, a grand jury came into operation.

The grand jury was established for Cape Town alone. It met quarterly. In 1842 it was recorded that it served a district of 50,000 inhabitants and in one quarterly session there were six presentments (1 homicide, 2 assaults, 1 robbery, 1 theft, 1 fraud).

As elsewhere, the judge could use his charge to the grand jury to bring matters of concern to him to the attention of the public and the government. In May 1879 Mr. Justice Fitzpatrick, returning from circuit in the northern and western parts of Cape Colony, gave a charge to the grand jury at the Criminal Sessions at Cape Town, in which, after congratulating them upon the lightness of the calendar, he observed there were indications in the country of a growing mutual bad feeling between the races, etc. This was reported in the Cape Argus and was a subject of a question to the government in the House of Commons in London.

The grand jury continued in operation until 1885, by which time the Cape was under responsible government, when it was abolished by Act 17 of 1885^[59] of the Cape Parliament.

France

Grand juries were established in France in 1791 under the name jury d'accusation, but they were abolished with the introduction of the Code of Criminal Instruction in 1808.

The jury law of 1791 created an eight-man jury d'accusation in each arrondissement (a subdivision of the departement) and a 12-man jury de jugement in each departement. In each arrondissement the procureur-syndic drew up a list of 30 jurors from the electoral roll every three months for the jury d'accusation. There was no public prosecutor or juge d'instruction. Instead the police or private citizens could bring a complaint to the Justice of the Peace established in each canton (a subdivision of the arrondissement). This magistrate interrogated the accused to determine whether grounds for prosecution existed and if so sent the case to the directeur du jury (the director of the jury d'accusation), who was one of the arrondissement's civil court judges, and who served in the post for six months on a rotating basis. He decided whether to dismiss the charges or, if not, whether the case was a délit (misdemeanour) or a crime (felony, i.e. imprisonable for 2 years or more). Délits went to the tribunal de police correctionnelle of the arrondissement, while for crimes the directeur de jury convoked the jury d'accusation of the arrondissement, in order to get an indictment. The directeur du jury drew up the bill of indictment (acte d'accusation) summarising the charges to be presented to the jury d'accusation. The directeur made a presentation to the jury in the absence of the accused and the jury heard the witnesses. The jury then decided by majority vote whether there were sufficient grounds for the case to go to the tribunal criminel of the departement. Between 1792 and 1795 there was no property qualification for jurors.

The functions of the jury d’accusation were prescribed in the law of 1791 passed by the Constituent Assembly and were maintained and re-enacted in the Code des Délits et des Peines of 3 Brumaire, Year 4 (25 October 1795) and this was the operative law until it was abolished in 1808.^[62] Special juries and special grand juries were originally defined in law, for cases thought to require more qualified jurors, but these were abolished in Year 8 (1799).

Belgium

From 1795 to 1808 grand juries also operated in Belgium, which was divided into French departements in October 1795.

Japan

After World War II, under the influence of the Allies, Japan passed the Prosecutorial Review Commission Law on July 12, 1948, which created the Kensatsu Shinsakai (or Prosecutorial Review Commission (PRC) system), a figure analogue to the grand jury system. However, until 2009 the PCR's recommendations were not binding, and were only regarded as advisory. Additionally, a survey conducted by the Japanese Cabinet Office in October 1990 showed that 68.8% of surveyed Japanese citizens were not familiar with the PRC system. On May 21, 2009, the Japanese government introduced new legislation which would make the PRC's decisions binding. A PRC is made up of 11 randomly selected citizens, is appointed to a six-month term, and its primary purpose is examining cases prosecutors have chosen not to continue prosecuting. It has therefore been perceived as a way to combat misfeasance in public officials.

From 1945 to 1972 Okinawa was under American administration. Grand jury proceedings were held in the territory from 1963 until 1972. By an ordinance of the civil administration of the Ryukyu Islands promulgated in 1963, grand jury indictment and petit jury trial were assured for criminal defendants in the civil administration courts. This ordinance reflected the concern of the U.S. Supreme Court that U.S. civilians tried for crimes abroad under tribunals of U.S. provenance should not be shorn of the protections of the U.S. Bill of Rights. Indeed, the District Court in Washington twice held that the absence of the jury system in the civil administration courts in Okinawa invalidated criminal convictions.

Liberia

By article 21 of the Constitution of Liberia, 'No person shall be held to answer for a capital or infamous crime except in cases of impeachment, cases arising in the Armed Forces and petty offenses, unless upon indictment by a Grand Jury". For example, the national Port Authority's managing director was indicted by the Monteserrado County Grand Jury in July 2015, on charges of economic sabotage, theft of property and criminal conspiracy.

Grand juries in Liberia date from the time of the original constitution in 1847.

Sierra Leone

Under the administration of the Sierra Leone Company, which began in 1792, the Governor and Council or any two members thereof, being also justices of the peace, held quarter sessions for the trial of offences committed within the colony. The process for indictment etc. was the same as the practice in England or as near as possible thereto. To effect this, they were empowered to issue their warrant or precept to the Sheriff, commanding him to summon a grand jury to sit at the court of quarter sessions. Grand juries continued in operation after the transfer to the colony to the Crown in 1807.

Governor Kennedy (1852–1854) was concerned that jurors were frustrating government policy by being biased in certain cases; in particular he felt that liberated Africans on the grand jury would never convict another liberated African on charges of owning or importing slaves. He promulgated the Ordinance of 29 November 1853 which abolished the grand jury. Opposition was immediately mounted in Freetown. A public meeting launched a petition with 550 names to the Colonial Secretary in London, and the opposition declared that the Kennedy ordinance was a reproach upon the loyalty of the community. Grand juries have been considered one colonial body representative of local opinion and the Colonial Secretary's support for Kennedy upholding the abolition inspired a round of agitation for a local voice in government decision-making.

Bill of Rights Bill

From Wikipedia, the free encyclopedia

https://en.wikipedia.org/wiki/Bill_of_Rights_Bill

The front page of the proposed British Bill of Rights Bill

The Bill of Rights Bill was a proposed Act of Parliament in the United Kingdom that sought to replace the Human Rights Act 1998. It was introduced to the House of Commons by Dominic Raab, the Deputy Prime Minister of the United Kingdom and Secretary of State for Justice, on 22 June 2022.

On 7 September 2022, the passage of the Bill through Parliament was halted by the newly appointed Prime Minister, Liz Truss. On 27 June 2023, the Justice Secretary Alex Chalk confirmed to the Commons that the government would not be proceeding with the Bill.

Background

Under the premiership of David Cameron, the UK government discussed introducing a replacement for the Human Rights Act. This reform was also part of the 2010 Conservative manifesto, although it was not pursued following the coalition agreement with the Liberal Democrats. In 2015, they were considered again but no legislation was brought forward.

In 2020, the UK Government set up an independent review of the Human Rights Act which specifically sought evidence on the operation of the Act, with particular attention to the relationship between domestic courts and the European Court of Human Rights (ECHR), as well as the relationship between government, parliament and the judiciary. The independent review reported their findings in December 2021.

In the Queen's Speech in May 2022, the Government committed to introducing the new Bill of Rights, arguing that the legislation would seek to "end the abuse of the human rights framework and restore some common sense to our justice system.”

On 15 June 2022, the week before the Bill was introduced to Parliament, the Strasbourg Court issued an interim order stopping a flight due to transport asylum seekers from the UK as part of the Rwanda asylum plan. It was reported that the decision of the Strasbourg Court was a factor in determining the introduction of the Bill.

In the UK Government announcement for the Bill, Dominic Raab argued that the proposed law would "strengthen our UK tradition of freedom whilst injecting a healthy dose of common sense into the system" and it would also "reinforce freedom of speech, enable us to deport more foreign offenders and better protect the public from dangerous criminals".

On the day the Bill was introduced, the first page of the Bill was leaked to legal journalist Joshua Rozenberg.

Independent Review of the Human Rights Act

Prior to introducing the Bill of Rights, the Lord Chancellor established an Independent Review of the Human Rights Act, chaired by Sir Peter Gross.

After hearing evidence, the independent review concluded that “there is no case for changing the Human Rights Act.”

The review did recommend the government implement a course of action to improve understanding and bolster the effectiveness of the HRA 1998. In summary, the review recommended:

• To implement a programme of education around the role and operation of the Human Rights Act.
• To place common law rights and precedent at the front and centre of human rights law.
• Increase transparency about the use of section 3 interpretations by the courts.
• Alter the law to enable suspended quashing orders.
• Ensure that Henry VIII clause cannot be used to alter the Act itself.

Passage through Parliament

The Bill was halted on 7 September 2022 before its second reading, at the time there was no plan to return it to Parliament. After the reinstatement of Dominic Raab as Lord Chancellor as part of Rishi Sunak’s first cabinet, it has been suggested the Bill will return to Parliament. Alex Chalk in his role as Lord Chancellor has confirmed as of 27th June 2023 that the Bill will not proceed any further.

Illustration of the Passage of a Bill through Parliament

The Government had not published the details of the changes until the Bill was introduced into Parliament by the Lord Chancellor, Dominic Raab. During his introductory statement, the Lord Chancellor was censured by the Speaker, Lindsay Hoyle, for having inappropriately provided information to the press before making his statement in Parliament. The Speaker commented: 'yet again the media have been the first to know. I'm glad that the minister is making the statement, but he should have done that before speaking to the media.'

The Johnson Government did not undertake any public or Parliamentary scrutiny of the Bill before its presentation. This can be compared to the introduction of the Human Rights Act, which was preceded by a consultation paper, public and specialist scrutiny, and gained Labour and Liberal Democrat support before introduction to the House. The Joint Committee on Human Rights chair has written a letter to Dominic Raab, criticising the Government's failure to engage properly with the Independent Review, the Joint Committee's own work and the consultation responses to the Government's own consultation; according to the letter from the Joint Committee the Government has not made out the case for replacing the Human Rights Act.

The Conservative Manifesto of 2019 set out an intention to 'update' the Human Rights Act 1998, but the Bill proposes significant reform to the operation of fundamental rights in the UK and repeals the Human Rights Act itself.

On 25 January 2023, the Justice Select Committee released a legislative scrutiny report on the Bill of Rights which concluded there was no case for the Bill. The Committee found ‘the Bill of Rights Bill not only lacks support, but has caused overwhelming and widespread concern … we do not think this is a Bill of Rights at all, and recommend that the title of the Bill is changed accordingly. In any case, the Government should not proceed with this Bill: it weakens rights protections, it undermines the universality of rights, it shows disregard for our international legal obligations.’

On 27 June 2023, the Justice Secretary Alex Chalk confirmed to MPs that the government would not be proceeding with the Bill.

Criticism of Parliamentary handling

The Government has faced criticism from leading lawyers and academics about side-lining parliamentary and public scrutiny, in the process of creating and introducing the Bill.

Merris Amos, Professor of Human Rights Law at Queen Mary, University of London commented that 'For other democracies, the process to change such an important feature of the constitution would likely take years, and would involve constitutional conventions, public consultation, a referendum or special parliamentary majorities. With the government’s current majority, the Human Rights Act could be repealed in less than a year.' The Government did undertake a public consultation on Human Rights Act Reform in 2021 though Professor Amos criticises the clarity of the consultation: 'Even for experts, the 118-page consultation is difficult to understand and full of conclusions not based in evidence.'

Daniella Lock, Postdoctoral Fellow at the Bonavero Institute of Human Rights in the Faculty of Law, University of Oxford, has criticised the absence of parliamentary scrutiny measures before the Bill was introduced. She argues: 'the fact that the Government has chosen not to enable any pre-legislative scrutiny of the Bill of Rights Bill is undermining of Parliament for two key reasons. First, it is a scrutiny procedure often afforded to much less radical legislation...Second, pre-legislative scrutiny of the Bill had been explicitly requested by a number of Parliamentary committees.'

On 27 May 2022, the Joint Committee on Human Rights (JCHR), the Justice Committee, the Lords Constitution Committee and the Public Administration and Constitutional Affairs Committee sent a joint letter to the Government requesting pre-legislative scrutiny. Liberty has also issued a letter jointly signed by 150 civil society groups seeking pre-legislative scrutiny. Lock further criticises the 'significant discordance' between the Government's presentation of the Bill and its actual content, accusing the Government of 'taking Parliament for a fool.'

Provisions

The Bill seeks to repeal the Human Rights Act 1998 (HRA 1998) and replace it with a new regime contained in the Bill. The United Kingdom remains a signatory to the European Convention on Human Rights (ECHR) and so is bound to meet the requirements of the Convention in international law. Internationally, the European Court of Human Rights (ECHR) remains the premier court for Convention decisions. Strasbourg decisions will remain binding over the U.K. in international law. The original text of the draft law, introduced in 2022, stated that, once enacted, this bill could have been cited as the "Bill of Rights 2022". This would have made it one of the very few Acts of the British Parliament which do not contain the word "Act" in its short title.

Clause 2 - Convention rights

Clause 2 of the Bill retains the same set of Convention rights which are currently provided for by the HRA. However, some of the subsequent clauses in the Bill would allow for narrower readings of these rights and greater departure from the case law of the ECHR. So, while the same rights would operate in the UK as under the current regime, there may be a practical difference in how they are applied.

Clause 3 - Interpretation of Convention rights

Clause 3 provides that the Supreme Court is the 'ultimate judicial authority on questions arising under domestic law in connection with the Convention rights'. It also replaces section 2 HRA 1998 - which requires domestic courts to take account of Strasbourg case law. Instead clause 3 provides that courts must have particular regard to the text of the ECHR and may have regard to the preparatory work of the ECHR (the travaux preparatoires). Courts may also have regard to the development under the common law of any right similar to the Convention right.

The Bill requires the courts to act in accordance with clauses 4-8 of the Bill.

Clause 4 - Free speech

Clause 4 (Freedom of Speech) requires that the courts must 'give great weight' to freedom of speech. The Bill makes explicit that free speech is the same as ECHR Article 10 (Freedom of Expression). However the scope of Article 10 of the ECHR is wider than just free speech- it protects freedom of expression and not only the use of speech, writing and images. Clause 4 also includes multiple exceptions to the proposed special protection for free speech: it would not apply to cases involving criminal matters, breach of confidence, immigration or citizenship, or national security.

Clause 5 - Positive obligations

Clause 5 prohibits the court from interpreting Convention rights in a way which places a new positive obligation (an obligation to act) on a public body. This applies from any time after the commencement of the Bill as law. Clause 5 also requires courts to give great weight to certain public interests when considering requiring public authorities to respect an existing positive obligation.

Clauses 6, 8 and 20 - Deportation and custody

Clauses 6 and 8 relate to people in custody or being deported. Under clause 6, the court would have to 'give the greatest possible weight to the importance of reducing the risk to the public from persons who have committed offences in respect of which custodial sentences have been imposed' when deciding on whether there has been a breach of Convention rights. This does not apply where the alleged breach is related to any of the following Articles: Article 2 (Right to Life); Article 3 (Prohibition of Torture); Article 4(1) (Prohibition of Slavery); Article 7 (No Punishment Without Law). Clause 8 requires that if courts are making an assessment of a breach to Article 8 (Private and Family Life) in a deportation case, they may only find there has been a breach where there is 'manifest harm to a qualifying member of [the potential deportee's] family that is so extreme that the harm would override the otherwise paramount public interest in removing [the person] from or requiring [the person] to leave the United Kingdom.' It is also only in the most 'compelling circumstances' that extreme harm can be found to affect a family member other than a qualifying child or that the public interest favours not deporting the person. Clause 20 would limit the court's power to make orders based on a breach of the Article 6 (Right to Fair Trial), requiring the court can only allow an appeal against deportation on this ground where not doing so 'would result in a breach of the right to a fair trial so fundamental as to amount to a nullification of that right.'

Clause 9 - Jury trial

Clause 9 of the Bill enshrines the right to jury trial as part of Article 6 (Right to Fair Trial) within the United Kingdom, subject to the exceptions: (a) where the person pleads guilty; (b) where the person chooses to be tried without a jury; (c) where the offence is prescribed by law as insufficiently serious to be required to be tried before a jury; (d) where it is otherwise prescribed by law that the person should be tried without a jury.

Clauses 7 and 10 - Deference to Parliament

Clause 7 emphasises the deference courts should give to Parliament when they make assessments of incompatibility between a piece of legislation and a Convention right. The Bill retains the current power in s4 HRA 1998 to declare legislation incompatible in Clause 10 but seeks to enhance the weight of Parliamentary decision making in the minds of judges; Clause 7 requires that judges treat Parliament as having decided that the statute strikes the appropriate balance between competing rights and 'give the greatest possible weight to the principle that, in a Parliamentary democracy, decisions about how such a balance should be struck are properly made by Parliament’.

Clause 12, 17 and 18 - Public bodies

Clause 12 establishes the obligation on public bodies, including the Government itself, to abide by Convention rights. In this way it replicates the same requirement in s6 HRA 1998, however this would apply in the narrower sense of interpretation of rights allowed to the courts by earlier clauses. This clause would need to be read in light of Clause 5. Clause 17 allows for the court to grant 'such remedy as it considers just and appropriate' where there is a relevant breach of rights by a public body under clause 12 and Clause 18 allows for damages to be awarded for a breach.

Clause 15 - Permission stage

Clause 15 introduces a new permission stage for anyone seeking to bring an action under the Bill of Rights. This includes a new requirement that anyone bringing an action has suffered (or would suffer) a significant disadvantage because of the breach of a Convention right. This provision mirrors the admissibility criterion in Article 34 ECHR. However, clause 15 is more restrictive allowing for the permission requirement to be disregarded only for 'reasons of wholly exceptional public interest' and being read in conjunction with clause 3, means that the Strasbourg case law is unlikely to be taken into account to moderate the restriction. In contrast Article 34 ECHR provides the permission requirement does not apply where 'respect for human rights' requires the case to be examined and Strasbourg case law also develops certain guidelines, for instance the 'significant disadvantage' clause in Article 34 will be unlikely to rule out proceedings in relation to the right to life or freedom from torture.

Clause 24 - Interim measures

Clause 24 provides that UK courts can have no regard to any interim measures ordered by the European Court of Human Rights.

Reception

Law Society, Chancery Lane, London

The Bill has faced criticism from some in the legal profession including the Law Society of England and Wales, and the Law Society of Scotland. It has also been opposed by Amnesty International, Liberty, JUSTICE, and the Labour Party have expressed concerns that the Bill would have stopped victims of terrorist attacks as well as the Hillsborough disaster from seeking justice.

Mark Elliott, professor of public law at the University of Cambridge, argued that the Bill is "a piece of legislation that the Government claims enhances human rights protection but which in fact significantly diminishes it" and that it "smacks of authoritarian resistance to scrutiny and is antithetical to the best traditions of the British constitution". Lawyer and legal commentator David Allen Green argued that the legislation seeks to "make it harder practically for convention rights to be enforced", and that such a purpose is ill-fitting for a 'Bill of Rights'. Alice Donald (Associate Professor, Middlesex University) has published a guide to the Bill in which she argues the Bill may harm protections for 'people whose rights are most vulnerable to abuse (such as children, victims of sexual violence and people seeking asylum). Professor Rory O'Connell (Transitional Justice Institute) supports the view that the proposals risk denying protection to victims of crime, domestic violence, child neglect, child abuse, and human trafficking in a briefing note on positive obligations for the Committee on the Administration of Justice.

In June 2022 the think tank Policy Exchange released a paper authored by Professor Richard Ekins criticising the continued pursuit of a Bill of Rights in the UK on the grounds that it may compound problems that Professor Ekins argues are already created by the operation of the Human Rights Act 1998. Writing before the Bill was reintroduced by Dominic Raab, Professor Ekins – again for Policy Exchange – suggested: ‘The Bill of Rights Bill … was, thus far, to be welcomed. However, it also risked introducing some other problems, notably imprecision in relation to the rights that Parliament intended to be protected and the extent to which it would open to domestic judges to decide this for themselves.’ Professor Ekins instead favours a return to common law rights by repeal of the HRA 1998 or significant amendment.

Impact on the Good Friday Agreement

The Good Friday Agreement requires that the United Kingdom remain a signatory to the ECHR. It is a bilateral treaty between the United Kingdom and Ireland that is binding in international law and remains integral to the peace and stability of the island of Ireland.

Section 5(b) of Strand One of the Agreement requires that ‘[t]here will be safeguards to ensure that all sections of the community can participate and work together successfully in the operation of these institutions and that all sections of the community are protected, including…the European Convention on Human Rights (ECHR) and any Bill of Rights for Northern Ireland supplementing it, which neither the Assembly nor public bodies can infringe, together with a Human Rights Commission.’

Section 2 of ‘Rights, Safeguards and Equality of Opportunity’ requires that: ‘The British Government will complete incorporation into Northern Ireland law of the European Convention on Human Rights (ECHR), with direct access to the courts, and remedies for breach of the Convention, including power for the courts to overrule Assembly legislation on grounds of inconsistency.’.

Aoife O’Donoghue (Professor at Queen's University Belfast) and Colin Murray (Reader in Public Law at Newcastle University) consider that ‘ECHR-incorporation on the HRA model was a floor, and absolutely not a ceiling for rights protections’ and suggest that the Bill of Rights Bill risks incompatibility with the Good Friday Agreement despite retaining the substantive ECHR rights present in the Human Rights Act 1998. This is primarily due to the risks they perceive in clauses 12 and 13 of the Bill. O’Donoghue and Murray suggest that the ability, provided for in clause 12(2), for public agencies to operate in breach of convention rights - including where this is set out in statutory instruments (which includes Northern Ireland Assembly legislation) - could be contrary to the Good Friday Agreement. The Assembly is prevented by the Agreement and Northern Ireland Act 1998 from legislating contrary to the ECHR. As such this clause may breach the limitation on Stormont. They note that the limits on certain claims created by Clause 13 of the Bill may also undercut the requirements of the Good Friday Agreement - particularly because it is not clear whether this clause would diminish or remove the authority of the Northern Ireland Human Rights Commission. Under s71 Northern Ireland Act 1998 the Commission can begin proceedings without meeting the victim status requirements of the Human Rights Act 1998, the Commission has sought urgent clarification from Westminster that the Bill of Rights Bill will not alter this capacity were it to become law.

Impact on devolution

Aileen McHarg (Durham Law School) gave evidence to the Joint Committee on Human Rights before the publication of the draft bill that any changes to the Human Rights Act would likely have 'knock-on consequences for the scope of devolved competence' and so engage the Sewel Convention.

Abortion

Labour interventions on abortion

Following the United States of America Supreme Court case Dobbs v. Jackson Women's Health Organization which overturned the constitutional right to abortion set out in Roe v. Wade and Planned Parenthood v. Casey, Labour MPs suggested that a right to abortion should be included within the Bill. During Prime Minister's Questions on 29 June 2022, Labour MP Rosie Duffield, suggested Dominic Raab should “send a clear signal, as some of his cabinet colleagues have done this week, that Britain respects the rights of women, and will he accept the cross-party amendment to the forthcoming bill of rights which enshrines a women’s right to choose in law?” Raab suggested that the place of abortion in UK law is settled, and resisted introducing a right into the Bill of Rights. Stella Creasy MP subsequently suggested she would propose an amendment to the Bill during its passage through parliament in order to introduce a right to abortion and hoped for a conscience vote.

Wider comment on abortion and the Bill

Dr Kirsty Hughes, Associate Professor in Public Law and Human Rights and Director of the Centre for Public Law, argues that the Bill potentially threatens the entrenchment of rights to abortion in future. Dr Hughes argues that Dominic Raab’s suggestion that ‘the position on abortion is settled in UK law’ and that he ‘would not want us to find ourselves in the US position, where the issue is litigated through the courts, rather than settled, as it is now settled…this House [of Commons]’ rests on a false premise. That is, Dr Hughes suggests, the area is not settled but is in fact currently being heavily litigated at Supreme Court level and below. She notes that in Northern Ireland Human Rights Commission for Judicial Review (Northern Ireland) [2018] UKSC 27 ‘it was argued that restrictions on abortion in Northern Ireland violated articles 3, 8 and 14 ECHR. Whilst in R (Crowter) v SSHSC [2021] EWHC 2536 (Admin)  it was argued that permitting abortion where there is a substantial risk that a child would be born ‘seriously handicapped’ (the terminology used in the Abortion Act 1967), is incompatible with the Convention.’ Further to this, 'in other cases pro-life advocates argue that restricting their activities in the vicinity of abortion clinics interferes with Article 9, 10 and 11 ECHR, Dulgheriu & Orthova v Ealing LBC [2019] EWCA Civ 1490.' There is also a pending judgment from a reference by the Attorney General for Northern Ireland to the Supreme Court, heard on 19 July 2022. Resistance to making changes to the law based on the idea that it would produce undesirable litigation would then seem to be undercut by the existence of this and other litigation currently in the courts.

Racial discrimination in jury selection

From Wikipedia, the free encyclopedia

Racial discrimination in jury selection is specifically prohibited by law in many jurisdictions throughout the world. In the United States, it has been defined through a series of judicial decisions. However, juries composed solely of one racial group are legal in the United States and other countries. While the racial composition of juries is not dictated by law, racial discrimination in the selection of jurors (regardless of the jury's ultimate composition) is specifically prohibited. Depending on context, the phrases "all-white jury" or "all-black jury" can raise the expectation that deliberations may be unfair.

Australia

In Australia, the right to a representative jury is severely limited. Australian Aboriginals are overrepresented in the criminal justice system, but seldom appear on juries even in parts of Australia where they represent a sizable portion of the population.

Courts have examined objections raised when the selection of juries did not represent either the social class or ethnic background of the accused. Current law does not extend a legal right to that degree of representation on a jury, provided that selection of the jury pool has complied with the Juries Act 1967 (VIC).

There is a history of Aboriginal people being underrepresented in jury pools, or completely absent in juries selected to hear cases involving Aboriginal defendants. Some reasons offered are that Aboriginal people may be excluded from juries due to not being enrolled to vote (which is how juries are typically selected), or that they failed to respond to a summons, or because of challenges by the prosecution and defense attorneys, or because their English may be poor. Australia has mandatory voter enrolment and mandatory voting, but this is sometimes unenforced especially in remote areas or among homeless people.

However, there is also evidence that Aboriginal people are disadvantaged by the criminal justice system itself and its processes (such as jury selection). The ALRC found that Aboriginal Australians were 7 times more likely to be charged with a crime and brought before the courts, but 12.5 times more likely to receive a sentence of imprisonment.

• In 1983, 16-year-old Aboriginal boy John Pat was attacked by five police officers and beaten to death in Roeburne, Western Australia. The officers were tried for manslaughter, but acquitted by an all-white jury after pleading self-defence.
• In 2004, Aboriginal man Cameron Doomadgee was arrested and died in a police cell on Palm Island, Queensland from injuries. In 2007, the arresting police officer Chris Hurley was charged with assault and manslaughter, but was later acquitted by an all-white jury.
• In 2019 in Yuendumu, Northern Territory, police officer Zachary Rolfe shot Walpiri man Kumanjayi Walker 3 times, killing him. This occurred shortly after Walker stabbed Rolfe with scissors. 3 days later, Rolfe was charged with murder. In 2022, Rolfe was acquitted unanimously. Juror candidates were drawn randomly. Rolfe's defence team used the majority of their 12 challenges to remove people of colour and those of Asian descent. In the end, the jury selected were all white with the exception of one young Asian woman, even though Indigenous people account for 30% of the Northern Territory population.

Canada

Canada has also struggled with the issue of racial discrimination in jury selection, especially for First Nations people. In 2001, Indian and Northern Affairs Canada (INAC) stopped producing band lists of First Nations people living on reserve for provincial jury rolls because of privacy concerns. The exclusion of this information from provincial jury rolls meant First Nations people living on reserves were not properly represented on juries.

The removal of First Nations people living on reserves from provincial jury rolls directly collided with the Supreme Court of Canada's 1991 decision of R. V. Sherrat [1991] 1 SCR 509 wherein the Court found that the "representativeness right" is an essential component of the right to trial by jury.  In particular, the Court pronounced that:

"The perceived importance of the jury and the Charter right to jury trial is meaningless without some guarantee that it will perform its duties impartially and represent, as far as is possible and appropriate in the circumstances, the larger community. Indeed, without the two characteristics of impartiality and representativeness, a jury would be unable to perform properly many of the functions that make its existence desirable in the first place"

The Supreme Court of Canada in 2015 evolved the issue of a "representative right" in jury trials in the case of R. V. Kokopenance, [2015] SCR 28 wherein the Court held that "an accused is not entitled to a jury that includes members of their own race or religion; rather, they are only entitled to a fair and honest process of random jury selection"

The issue of "representative right" is not dead or a decided issue. In 2018 the Federal Government introduced Bill C-75 in response to the Colten Boushie case. Bill C-75 eliminated peremptory challenges of jurors in criminal cases, thereby preventing the exclusion of jurors by both Crown and defense counsels.  Bill C-75 became law on June 21, 2019, which coincidentally happens to be National Indigenous Peoples Day in Canada.

United States

In the United States, racial discrimination in jury selection has a long history, even though a series of judicial decisions has determined that such discrimination violates the rights of defendants. While the racial composition of juries is not dictated by law, racial discrimination in the selection of jurors (regardless of the jury's ultimate composition) is specifically prohibited. However, the phrases "all-white jury" or "all-black jury" can raise a host of expectations – among them, the expectation that deliberations may be less than fair.

Current precedent and legal challenges

Further information: Jury selection in the United States § Faults within the jury selection process

Under the standard set forth by the United States Supreme Court in Strauder v. West Virginia and Batson v. Kentucky, the striking of a juror on account of race denies a defendant equal protection under the constitution. However the court held that a defendant is not entitled to a jury containing or lacking members of any particular race, and the striking of jurors for race-neutral reasons is permissible. This standard has been extended to civil trials in Edmonson v. Leesville Concrete Company and on the basis of gender in J.E.B. v. Alabama ex rel. T.B.

History

Following the American Civil War, the 13th, 14th, and 15th Amendments to the U.S. Constitution had abolished slavery and guaranteed basic civil rights to African-Americans; the Civil Rights Act of 1875 extended this to "public accommodation" and jury selection, including the establishment of criminal penalties for court officers who interfered:

Sec 4. That no citizen possessing all other qualification which are or may be prescribed by law shall be disqualified for service as grand or petit juror in any court of the United States, or of any State, on account of race, color, or previous condition of servitude; and any officer or other person charged with any duty in the selection or summoning of jurors who shall exclude or fail to summon any citizen for the cause aforesaid shall, on conviction thereof, be deemed guilty of a misdemeanor, and be fined not more than five thousand dollars.

The United States Supreme Court ruled in 1880 in Strauder v. West Virginia that laws excluding black people from jury service violated the Equal Protection Clause of the 14th Amendment; yet in Virginia v. Rives (1879), the court denied an appeal from a black defendant who asked that black jurors be made at least one third of his jury, noting that an all-white jury was not in itself proof that a defendant's rights had been violated. Nevertheless, Southern states easily evaded Strauder and set up other ways than explicit legal bans to exclude black Americans from jury service.

In 1883, the Civil Rights Act of 1875 was overturned entirely by the Supreme Court, in an 8–1 decision. In 1896, the landmark Plessy v. Ferguson decision enshrined the unofficial civil code termed Jim Crow, ranging from separate but equal accommodation to voter disenfranchisement and jury exclusion; blacks were thus denied access to the public, political, and judicial spheres.

In the 1931 case of the Scottsboro Boys, nine black youths were accused of raping two white women, one of whom later recanted her testimony. Eight of the defendants were sentenced to death (although none would be executed). Defense attorney Samuel Leibowitz argued before the Alabama Supreme Court that black people had been kept off the jury rolls, and that names of black people had been added to the rolls after the trial to conceal this fact. The appeals in the case ultimately led to two landmark Supreme Court decisions. In Powell v. Alabama (1935), the Court ruled that criminal defendants are entitled to effective counsel, and in Norris v. Alabama (1935), that blacks may not be excluded systematically from jury service.

Despite Norris, the practice of excluding black people from juries did not disappear. In 1985, the Supreme Court in Batson v. Kentucky addressed a situation where a prosecutor had used his peremptory challenges to strike all four black candidates from a jury and obtained a conviction against the black defendant. The defendant was not able to demonstrate that the state's court system systematically excluded black people from juries but nonetheless raised due process and equal protection arguments in his particular case. In Batson, the court ruled that the defendant could make a prima facie case for purposeful racial discrimination in jury selection by relying on the record and that a State denies a defendant equal protection in a trial before a jury from which members of his race have been purposely excluded.

Batson did not eliminate the exclusion of black people from juries. Batson applied only in criminal trials, only to prosecutors, and only in situations where the challenged juror and the defendant were of the same race. The Mississippi Supreme Court noted, in reversing a 2004 murder conviction of a black man, where prosecutors used all 15 of their peremptory strikes to exclude black jurors: "racially motivated jury selection is still prevalent 20 years after Batson." In 2010, a white man in Alabama appealed his murder conviction and death sentence after a trial by 11 white jurors and 1 black juror, stating that jury selection was tainted by racial discrimination in excluding additional black jurors from his jury.

On December 15, 2016, the Kentucky Supreme Court, citing Batson, ruled that judges do not have authority to dismiss randomly selected jury panels for lack of racial diversity. The ruling arose from a decision by Jefferson County Circuit Court Judge Olu Stevens to dismiss a nearly all-white jury panel in a 2014 case involving a black defendant. When prosecutors in Louisville asked the Kentucky Supreme Court to review whether Judge Stevens abused his discretion in dismissing the all-white panel, Judge Stevens commented on Facebook that the prosecutor's request amounted to an attempt "to protect the right to impanel all-white juries." Judge Stevens also suggested "something much more sinister" and wrote that the prosecutor would "live in infamy." For his remarks, Judge Stevens received a 90-day suspension without pay, acknowledged he violated judicial canons and apologized for any statements that implied the prosecutor was racist.