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Before the Criminal Justice and Courts Act 2015: Juror Punishment in Nineteenth- and Twentieth-Century England

Lookup NU author(s): Dr Kay CrosbyORCiD

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This is the authors' accepted manuscript of an article that has been published in its final definitive form by Wiley-Blackwell Publishing Ltd., 2016.

For re-use rights please refer to the publisher's terms and conditions.


Abstract

The Criminal Justice and Courts Act 2015 has created several new offences regarding juror misconduct. While this legislation has been passed in response to jurors accessing improper ‘evidence’ online, it is wrong to treat juror misconduct as a new problem. The most famous case on this topic (Bushell’s Case) did not completely prohibit juror punishment, but the rhetorical force of the decision was such that penal practices have until recently been overlooked in the academic literature. This article argues that assessing the new offences is greatly helped by understanding how juror misconduct has been responded to in the past. Drawing on the language of Bushell’s Case itself, as well as new archival research, it argues that previous practices of juror punishment have largely depended on whether particular instances of misconduct related to the juror’s ‘ministerial’ or ‘judicial’ functions; and that ‘judicial’ offences (those relating to verdict formation) have been much less likely to be punished. Rather, such offences have tended to be managed away. If today’s judges continue acting in this way, the new offences are unlikely to be resorted to very often, with the judiciary being much more likely to focus on techniques for avoiding misconduct in the first place.


Publication metadata

Author(s): Crosby K

Publication type: Article

Publication status: Published

Journal: Legal Studies

Year: 2016

Volume: 36

Issue: 2

Pages: 179-208

Print publication date: 01/06/2016

Online publication date: 21/12/2015

Acceptance date: 27/06/2015

Date deposited: 27/07/2015

ISSN (print): 0261-3875

ISSN (electronic): 1748-121X

Publisher: Wiley-Blackwell Publishing Ltd.

URL: http://dx.doi.org/10.1111/lest.12098

DOI: 10.1111/lest.12098


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