Distinguishing legitimate juror misconduct from frivolous allegations – protecting Lord Judge’s legacy

Throughout his tenure as the Lord Chief Justice, Lord Judge devoted time to drawing attention to the problem of juror misconduct. After some high profile cases, the Law Commission published an expedited report on jury misconduct, and in response to this the Government has introduced four new offences in the Criminal Justice and Courts Bill 2014. Jury misconduct poses a significant threat to the integrity of the criminal justice system and to public confidence; consequently, such allegations must continue to be treated seriously by the system. However, the problem of frivolous allegations of jury misconduct was also recently highlighted by Lord Thomas CJ in the case of Baybasin, Molloy and McMullen v R [2013] EWCA Crim 2357. This presents a delicate balancing act for the courts and the criminal justice system needs to be able to distinguish between legitimate causes for concern and unsubstantiated allegations. This paper questions the extent to which the criminal justice system can rely upon the collective duty of the jury to safeguard against jury misconduct and considers Lord Thomas’ rebuttable presumption of finality where a complaint is first raised after the verdict has been delivered. This paper also considers the existing mechanisms within the criminal justice process to filter out unsubstantiated allegations before they reach the courts. Finally, this paper explores the four offences of jury misconduct in the Criminal Justice and Courts Bill 2014 and urges the protection of Lord Judge’s legacy