On the 23rd March 2020, as a result of the Covid-19 pandemic, the Lord Chief Justice announced that all new jury trials in England and Wales would be halted until they could be conducted safely. The reason behind the decision was the inability to ensure social distancing and the safety of those involved in the trial process.
A few days later, outcry erupted in Scotland when the government sought to introduce emergency measures allowing trials to be decided by a single Judge without a jury, a suggestion which has since been withdrawn. In England and Wales, a similar quandary faces politicians, as thousands of people await trial with no answers as to when their trials may be heard. As an ever increasing back log of trials starts to build, it’s inevitable that the government will look to recommence trials, but how can they do so fairly whilst ensuring the safety of those involved?
One of the most notable features of the criminal justice system in the United Kingdom is the Crown Court jury system. A system whereby 12 random members of the public are selected to serve on a jury, to weigh up the evidence against an accused and decide what the true facts are, resulting in a decision as to an accused person’s guilt or innocence. Although there are some circumstances in which a trial may take place in front of a judge alone, trial by judge in all Crown Court cases would be an erosion of this fundamental principle of the English legal system. Such a thing is unlikely to be suggested, let alone be allowed to happen.
What then is the alternative? One option open to the courts would be to follow the emergency provisions enacted during World War II, by reducing the number of jurors required in every trial. This is a system preferred in some American states, and as it reduces the overall number of people in Court, it might well enable social distancing, but what effect would this have on the outcome of those trials and would such a course of action be fair?
In 1970 the American Supreme Court held that a jury could comprise of 6 jurors. The Court concluded that there was no meaningful difference between six and 12-member juries' effectiveness in a) obtaining a representative cross-section of the community; b) promoting group deliberation and c) reaching the right decision. Is this really the case?
The constitution of a jury affects their decision making. Jurors are selected at random from a wide pool of people from all over the country. Logic dictates that the greater the number of jurors the more diverse the backgrounds and the more representative of the population the jury will be. This assertion is supported by empirical research conducted by Michael Saks in 1997, which showed that larger juries were more likely to contain members of minority groups. Smaller juries by comparison are less representative of the community. Furthermore smaller groups were also less likely to overcome their individual biases. Those biases may then be reflected in the decisions a jury makes, resulting in the opportunity for unfair verdicts.
The empirical research showed that larger juries were able to more accurately recall the evidence between them, meaning there was less chance of a mistake of fact. These juries also were more contentious, which led to proper debate of the evidence. Moreover they seemed to reach the correct ruling more often compared to smaller juries.  Additional research conducted by Jeff Suzuki showed that in cases where there was some doubt as to the accused’s guilt, a 12 person jury would convict less than 10% of the time whereas a six person jury would convict 25% of the time. The latter two findings therefore suggesting that as juries numbers reduce, they are more likely to make more errors in acquitting the guilty or convicting the innocent.
By pure mathematical probability, it follows that the burden of proof would be significantly diminished with a jury of six. The concept of ‘beyond reasonable doubt’, is a subjective standard to be reached in the mind of each juror before a conviction can be made. By decreasing the number of people who must be persuaded, the prosecutors burden of proof is also decreased. It is far easier to convince six people than it is to convince 12! Diminishing that burden of proof, diminishes the presumption of innocence which underpins the criminal justice system and ensures fairness to those accused of a criminal offence.
Peer pressure also has some part to play in the decisions made by juries. When the jury consists of six people, rather than twelve, it is more likely for someone who disagrees to conform to the incorrect decision that the rest of the jury agrees on due to sheer peer pressure. In a 12 person jury, there is a higher likelihood that more than one person will disagree with the remainder. With two dissenting voices it is more likely that they will be confident in their opinion and not conform with the rest of the jury, resulting in fairer reflections of the evidence.
Whilst it is impossible to have any direct insight into the actual decision making processes which take place behind the closed doors of the jury deliberation room, what seems clear from the studies conducted is that six and 12 person juries are not functionally equivalent. Smaller juries have a significant adverse effect on the outcome of trials and it is much fairer to have a jury of 12 rather than six. But will the Government’s need to progress trials, particularly for those with effective custody time limits, result in a decision which is not in the best interests of justice?
Stacey-lee Holland is a junior tenant at chambers specialising in Crime.
 Saks, M.J. & Marti, M.W. (1997). A meta-analysis of the effects of jury size. Law & Human Behaviour  Barlund, A Comparative Study of Individual, Majority, and Group Judgment, 58 J.Ab & Soc.Psych. 55, 59  Saks, M.J. & Marti, M.W. (1997). A meta-analysis of the effects of jury size. Law & Human Behaviour  Luppi, B., & Parisi, F. (2013). Jury Size and the Hung-Jury Paradox.  Jeff Suzuki (2015) Constitutional Calculus : The Math of Justice and the Myth of Common Sense