The Jury on Trial

It is ironic that, at the very time citizens’ juries and other randomly selected political forums are proliferating, the UK government is proposing curtailing the use of juries in court room trials. Trial juries are, arguably, the only application of sortition to survive into the modern age. The Journal of Sortition has published a symposium to address this curious development — see the editorial introduction by Professor Ethan Leib of Fordham Law School. The symposium opens with a paper by Professor Nancy Marder, author of The Power of the Jury: Transforming Citizens into Jurors (2022), and a passionate defence of the jury system by former sub-postmistress Nichola Arch, falsely accused of fraud and embezzlement as a result of the Horizon accounting scandal. Retired assistant recorder Michael Beloff KC is broadly supportive of the government’s proposals, as is former magistrate (and sortition theorist) Professor Barbara Goodwin JP.

One of the most noticeable features of the use of random recruitment for public office is the way that the ‘arationality’ of the lottery process is surrounded and controlled by rationally designed features, including the requirements for office, the length of tenure and the conduct in office. Along with this is the expectation that all officeholders should use their reasoned judgement in fulfilling the demands of the office in question. The comparison that this brings to mind is how a fire is contained within a hearth or within a stove.

The choosing of jury members by lottery is no exception. The form and purpose of the jury — to give those subject to the law a voice in its operation — was established by the Anglo Saxons long before the advent of random selection as a means of choosing jurors. The first randomly selected jury in the Anglo-American political context was in 1682 in South Carolina, and its introduction can be understood as a means of reaching some form of consensus between different groups of settlers as to the best way of creating a shared judicial system. Nearly fifty years later the South Carolina Statutes commented that:

“…the equal, indifferent and impartial method of drawing juries by ballot, used and approved in this province for many years past, hath greatly contributed to the due and upright Administration of justice and is the surest means to continue the same.” (Trott, 1736)

Here we can see clearly how the lottery acts in such a way as to take the power of appointment out of the hands of any active group or potential protagonists.

This arational ‘lottery principle’ is borne out by the introduction of randomly selected juries in England. This dates from an Act of Parliament in 1730 and was designed to prevent corruption by the under-sheriffs who had responsibility for selecting the jurors and who would often select rich and busy men who would then pay to be let off (Cobbett, 1811). There was a property qualification for those eligible for jury service and the general aim of the legislation was to bring more capable and educated members of the public into the juries. In other words, there was no desire to create a representative sample of the population beyond the original broadly understood idea that the jury members would actively represent the people at large.

The relationship between the role of the randomly selected jury and that of the appointed magistrates is emphasised by the Leveson/Starmer proposal to restrict the right to trial by jury to a few serious crimes. Here the central issue is the potential law-making capacity of the jury system. From the Penn/Mead/Bushel case in 1670, jury members could not be punished for ignoring the judge’s instructions. What we then begin to see is juries acquitting, not on account of the defendant’s actions, but because they felt that the law under which they were being prosecuted was unfair or unjust. Such verdicts are known as “perverse” jury decisions or “jury nullifications”, but they played an important role in establishing the idea that both the system of justice and the fairness of the law-making system were somehow in the hands of the people.

The most important example of this is the seditious libel law and the controversy that it generated in the second half of the eighteenth century (Dowlen, 2008). When writers who had published works critical of government actions were prosecuted under the seditious libel law, juries began to acquit them, not because they doubted the authorship of the works, but because they felt that the criticism was justified or should have a place in the public domain. These acquittals took place in England and its American colonies for around sixty years before the law was changed to allow open verdicts in such cases (Fox’s Libel Act, 1792). This amounted to a major step in the struggle for greater democracy, for without the establishment of the “lawfulness” of free speech, the later mid-nineteenth-century campaigning for a wider, fairer franchise would have been seriously impeded.

Modern examples include the acquittal of Clive Ponting for revealing the nature of the sinking of the Belgrano (the public interest identified by the public), and the acquittal of those who threw the Colston statue into Bristol harbour (morally justified criminal damage?). It might be that the possible future acquittal of those recently arrested for support of Palestine Action will provide a further instance of this (Rozenberg, 2026).

Turning back to the Leveson/Starmer proposal, we can see that while a magistrate’s task relates to the upkeep of existing law, the capacity of the jurors to reach “perverse” verdicts can amount to a popular critique of the law itself. The jury system can thus act as a check on the misuse or over-concentration of executive power exercised, albeit, in a judicial context. It is a bottom-up critique of top-down law. Restriction on the right to trial by jury is therefore a threat to the democratic system as a whole, but at the same time we must understand how this randomly recruited form operates alongside the appointed magistrates but has the capacity to restrict the power of those elected or appointed if and when it is needed.

References

Cobbett, W. (1811). Parliamentary History of England, Vol. VIII (1722-33) (London, T.C. Hansard) col 802-3.

Dowlen, O. (2008).The Political Potential of Sortition (Exeter, Imprint Academic) pp.178-83.

Fox’s Libel Act, 1792 (32 Geo. III, c. 60). In English Historical Documents. Vol. XI 1783-1832. Ed. Aspinall and Smith. (1959 Eyre and Spottiswoode).

Rozenberg, J. (2026). ‘Are juries still willing to do their duty? Palestine Action is putting it to the test.’ Telegraph.co.uk/news/2026/06/16/culture-war-came-to-britains-courts

Trott, N (1736). The Laws of the Province of South Carolina (Charlestown, Lewis Timothy).