The fairness of inequality

Should the defence always be given the same access as the prosecution has to the criminal histories of people on the jury panel?

In R v King and Stevens [2008] NZCA 79 (10 April 2008) it was held that it was lawful for the police to access the criminal records of potential jurors, and that it was lawful for this information to be passed to prosecuting counsel. It was further held that where fair trial concerns warrant it, such information must be disclosed to the defence. One member of the Court, Robertson J, held that the defence should always be given this information, but the majority (William Young P and Chambers J) took a more restrictive approach, giving as examples of where disclosure to the defence would be appropriate (para 125):

“(b) Counsel for an accused serving police officer may wish to exclude any juror who may be thought to have an anti-police attitude. …

“(c) Counsel for a man accused of murdering a burglar and who is running self-defence and provocation may prefer a jury which does not include too many convicted burglars.”

The general requirement as formulated by the majority was (para 129):

“…disclosure will be appropriate (and should be directed by the Judge if necessary) where a defendant can point to some likelihood that, in the context of the particular case, jurors with criminal histories may have an adverse predisposition towards the defendant or the defence which is to be advanced.”

It is possible that prosecutors will be inclined to cite the specific instances mentioned in para 125 as if they were the only sorts of circumstances in which this general requirement applies, namely where the potential juror may be biased against the accused.

How, then, did the majority on this point justify inequality in automatic access to this information? After all, the Solicitor-General had, in argument, conceded that the defence should have the information automatically. The majority found this concession was over broad (para 123). They noted the difference between jury-vetting, which they saw as the exclusion of unfavourable jurors, and jury packing, the getting of a favourable jury. The crucial reasoning is at para 127:

“A requirement that criminal history information about potential jurors be automatically made available to the defence would equate the Crown purpose of seeking a jury which is free of those with non-disqualifying but perhaps still serious criminal histories with a defence desire (impractical of achievement though it may be) that a jury include people with such convictions. As far as we are aware, and leaving aside some obiter dicta in R v Sheffield Crown Court, Ex parte Brownlow [1980] QB 530 (CA), no Court has been prepared to proceed on that basis. Instead, courts in New Zealand (see Greening [1991] 1 NZLR 110 (Tipping J, HC), Watson CA384/99 8 May 2000 and Tukuafu [2003] 1 NZLR 659 (CA)), England and Wales (see Mason [1981] QB 881 (CA) and McCann (1990) 92 Cr App R 239 (CA)) and Australia (see Katsuno (1999) 199 CLR 40) have rejected the contention that there is anything inherently unfair in a defendant being tried by a jury where the Crown prosecutor has had access to previous conviction histories for the purpose of exercising rights of peremptory challenge (or the functionally equivalent right to direct potential jurors to stand by).”

This comes down to saying that it is OK for the Crown to want a jury that is not biased against it, but in practice it has not been thought OK for the defence to want a jury biased in its favour. Jury-vetting is acceptable, but jury stacking is not.

That may well be good policy, and the majority held that any change should be left to Parliament. They emphasised an important point made by Robertson J (para 119, referring to para 31): examination of the relevant legislative history shows that Parliament expressly rejected a ban on jury-vetting by the prosecution. This does not quite justify the majority position, however, because it is not to say that Parliament rejected defence access to the same information as was obtained by the prosecution from the criminal history database. Indeed, as all Judges noted (Robertson J at 89, William Young P and Chambers J at 116) the New Zealand Law Commission (Juries in Criminal Trials) has recommended that the defence should have automatic access to such information.

Should either side be allowed to vet, let alone try to stack? Peremptory challenges are not allowed in England and Wales (as both judgments note), but should they be abolished? While they are allowed, it seems wrong to impose traditional restraints on access to information when responsible defence counsel would, these days, run the prospective jurors’ names through Google (a point alluded to in para 98 of the joint judgment). Official coyness about disclosure of well deserved convictions seems quaint, especially as they must be disclosed in many situations where a person seeks a responsible position. Given that peremptory challenges are allowed, equal access to information about prospective jurors should ultimately be adopted.