Published online by Cambridge University Press: 31 July 2008
Schedule 1 to the Juries Act 1974 provides that ‘[a] man in holy orders; a regular minister of any religious denomination [and] [a] vowed member of any religious order living in a monastery, convent or other religious community’ is ineligible to serve on a criminal (and also a civil) jury. This has been the law since 1972. For the remainder of this century members of the clergy have been eligible, but not compellable, jurors. In practice they did not serve. The change effected in 1972 is a reversion to the position which probably prevailed in the Middle Ages. Aside from the occasional official report, the liability of religious functionaries to serve on juries in criminal trials has been rarely written about. The last time it happened was in 1882. The object of this article is to fill the lacuna by tracing the history of the clergy's ineligibility for jury service in criminal trials and the reasons for it.
2 Initially homicide, robbery, theft and concealing someone who had committed these crimes. By the reign of Edward II (1307–1327) arson, burglary, larceny and counterfeiting had been added.
6 None of the legal treatises published from 1503 onwards, which are considered below, indicates any difference in jury disqualifications for civil and criminal proceedings.
7 The hundred was the subdivision of the county used as the unit of administration in criminal matters.
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41 Palmer, R.. ‘Conscience and the Law. The English Criminal Jury’ (1986) 84 Mich LR 787 at 793.Google Scholar Repentance, reputation, reparation and recidivism were all considered relevant to the conviction decision.
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57 2 Henry 5. st 2. c3 (Jurors).
58 But not all. It was. for example, possible for a man to be both parish priest and lord of the manor: Richardson, H.. ‘The Parish Clergy of the Thirteenth and Fourteenth Centuries’ in (1912) Transactions of the Royal Historical Society (3rd series). 88 at 117.Google Scholar
60 ‘The king to the Sheriff, etc. Because master R Clerk, at this time continually abideth in our service, or in the service of the venerable father I. bishop of Ely: we command you. that him the said R by reason of the lands and tenements which he holds in the county aforesaid, you put not or cause to be put any assises, juries or recognizances, so long as he abides in the service of us, or of the same bishop, as aforesaid.’
61 Registrum Brerium (4th edn) (London. 1637). p 170.Google Scholar The first edition appeared in 1531.
63 I am grateful to Professor Baker for this suggestion.
66 Proceedings by attaint involved a jury of 24 determining whether a jury of 12 had given a false verdict.
67 Beecher's Case (1577) 4 Leon 190. 74 E R 813.
68 Cf Cripps, H., A Practical Treatise on the Law relating to the Church and Clergy (5th edn)( London. 1869). p 70.Google Scholar
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70 Juries Act 1825 (6 Geo 4. c 50). s 25. and the Juries Act 1870 (33 & 34 Vict, c 77). s 20. required, respectively, ten and six days' notice of the duty to attend court as a prospective juror.
72 Toleration Act 1688 (1 Will & Mar. c 18). s 11 (italics added). See also the Nonconformist Relief Act 1779 (19 Geo 3. c 44).
73 Roman Catholic Relief Act 1791 (31 Geo 3. c 32). s 8. Unitarians were given the same privileges by the Doctrine of the Trinity Act 1813 (53 Geo 3. c 160).
74 Italics added.
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85 Jurors Act 1543 (35 Hen 8. c 6).
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93 The Complete Justice, A Compendium of the particulars incident to Justices of the Peace (London. 1638). p 119.Google Scholar
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97 Coke, E. The Second Part of the Institutes of the Laws of England, vol i (London. 1641.)Google Scholar
98 Beecher's Case (1517) 4 Leon 190. 74 E R 813.
99 1662–1725. vicar of Cranbrook.
100 Johnson, J.. The Clergyman's Vade-Mecum (2nd edn) (London. 1707). p 125.Google Scholar The first edition was published in the previous year.
102 Juries Act 1825 (6 Geo 4. c 50). The Act is discussed in Cary, H.. A Practical Treatise on the Law of Juries and Jurors (London. 1826).Google Scholar
103 Italics added.
104 Jurors (Scotland) Act 1825 (6 Geo 4. c 22). s 2.
105 Religious Disabilities Act 1846 (9 & 10 Viet, c 59).
106 Juries Act 1870 (33 & 34 Vict, c 77). See also s 9.
107 The process is described by King, J.. The Management of Private Affairs (Oxford. 1908). pp 222. 223.Google Scholar
109 This was because the exemptions were stated in the Juries Act 1870. s 9. to apply to ‘any juries or inquests whatever’. Willes J said in his judgment (at 489) that before 1870 there were no exemptions from service upon coroners' juries.
110 The Coroners Act 1887 (50 & 51 Vict, c 71). s 3. laid down that persons summoned to serve on a coroner's jury should be ‘good and lawful men’.
112 Bill 111.
115 Clause 20.
117 Clause 5.
121 Report of the Select Committee on Special and Common Juries. Parliamentary Papers 1867–1868. vol xii. p 57.Google Scholar
126 Skyme, T.. History of the Justices of the Peace (Chichester. 1994). p 452.Google Scholar estimates that about a quarter of all justices of the peace were clergymen.
127 The last attempt at reform was on 22 April 1874. The Bill (no 18) was withdrawn on 30 July 1874.
128 (1913) Cd 6817.
129 Para 270.
130 For full details, see Memorandum by the Home Office to the Departmental Committee on the Law and Practice Relating to Jury, Service (1963). p 13.Google Scholar See also Report of the Departmental Committee on Jury Service (1965) (Cmnd 2627).Google Scholar para 89. Disputes were settled by a magistrates' court: Juries Act 1922 (12 & 13 Geo5. c 11). s 1(5).
131 Juries Act 1922. s 2(2). The argument that this provision implied eligibility is weakened by the fact that those disqualified by a criminal conviction (Juries Act 1870. s 10) had also to serve if their name appeared in the jurors book: Rv Kelly  2 KB 164 at 173.Google Scholar  1 All ER 806at810.(1950) 34 Cr App Rep 95at104. CCA.
132 Juries Act 1922. s 8(1). (2)(b).
135 (1965) Cmnd 2627.
139 The one change it made was to remove the italicised words in the following sentence: ‘[a] vowed member of any religious order (whether of men or of women ) living in a monastery, convent or other religious community’.
140 (1993) Cm 2263. para 27. See also recommendation no 216.
141 See the Juries Act 1974. s 9. which allows a person to apply for ‘good reason’ to be excused jury service. and Sch 1. Pt III (amended by the Criminal Justice and Public Order Act 1994. s 42). which gives ‘A practising member of a religious society or order the tenets or beliefs of which are incompatible with jury service’ automatic exemption from jury service. Of itself religious belief is not a ‘good reason’ for the purposes of s 9: it may be a ‘good reason’ if the applicant's religious beliefs prevent him from performing his duty as a juror properly: R v Guildford Crown Court, ex parte Sklerfin  1 QB 683 at 695.Google Scholar  3 All ER 7 at 10. DC.
142 Lord Chancellor's Department. Home Office. Law Officer's Department. June 1996. p 47.Google Scholar
143 Law Reform (Miscellaneous Provisions) (Scotland) Act 1980 (c 55). s 1(2). Sch 1. Pt III. Group E.
144 These include the Baptist Union of Great Britain. the General Assembly of Unitarian and Free Christian Churches, the Seventh-day Adventist Church and the Congregational Federation. Reform and Liberal Rabbis would also like the option to serve on juries. On the other hand, the Codex luris Canonici 1983. canon 289. para 2. requires a Roman Catholic bishop, priest or deacon to decline jury service whenever this is possible.