Jury Racial Construct: An antithesis to the reason curve
The normative landscape of Anglo-American criminal jurisprudence is steeped in gut-wrenching racial discrimination. This occurs at all levels of the criminal justice system and has almost become normalized. One stops short of branding it institutionalized not because the term lacks justification but, because it is unhelpful in the debate and has a tendency to inflame passions without resolving matters.
It is difficult to point to a single period in history or a specific incident that can be highlighted as embodying the putrid bile of racial prejudice. Yet, its presence, in a seemingly modern of artificial intelligence, demonstrates both the unwillingness of the system to evolve in the face of intellectual advances and the challenges inherent in an unequal and disparate society. How can it? We are polarized on party partisan lines. We are polarized on social lines and we are polarized even on intellectual lines. Our leaders ferment prejudice by, in some case walking a fine line and in other cases, brazen and wanton acts of naked racial aggression.
It would be almost understandable if the prejudice was manifest only at the point of delivery in the criminal justice system. That would be an unpardonable form of escapism. We know it is palpable at the extant point of contact – a physical manifestation of a latent prejudice combined with power. Yet, the last recourse of the common man for redress is brushed aside at the point of service. That the courts abandon all attempts to exercise their powers to deliver justice is manifest. That they often do it deliberately to injure rather than nurture the spirit of justice and fair play is alarming yet, not surprising.
One wonders if Blackstone’s maxim of the one innocent man contemplated a colour-blind criminal justice dystopia.
This article attempts to draw out from the antiquities, the attempts to make justice colourless and argues that the jury, properly directed and educated, may hold the key – ceteris paribus.
According to Myrdal’s cumulation principle, there is: “A vicious cycle in which whites oppressed blacks, and then pointed to blacks’ poor performance as reason for the oppression”.
Myrdal suggested that the cycle could be broken by either curing white people of prejudice or by improving the circumstances of blacks which would then disprove whites’ preconceived notions. He went on to declare, with particular reference to jury construction and criminal trials that: “It is notorious that practically never have white lynching mobs been brought to court in the South, even when the killers are known to all in the community and are mentioned in name in the local press.
In a detailed evaluative work on jury racial construction, Fukurai et al submitted that:
Recent race riots offer powerful and disturbing images and evidence of the cost of ignoring the apparent unfairness of court decisions made by all white juries. In the eyes of many marginalized segments of the community, the conviction of a black defendant or acquittal of a white defendant by an all-white jury, against overwhelming evidence of his guilt, is deeply disturbing. The fact that a jury is all white has the powerful effect of racializing the jury proceeding. In the post-Civil War south, a series of similar atrocities occurred when the Ku Klux Klan’s frenzy of violence and lynching, targeting blacks and white Republicans, went unpunished by all white juries. Today, issues of racially mixed juries and racial balance in cases involving inter-racial crimes pose unique challenges to our judiciary, our criminal justice system, and the community.[i]
It has been observed that a major challenge confronting the American jury system is how to ensure that jury trials are truly representative of the communities in which they serve.
Historical records show that minorities (as currently defined) have been disproportionately excluded from jury service over the years. This has been attributed to a combination of factors at each stage of the juror identification process and the civil rights movement. In terms of summons, the judicial system lacks the means to sufficiently identify enough members of the minorities due to their position on the socio-economic scale as well as their social mobility. When it comes to juror selection, the rate of reporting of those ethnic minority members who are summoned is very low. Finally, voir dire and peremptory challenge are used by attorneys to excuse most potential minority jurors.
The argument has been made by many that jury compositions, especially in criminal cases, should be engineered to reflect the defendant’s race. The matter is fraught with difficulties and has not been resolved in any way.
The idea, however, is not new. As a matter of historical interest, for over five centuries, until 1870, the then minority ethnic groups in England such as Germans, Jews and the Italians, had the right to be tried by the de mediate linguae – a jury comprised half of foreigners akin to the accused. Racial origin, in this regard, was restricted to geographical and national origin. The idea was that a defendant would feel a greater sense of justice if someone of his race was on the jury. This was abolished on the grounds that no foreigner needs fear for a fair trial in England. It could also be argued that a lack of integration and population homogeneity created the environment for such a concept of institutional racism to thrive.
Attempts have been made to engineer the racial composition of juries in order to match the ethnic background of the defendant. In the UK in 1993, the Royal Commission on Criminal Justice recommended that legislation be enacted to enforce racial representation. It argued that on the application of the defence or prosecution and in exceptional circumstances, a judge would be able to order that a jury include up to three representatives of racial minority communities. In addition, counsel should be able to ask the court to designate that one of the three be of the same racial background as the accused.
It is submitted that in the modern setting, the perceived panacea presented by such a judicial mechanism or attempts to ‘create’ a racially balanced jury is a false one. This recommendation has been presented before and each succeeding research indicates that a racially balanced jury does not necessarily deliver the right verdict or make the jury more representative of the community. Furthermore, such well-meaning tinkering appears to misunderstand, at best, or totally ignore the dynamics of race as an ingredient in jury decision-making. One would argue that a sense of justice and fair play coupled with a legal environment devoid of discrimination is more likely to be successful at ensuring a fair and just outcome in a trial. There is more.
Some jurisdictions have other ideas. In New Zealand, the Law Commission pointed out, in 1998, that three jurors, randomly chosen from three different minority racial groups will not necessarily render the jury more representative nor will one juror of the same racial background as either the accused or the complainant satisfy the demands of the accused for a more representative tribunal of fact. The point is difficult to ignore.
In colonial Nigeria, the law provided for racial quotas in trial by jury. If the defendant was a non-native, the court was allowed to direct that not more than half of the jury should be ‘non-natives’. What is less obvious is the fact that Nigeria is a multiplication of ethnicities with differing cultural and religious backgrounds. Skin colour, in a country of black people, does not necessarily define race nor does it always explain perception. None of these can be or could be justified as the subject of racial representation is a complex one. The tinkering makes very little positive difference to the perception or delivery of fairness in criminal trials. Using skin colour to determine ‘representativeness’ in a multi-cultural and multi-ethnic society is misleading. Skin colour, it is submitted, is a less reliable variable than gender, for the most part.
The fundamental issue, however, is one of homogeneity. A disparate society has no claim on the virtue. The difference, it is argued, is made by education which, in this context, is given a narrow interpretation and offers a deep appreciation for community homogeneity. The challenges of the matter only need to be stated to be appreciated. An educated and informed jury (citizenry) is arguably, likely to be more objective about race and criminal tendencies and thus, evaluate the veracity of evidence on its merit. This education would include clear guidelines of what is required of a jury relative to its verdict. The lack of accountability on the part of jurors, prima facie, has some dubious advantages. However, it could lead to all sorts of mishaps. The propagation of prejudice is a case in question.
Juror Racial Conflict
Further, a racially balanced jury could be challenged on the grounds that it is more likely than not to be seen as a token to political correctness rather than a genuine attempt to redress the effects of and root out racial prejudice among jurors. In any event, there is no guarantee that both juror and defendant will not experience a psychological reactance to such a seemingly patronising gesture however well-meaning the objective. There is the further argument that attempting to construct a racially balanced jury could undermine the delicate social fabric of any society by giving the impression that justice must reflect colour. This might be seen as a recognition and acceptance of the racial bias of the majority against minorities and vice versa. Justice, in the event, may be blind but colour cognisant.
Under the US Constitution, the Equal Protection Clause of the 14th amendment prohibits states from denying any person within its jurisdiction the equal protection of the laws. In other words, the laws of a state must treat an individual in the same manner as others in similar conditions and circumstances. Generally, the question of whether there has been a violation of equal protection clause arises when a state grants a particular class of individuals the right to engage in an activity yet denies other individuals the same right. There is no clear rule for deciding when a classification is unconstitutional. The Supreme Court has prescribed the application of different tests depending on the type of classification and its effect on fundamental rights. Traditionally, the Court finds a state classification constitutional if it has “a rational basis” to a “legitimate state purpose.” The Supreme Court, however, has applied more stringent analysis in certain cases. It will “strictly scrutinize” a distinction when it embodies a “suspect classification.
The case of Batson vividly illustrates the issue of equal rights and jury representativeness. In this case involving a black defendant, the judge challenged certain prospective jurors for cause and excused them following a voir dire examination. The prosecutor then used his peremptory challenges to strike all four black persons on the venire following which a jury composed entirely of white people was empanelled. The defence counsel moved to discharge the jury on the ground that the prosecutor’s removal of the black veniremen violated the petitioner’s rights (under the Sixth and Fourteenth Amendments) to a jury drawn from a cross section of the community to the equal protection clause under the Fourteenth Amendment.
Disregarding the petitioner’s argument and request for a hearing, the trial judge denied the motion. The jury ultimately convicted the petitioner. Affirming the conviction, the Kentucky Supreme Court observed that recently, in another case, it had relied on the case of Swain v. Alabama, 380 U.S. 202 and had held that a defendant alleging lack of a fair cross section must demonstrate systematic exclusion of a group of jurors from the venire.
Earlier, the US Supreme Court in Strauder demonstrated the conflict between state positions and the constitution. It held that:
The statute of West Virginia which, in effect, singles out and denies to coloured citizens the right and privilege of participating in the administration of the law as jurors because of their colour, though qualified in all other respects, is, practically, a brand upon them, and a discrimination against them which is forbidden by the amendment. It denies to such citizens the equal protection of the laws since the constitution of juries is a very essential part of the protection which the trial by jury is intended to secure. The very idea of a jury is that it is a body of men composed of the peers or equals of the person whose rights it is selected or summoned to determine; that is, of persons having the same legal status in society as that which he holds.
Arguing against a not-altogether-modern but invidious phenomenon (discrimination on the basis of gender), the Supreme Court, inE.B. v. Alabama Ex Rel. T.B., 511 U.S. 127 (1994) held that the denial of constitutional rights on the grounds of gender was equally illegal. It went on:
The Equal Protection Clause prohibits discrimination in jury selection on the basis of gender, or on the assumption that an individual will be biased in a particular case solely because that person happens to be a woman or a man. Respondent’s gender-based peremptory challenges cannot survive the heightened equal protection scrutiny that this Court affords distinctions based on gender.
Thus, the court held that:
Even when the decision to strike virtually all males in this case may reasonably have been based on the perception, supported by history, that men otherwise totally qualified to serve as jurors might be more sympathetic and receptive to the arguments of a man charged in a paternity action, while women equally qualified might be more sympathetic and receptive to the arguments of the child’s mother – is virtually unsupported and is based on the very stereotypes the law condemns.
However, the case did not lay the matter of discrimination, on the basis of gender, to rest. Blackmun, J., writing the majority opinion continued:
The conclusion that litigants may not strike potential jurors solely on the basis of gender does not imply the elimination of all peremptory challenges. So long as gender does not serve as a proxy for bias, unacceptable jurors may still be removed, including those who are members of a group or class that is normally subject to Page II “rational basis” review and those who exhibit characteristics that are disproportionately associated with one gender.
The US Supreme Court rulings, based on constitutional amendments, have bolstered the attorneys’ use of the voir dire and peremptory challenges to potential jurors in an attempt to ensure the desired outcome or tilt the jury in one’s favour.
Voir dire is a process used by attorneys to determine whether potential jurors are capable of considering evidence fairly and objectively. They do this by questioning the potential jurors about their backgrounds, opinions, life experiences and social status. It is not an exact science but the idea is to avoid manifest prejudice.
The term is from Anglo-French and means to “speak the truth”.
The process allows an attorney to challenge a prospective juror “for cause” if he or she expresses a bias against the attorney’s case. Furthermore, each attorney is allowed to exercise a limited number of “peremptory” challenges for which no reason is required. Those voters who are accepted by both attorneys (or the trial judge, if the judge conducts the voir dire) are empanelled and sworn in to serve on the particular jury for which they have been questioned.
Naturally, each attorney is in the case to win and will, without blame, seek so pack the jury room with jurors that are most sympathetic to his cause. Thus, as the US sees it, the power to challenge jurors and the discretion to do so is an essential component of the adversarial system of trials. This latitude, primarily governed by Strauder, is one that American Attorneys have enjoyed for a considerable length of time.
The preceding discussion established very robust and instructive principles. According to Batson, the Equal Protection Clause of the Fourteenth Amendment governs the exercise of peremptory challenges by a prosecutor in a criminal trial.
With regards to jury composition, from that ruling, we understand that although a defendant has “no right to a `petit jury’ composed, in whole or in part, of persons of his own race, ‘by reference to the old case of Strauder, the “defendant does have the right to be tried by a jury whose members are selected pursuant to none-discriminatory criteria.
The Court was at pains to highlights its credentials and commitment to fair jury selection.
The English Courts
By contrast, in England & Wales, there is virtually no means for attempting the elimination of racial bias as in the US through the use of voir dire or ensuring a racially mixed jury. The leading case of Batson was not widely received by the Justices and this, perhaps, tempers observations of the UK position albeit, with a large caveat.
There remains only challenge for cause since the abolition of peremptory challenge. However, with this, the defence is given no facts about the jurors upon which to base a challenge. As Darbyshire argues, short of having a swastika tattoo in full view, challenge for cause is practically redundant.
It is a valid observation that in the modern society, increasingly, cases have become ‘multi-handed’, involving defendants of many differing ethnic backgrounds.
The idea of empanelling a multi-racial jury only has to be stated to highlight the challenges. Besides, it may not be practical to nor can we justify questioning potential jurors about their racial origins. Can there be a justification for conducting such questioning? In the event, racism, as opposed to race, is a subjective matter. In a jurisdiction that does not require explanation from a jury, masking latent racism is a fairly simple matter.
In practical terms, the construction of a racially balanced jury may give the impression of addressing the issue, however, it provides no guarantee and does not address the issues it might raise. The question of racial composition of a jury goes beyond identifying with a particular skin colour. The cultural and ethnic differences even among people of the same colour and race have to be recognised and this has a bearing on the concept of a fair trial. Historical and contemporary genocide and ethnic cleansing are instructive in their demonstration of ethnic prejudice even amongst people of the same race. The genocide unleashed on the world by the savage brutality of the war in Rwanda[ii] is instructive. The current Syrian conflict leaves us baffled as do other conflicts fanned by racial passions round the world. In a trial involving such diverse ethnic actors, how do we construct a racially relevant or balanced jury?
Further, how is the question of attempting to engineer the dynamics of deliberation to be addressed? It is observed that jurors are selected randomly from a geographical area in which a crime occurred. The presumed common bond is that of shared values and experience gained, in the most, by belonging to the same local society.
Could the assumption that they will thus share somewhat common opinions be sufficiently conceded to render it an acceptable platform that negates the ignominy of an engineered jury? A response in the positive would undermine the argument for a constructed jury.
A negative response, on the other hand, would undermine the principle of random selection. In either case, we would be no closer to understanding a jury’s reasoning behind a verdict nor would such a reason be easily articulated without justifying a narrow cesspit of prejudice. Attempting to articulate a response to this quest highlights the fact that the impact of a racially engineered or manipulated jury appears to be fraught with many variables. Yet we must continue to search for ways to deliver a racially balanced justice system. The courts, impartial, as they must be, have grappled with this fact.
Under English law, there was an exceptional judicial discretion to amend the composition of all-white juries in trials of non-white defendants. In the event, the Court of Appeal ruled against such an intervention in Fordon the basis of separation of powers, arguing that judges should not intervene in administrative matters. Their reasoning is worthy of note. They neither offered an objective justification for abandoning the practice nor did they rule on the efficacy of mixed juries. The appeal was in deference to administration.
This, of course, does not begin to address the issue of the majority verdict introduced in order to deal with an irrational and perverse minority holding the rest of the jury to ransom. Would the boundaries have to be changed? What happens when the racially engineered jury divides on racial lines in a majority verdict? Can we justify ignoring the voice of the minority on the grounds of a vocal and forceful majority? Apparently yes. We now accept majority verdicts in criminal trials. How do we know if a racially mixed or constructed jury did not divide along racial lines?
The impact of racial composition of a jury and the impact of racial prejudice is just as relevant a matter to the question of a reasoned verdict.
In the UK, Judge Robert Moore took the unusual step of halting a criminal trial and discharging the jury on suspicion of racial prejudice.
The judge stated that he had become aware, through a juror, that the empanelled jury was racially biased. In reaching his decision, the judge said:
I believe, having consulted counsel, that the whole concept of a fair trial…has been so undermined that the jury must be discharged and a new trial ordered.
What if the conscience-stricken juror had resisted the urge to speak out? Would a racially mixed jury have forced a similar outcome or used its composition to fight prejudice?
In April 1999, a jury was discharged in Stafford Crown Court after the court clerk received an anonymous phone call in which a man said a fellow juror had made racist remarks and had already made up his mind about a mixed-race couple’s guilt.
In both cases, the trial was at a point where the presiding judge could intervene and attempt to nullify the impact of racial bias prior to a verdict. The matter might be different and a question for the appellate court if a verdict had been rendered already. It becomes clear from the actions of both judges, that racial prejudice is a factor that affects a jury’s final verdict. The UK court, like their US counterparts, have recognised this and have sought ways to minimise its impact and ensure a fair trial.
Some judges respond well to this as noted from the cases above. There is, yet, some way to go. Even the European Court of Human Right’s position is variable. In Sander, it was held, by four votes to three in 2000, that:
A judge’s decision to deal with an allegation of racial bias in a jury trying an Asian defendant by means of a redirection rather than a discharge did, in the circumstances, constitute an infringement of the right to a fair trial as guaranteed by article 6.1 of the European Convention on Human Rights.
Earlier in 1997, the same court, in Gregory held, by a majority of 8 to 1, that the same circumstances involving a black defendant…did not constitute an infringement to a fair trial as guaranteed by article 6.1 of the ECHR. The former is the prevailing law.
So how do we explain the diverging response to alleged ‘objective’ prejudice?
The Human Rights Court distinguished the two cases on the basis that there was no admission of racism in Gregory and that the complaint had been vague and imprecise. In reaching its decision in Sander, the court considered that clear and precise allegations of racist comments had been made by the jurors and argued that it could not accept that the seeking of vague assurances from the jurors that they would set aside their prejudices was robust enough. It further recognised that in today’s multi-cultural European societies, the eradication of racism had become a common priority goal for all contracting states.
There we have it on authority. It is a matter for public policy in light of modern requirements for social cohesion.
The issue of racial prejudice in the jury room is one that is recognised to pose a threat to the concept of a fair trial not just in the UK but in all legal jurisdictions.
However, when there are reports of inappropriate behaviour by the jury during deliberations, the effect of S.8 of the Contempt of Court Act is to prevent any judicial investigations into the matter. Thus, jury deliberation is sacrosanct. In the US, constitutional provisions and judicial pronouncements attempt to prevent racial prejudice, amongst other affectations, from reaching the jury room. In the UK, discretionary rules and chance are used to prevent racial prejudice from exerting its influence in the jury room.
The issue of confidentiality of jury deliberation was recently before the Judicial Committee of the House of Lords (Now called the Supreme Court) in two cases.
One involved the conviction of an Asian man of indecent assault. The other concerns a juror’s disquiet at the readiness with which his fellow jurors convicted two men accused of wounding with intent because they were getting irritated at the length of the trial.
In both cases, the Court of Appeal held that it was barred from investigating the whistle-blowing juror’s claims.
The journalist who reported the case added, almost as an after-thought, that while the police have the power to investigate and charge and the CPS (Crown Prosecution Service) the power to prosecute, juries have the ultimate power – to convict or acquit.’
And this, notwithstanding the potential juror prejudice which is largely unchecked and which could remain resistant to many robust judicial instructions. The House of Lords held (Lord Steyn dissenting, in part) that the common law position which protected the confidentiality of jury room discussions was not incompatible with art. 6(1) of the Human Rights Act 1998.
When the matter concerns manifest skin colour differences, prayer to racial representation in a jury further blurs the obscurity of lack of homogeneity but can enhance perceptions of a fair trial. This could be misleading. Race is as diverse as cultural and social differences even amongst people of the same skin colour.
It is submitted that a jury that is explicitly charged with explaining its verdict would be mindful of the consequences of citing colour prejudice as indeed it would be of making a decision that is manifestly steeped in such prejudice. Such a requirement, one muses, may invite the jury to be more objective in its assessment. Such a requirement would not only better inform the jury continuum, it would also enrich, tremendously, the reason curve of trial by jury.
1. Myrdal, Gunnar (1944). An American dilemma: The Negro problem and modern democracy. New York: Harper & Bros.
 Edward S. Adams, Christian J. Lane (1998). Constructing a jury that is both impartial and representative: Utilizing cumulative voting in jury selection. 73 N.Y.U.L. Rev. 703
 Fukurai, H. et al, (1993). Race and the Jury: Racial Disenfranchisement and the Search for Justice. NY: Plenum the concept of the jury de medietate linguae had its origin in the treatment of Jews in the 12th Century. The term applies to people who were considered alien or foreign and spoke a different language. The English considered the Jews as aliens in race, religion and culture and considerable animosity existed against the Jews who were deemed to be anti-Christ and Christ-killers and they were darker-skinned and spoke a mysterious and foreign language. For a fascinating charting of the matter and its extension to Italians, Germans, all foreigners and other matters, see Fukurai et al.
 A Latin expression that means ‘of half tongue’. The term refers to a jury composed of an equal number of natives and foreigners. Edward III ordered such a composition in commercial cases when one party to the proceedings was an alien. It was later extended to criminal trials. The case was tried without such a composition if enough aliens could not be found to add to the jury.
 In order to preserve a ‘jury of one’s peers’ and the principle of a fair trial.
The Naturalisation Act of 1870 gave rights to aliens to serve on juries and to acquire, hold and dispose of property like any other English-born citizen. This paved the way to remove the need for the privilege of a mixed jury. See Ramirez, D. (1984). The mixed jury and the ancient custom of trial by jury de medietate linguae: A History and a proposal for change. Boston University Law Review 74:777-818, Enright, Multi-Racial Juries (1991) 141 NLJ. 992.
 The Royal Commission on Criminal Justice, 1993, Cm 2263, at 207-8
 Cameron, N. et al (2000), The New Zealand Jury in Neil Vidmar’s World Jury Systems, pg. 195.
 Vidmar, N. (2000) ibid. at page 425
 In his response to the Auld Review, Professor Zander suggests that if those specially chosen ethnic jurors were aware that they were chosen by this special procedure, it would place them in a highly uncomfortable position in the jury room. See www.criminal-courts-review.org.uk
 The jury, in an inner city London, Birmingham or Manchester where the population is predominantly non white would have to be racially balanced too to provide ‘justice’ for the white man should he be a defendant.
 See Strauder v. West Virginia, 100 U.S. 303 (1879) which explored the implications of the 14th Amendment thus: The Fourteenth Amendment of the Constitution of the United States considered, and held to be one of a series of constitutional provisions having a common purpose, namely to secure to a recently emancipated race, which had been held in slavery through many generations, all the civil rights that the superior race enjoy, and to give to it the protection of the general government, in the enjoyment of such rights, whenever they should be denied by the States. Whether the amendment had other, and if so what, purposes is not decided. The amendment not only gave citizenship and the privileges of citizenship to persons of color, but denied to any State the power to withhold from them the equal protection of the laws, and invested Congress with power, by appropriate legislation, to enforce its provisions. The amendment, although prohibitory in term, confers by necessary implication a positive immunity, or right, most valuable to persons of the colored race — the right to exemption from unfriendly legislation against them distinctively as colored — exemption from discriminations, imposed by public authority, which imply legal inferiority in civil society, lessen the security of their rights, and are steps towards reducing them to the condition of a subject race.
 Since Batson, we have reaffirmed repeatedly our commitment to jury selection procedures that are fair and none-discriminatory. We have recognized that, whether the trial is criminal or civil, potential jurors, as well as litigants, have an equal protection right to jury selection procedures that are free from state-sponsored ‘group stereotypes rooted in, and reflective of, historical prejudice. See Powers v. Ohio, 499 U.S. 400 (1991); Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991); Georgia v. McCollum, 505 U.S. ___ (1992).
 Darbyshire, op., cit. p18 argues, quoting Lloyd-Bostock and Thomas at p.25 that it has been argued that this is one serious consequence of the abolition of peremptory challenge.
 Rehnquist, C.J., filed a dissenting opinion. Scalia, J., filed a dissenting opinion, in which Rehnquist, C.J., and Thomas, J., joined. [J.E.B. v. Alabama Ex REL. T.B., ___ U.S. ___ (1994), 1]
 A party’s challenge supported by a specified reason such as bias or prejudice that would disqualify that potential juror, Black’s Law Dictionary, 7th edition, West Group, St. Paul Minnesota 1999 at p.233
 One of a party’s limited number of challenges that need not be supported by any reason although a party may not use such a challenge in a way that discriminates against a protected minority, Black’s Law Dictionary, 7th edition, West Group, St. Paul Minnesota 1999 at p.223.
 op.cit., 18
 Paul Robertshaw argues that randomness of jury selection cannot guarantee representativeness of specific juries either of the local population or of the defendant’s community of identification. Responding to Bias amongst jurors, Journal of Criminal Law, Vathek Publishing, (2002). JoCL 66(84)
 See R v Binns (1982) Crim. LR 552 at 823 and R v Frazer (1987) Crim. LR 418.
 R v Ford (1989) 3 All ER 445
 It is interesting to note that the law in England & Wales in 1967 was preceded by that in colonial Nigeria where the jury was encouraged to deliberate to reach a unanimous verdict but failure after two hours would allow the judge to accept a majority verdict of 10 jurors.
 Robert Verkaik, Legal Correspondent, The Independent, 16th October 2000
 Judge Warner, The Independent, op. cit. The judge however, refused an application for a change of venue and the second jury was also discharged following further allegations of racial comments by some jurors.
 Sander v UK (34129/96)
 In the case, a juror had sent a communication to the judge alleging that another juror had made racist comments during deliberation. The juror in question later admitted this. The ECJ ruled that the allegation was capable of causing the applicant and objective observer legitimate doubts as to the impartiality of the court.
 Gregory v United Kingdom, (111/1995/617/707)
 The court recognised that by virtue of s. 8 of the Contempt of Court Act 1981, the Court of Appeal was barred from investigating what occurred in the jury room to establish the credibility of the allegation. See R v Miah and Akhbar (1997) 2 Cr. App. R12 and R v Qureshi, The Times (11 September 2001), CA. These cases concern the contempt of Court Act and the limits on the Court of Appeal.
 As noted in the Declarations of the Vienna and Strasbourg Summits of the Council of Europe.
 Clare Dyer, The Dirty Dozen, The Guardian, 28th October 2003.
 R v Mirza. Op. cit.
 Johnson, S. L. (1985), Black Innocence and the White jury, Michigan Law review 83: 1611-708, Colbert, D. L. (1990) Challenging the challenge: Thirteenth amendment as a prohibition against the racial use of pre-emptory challenges, Cornel Law Review 76:1-128, Ramirez. D. (1995), Multicultural empowerment: It’s not just black and white anymore. Stanford Law Review 47:957-92
[i] Fukurai, Hiroshi, Social De-Construction of Race and Affirmative Action in Jury Selection (March 23, 1991). La Raza Law Journal, 1999, 11:17-68. Available at SSRN: https://ssrn.com/abstract=2584237