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Keeping women off the jury in 1920s England and Wales

Published online by Cambridge University Press:  02 January 2018

K. Crosby
K. Crosby*
Affiliation:
Newcastle Law School
*
K Crosby, Newcastle Law School, Newcastle University, 21–24 Windsor Terrace, Newcastle NE1 7RU, UK. Email: [email protected]
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Abstract

The Sex Disqualification (Removal) Act 1919 ended the prohibition on female jurors. This did not mean that English and Welsh juries became representative institutions overnight, however: the property qualifications ensured that juries were still drawn from the top few per cent of the local population; and the 1919 Act expressly permitted trial judges to order single-sex juries where the nature of the evidence required it. The continued existence of peremptory challenges allowed defendants in felony trials to exclude women from their juries whenever they preferred to be tried only by men. Finally, some judges permitted female jurors to excuse themselves from particular trials if they so desired. This paper explores the effects these factors had on the practical enjoyment of the female jury franchise after the passing of the 1919 Act. It finds that the picture is remarkably localised: rates of women serving on juries were very different for the five assize circuits for which adequate records exist (Midland, Oxford, South Eastern, South Wales and Western). By exploring these issues, this paper reveals how flexible the female jury franchise was in its early years, and shows how important local differences were in keeping women off the jury.

Type
Research Article
Information
Legal Studies , Volume 37 , Issue 4 , December 2017 , pp. 695 - 717
Copyright
Copyright © Society of Legal Scholars 2017 

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Footnotes

*

This research was funded by a British Academy/Leverhulme Trust Small Research Grant, and by Newcastle University's Faculty Research Fund. I am grateful for the helpful comments on earlier drafts of this paper received at the Osgoode Society Legal History Workshop in March 2016, at the Socio-Legal Studies Association conference in April 2016 and at the Society of Legal Scholars conference in September 2016. I am also grateful to Ann Sinclair for assistance with literature searches, and to Legal Studies' two anonymous reviewers for their helpful comments on an earlier draft of this paper.

This paper was last updated on 03/08/2022

References

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2. Representation of the People Act 1918.

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4. ‘Labour Party General Election Manifesto 1918’ in I Dale (ed) Labour Party General Election Manifestos 1900-1997 (London: Routledge, 2000) p 18.

5. Hansard HC Deb, vol 144, col 1561, 4 April 1919.

6. M Zimmeck ‘Strategies and stratagems for the employment of women in the British Civil Service, 1919-1939’ (1984) 27 Hist'l J 901 at 908-909.

7. FAR Bennion ‘The Sex Disqualification (Removal) Act - 60 inglorious years’ (1979) 129 New L J 1088. As we shall see below, the Act was actually relied upon in the appellate courts more than Bennion recognised: there was at least one decision of the Court of Criminal Appeal that concerned s 1(b) of the Act.

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9. Logan, above n 1.

10. Sex Disqualification (Removal) Act 1919, s 1(b).

11. Not completely abolished until the 1980s: Criminal Justice Act 1988, s 118(1).

12. Juries Act 1825, s 1. Separate qualifications had been set for Welsh juries, although these were repealed by the Juries Act 1870, s 7.

13. Criminal Justice Act 1972, Sch 6; Juries Act 1974, s 1.

14. Juries Act 1825, s 50.

15. See Lord Mersey (Chair) Report of the Departmental Committee Appointed to Inquire into and Report upon the Law and Practice with Regard to the Constitution, Qualifications, Selection, Summoning, & c. of Juries, vol 2 Cd 6818, 1913, pp 182-183.

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21. [Irish] Law Reform Commission Consultation Paper: Jury Service LRC CP 61-2010, 2010, para 1.40.

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23. ‘Belfast Recorder's Court: criminal business resumed’ Northern Whig and Belfast Post (Belfast) 18 February 1921 at 7.

24. ‘Belfast death sentence: the trial in detail’ Weekly Telegraph (Antrim) 13 January 1923 at 12.

25. Crown Minute Book: North Eastern Circuit 1921-1924 (ASSI 41/32), 1924-1928 (ASSI 41/33) and 1928-1931 (ASSI 41/34); Crown Minute Book: North and South Wales Circuit, Chester and North Wales Division 1918-1929 (ASSI 61/29) and 1929-1938 (ASSI 61/30). Unless stated otherwise, all archival references are to files held at the National Archives.

26. London's female jurors have recently been explored in a paper looking at the Old Bailey between 1918 and 1926: S Anwar, P Bayer and R Hjalmarsson ‘A jury of her peers: the impact of the first female jurors on criminal convictions’ (2016) NBER Working Paper No 21960; available at http://www.nber.org/papers/w21960 (accessed 20 July 2016).

27. See generally Manchester, AH A Modern Legal History of England and Wales 1750-1950 (London: Butterworths, 1980) pp 162–166 Google Scholar.

28. For the five circuits covered, the civil minute books do not generally name individual jurors.

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33. Ibid, p 48.

34. Minute by HB Simpson, 31 October 1919 (HO 45/13321/8).

35. Ibid.

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37. Such arguments were made by many groups, from First World War Istria to 1940s Vermont: D Pastović ‘“Defect of sex”: exclusion of women from jury service in Istria 1873— 1918’ (2016) 7 J Eur Hist L 155 at 164-165; McCammon, HJ The US Women's Jury Movements and Strategic Adaptation: A More Just Verdict (NewYork: Cambridge University Press, 2012) pp 122–131 CrossRefGoogle Scholar.

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39. ‘Women on the jury: man prisoner's objection at Colchester’ Cambridge Daily News (Cambridge) 28 April 1920 at 3. For the apparently first women to actually serve, see ‘Lady jurors’ Western Daily Press (Bristol) 29 July 1920 at 5.

40. ‘Women jurors vindicated’ Derby Daily Telegraph (Derby) 11 September 1920 at 2.

41. Brittain, above n 38, p 534.

42. See eg M Garrett Fawcett ‘To the Editor of The Times’ The Times (London) 1 February 1921 at 10; ‘Mixed juries: a women's rights view’ Yorkshire Post (Leeds) 31 January 1921 at 6; ‘Women as jurors’ Yorkshire Post (Leeds) 15 March 1921 at 6. Judges also occasionally made this sort of argument: ‘Women jurors in sexual cases: Mr Justice Shearman's view’ The Times (London) 7 June 1921 at 7.

43. ‘Women jurors' work’ Yorkshire Evening Post (Leeds) 20 October 1920 at4. On the jury as a political institution, see generally Green, TA Verdict According to Conscience: Perspectives on the English Criminal Trial Jury, 1200-1800 (Chicago: University of Chicago Press, 1985)CrossRefGoogle Scholar.

44. See eg ‘Mixed juries’, above n 42; ‘Women as jurors’, above n 42; ‘Labour Women's Conference: lively discussion on women jurors’ Yorkshire Post (Leeds) 28 April 1921 at 3.

45. See eg ‘Mixed juries’, ibid; ‘Women as jurors’, ibid.

46. See eg ‘Women's Council and women jurors: “false conception of delicacy”’ Evening Telegraph (Dundee) 9 March 1921 at 3; ‘Women as jurors’, ibid; ‘Women's reform campaign’ Lincolnshire Echo (Lincoln) 13 February 1926; ‘Silly, sentimental ways of men: women teachers demand equality’ Evening Telegraph (Dundee) 6 January 1927 at 4.

47. Herbert, AP ‘ Double Demon: an absurdity in one act’ in The British Drama League Library of Modern British Drama No. 7: Four One-Act Plays (Oxford: Basil Blackwell, 1923)Google Scholar.

48. Famous divorce trials had, themselves, been used to rebuke ‘modern’ women: L Bland Modern Women on Trial: Sexual Transgression in the Age of the Flapper (Manchester: Manchester University Press, 2013) pp 176-209.

49. N Coward Easy Virtue: A Play in Three Acts (London: Ernest Benn, 1926) p 84.

50. A Hitchcock (director) Easy Virtue (1928); available at https://archive.org/details/EasyVirtue1928 (accessed 18 July 2016).

51. ‘The Pavilion’ Bucks Herald (Aylesbury) 13 April 1928 at 5.

52. ‘The Central Cinema: popular “turns” to be introduced’ Bury Free Press (Bury St Edmunds) 26 May 1928 at 5.

53. ‘Next week's amusements: local attractions on stage and screen’ Northern Whig (Belfast) 21 April 1928 at 11.

54. A Woman-Juror ‘On a jury’ (1924) 2(3) The Adelphi 197.

55. Ibid, at 202.

56. Parr, EF The Woman Juror: A Play in One Act (London: Samuel French, 1922)Google Scholar.

57. Ibid, p 8.

58. M Belloc Lowndes What Really Happened, Sunday Post (Glasgow) 10 October 1926 at 8.

59. Hollis, above n 30.

60. Belloc Lowndes, above n 58, at 8.

61. Ibid, at 8.

62. ‘The Rules of the Supreme Court (Women Jurors), 1920’, s 3 (National Archives: LCO 2/559).

63. On circuit rules generally, see R Cock ‘The Bar at assizes: barristers on three nineteenth century circuits’ (1976) 6 Kingston L Rev 36. For the admission of women to particular circuits, see C Corcos ‘Portia Goes to Parliament: women and their admission to membership in the English legal system’ (1998) 75 Denv U L Rev 307 at 398-399; P Polden ‘Portia's progress: women at the Bar in England, 1919-1939’ (2005) Int'l J Legal Prof 293 at 323-324; and J Bourne ‘Helena Normanton and the opening of the Bar to women’ PhD thesis, King's College London (2014) at 195-196.

64. Anwar et al, above n 26.

65. In other words, local officials had a great deal of discretion regarding the discharge of their duties. On the development of the clerk of assize and other related local officials, see Cockburn, JS A History of English Assizes 1558-1714 (Cambridge: Cambridge University Press, 1972) pp 70–84 CrossRefGoogle Scholar.

66. See eg winter 1921 Buckinghamshire assizes, in Midland Circuit 1919-1921, unpaginated. The clerk actually responds to a handwritten note written by another official, but the first official's notes appear to have been copied out from a newspaper report (see the passage transcribed by the same official on the following page).

67. The fact that people could still be registered at multiple addresses at this time means that there is some slight overlap in the figures below, where for example a person is registered both at their home and at their business. The numbers of such double-registered people appear to be reasonably small, however. Furthermore, the fact that such double-counting happened both for jurors and for non-jurors means that any attempt to exclude duplicates from the analysis would require the identification of each duplicate among the nearly 400,000 individuals - jurors and non-jurors - named in the electoral registers consulted. For this reason, a small amount of overlap has to simply be acknowledged as a limitation of the method used.

68. J Oldham ‘Special juries in England: nineteenth century usage and reform’ (1987) J Legal Hist 148.

69. The female juror rate at Leicester was a slightly lower 1.6 per 12 in 1921, which suggests that the overall decline in female jurors during the 1920s was probably not caused by post-war demographic changes.

70. It should be noted here that data for Bristol's juries, as for juries in the South Western Circuit generally, only goes up to the end of 1925. But given that female participation on assize juries was continuing to fall elsewhere between 1926 and 1929, it is likely that the true wholedecade average for Bristol was actually even lower than 1.3 women perjury.

71. Logan, Feminism and Criminal Justice, above n 1, pp 86-95; Logan, ‘“Building a new and better order”’, above n 1, at 704-706.

72. ‘Vaquier's fight for life: appeal dismissed’ Portsmouth Evening News (Portsmouth) 28 July 1924 at 8.

73. R v Vaquier (1925) 18 Cr App R 112, 113. See also ‘Rv Mahon’ The Times 20 August 1924 (CCA).

74. R v Williams (1927) 19 Cr App R 67.

75. ‘Objection to a woman juror: new trial to be held’ Yorkshire Post (Leeds) 8 December 1925 at 7.

76. ‘Exemptions refused women: three empanelled in murder trial’ Lancashire Daily Post (Preston) 14 January 1921 at 2.

77. ‘Women jurors' ordeal: “guilty” verdict in murder trial’ Dundee Courier (Dundee) 19 January 1921 at 5.

78. ‘Town and district’ Northampton Mercury (Northampton) 25 October 1928 at 8.

79. Anwar et al, above n 26, at 12.

80. Autumn 1920 Worcester assizes, in Oxford Circuit 1914-1920, p 490.

81. Summer 1921 Cornish assizes, in Western Circuit 1920-1922, unpaginated.

82. The crime statistics grouped together ‘Unnatural offences’, ‘Attempts to Commit Unnatural Offences’ and ‘Indecency with Males’: Judicial Statistics (England and Wales for 1922, Criminal) (Annual Report) Cmd 2265, 1924, p 15.

83. Lord Morris Report of the Departmental Committee on Jury Service Cmnd 2627, 1965, p 104.

84. ‘Antiquated power: recorder and right to challenge women jurors’ Gloucester Citizen (Gloucester) 25 September 1929 at 5.

85. Autumn 1923 Hampshire assizes, in Western Circuit 1922-1925, unpaginated.

86. Autumn 1920 Sussex assizes, in South Eastern Circuit 1919-1922, p 244.

87. Winter 1921 Norwich assizes, in South Eastern Circuit 1919-1922, p 239.

88. Winter 1921 Hampshire assizes, in Western Circuit 1920-1922, unpaginated.

89. ‘Lady jurors excused: judge's consideration at Wilts assize’ Western Daily Press (Bristol) 20 January 1921 at 8.

90. ‘Woman juror and KC Hull Daily Mail (Hull) 1 December 1921 at 3.

91. ‘Quaker objects: woman juror released at Durham’ Sunderland Daily Echo (Sunderland) 26 February 1923 at 5.

92. Letter from Ernley Blackwell to Claud Schuster 9 December 1919 (National Archives: LCO 2/559) at 2.

93. ‘Problem of the woman juror: has she proved a failure?’ Dundee Evening Telegraph (Dundee) 7 December 1921 at 3.

94. See the newspaper articles cited at n 42. Sometimes judges also criticised women seeking to be excused for failing to take their newly won citizenship seriously: K Crosby ‘Before the Criminal Justice and Courts Act 2015: juror punishment in nineteenth-and twentieth-century England’ (2016) 36 Legal Stud 179 at 205.

95. ‘The woman juror: ajudge's experience in murder trials’ Tamworth Herald (Tamworth) 15 March 1924 at 3.

96. Logan, above n 31. See also DJR Grey ‘Women's policy networks and the Infanticide Act 1922’ (2010) 21(4) Twentieth Century Br Hist 441 at 444-45.

97. See eg ‘Women jurors: Lady Mabel Smith's view’ Yorkshire Post (Leeds) 4 February 1921 at 4.

98. ‘Judge and lady jurors: grim questions which arise in court’ Northern Daily Mail (Hartlepool) 3 November 1922 at 8.

99. ‘Delicacy and duty - do they conflict? A lady juror's view’ Yorkshire Post (Leeds) 27 January 1921 at 6.

100. ‘Marie Studholme a juror’ Hull Daily Mail (Hull) 15 December 1922 at 3.

101. Bland, above n 48, p 120.

102. Grey, above n 96.

103. ‘Our readers’ views: women jurors and capital punishment' Yorkshire Evening Post (Leeds) 21 March 1921 at 7.

104. ‘Woman juror's ordeal at murder trial’ Yorkshire Evening Post (Leeds) 22 March 1922 at 7. It cannot have helped that she lived very near the prison where her defendant was held.

105. S Coleridge ‘Women as jurors’ The Times (London) 2 February 1921 at 6.

106. Anwar et al, above n 26, at 16.

107. Grey, above n 96, at 445-47.

108. Darling J's address at Bristol, as recorded by LC Danger (Bristol Clerk of the Peace), 4 May 1920 (National Archives: HO 45/11071/383085/27a).

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110. D Sharpe ‘Your chi-square test is statistically significant: now what?’ (2015) 20(8) Prac Assess Research & Eval 1 at 3.

111. Corcos, above n 65, at 398-399.

112. Letter from Darling J to Edward Troup, 24 May 1920 (HO 45/11071/383085/30).

113. The fact that so many jurors were needed per session suggests that the practice of using the same jury for several trials had probably ended.

114. ‘Juries: persons frequently summoned for service on, in Leicester’ (HO45/24646/59).

115. S Lloyd-Bostock and C Thomas ‘The continuing decline of the English jury’ in Vidmar, above n 18, p 70. See also Auld LJ Review of the Criminal Courts of England and Wales (London: HMSO, 2001) p 141; and K Gallagher ‘Modernisation of justice through technology and innovation’ Modernising Justice through Technology, Innovation and Efficiency conference, London, 20 July 2016; available at https://www.gov.uk/government/speeches/modernisation-ofjustice-through-technology-and-innovation (accessed 26 July 2016).