Keeping Women Off The Jury

Published 7th June 2017
In December 1919, the prohibition on women serving on juries in the United Kingdom was brought to an end. The Sex Disqualification (Removal) Act 1919 was, itself, a compromise, with the government agreeing to lift various sex-based disqualifications but refusing to equalise the parliamentary franchise, or open membership of the Lords to women. And it is fitting that much of the academic work which has been done on female jury service after 1919 explores similarly political questions, tracing the subsequent half century of campaigning which was needed in order to challenge those rules which continued to keep women off juries.

And it is clear how these rules achieved this. ‘Peremptory challenges’ allowed the parties in felony trials to prevent someone from being sworn in as a juror, without having to justify their objection. As the Lord Chief Justice explained in 1927, a defendant ‘might have said, “I don’t like the expression on that person’s face”’, and that would have been sufficient. A trial judge could also order that all the jurors in a particular trial must be men, if he was satisfied that ‘the nature of the evidence to be given’ or ‘the issues to be tried’ required it.

There were also popular perceptions at play in restrictions on female jury service. Alfred Hitchcock’s 1928 film version of ‘Easy Virtue’, for example, dramatized complaints that women were not capable of dispassionate judgment in divorce trials. Four years earlier, a High Court judge had explained to an audience at UCL that the practice of removing all women from murder trials ‘had become in his experience universal’. And newspapers may have added to the fear that women could not be relied upon in shocking trials by regularly interviewing women who had actually served on the jury in particularly upsetting murder trials. How many women were actually called upon for jury service? Rules drafted shortly after the 1919 Act was passed had required officials to summon jurors according to the gender composition of those qualified to serve in a particular area, subject to an absolute minimum of fourteen women (in case scare-quoted ‘feminists’ challenged all the men off a jury). This initially resulted in an average of 3.2 women for every 12 jurors summoned in the counties and 4.4 per 12 in those boroughs with their own courts; although by the end of the decade this had fallen to 2.7 and 3.0 respectively.

Just as the number of women summoned fell during the 1920s, so too did the numbers actually serving on juries. In the Midlands, the average assize jury went from having between 3.3 and 2.9 women in 1921, to having between 2.0 and 2.4 in 1929. In the south of England (excluding London), the average jury went from having between 2.0 and 1.3 women per jury in 1921 to an average of just 0.8 by the end of the decade. In the provincial assizes, the average number of women per jury was declining, but it also varied from region to region.

Why did the gender composition of 1920s assize juries vary so much? Was it simply that more women were qualified in some places? In Bristol, 2.7 out of every 12 people qualified for jury service were women, compared with only 1.3 women on the average Bristolian jury. Leicester’s jury pool had 1.8 women per 12, but its juries had an average of 3.1 women. In Norwich, the 2.0 women among every 12 qualified people translated into 1.6 per jury. The number of women qualified to serve doesn’t seem to have had much bearing on the numbers that actually served.

This means we have to start considering other local factors. Newspapers regularly reported judges warning their female jurors that an upcoming trial might be too unpleasant for them. Unsurprisingly, many (although by no means all) of these women took the opportunity to have someone else serve in their place. Such judicial gestures fed into a popular narrative that women were too irresponsible to serve. They also put additional pressure on local officials to ensure there were sufficient men in their jury pools to replace the women who – whether through challenge, judicial order, or invitation – found themselves taken off the jury. By analysing almost 5,000 trials at the provincial assizes in the Midlands, southern England, and south Wales throughout the 1920s, it has been possible to assess the extent to which women were systematically kept off apparently ‘shocking’ trials. In all five of the assize circuits studied, at least 91% of sexual offence trials which did not involve a female victim were tried by an all-male jury. Conversely, an analysis of the number of all-male juries which tried property offences – presumably a much less ‘shocking’ class of case – found that they were particularly unusual in each of the five assize circuits studied. The local component comes across more clearly when we consider all-male juries in trials for other – less obviously ‘shocking’ or non-‘shocking’ – categories of crime. In the southeast of England, all-male juries were particularly unusual for trials concerning homicide and offences against the state. In south Wales, the same was true for non-fatal offences against the person; and in southwest England, there were fewer all-male juries in sexual offence trials involving female victims. In the Midlands, where there were generally more female jurors anyway, there were no differences beyond the general trends noted above regarding male-only sexual offences and property offences.

We should not be surprised to learn that women were routinely excluded from juries well after the 1919 Act lifted the blanket ban on female jurors. What is surprising is just how localised many of these exclusions were. Women were far more prevalent on assize juries in the Midlands than they were elsewhere. And even within a particular region, different local traditions seem to have impacted on the trials which female jurors could try. By recognising this, we can see just how difficult was the challenge faced by those who thought women should no longer be kept off the jury.

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This blog post is based on Kevin Crosby, ‘Keeping Women off the Jury in 1920s England and Wales’ (2017) Legal Studies. It can be found at http://onlinelibrary.wiley.com/doi/10.1111/lest.12169/full