Embracery

Last updated

In the common law, embracery is the attempt to influence a juror corruptly to give their verdict in favour of one side or the other in a trial. This may be by promise, persuasions, entreaties, money, entertainments and the like. [1]

Contents

Early English law

In English law, embracery was an offence both at common law and by statute, punishable by fine and imprisonment. As a statutory offence it dates back to 1360. The offence is complete, whether any verdict has been given or not, and whether the verdict is in accordance with the weight of evidence or otherwise. The person making the attempt, and any member of the jury who consents, are equally punishable. [1]

The legal term "embracery" comes from the Old French embraseour, an embracer, i.e., one who excites or instigates, literally one who sets on fire, from embraser, to kindle a fire. This is unrelated to the common word "embrace", i.e., to hold or clasp in the arms, which is from French embracer, from Latin bracchia, arms. [1]

The false verdict of a jury, whether occasioned by embracery or otherwise, was formerly considered criminal, and jurors were severely punished, being proceeded against by writ of attaint. This changed in 1670 with Bushel's Case , in which the Court of Common Pleas held that a jury could not be held accountable for its verdict. The Juries Act 1825, in abolishing the by then almost obsolete writs of attaint, made a special exemption as regards jurors guilty of embracery (s.61). Prosecution for the offence has been so extremely rare that when a case occurred in 1891 [2] it was stated that no precedent could be found for the indictment. The defendant was fined £200 (equivalent to £23,000in 2021 [3] ), afterwards reduced to £100. [1]

Modern usage

By 2010 the offence was regarded as obsolete [4] and such misconduct more likely to be charged as perverting the course of justice. [5] The last conviction for embracery in the UK was at Caernarvon Crown Court in November 1975 but it was quashed by the Court of Appeal the following year on the initiative of Lord Justice Lawton, [6] who said that the offence was obsolete.

The offence was abolished by section 17 of the Bribery Act 2010, [7] as from 1 July 2011. [8]

In the United States, embracery prosecutions have occurred as recently as 1989, when a county commissioner in Georgia was sentenced to a fine and probation. [9] [10]

See also

Related Research Articles

Barratry is a legal term that, at common law, described a criminal offense committed by people who are overly officious in instigating or encouraging prosecution of groundless litigation, or who bring repeated or persistent acts of litigation for the purposes of profit or harassment.

In jurisprudence, double jeopardy is a procedural defence that prevents an accused person from being tried again on the same charges following an acquittal or conviction and in rare cases prosecutorial and/or judge misconduct in the same jurisdiction. Double jeopardy is a common concept in criminal law. In civil law, a similar concept is that of res judicata. Variation in common law countries is the peremptory plea, which may take the specific forms of autrefois acquit or autrefois convict. These doctrines appear to have originated in ancient Roman law, in the broader principle non bis in idem.

A grand jury is a jury—a group of citizens—empowered by law to conduct legal proceedings, investigate potential criminal conduct, and determine whether criminal charges should be brought. A grand jury may subpoena physical evidence or a person to testify. A grand jury is separate from the courts, which do not preside over its functioning.

<span class="mw-page-title-main">Jury trial</span> Type of legal trial

A jury trial, or trial by jury, is a legal proceeding in which a jury makes a decision or findings of fact. It is distinguished from a bench trial in which a judge or panel of judges makes all decisions.

<span class="mw-page-title-main">Perjury</span> Act of swearing a false oath or falsifying an affirmation to tell the truth

Perjury is the intentional act of swearing a false oath or falsifying an affirmation to tell the truth, whether spoken or in writing, concerning matters material to an official proceeding.

<span class="mw-page-title-main">Jury</span> Group of people to render a verdict in a court

A jury is a sworn body of people (jurors) convened to hear evidence and render an impartial verdict officially submitted to them by a court, or to set a penalty or judgment.

Jury nullification (US/UK), jury equity (UK), or a perverse verdict (UK) occurs when the jury in a criminal trial gives a not guilty verdict regardless of whether they believe a defendant has broken the law. The jury's reasons may include the belief that the law itself is unjust, that the prosecutor has misapplied the law in the defendant's case, that the punishment for breaking the law is too harsh, or general frustrations with the criminal justice system. Some juries have also refused to convict due to their own prejudices in favor of the defendant. Such verdicts are possible because a jury has an absolute right to return any verdict it chooses.

A hung jury, also called a deadlocked jury, is a judicial jury that cannot agree upon a verdict after extended deliberation and is unable to reach the required unanimity or supermajority. Hung juries usually result in the case being tried again.

<span class="mw-page-title-main">Magistrates' court (England and Wales)</span> Lower court in England and Wales

In England and Wales, a magistrates' court is a lower court which hears matters relating to summary offences and some triable either-way matters. Some civil law issues are also decided here, notably family proceedings. In 2010, there were 320 magistrates' courts in England and Wales; by 2020, a decade later, 164 of those had closed. The jurisdiction of magistrates' courts and rules governing them are set out in the Magistrates' Courts Act 1980.

A writ of attaint is an obsolete writ in English law, issued to inquire whether a jury had given a false verdict in a trial.

<i>Bushels Case</i> 1670 English legal case

Bushel’s Case (1670) 124 E.R. 1006, also spelled Bushell's Case, is a famous English decision on the role of juries. It established beyond question the independence of the jury. It also confirmed that the Court of Common Pleas could issue a writ of habeas corpus in ordinary criminal cases.

<span class="mw-page-title-main">Criminal law of Canada</span>

The criminal law of Canada is under the exclusive legislative jurisdiction of the Parliament of Canada. The power to enact criminal law is derived from section 91(27) of the Constitution Act, 1867. Most criminal laws have been codified in the Criminal Code, as well as the Controlled Drugs and Substances Act, Youth Criminal Justice Act and several other peripheral statutes.

In France, a cour d'assises, or Court of Assizes or Assize Court, is a criminal trial court with original and appellate limited jurisdiction to hear cases involving defendants accused of felonies, meaning crimes as defined in French law. It is the only French court that uses a jury trial.

<span class="mw-page-title-main">Criminal Law Act 1967</span> United Kingdom legislation

The Criminal Law Act 1967 is an Act of the Parliament of the United Kingdom that made some major changes to English criminal law, as part of wider liberal reforms by the Labour government elected in 1966. Most of it is still in force.

<span class="mw-page-title-main">Juries in England and Wales</span> Law of trial by jury in England and Wales

In the legal jurisdiction of England and Wales, there is a long tradition of jury trial that has evolved over centuries. Under present-day practice, juries are generally summoned for criminal trials in the Crown Court where the offence is an indictable offence or an offence triable either way. All common law civil cases were tried by jury until the introduction of juryless trials in the new county courts in 1846, and thereafter the use of juries in civil cases steadily declined. Liability to be called upon for jury service is covered by the Juries Act 1974.

<span class="mw-page-title-main">Scottish criminal law</span>

Scots criminal law relies far more heavily on common law than in England and Wales. Scottish criminal law includes offences against the person of murder, culpable homicide, rape and assault, offences against property such as theft and malicious mischief, and public order offences including mobbing and breach of the peace. Scottish criminal law can also be found in the statutes of the UK Parliament with some areas of criminal law, such as misuse of drugs and traffic offences appearing identical on both sides of the Border. Scottish criminal law can also be found in the statute books of the Scottish Parliament such as the Sexual Offences (Scotland) Act 2009 and Prostitution (Scotland) Act 2007 which only apply to Scotland. In fact, the Scots requirement of corroboration in criminal matters changes the practical prosecution of crimes derived from the same enactment. Corroboration is not required in England or in civil cases in Scotland. Scots law is one of the few legal systems that require corroboration.

Common law offences are crimes under English criminal law, the related criminal law of some Commonwealth countries, and under some U.S. state laws. They are offences under the common law, developed entirely by the law courts, having no specific basis in statute.

A citizen's right to a trial by jury is a central feature of the United States Constitution. It is considered a fundamental principle of the American legal system.

The first signs of the modern distinction between criminal and civil proceedings were during the Norman conquest of England in 1066. The earliest criminal trials had very little, if any, settled law to apply. However, the civil delictual law was highly developed and consistent in its operation.

Juror misconduct is when the law of the court is violated by a member of the jury while a court case is in progression or after it has reached a verdict.

References

  1. 1 2 3 4 Wikisource-logo.svg One or more of the preceding sentences incorporates text from a publication now in the public domain :  Chisholm, Hugh, ed. (1911). "Embracery". Encyclopædia Britannica . Vol. 9 (11th ed.). Cambridge University Press. p. 309.
  2. R v Baker 113, CCC Sess Pap 374
  3. UK Retail Price Index inflation figures are based on data from Clark, Gregory (2017). "The Annual RPI and Average Earnings for Britain, 1209 to Present (New Series)". MeasuringWorth. Retrieved 11 June 2022.
  4. Richardson, P. J., ed. (2006). Archbold: Criminal Pleading, Evidence and Practice. London: Sweet & Maxwell. ISBN   0-421-90920-X., 28-47, 28-151
  5. Attorney-General v. Judd [1995] COD 15, DC
  6. R v. Owen [1976] 3 All ER 239
  7. Bribery Act 2010 on legislation.gov.uk.
  8. Bribery Act 2010 (Commencement) Order 2011, SI 2011 No. 1418
  9. Calhoun Times. "Embracery Case Politically Motivated, Sutherland Says". 8 June 1988, pp. 1A, 2A. Retrieved on 25 June 2013.
  10. Calhoun Times and Gordon County News. "Sutherland Resigns from Board: Gets Probation in Embracery Case". 15 July 1989, pp. 1, 3. Retrieved on 25 June 2013.