By Prof Gwen Seabourne, Professor of Legal History (University of Bristol Law School)
In a manslaughter case held in Swansea in 1968,[i] an unusual order was made. Thesiger J. decided that it should be heard by an all-female jury. He made the order under a discretion granted to him by the Sex Disqualification (Removal) Act 1919, the first, and apparently the only time that such an order was made in Wales or England.
The possibility of ordering a single sex jury has long since been removed, but R. v. Sutton was and is important as an event, and as a working-out of the implications of the early, limited, moves towards women’s participation in public life which came with the Representation of the People Act 1918 and Sex Disqualification (Removal) Act 1919. The fiftieth anniversary of the case (and the approaching centenary of the 1919 Act) seems an appropriate moment to sketch some of its claims on our attention.
Women on juries: a stuttering start
The Act which provided for the inclusion of some women on juries followed hard upon the Act which had brought inclusion of some women in the political process, as voters, but the inclusion of women on juries was not a ‘done deal’ once some women had the vote. There was continued opposition to them taking on this additional role, and, in many common law jurisdictions, the two steps were separated by a considerable period of time.[ii]
Objections to women acting as jurors were based on ideas that they were, as a sex/gender, constitutionally unsuitable for the task of hearing evidence and making a rational, fair, decision, because they were mentally inferior to men, or too emotional. In addition, the matter was often framed not as a question of whether or not women should be allowed to serve, but whether or not it was fair to expect them to serve, taking them away from their proper (domestic) sphere and exposing them to unpleasant evidence.
The 1919 Act made some women eligible for jury service, but did not set the scene for anything like equal participation. The centuries-old property qualification for jurors was not removed. This meant that fewer women than men were eligible (since structural inequalities meant that fewer women than men would meet the property-holding standard). The right of peremptory challenge to jurors before the trial was also retained, without any adjustment to reflect the likelihood that such challenges would be used disproportionately against women (as they were). The Act included a provision founded on the idea that certain cases were particularly inappropriate for female jurors. Section 1(b) allowed a judge to exempt women (but not men) at their request, ‘by reason of the nature of the evidence to be given or of the issues to be tried’. Of particular relevance to R. v. Sutton, s. 1(b) also gave judges the discretion to require a single-sex jury. This was put in a neutral way: a judge could require either an all-male or an all-female jury, ‘as the case may require’. Discussion in Parliament, however, concerned only cases in which it might not be appropriate for women to be required to sit (sexual offences), rather than cases in which it might be appropriate to have only women on a jury. Was the inclusion of this possibility just a self-conscious attempt to appear even-handed, without clear ideas as to application? Was there some unexpressed link with the other all-female tribunal which lawyers of this generation would have known, the ‘jury of matrons’? This process, which had its roots in medieval practice was not finally ended in England and Wales until the Sentence of Death (Expectant Mothers) Act 1931. It was used to investigate a claim of pregnancy by a woman convicted of a capital crime,[iii] but since it was not involved in determinations of guilt, it is unlikely to be what was intended. In any case, for almost fifty years, while there were occasional orders for an all-male jury, and despite the scare-mongering that female lawyers (newly allowed) would press for all-female juries at every turn,[iv] the opportunity of ordering an all-female trial jury does not seem to have been taken up by any English or Welsh judge.
Then came R. v. Sutton.
Margaret Ann Sutton was tried at the assizes in Swansea for the manslaughter of her three-year-old niece, in February 1968. The victim, Miya Bibbi Ullah, had died as a result of having been scalded in a bath of hot water.
After Thesiger J had made the order for the all-women jury, the defence tried to change its composition by using multiple challenges, but those challenged were simply replaced by other women.[v] The trial proceeded and Sutton was convicted. She made the judge’s order one of the grounds of her appeal against conviction. This failed, but the Court of Appeal made it clear that, while the judge’s decision was not beyond the s. 1 (b) discretion, they disapproved of it. Whether or not as a result of this disapproval, no other judge followed Thesiger J’s example before the possibility of doing so was removed.
Points of interest
1. Evidence on the legal establishment’s attitudes to women jurors
R v. Sutton affords interesting insights into attitudes towards women, and to their suitability for jury service, which were prevalent amongst contemporary male lawyers.
The judge “said he felt [the order] was essential because [the case] involved the bathing of a baby and the feelings of women were concerned.”[vi] This suggests he thought: (i) (all) women would know more about child care than (all) men, and; (ii) the feelings of women were fundamentally different to those of a man, as well as essentially similar to those of any other woman.
The lawyers’ objections to the order were also based on ideas about the essential nature of women. Sutton’s counsel, Aubrey Myerson QC, said that the case was too emotive for a jury of women to be able to hear and decide without the steadying influence of a man or men: “this was a case which was emotionally power-packed, and to empanel a jury solely of women would present great problems because of that. It was going to be very difficult for twelve women without stability of any man being present, to apply an objective mind without partiality to the evidence in the case”. [vii] Myerson also made a comment straightforwardly denigrating women’s intelligence: “[any jury of women was] not going to apply to the facts of this case the breadth of vision normally given by a jury in which there were men.” The Daily Mirror’s summary of Myerson’s objection included the statement that “it was conceded by lawyers that women were more emotionally prejudiced than men, and men were more stable”.[viii] Myerson did entertain the possibility that not all women were the same, when he thought that would help his case, however, also arguing against the judge’s assumption that just by being female, women jurors would be able to understand the accused. They were not, he said, going to be “a jury of women in the same age group as Sutton, or with the same background or intellectual capacity of the accused”.
The prosecution objection, made by T. E. Rhys Roberts, was that the subject matter was too upsetting for [all and any] women: “the emotive value of injury or death to a child on a woman … would take it outside the bounds one expected of a jury”. The logic of his objection is not clear: the implication may have been that over-emotional women would be pro-defendant, or he may have been taking the (unasked for) ‘chivalrous’ role of protecting women from unpleasantness.
At the appeal, Sutton’s counsel argued that the order had been unfair to her, because the details of the case were “so harrowing that prejudice was likely with an all-women jury”:[ix] Woman, as women, could not be trusted to be objective in certain sorts of case.
The Court of Appeal (Lord Parker LCJ; Ashworth J; Davies LJ) expressed disapproval of the use of the all-women jury ‘even if the case was highly emotional’, but there was no explicit disagreement with critical or essentialist constructions of women. Questioning those would require considerable additional work by feminist theorists and campaigners.
2. Why this case and why this judge?
R. v. Sutton was a case with a female defendant, and it revolved around homicide of a young child being cared for by the defendant. Those facts did not make it obviously unique, so why did this judge decide to order an all-women jury at this time?
It would be a stretch to suggest – following the hint of the Daily Mirror – that the fact that he was the father of three daughters had any relevance to Thesiger J’s decision,[x] but other personal information may be more pertinent. It may be taken into account that, for all that his obituary would say that he had not courted publicity,[xi] he does not seem to have been averse to press attention, receiving considerable coverage for his conduct of a case concerning the smell of pig manure in the same year as R. v. Sutton,[xii] and, shortly before, for chasing a burglar through Chelsea, whilst in his pyjamas.[xiii] A certain independence of spirit is indicated by the short shrift given to some of his other judgments by the Court of Appeal.[xiv] Making a decision which might be controversial might not be likely to too daunting for such a judge. Probably more pertinently, he was interested in matters of jury selection,[xv] and had engaged with a recent consultation on jury service.[xvi] This had discussed issues of jury composition, the small proportion of women selected, peremptory challenges and the s.1(b) discretion, portraying it as a potential check on use of informal means, and peremptory challenges, to reduce the number of women on a juries, and in some ways a preferable mechanism to that of peremptory challenge. [xvii] This may well have seemed to Thesiger J an encouragement to use it.[xviii]
His justification for ordering an all-women jury was probably not based on a judgment that an all-women jury was necessary, given the issues at stake: it appears that his real objective was not ensuring that only women sat on the jury, but that there was a significant female voice on it. Since he could not require a quota of women, all he could do, to ensure female presence, was to use the blunt instrument of the s.1(b) discretion and order an all-female jury.
3. The potential for exploring wider perspectives
Aside from the legally-relevant facts, newspaper coverage emphasised additional categories of information about the case, which give some additional insight into its time and context. Many reports make a point of noting that the victim was ‘coloured’.[xix] Several also mention that Sutton was an ‘unwed’ mother of two, pregnant with a third child, from Splott (a poor part of Cardiff), and ‘unemployed’.[xx] A particularly detailed account in the Daily Mail notes as significant that she ‘told the court that she had [one child, name and age were given] by a coloured medical student who had died’ as well as another with a second father, and a third child on the way; and she had taken her sister’s children away from her in 1967 because they were being mistreated. The implication is that the Sutton sisters were living in what readers could be expected to interpret as an undesirable and perhaps somewhat chaotic way.
There is also some comment on the female jurors: newspaper reports tell us that one of them could not read the oath; that they were “middle aged”. The Guardian reporter noted their taste in headgear, mentioning that four were ‘hatless’ and one ‘wore a scarf on her head.[xxi] Elsewhere, it was noted that half of them had changed outfit from one hearing date to the next.[xxii] This focus on clothing suggests an inability to treat women jurors in the same way as male jurors, on whose attire one would not expect to see comment.
Aftermath and Conclusion
R. v. Sutton caused a stir, and was remembered when jury service was the subject of further debate and change in the early 1970s.[xxiii] The case itself, and subsequent discussions showed a divergence of views: some wishing to see women treated the same as men, and taking an equal place on the jury, and others sticking to the sorts of argument about women’s essential character, their unsuitability as jurors and their likely embarrassment in particular sorts of case which had been made ever since the debates on the 1919 Act. The discretion to order a single sex jury was removed in England and Wales in legislation of 1971,[xxiv] though the right to peremptory challenge, which was a factor in Thesiger J’s decision to order the all-women jury, was only abolished in 1988.[xxv]
Looking back at it from the present, R. v. Sutton is certainly an anomaly: a strangely late and singular taking up of a slightly mysterious judicial discretion. It is, however, not unimportant. In the context of women’s participation in criminal justice, it is an important reminder of the long and tortuous path from the admission of some women to eligibility for jury service to formal equality, and the slow evolution away from overt stereotyping of women and men, their ‘essential nature’ and relative capacities as jurors. More generally, it seems to me to be important to note that, while much of the discussion of this case treated women as a category, essentially undifferentiated (apart from the important question of hat-preferences), there was also, in newspaper coverage of the case, a strong current separating off and treating with particular disdain the poor, the ‘non-white’, the sexually non-conforming: the pragmatically protean nature of prejudice encapsulated. An anonymous solicitor writing about R. v. Sutton shortly after it was heard speculated that, once ‘the era of all-male juries’ had been brought to an end, ‘the first all-female jury [would] become a topic of no more than minor interest for social and legal historians.’ [xxvi] I hope that I have convinced readers that it is worthy of a wider audience than that.
Much remains to be unearthed on the background to the case, and it would be interesting to see what more could be learned from the papers relating it in the National Archives (ASSI 84/513). These, however, are not due to be opened until 2044, so that will be a lead to be followed by scholars of the future.
[i] R v Sutton (Margaret Anne) (1969) 53 Cr. App. R. 128.
[ii] A. Logan, ‘Building a new and better order’? Women and jury service in England and Wales, c.1920–70’, Women’s History Review, 22 (2013), 701-716; K. Crosby, ‘Keeping women off the jury in 1920s England and Wales’, Legal Studies 37 (2017), 695-717; A.L.T. Choo and J.Hunter, ‘Gender discrimination and juries in the 20th century: judging women judging men’, International Journal of Evidence & Proof 22 (2018) 192-217.
[iii] J.C. Oldham, ‘On “pleading the belly:” a concise history of the jury of matrons’, Criminal Justice History, 6 (1985), 1-64; T.R. Ford, ‘A Jury of Matrons’, Medical History 32 (1988) 23-3J; S.M. Butler, S.M. Butler, ‘Pleading the belly: a sparing plea? Pregnant convicts and the courts in medieval England’ in S.M. Butler and K.J. Kesselring eds, Crossing Borders: boundaries and margins in medieval and early modern England (Leiden, 2018), 131-52.
[iv] Minute, HB Simpson, HO 45/13321/8; Crosby, ‘Keeping women off juries’, 700.
[v] Times, 30th April, 1968, 4.
[vi] Times, 30th April, 1968, 4.
[viii] Daily Mirror, 30th April 1968, 4.
[ix] Guardian 19th November 1968, 5.
[x] Daily Mirror, 30th April, 1968. 4.
[xi] Times, 22nd April, 1981, 14.
[xii] Times, 20th December, 1968, 2.
[xiii] Times, 24th October, 1967, 1.
[xiv] Times, 11th July, 1959, 5; 7th February, 1962, 6; 16th January, 1963, 12; 19th June, 1963, 9; 26th February, 1965, 17; 18th May, 1965, 15; 18th February, 1966, 9; 2nd February, 1967, 7; 25th April, 1967, 13; 28th April, 1967, 15; 12th March, 1968, 8.
[xv] Times, 31st March, 1956, 7.
[xvi] Report of the Departmental Committee on Jury Service, Cmnd 2627, 761.
[xvii] Report, 312, 321, 322, 329.
[xviii] Note also the all-male jury, achieved by peremptory challenge, in the Moors murders case: Times, 20th April, 1966, 12.
[xix] See, e.g. Daily Mirror, 30th April 1968, 4; Guardian, 2nd May 1968, 4; Newcastle Journal, 3rd May 1968, 9.
[xx] Times, 2nd May, 1968, 5; Daily Mirror, 1st May 1968, 9.
[xxi] Guardian, 1st May, 1968, 4.
[xxii] Daily Mirror, 1st May 1968, 9.
[xxiii] HL Deb 19 November 1970 vol 312 cc.1245-6; 08 December 1970 vol 313 cc.874-926; 17 December, 1970, vol.313 cc. 1507-1610.
[xxiv] Courts Act 1971, s. 35(7).
[xxv] Criminal Justice Act 1988, s. 118(1).
[xxvi] Birmingham Daily Post, 3rd May,1968, 8.