Embracery

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]

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, afterwards reduced to £100.^[1]

Modern usage

By 2010 the offence was regarded as obsolete^[3] and such misconduct more likely to be charged as perverting the course of justice.^[4] 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,^[5] who said that the offence was obsolete.

The offence was abolished by section 17 of the Bribery Act 2010,^[6] as from 1 July 2011.^[7]

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.^[8][9]

See also

• Jury tampering

References

1.   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. Richardson, P. J., ed. (2006). Archbold: Criminal Pleading, Evidence and Practice. London: Sweet & Maxwell. ISBN 0-421-90920-X., 28-47, 28-151
4. Attorney-General v. Judd [1995] COD 15, DC
5. R v. Owen [1976] 3 All ER 239
6. Bribery Act 2010 on legislation.gov.uk.
7. Bribery Act 2010 (Commencement) Order 2011, SI 2011 No. 1418
8. Calhoun Times. "Embracery Case Politically Motivated, Sutherland Says". 8 June 1988, pp. 1A, 2A. Retrieved on 25 June 2013.
9. 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.