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Published online by Cambridge University Press: 02 January 2018
Should those who have served as members of the jury in a newsworthy trial be restrained by the criminal law from recounting what transpired in the jury room?
The issues surrounding the legitimacy or otherwise of jury room disclosures pose peculiar problems in the administration of justice. They do so because such disclosures are made, not by journalists assigned to cover the trial (as at present), nor via the medium of televising the event (as may shortly be the case), nor simply by those most intimately involved in the conduct and outcome ofthe trial (such as the accused or counsel). The special feature which sets jury room disclosures apart is the fact that they emanate from those who are directly responsible for the verdict in the case. Viewed in this way, the accounts given by ex-jurors should perhaps be considered in broadly the same light as the recollections of the person less directly responsible for the outcome, namely the trial judge. And, indeed, we do have a wellknown instance of the latter type of account in Lord Devlin's Easing the Passing , the story of the trial for murder in 1957 of Dr John Bodkin Adams.
1 The space devoted to this aspect of the subject in the two monographs on the English jury is quite small. See Devlin, Trial by Jury (1956) pp 46–48: Cornish, The Jury (1968) p 22. See further the Tenth Report of the Criminal Law Revision Committee, Cmnd 3750, and the anonymous note at (1986) 60 Australian Law Journal 56 (hereinafter ‘Australian Law Journal note’).
2 The Bodley Head, 1985: in this article references will be made to the new edition, published in 1986 by Faber and Faber with a postscript added by the author.
3 Earlier cases of note include Ellis v Deher (1922) 2 KB 113; R v Annrtrong (1922) 2 KB 555; R v Thompson(1962) 1 All ER 65.
4 [1981) QB 1.
5 The exceptions, listed in s 8 (2), encompass: (1) disclosures made in the instant proceedings associated with the arrival at, or delivery of, a verdict (paragraph (a)); and (2) disclosures made in subsequent proceedings brought as a result of offences allegedly having been committed ‘in relation to the jury’ in an earlier case (paragraph (b)). It should also be noted that, under s 8 (3), proceedings for contempt under the section may only be brought by or with the consent of the Attorney-General or on the motion of a court which has jurisdiction to deal with the offence.
6 In contrast to the practice of the signing of the Official Secrets Act by those most likely to be affected by its terms, the juror 's oath contains no mention of confidentiality.
7 There appears to be no reason in principle why, as an alternative to contempt proceedings under s 8, the action for breach of confidence should not lie to enforce the secrecy of the jury room.
8 For a consideration of jury secrecy in the light of the constitutional restraints imposed by the United States ' First, Sixth and Seventh Amendments see the anonymous note, ‘Public Disclosures of Jury Deliberations’ (1983) 96 Harvard Law Review 886 (hereinafter ‘Harvard Law Review note’).
9 Sunday Times v United Kingdom European Court of Human Rights, Series A, No 30. 2 European Human Rights Reports 245. The most important passages in the judgment of the court for present purposes appear to be paragraph 55 (the term ‘judiciary’, pouvoir judiciaire, in Article lO(2) encompasses the machinery of justice in general) and paragraph 60 (that same heading redeems only the general aims of the law of contempt, and not necessarily in every point of detail).
10 [1913) AC 417.
11 Difficulties can occur at the margins of the divide between openness of court proceedings and secrecy of jury deliberations. For example, in R v Higgins (1989) Times, 16 February a conviction for carrying an offensive weapon was quashed because the trial judge had allowed the jury to take the item in question into its room and there conduct an experiment with it. That experiment should have been conducted in open court. Furthermore, it was wrong for the jury to have in its room such a potentially dangerous item. See also R v Stewart (Angela), R v Sappleton (Marcia) (1989) Criminal Law Review 653, in which convictions for knowingly importing cannabis were quashed since the trial judge had complied with the jury 's request to provide it with scales in the jury mom for the purpose of weighing the holdalls in the false compartments of which the cannabis had been stored.
12 Secrets: On the Ethics of Concealment and Revelation (Oxford University Press, 1986).
13 Ibid, pp 110–111.
14 For comment on other aspects of this provision see Miller, Contempt of Court (2nd edn, 1989) pp 403–405; Arlidge and Eady, The Law of Contempt (1982) pp 260–261; Borrie and lowe, law of contempt (2nd edn, 1983) pp 247–249.
15 Criminal Justice Act 1967, s 13.
16 Such a prohibition could perhaps be garnered by applying expressio unius exclusio alterius reasoning to s 17 (3) of the Juries Act 1974, which substantially reproduces s 13 (2) of the Criminal Justice Act 1967:.
‘The Crown Court shall not accept a verdict of guilty by virtue of subsection (1) above [ie the majority verdict provision] unless the foreman of the jury has stated in open court the number of jurors who respectively agreed to and dissented from the verdict’.
17 For the proper form see Practice Direction (Crime: Majority Verdicts) (1967) 1 WLR 1198, in particular paragraphs 2 and 3.
18 Section 8 carries no defence of prior disclosure.
19 Apart from the points made in this part of the text, consider the criticisms of s 8 made in Miller, op cit, p 405: that it would not necessarily catch a person 's generalised reminiscences of several experiences of serving on a jury; nor his views about the desirability or otherwise of a prosecution having been brought in a particular case in which he was a juror; nor his expressions of doubt as to whether the correct verdict had been reached in such a case.
20 However damaging they might be, pure fabrications (eg that the verdict was reached on the toss of a coin) would not fall within the scope of s 8. In order to constitute an attempt there must be some intent to disclose the secrets of the jury room, even though one encumbered by a faulty memory. For an unusual instance of the application of the criminal law to such fabrications see Official Secrets Act 1989, s 1(2), encompassing purported disclosures relating to security or intelligence by members or ex-members of the security and intelligence services.
21 It is worth noting that Lord Devlin 's Easing the Passing was first published two years after the death of Dr Adams — a point which was emphasised without elaboration at p 221. Furthermore, a conviction may be overturned as unsafe if statements attributed to the trial judge as having been made outside the court room are reported while the case is still pending. See R v Eumshaw (1990) Criminal Law Review 53.
22 In defence of the law as it stands it could be argued that it would have been insensitive to have attempted to devise a formula which did not apply in an equal-handed fashion to the two tendencies mentioned in the text. Devlin, Easing the Passing, pp 219–220 (in the postscript), goes to considerable pains to meet the charge of having ‘tampered with the verdict’ by citing passages in the body of the book where he has commended the jury 's decision as ‘unquestionably a true verdict’.
23 There is a significant exception, however. The Judicial Committee of the Privy Council has traditionally handed down a single judgment. Not until the promulgation of the Judicial Committee (Dissenting Opinions) Order in 1966 was the recording of dissents permitted.
24 For some account of the historical development see J. H. Baker, The Legal Profession and the Common Law: Historical Essay (Hambledon Press, 1986) chapter 10 (‘The Changing Concept of a Court’) especially at pp 167–169. It was long the practice to strive for judicial unanimity, with judgment in some cases being postponed for years in the hope of attaining this ideal. Only by the end of the sixteenth century was it at all common for cases to be disposed of on the basis of majority opinions.
25 The Jury under Attack (ed by Findlay and Duff, 1988).
26 Ibid, chapter 4 (‘Jurors’ Deliberations, Jury Secrecy, Public Policy and the Law of Contempt’).
27 A-G v Jonathan Cape Ltd (1976) QB 752.
28 Ibid, p 77 ID.
29 Ibid, p 765A.
30 Ibid, p 761D:‘… Ministers will not feel free frankly to discuss and to surrender their personal and departmental preferences to the achievement of a common view, nor can they be expected to abide by a common decision, if they know that the stand they have taken and the points which they have surrendered will sooner rather than later become public knowledge’.
This is an extract from a letter sent to the defendants by Sir John Hunt, the Cabinet Secretary, which expressed in summary form the case made by the Attorney-General at the subsequent trial of the action.
31 To pursue the analogy a little further, it should be noted that the trend of thinking has been in the direction of increased liberalisation of the official secrets law in so far as it bears on Cabinet papers. The Franks Committee on s 2 of the Official Secrets Act 1911 (Cmnd 5104, 1972) chapter 11, was firmly of the opinion that Cabinet documents should have the protection of the criminal law against their possible disclosure. The present government, however, has consistently been of the view that criminal sanctions should not attach to these documents as such. This is reflected in the Official Secrets Act 1989.
32 Findlay and Duff, op cit, p 62.
33 Findlay and Duff, op cit, p 63.
34 R v Roads (1967) 2 All ER 84.
35 Boston v W. S. Bagshaw & Sons (1967) 2 All ER 87.
36 Cf the ‘enrolled bill’ rule, under which the courts will not inquire into the validity of an instrument which bears the signs of a correctly enacted Act of Parliament.
37 In Boston v W. S. Bagshaw & Sons (1967) 2 All ER 87 at p 88, Lord Denning MR adduced a further reason which is, in part, reflected in Part B of this section of the article: ‘… to protect the jury themselves [sic] and to prevent them being exposed to pressure or inducement to explain or alter their views’.
38 In any case, it is well established that the Court of Appeal will not entertain a disclosure from the jury room in judging whether the verdict is unsafe or unsatisfactory. Such a rule existed prior to 1981 — see R v Thompson, supra, n 3 — and has recently been re-affirmed in the light of s 8 — see R v Chionye (1989) 89 Cr App R 285.
39 Rondel v Worsley (1969) 1 AC 191.
40 Mcllkenny v Chief Constable of West Midlands (1980) QB 283.
41 See Martin Young and Peter Hill, Rough justice (Ariel Books, 1983) for a collection of such cases which had originally formed the subject-matter of a series on BBC television.
42 Harvard Law Review note, p 891. See also The Sociology of Georg Simmel, translated and edited by K. H. Wolff (Free Press, Glencoe, Illinois, 1950) p 241, on the subject of jury verdicts:.
‘the requirement of unanimity (found, for instance, in England and America) is based on the more or less unconscious assumption that the objective truth must always be subjectively convincing, and that, inversely, the identity of subjective convictions is the criterion of objective truth.’ .
43 Considered afresh, it is surely strange that of the larger body (of twelve) drawn together at random (due allowance being made for the occasional instance of jury vetting) we expect (though, since 1967, we no longer invariably require) a unanimous decision. No such expectation is laid on the smaller group (usually of three or five) the members of which have spent their working lives steeped in the characteristic modes of thinking of the English legal system.
44 [1987) QB 582.
45 Ibid, p 595A.
46 Juries Act 1974, s 5 (2) grants the right to any ‘party to proceedings’ in which a jury may be required to try an issue. Section 5 (4) provides that the court, ‘if it thinks fit’, may afford to ‘any person’ the same right even though the person would not qualify under s 5(2).
47 Clearly, the risk of an improper approach under these circumstances will vary according to the ratio between the size of a given panel and the standard jury size. At Manchester Crown Court, for example, this figure is very approximately 95:12.
48 Juries Act 1974, s 11 (1).
49 Effected by the Criminal Justice Act 1988, s 118 (1).
50 Incidentally, a power to restrict one potential source of disclosure is contained in the Criminal Justice Act 1988, s 118 (2). This specifically empowers a judge to order that the hearing of a challenge for cause be held in camera or in chambers.
51 See the Times, 25 July 1988, p 5, where this device is mentioned together with other measures aimed at combatting the intimidation of jurors. The article recites that in 1987 jury protection cost Scotland Yard 3,588 man days of work, and for the first six months of 1988 the figure had risen to 5,862 man days. Although negotiations were mentioned as being under way to limit the availability of such details as jurors ' addresses, no mention was made of the possibility of jury anonymity.
52 For a detailed account of measures for the protection of jurors which would accompany a proposed return to jury trial for scheduled offences in Northern Ireland see Greer and White, Abolishing the Diplock Courts (Cobden Trust, 1986) pp 74–76.
53 There is an analogy which may be of assistance here. The introduction of majority verdicts in 1967 was presented to the public as a counter to the threat posed to the administration of justice by the practice of juror intimidation. One may fault, of course, the particular strategy that was selected for this purpose. If such was the justification for the change, why not provide greater police protection for jurors rather than alter the decision-making rule? Be that as it may, the possibility of a guilty verdict by majority decision remains even when there is not the slightest prospect of an improper approach being made to the jury. The new rule encompasses not only the frightened juror and the corrupt juror, but also the juror who has genuine reservations about the accused 's guilt.
54 The situation which applies in many American federal districts; See Harvard Law Review note, p 901.
55 The position under the new s 69A of the Juries Act 1967 of the state of Victoria: see Australian Law Journal note, p 59.