Investigating Impropriety in Jury Deliberations: A Recipe for Disaster?
| Author | Nicola Haralambous |
| Date | 01 October 2004 |
| Published date | 01 October 2004 |
| DOI | 10.1350/jcla.68.5.411.43223 |
| Subject Matter | Article |
Investigating Impropriety in Jury
Deliberations: A Recipe for
Disaster?
Nicola Haralambous*
Abstract
In light of recent case law, this article explores the principles
underlying the common law prohibition against investigating into jury
deliberations. It considers the effect of judicial refusal to inquire into
genuine and serious allegations of impropriety in the jury room and
examines the effect of the Contempt of Court Act 1981, s. 8. It proposes
that the restrictive secrecy laws be qualified in order to safeguard against
miscarriages of justice and to preserve the moral integrity of the criminal
justice process.
‘[T]rial by jury is more than an instrument of justice and more
than one wheel of the constitution: it is the lamp that shows that
freedom lives’.
Lord Devlin1
In recent months and years, allegations of ‘institutional racism’ have
been levelled at bodies such as the police and the Crown Prosecution
Service. While the legal system is working hard to try to eradicate any
such racism, the activities and discussions of the jury, the most im-
portant 12 people in the eyes of a defendant, are shrouded in secrecy.
This is despite a string of cases where jurors have come forward after the
trial and made allegations of racism and improper behaviour against
other jurors. In light of recent case law, this article questions whether
the common law should permit the courts to conduct investigations into
jury deliberations. Furthermore, it is argued that any juror who discloses
details of deliberations, due to a genuine belief that there may have been
a miscarriage of justice as a result of impropriety in the jury room,
should be immune from liability for contempt of court. Should Parlia-
ment amend the Contempt of Court Act 1981, s. 8 by creating excep-
tions or would this be a ‘recipe for disaster’?2 Would conducting
investigations into jury deliberations undermine the integrity of the jury
system?
The legal position
For over 200 years the common law has prohibited investigations into
what occurs in the jury room. In addition to this, the Contempt of Court
Act 1981, s. 8(1) prohibits jurors from disclosing details of jury delibera-
tions and any other body from investigating into jury deliberations.
Section 8(1) reads:
* LLB, LLM, Barrister, Lecturer in Law at BPP Law School, London.
1 Trial by Jury (Stevens: London, 1956) 164.
2 Attorney-General v Scotcher [2003] EWHC 1380 (Admin) at [54], per Scott Baker LJ.
411
The Journal of Criminal Law
. . . it is a contempt of court to obtain, disclose or solicit any particulars of
statements made, opinions expressed, arguments advanced or votes cast by
members of a jury in the course of their deliberations in any legal
proceedings.
This secrecy law has been unsuccessfully challenged on various occa-
sions in the courts. In the well-known case of R v Young,3 the jury, after
retiring, were accommodated in a hotel overnight. A group of them
conducted a session with a ouija board, asking questions and receiving
‘answers’ in relation to fundamental issues in the case that they were
trying. They unanimously convicted the defendant. On appeal, it was
held that investigations into what happened at the hotel were per-
mitted, as this did not form part of the jury deliberations; however, there
could be no investigation into what happened in the actual jury room. In
R v Miah and Akhbar4 the Court of Appeal stated that the court would
never admit evidence from members of the jury relating to their delib-
erations, whether the discussion took place in the jury room or the jury
box. In this case, after the defendant was convicted of murder, there
were allegations that some of the jurors had made up their minds about
his guilt before having heard the evidence. On such a serious charge,
where the defendant is potentially facing a mandatory sentence of life
imprisonment, surely any such bias on behalf of the jury must be
investigated. In R v Qureshi5 the Court of Appeal reaffirmed the rule that
no investigation into the deliberations of a jury should be permitted. In
this case, a juror came forward after the jury had delivered its verdict
and alleged that one juror had expressed racist views in the jury room,
another had fallen asleep during the trial and another had been deaf.
There were also allegations that one juror had adopted a ‘bullying
attitude’. Despite these concerns, the Court of Appeal held that such
allegations could only be investigated if made before the jury’s part in
the trial process had come to an end. The legal position was reconsidered
by Auld LJ, who criticised the current system and recommended that
trial judges and the Court of Appeal should be allowed to inquire into
‘alleged impropriety by a jury, whether in the course of its deliberations
or otherwise’.6 However, these recommendations have been ignored by
the House of Lords in R v Connor and Another; R v Mirza7 and were not
incorporated into the Criminal Justice Act 2003. The recent cases of
Attorney-General v Scotcher8 and R v Connor and Another; R v Mirza have
reignited the debate.
The Divisional Court in Attorney-General v Scotcher held that a juror
should not be exempt from contempt of court proceedings under the
Contempt of Court Act 1981, s. 8 where he discloses details of jury
deliberations because he has a genuine belief that an impropriety re-
sulted in a miscarriage of justice. Scott Baker LJ stated that creating such
3 [1995] QB 324.
4 [1997] 2 Cr App R 12.
5 [2002] 1 WLR 518.
6 Review of the Criminal Courts of England and Wales (TSO: London, 2001) at 173.
7 [2004] UKHL 2, (2004) 68 JCL 290.
8 [2003] EWHC 1380 (Admin).
412
Investigating Impropriety in Jury Deliberations
an exception to s. 8 would be a ‘recipe for disaster’. Mr Scotcher had
written an anonymous letter expressing his anxiety that there had been
a miscarriage of justice as a result of events in the jury room. He was
troubled by inter alia the fact that some jurors were prejudiced against
the defendants and that ‘many [jurors] changed their vote late on
simply because they wanted to get out of the courtroom and go home’.
This allegation is certainly a cause for concern, as is the allegation that
some jurors were prejudiced against the defendants. If the allegation of
prejudice against the defendants was true, such a jury could not be an
impartial tribunal as is required under Article 6(1) of the European
Convention on Human Rights. It also seems highly unfair that a juror
who raises evidence of a lack of impartiality which, if substantiated,
would amount to a breach of Article 6(1), should himself be subject to
contempt of court proceedings. As a result of the House of Lords’
decision in R v Connor and Another; R v Mirza it is clear that:
. . . section 8(1) does not apply to the court of trial or to the Court of Appeal
hearing an appeal in that case. It cannot properly be read as categorising
what the court does in the course of its investigation as a contempt of the
court itself . . . The court is restricted in its enquiry into what happened in
the jury’s deliberations, not by section 8 of the Act but by the longstanding
rule of the common law.9
The notion that the Court of Appeal could be in contempt of itself was
considered to be an ‘absurdity’.10 In light of these authorities, it would
appear that the courts are prohibited from investigating into jury delib-
erations under the common law, whereas jurors and other bodies (such
as journalists, academics, the general public, lawyers, and parties in-
volved in the proceedings) are prohibited from disclosing, obtaining or
soliciting any details of jury deliberations under s. 8. Should the com-
mon law allow such investigations where there are allegations of grave
misconduct and bias? Would the creation of an exception to s. 8 really be
a ‘recipe for disaster’?
The House of Lords confirmed the common law prohibition on in-
vestigating into jury deliberations after finally being given the opportu-
nity to consider the matter in R v Connor and Another; R v Mirza above,
two appeals which were heard together in the House of Lords. Mirza was
a Pakistani man of good character, who moved to England in 1988.
Throughout the trial he had used an interpreter, which the jury found
suspicious. Two jury notes were sent to the judge questioning this and
the jury were told that no adverse inferences should be drawn against
the appellant on this basis....
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