Juries: Secrecy of Deliberations
| Author | Emily Finch |
| DOI | 10.1350/jcla.2005.69.6.484 |
| Published date | 01 December 2005 |
| Date | 01 December 2005 |
| Subject Matter | House of Lords |
evidence or witness testimony to make out a defence. Although security
considerations are always significant, ‘they do not absolve member
states from their duty to ensure that basic standards of fairness are
observed’ (at [51]). Lord Rodger’s argument, dissenting, is to the effect
that given that s. 11(1) of itself does not violate the presumption of
innocence, being a matter purely of substantive law, it follows that
s. 11(2), which favours particular classes of defendant, cannot create a
compatibility problem. To hold otherwise would lead to the perverse
position whereby Parliament could remove the incompatibility by ren-
dering the position of such defendant’s worse by removing the defence
altogether. The point is made by Lord Carswell, dissenting, that there is
nobody better placed to adduce evidence of the defence than the de-
fendant himself or herself, and that the prosecution are most unlikely to
be able to adduce evidence to the contrary (at [90]).
There thus seem to be two significant arguments in the dissenting
speeches. Although it is perhaps not expressed in quite such stark terms,
the first is that the defence in s. 11(2) does not engage the presumption
of innocence at all. The second is that the requirements of proportion-
ality require the use of a legal burden.
Although these interpretive arguments continue to require resolution
on a case-by-case basis, Lord Bingham makes an interesting constitu-
tional observation regarding the interpretive obligation under s. 3 of the
Human Rights Act. He accepts that the placing of a merely evidential
burden on a defendant in Attorney-General’s Reference (No. 4 of 2002) was
not Parliament’s intention when enacting the Terrorism Act 2000. That
did not mean that the sovereignty of Parliament had been usurped,
because the court’s decision corresponded with the intention of Parlia-
ment as expressed in s. 3 of the Human Rights Act (at [53]). This
argument seems slightly more compelling in the case of legislation
predating the Human Rights Act, which might sensibly be ‘reread’ on
the basis of an overarching statement of intention in s. 3 of that Act.
However, where legislation post-dates the Human Rights Act, and
Parliament’s intention in respect of that later legislation is clear, it may
be that the more transparent response of the courts is to suggest to
Parliament that its understanding of what is and is not Convention-
compliant is in error, through the issuing of a declaration of incompat-
ibility. This case suggests that declarations of incompatibility are to be
regarded as measures of last resort (see also Ghaidan v Godin-Mendoza
[2004] UKHL 30, [2004] 3 WLR 113).
Ben Fitzpatrick
Juries: Secrecy of Deliberations
Attorney-General v Scotcher [2005] UKHL 36, [2005] 1 WLR 1867
The defendant served as a juror in the trial of two brothers who were
convicted by a majority of 10 votes to one. The following day, the
defendant wrote to the mother of the brothers, identifying himself as the
The Journal of Criminal Law
484
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