Protecting the Secret Deliberations of the Jury in the Interests of Efficiency - Has the Law 'Lost its Moral Underpinning'? Lord Steyn's Dissent in R v Mirza; R v Connor and Rollock [2004] UKHL 2, [2004] 1 AC 1118

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CHAPTER 17

PROTECTING THE SECRET DELIBERATIONS OF THE JURY IN THE INTERESTS OF EFFICIENCY – HAS THE LAW ‘LOST ITS MORAL UNDERPINNING’? Lord Steyn’s Dissent in R v Mirza; R v Connor and Rollock [2004] UKHL 2, [2004] 1 AC 1118

Nicola Monaghan

17.1 Introduction 343
17.2 Legal background 344
17.3 Facts 346
17.4 Decision of the majority 347
17.4.1 Common law rule 348
17.4.2 Exceptions to the general rule 349
17.4.3 Justifying the common law rule 350
17.4.4 Safeguarding the system 352
17.5 Lord Steyn’s dissent 354
17.5.1 Distinguishing previous precedent 354
17.5.2 Displacing the presumption of impartiality 357
17.5.3 Balancing system efficiency against miscarriages of justice 357
17.5.4 Creating absurd distinctions 360
17.6 Conclusion 362

17.1 INTRODUCTION

Baldwin and McConville observe that, ‘Juries, it seems, provoke comments which are frequently little short of hysterical’.¹ The jury has famously been

¹ Baldwin, J and McConville, M, Jury Trials (Oxford University Press, 1979), p 1.

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described as the ‘sacred bulwark of the nation’,² ‘the lamp that shows that freedom lives’,³ ‘the corner-stone of the criminal trial’⁴ and ‘a hallowed institution’.⁵ In R v Mirza; R v Connor and Rollock, Lord Hobhouse stated that the jury ‘is rightly regarded as a bastion of the criminal justice system against domination by the state and a safeguard of the liberty of its citizens’⁶ and ‘a highly valued part of our unwritten constitution’.⁷ Such ardent descriptions of the jury serve to illustrate the importance of the institution of the jury as a symbol of democracy which holds the powers of the state accountable for the laws created by Parliament. The institution of the jury represents a fair and impartial tribunal of fact responsible for trying citizens accused of criminal conduct. The importance of public confidence in the integrity of the jury and the legitimacy of jury verdicts cannot, therefore, be underestimated. However, where evidence of improper behaviour during jury deliberations is revealed which highlights a risk of a miscarriage of justice, the integrity of the jury’s verdict and status as an independent and impartial tribunal must be brought into question. The common law provides that no investigation into the deliberations of the jury is permitted after the verdict has been delivered. Despite the fact that the secrecy rule willingly turns a blind eye to the risk of miscarriages of justice, the rule was upheld as an absolute one by a majority in the House of Lords in the case of R v Mirza; R v Connor and Rollock. The dissenting opinion of Lord Steyn provides compelling reading and casts doubt on the legitimacy and long-term effect of the majority opinion.

17.2 LEGAL BACKGROUND

For over 200 years, it has been enshrined in the common law that the deliberations of the jury are secret. The common law rule is based on public policy and provides that the court will not investigate into or receive evidence about jury deliberations.⁸ Sitting alongside this rule is the Contempt of Court Act 1981, s 8(1), which serves a punitive function by criminalising the acts of

² Blackstone, W, Commentaries on the Laws of England (1765–1769), Vol IV, Chapter 27,

Public Wrongs, p 344.

³ Lord Devlin, Trial by Jury (Stevens, 1956), p 164.

⁴ Above, n 1.

⁵ Auld LJ, A Review of the Criminal Courts of England and Wales (HMSO, 2001), Chapter 5, para. 1.

⁶ R v Mirza; R v Connor and Rollock [2004] 1 AC 1118 at [144].

⁷ Ibid.

⁸ There are many cases which confirm the existence of the common law rule. One example is

Ellis v Deheer [1922] 2 KB 113 (where the verdict given was not heard by all members of the jury and was not the verdict of the whole jury).

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obtaining, disclosing, soliciting, etc evidence relating to jury deliberations. According to Lord Hope, the purpose of this section is to reinforce the common law rule.⁹ There are strong and compelling public policy justifications which underpin the existence of both the common law rule and s 8(1). These include: (a) protecting jurors from harassment or pressure to reveal more about the deliberations of the jury, or indeed protecting jurors from the risk of reprisals; (b) promoting open and candid discussions within the jury room, encouraging jurors to be as frank as possible in their deliberations without the fear of reprisals; (c) meeting the need to ensure the finality of the verdict so that the trial process and functions of the jury are not undermined by appeal proceedings directed at the very heart of the decision-making process; and (d) maintaining public confidence in the jury system.

There have been many cases involving allegations of improper behaviour during jury deliberations. A few examples include allegations of racist comments made about the defendant during deliberations,¹⁰ decisions made quickly in order to be able to go home,¹¹ allegations that the jury did not understand the relevant law¹² or ignored directions from the judge¹³ and jurors considering the previous convictions of the defendant which had not been adduced in evidence during the trial.¹⁴ Where such evidence of improper conduct during deliberations comes to light after the verdict has been delivered, the common law rule prevents any investigation into the deliberations of the jury. The Contempt of Court Act 1981, s 8(1) also provides that any juror who discloses information relating to the deliberations is in contempt of court.

The rationale for the common law rule and the Contempt of Court Act 1981, s 8(1) was revisited by the House of Lords in the case of R v Mirza; R v Connor and Rollock. This case involved two appeals heard together in the House of Lords which involved alleged instances of improper behaviour during jury deliberations. The House was unanimous in deciding that s 8(1) did not prohibit the court from hearing evidence of deliberations from a juror, and that it was compatible with the right to a fair trial under the European Convention on Human Rights, Art 6. However, on the compatibility of the common law rule with Art 6, the House was split 4:1. The majority held that the common law rule of secrecy was compatible with the right to a fair trial and must be upheld as an absolute rule. However, Lord Steyn provided a highly persuasive dissenting

⁹ Above, n 6, at [78].

¹⁰ Above, n 6, at [78].

¹¹ Attorney-General v Scotcher [2003] EWHC 1380 (Admin).

¹² R v Schofield [1993] Crim LR 217.

¹³ R v Smith; R v Mercieca [2005] UKHL 12.

¹⁴R v Thompson [1962] 1 All ER 65.

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opinion on this point. In this chapter it is argued that the position adopted by Lord Steyn is critical if we are to maintain public confidence in the institution of the jury.

17.3 FACTS

The case of R v Mirza; R v Connor and Rollock involved two appeals to the House of Lords. The defendant in R v Mirza was charged with six counts of indecent assault. The defendant was a man of Pakistani origin who came to the United Kingdom in 1988. Although he understood some English, he used an interpreter throughout the course of the trial. It was clear during the trial that this was a cause of some concern for the jury as they sent two notes to the judge, one of which specifically related to the defendant’s use of the interpreter. The first note asked how long the defendant had been in the country and what his job was. The second note contained a question for the interpreter and asked whether the use of an interpreter was typically required for a man of the defendant’s background who had lived in the United Kingdom since 1988. As a result of these notes, the prosecution and the defence made an admission along the lines that the use of an interpreter was usual and that this was a safeguard. Both counsel and the judge referred to the use of the interpreter in the speeches at the end of the trial and the judge specifically told the jury to draw no adverse inferences from the defendant’s use of an interpreter.

The defendant was convicted by a jury by a majority verdict of 10:2. Five days after the verdict had been delivered, one of the jurors wrote a letter to counsel for the defendant expressing her concern at a number of matters which occurred during the deliberations of the jury. The letter stated that the jurors had been suspicious of the defendant’s use of an interpreter from the start of the trial, placing undue significance on this fact and that they refused to accept the judge’s direction not to draw adverse inferences against the defendant for this. The letter also alleged that some jurors considered defence counsel’s warning about the possibility of prejudice as ‘playing the race card’ and that they were racially prejudiced. The defendant appealed to the Court of Appeal on the basis that the jury’s ‘preoccupation with the defendant not needing an interpreter gave rise to bias, “in that the jury were influenced” in reaching their verdict “by an irrelevant consideration” and that’ consequently, ‘there existed objectively justified and legitimate doubts as to the impartiality of the jury on the evidence’.¹⁵

¹⁵ Submissions of Mr Fitzgerald QC as summarised by Rose LJ in R v Mirza [2002] EWCA Crim

1235 at [14].

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However, the Court of Appeal in R v Mirza felt itself bound by its own decision in R v Qureshi¹⁶ and held that the court was unable to have regard to anything said by a juror about the deliberations after the verdict had been delivered or to instigate further inquiries into what occurred during jury deliberations. Thus, the court dismissed the appeal.

In R v Connor and Rollock, the defendants were jointly charged with wounding with intent and convicted by a jury by a majority verdict of 10:2. Five days after the verdict had been delivered, a juror wrote a...