The Complaining Juror: Attorney-General v Scotcher
| Author | Gillian Daly |
| DOI | 10.1350/ijep.2006.10.1.70 |
| Published date | 01 February 2006 |
| Date | 01 February 2006 |
| Subject Matter | Case Notes |
The complaining juror: Attorney-General
v Scotcher
By Gillian Daly*
Lecturer in Law, Norwich Law School
T he law on jury secrecy is a mixture of common law and statute. The two
aspects are distinct not only in terms of origin but also effect. The common
law rule, which dates back to 1785, is a rule of evidence: it prohibits the
admission into evidence of anything said or thought in the course of the jury’s
deliberations.1 The statutory rule, on the other hand, contained in s. 8(1) of the
Contempt of Court Act 1981, creates a criminal offence—it is a contempt of court to
‘obtain, disclose or solicit’ details of jury deliberations. There has been a string of
decisions of the House of Lords concerning these rules.2 In R v Mirza, the court affirmed,
inter alia, that although the common law rule barred the court from admitting into
evidence details of a jury’s deliberations, the court would not be in contempt under
the statute for receiving such information.3 The question of whether the juror who
passes that information on to the court (either directly or indirectly) with the aim of
exposing a miscarriage of justice would still be in contempt was left open and came
up for consideration in the recent case of Attorney-General v Scotcher.4
*
Email: g.daly@uea.ac.uk.
1 Vaise v Delaval (1785) 1 TR 11.
2 R v Mirza; R v Connor and Rollock [2004] UKHL 2, [2004] 2 WLR 201, noted by G. Daly (2004) 8 E
& P 186; R v Smith [2005] UKHL 12, [2005] 1 WLR 704; Attorney-General v Scotcher [2004] UKHL
36, [2005] 1 WLR 1867.
3 R v Mirza; R v Connor and Rollock [2004] UKHL 2, [2004] 2 WLR 201 at [25], [57] and [139]. The
difference between the court receiving information and admitting it into evidence was drawn
by Lord Hobhouse at [146]: ‘what the judge or judges see or read is different to what they take
into account when making a substantive decision and what they treat as legitimate evidence
for the parties to use in argument’.
4 [2004] UKHL 36, [2005] 1 WLR 1867.
7 0
(2006) 10 E&P 70–74
E & P
THE COMPLAINING JUROR: ATTORNEY-GENERAL V SCOTCHER
The facts
The defendant was a member of a jury that convicted two brothers by a majority
verdict of 10 to 1.5 After the trial he sent a letter to their mother. In the letter he
indicated that he was the dissenting juror and suggested that she should ‘seriously
consider’ talking to counsel about appealing the convictions on the grounds that
they were unsafe.6 The wording of the letter showed that the defendant knew he was
in contempt of court.7 Before the Divisional Court, he argued that a juror who discloses
deliberations in order to expose a miscarriage of justice has a...
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