The Criminal Jury in England and Scotland: The Confidentiality Principle and the Investigation of Impropriety
| DOI | 10.1350/ijep.2006.10.3.180 |
| Date | 01 July 2006 |
| Published date | 01 July 2006 |
| Subject Matter | Article |
The criminal jury in
England and Scotland:
the confidentiality
principle and the
investigation of
impropriety
By Pamela R. Ferguson*
Professor of Law, School of Law, University of Dundee
Abstract The confidentiality of jury deliberations in British criminal trials is
maintained by common law rules, as well as by statute. As a result, relatively
little is known about how juries actually behave. The article describes and
assesses the confidentiality principle, as it operates in both English and Scots
law. The courts presume that juries conduct themselves properly, in the manner
of an ‘ideal’ or ‘model’ jury. This presumption of propriety and the features of
the ‘model jury’ are described, as are the various ways in which actual juries
can, and do, fall short of the ideal. The article concludes that the confidentiality
principle prevents the courts from conducting appropriate investigation into
allegations of jury misbehaviour, and that it is time to end the secrecy
surrounding jury deliberations. Various options for reform are considered.
n both English and Scots law, jury deliberations are confidential. As a
result, little is known about how juries actually operate.1 This article
I describestheconfidentialityprincipleandassessesitsimpact.Inlieuof
*
Email: p.r.ferguson@dundee.ac.uk. A very early version of this article was presented at the
Criminal Justice Subject Section of the SLS at its Conference in September 2005. My thanks are due
to those who attended and commented on the article, and to Professor Janet McLean, Mr Robin
White and Professor Paul Roberts for their helpful suggestions on later drafts.
1
A detailed discussion of research from other jurisdictions can be found in P. Darbyshire,
A. Maughan and A. Stewart, What Can the English Legal System Learn From Jury Research Published Up To
2001?, available at www.kingston.ac.uk/~ku00596/elsres01.pdf, accessed 8 May 2006.
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(2006) 10 E&P 180–211
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THE CRIMINAL JURY IN ENGLAND AND SCOTLAND: CONFIDENTIALITY PRINCIPLE
hard evidence regarding jury behaviour, the courts in both jurisdictions presume
that juries behave in a proper manner.2 Consideration of the various elements
which comprise a properly acting jury allows one to postulate an ‘ideal’ or ‘model’
jury. This provides a standard against which the behaviour of actual juries can
be gauged. The article outlines the features of the ‘model jury’, and describes
the various ways in which actual juries may fall, and indeed have fallen, short of
this ideal. The confidentiality principle impedes investigation of alleged jury
impropriety, causing Lord Steyn to suggest that continued adherence to the
principle will ‘gnaw at public confidence in juries’.3 The article suggests that it is
time to end the secrecy of jury deliberations. Various options for reform are
considered.
Confidentiality
That a jury’s deliberations should remain confidential has been described as ‘a
central tenet of the criminal justice system’4 yet the origins of the rule are less
than clear. It may originally have been self-imposed; in Ellis v Deheer,5 Bankes LJ
stated: ‘It has generally been accepted by the public as a rule of conduct, that what
passes in the jury room during the discussion by the jury of what their verdict
should be ought to be treated as private and confidential.’6 It has been suggested
that its historical justification lay in a belief by ancient jurists that ‘when the
jurors went into the confines of the jury room, the presence of God led them to the
proper verdict’.7 It followed from this that any attempt to investigate a jury’s delib-
erations was tantamount to questioning God’s judgment.8 There are echoes of this
today when reference is made to the ‘sanctity’ of jury deliberations.9
2
See in particular Pullar v UK (1996) 22 EHHR 391; R v Mirza [2004] UKHL 2, [2004] 1 AC 1118, discussed
further below.
3
R v Mirza [2004] UKHL 2, [2004] 1 AC 1118 at [22].
4
J. Holroyd, ‘Judging the Jury’ (2005) 155 NLJ 7168. A similar rule applies in New Zealand and in
some Australian states. See N. Cameron, S. Potter and W. Young, ‘The New Zealand Jury: Towards
Reform’ in N. Vidmar (ed.), World Jury Systems (OUP: Oxford, 2000) 167; New Zealand Law
Commission: Juries in Criminal Trials: Part Two: A Discussion Paper (1999); M. Chesterman, ‘Criminal
Trial Juries in Australia: From Penal Colonies to a Federal Democracy’ in N. Vidmar (ed.), World Jury
Systems (OUP: Oxford, 2000) 125.
5
[1922] 2 KB 113.
6
Ibid. at 118. See also Vaise v Dalava (1785) 1 TR 11; R v Armstrong [1922] All ER 153 at 157, per Lord
Hewart CJ; R v Thompson [1962] 1 All ER 65. For Scotland, see the case of Janet Nicol (1767) discussed in
Maclaurin, Arguments and Decisions in Remarkable Cases Collected by Mr Maclaurin (1774) 363–4, cited in
I. D. Willock, The Origins and Development of the Jury in Scotland (Stair Society: Edinburgh, 1966) at 232.
7
Ballew v Georgia 435 US 223 at 296 (1978), cited in W. R. Bagley, ‘Jury Room Secrecy: Has the Time
Come to Unlock the Door?’ (1998) 32 Suffolk University Law Review 481 at 494.
8
Ibid.
9
See, e.g., R v Smith (Patrick) [2005] UKHL 12, [2005] 1 WLR 704 at [7], per Lord Carswell.
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THE CRIMINAL JURY IN ENGLAND AND SCOTLAND: CONFIDENTIALITY PRINCIPLE
Historically, Scottish jurors who acquitted perversely, that is, in defiance of the
evidence, could be punished for ‘wilful error’.10 The punishment for this was
draconian; jurors forfeited all their moveable possessions,11 were imprisoned for
at least a year and lost in perpetuity the protection of the law.12 To determine
whether a jury had rendered a perverse acquittal, each juror was called before the
King and his Justice and asked how he had voted. If a juror denied that he had
acquitted contrary to the evidence, the original trial was reheard by a larger jury
of 25 men. Their verdict did not alter the acquittal of the accused, but could result
in the punishment of the jurors who had voted for an acquittal at the earlier trial,
if the larger jury determined that this had been a ‘wilful acquittal, contrary to the
evidence’.13 In similar vein, it has been suggested that the original rationale for the
confidentiality principle in England was that ‘because the violation of the juror’s
oath was a high misdemeanour, affidavits of jurors themselves were inadmissible
as they were self-incriminatory’.14 This history may, in part, account for the
current widely held belief that jury deliberations ought to be regarded as confi-
dential. Whatever the historical reasons for secrecy, there remains a common law
rule that evidence about jury deliberations is inadmissible, hence the courts will
not investigate allegations that deliberations were improperly conducted.
Consideration must also be given to s. 8(1) of the Contempt of Court Act 1981,
which provides that 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 deliberation …’. Parliament’s
principal concern in enacting this legislation had been to prevent the media from
pressurising jurors to reveal their deliberations,15 but in practice the Act has been
used to prosecute jurors who have revealed their deliberations to anyone other
than the courts or parties to the case.16
10 Willock, above n. 6 at 234.
11 That is, their non-heritable possessions.
12 Willock, above n. 6 at 234.
13 Ibid. at 235–6.
14 R v Pan [2001] 2 SCR 344 at 373, per Arbour J. The case is discussed further below.
15 R v Smith (Patrick) [2005] UKHL 12, [2005] 1 WLR 704, per Lord Rodger of Earlsferry. See also Attorney-
General v Associated Newspapers Ltd [1994] 2 AC 238, per Lord Lowry, and Department for Constitu-
tional Affairs: Jury Research and Impropriety: A Consultation Paper to Assess Options For Allowing Research
Into Jury Deliberation And To Consider Investigations into Alleged Jury Impropriety (2005) CP 04/05
(hereafter referred to as the DCA paper) 12–14.
16 See the recent case of Attorney-General v Scotcher [2005] UKHL 36, [2005] 1 WLR 1867. For an argument
that the 1981 Act ought to be amended to allow an exemption for jurors in Mr Scotcher’s position,
see N. Haralambous, ‘Investigating Impropriety in Jury Deliberations: A Recipe for Disaster?’ (2004)
68 JCL 411. The case is also discussed in G. Daly, ‘The Complaining Juror: Attorney-General v Scotcher’
(2006) 10 E & P 70.
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THE CRIMINAL JURY IN ENGLAND AND SCOTLAND: CONFIDENTIALITY PRINCIPLE
According to the 1981 Act, the limitation on investigations applies only to what
occurs ‘in the course of [jurors’] deliberations’. In 2001, the Scottish Criminal
Cases Review Commission (SCCRC) asked the High Court of Justiciary whether the
Commission was entitled to investigate allegations of jury impropriety, and
whether such investigations could include taking statements from jurors.17 Lord
Justice-General Rodger (as he then was) distinguished the jury’s deliberations
from what occurs in the jury room prior to the jury retiring to consider their
verdict. There was nothing to stop the Commission from investigating the latter,
but the only circumstance in which a jury’s deliberations could be revealed was
where this disclosure related to proceedings for an offence alleged to have been
committed in relation to the jury.18 While this observation was technically obit...
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