Is the secrecy surrounding the way juries reach their verdicts a good thing or does it compound miscarriages of justice? Cameron Timmis reports

Around 450,000 people are summoned for jury service each year for what is one of the most important civic duties they will ever perform – deciding a defendant’s fate. As such, all jurors will swear an oath to ‘faithfully try the defendant and give a true verdict according to the evidence’.


But do juries always undertake this duty with the reverence and diligence it deserves? In a television documentary this month, an unidentified juror in the trial of Jill Dando’s killer claimed that some members of the jury had discussed the case outside the jury room. The previous month, the Gazette revealed that a retrial had been ordered after a solicitor overheard a mobile telephone conversation on a train in which a juror was discussing evidence with a third party. The juror revealed that he and the other jurors had already decided on a guilty verdict, even before the end of the trial (see (2006) Gazette, 31 August, 3).


Nonetheless, although anecdotal evidence abounds of juries reaching verdicts without a proper assessment of the evidence – wanting to go home early, for example – actual allegations of juror misdeeds or ‘impropriety’ are rare.


In perhaps the most famous case of its kind, R v Young (1995) QB 324, an investigation revealed that four members of the jury, while staying overnight in a hotel, had used a ouija board to contact the deceased victim in a murder trial. The deceased, it was claimed by the four jurors, had ‘told’ them the defendant was guilty of his murder. The conviction was quashed.


In a more recent case R v Smith (2004) UKHL 12, a juror sent a letter to the judge claiming other jurors had been ‘badgered, coerced and intimidated into changing their verdict’, and highlighted some of the comments made in the jury room. These included: ‘Even if they are not guilty, do you really want these people go to free?’; ‘I don’t need firm evidence, I can give a guilty verdict on circumstantial evidence alone’; and ‘the law is wrong’. The conviction was later quashed by the House of Lords, which ruled that the judge had failed to issue a proper warning to the jury after the complaint was made.


Meanwhile, in a lighter vein, the Gazette revealed some unusual behaviour by a juror a few years ago. In a fraud case at Southwark Crown Court in 2003, a female juror – the forewoman – was so smitten with the prosecution counsel Richard Latham QC, that she sent him a bottle of champagne and a ‘summons’ to a dinner date with the question: ‘What does a lady need to do to attract your attention?’ The barrister returned the gift, reporting it to the court. The defendants launched a failed attempt to appeal against their conviction on the grounds that the juror had been biased in the prosecution’s favour (see (2004) Gazette, 15 January, 1).


In truth, no one really knows how juries reach their verdicts, except of course the jurors themselves. This is because, as all jurors are told before a trial begins, disclosing any information about their deliberations – ‘statements made, opinions expressed, arguments advanced or votes cast’ – is a contempt of court under section 8(1) Contempt of Court Act 1981. It is punishable with a fine, or even a prison sentence.


As well as being enshrined in statute, the rule that jury deliberations are secret is an established principle of common law. Secrecy, it is argued, protects jurors against intimidation, allows frank discussion, protects the privacy of jurors and ensures the finality of the verdict.


It is strictly enforced. In one recent case, HM Attorney General v Scotcher (2004) 1 WLR 1867 H, a juror wrote to the mother of a defendant following his conviction, saying: ‘I was the one jury member who held out at the prosecution of X and X. I would like you to seriously consider, as I’m sure you are already, talking to your counsel about appealing the convictions on the grounds of an unsafe conviction, miscarriage of justice or whatever.’ He continued: ‘Many changed their vote late on simply because they wanted to get out of the courtroom and go home,’ adding, ‘please do not show this letter to judge, police or prosecution counsel’. After the letter was handed to the police, the juror, who was subsequently identified, was convicted of contempt of court and given a suspended sentence and £2,500 fine. His appeal against conviction on the basis there had been a miscarriage of justice failed in both the Court of Appeal and House of Lords.


While most practitioners agree that jury confidentiality is important, the strict application of the law also creates difficulties. First, it means that when allegations of jury impropriety arise, once a verdict has been given, it is prohibited for the court to investigate the alleged wrongdoing – a situation which some argue allows potential miscarriages of justice to go unchallenged. Second, it means that any study of jury decision-making – which academics argue could shed light on the effectiveness of the jury system – is also banned.


Hence, some have argued for the confidentiality rules to be eased, specifically section 8 of the Contempt of Court Act 1981.

‘You can have provision for the investigation of impropriety in a sensitive manner, where there is a realistic allegation,’ suggests Sally Ireland, senior legal officer at the human rights organisation, Justice, which has campaigned for easing the rules. ‘At the moment the position is quite bizarre,’ she says.


Others argue the rules about jury deliberation are simply at odds with the reality. ‘People say the only way you can preserve the jury system is to preserve the sanctity of the retiring room. I think that’s wrong,’ says Flora Page, a consultant solicitor-advocate at London law firm Hickman & Rose. ‘It’s unrealistic and somewhat absurd for the law to take the position it currently does. In my anecdotal experience, all juries talk about what goes on in the jury room and there’s no harm done to anyone.’


Ms Page argues that ‘the sensible thing is to acknowledge that and make the rules much more focused.’ For example, she suggests: ‘It would be wrong for jurors to reveal information that names the people they are responsible for convicting or not.’


Professor John Spencer, jury expert at Cambridge University, is strongly in favour of some ‘form of control’ over the jury room to provide a remedy in cases of jury impropriety. He proposes two solutions: to record discussions in the jury room and seal the tapes in case any allegations of impropriety arise, in which case there will be proof of any alleged wrongdoing, or to have a professional magistrate or judge sit with the jurors in the jury room (as happens in France, where juries consists of lay jurors and judges). He also warns that, without changes in the law, the UK will be faced with challenges under article 6 of the European Convention on Human Rights, the right to a fair trial. ‘I would be surprised if we don’t eventually get condemned in Strasbourg if we don’t allow investigation into jury impropriety,’ he says.


Some judges, too, have expressed concerns that allegations of jury impropriety cannot be investigated. In his 2001 Review of the Criminal Courts of England and Wales, Lord Justice Auld recommended amending the section 8 of the Contempt of Court Act ‘to permit, where appropriate, enquiry by the trial judge and/or the Court of Appeal into alleged impropriety by a jury, whether in the course of its deliberations or otherwise’. And in a dissenting judgment in R v Mirza (2004) UKHL 2, now the leading case on section 8 of the Contempt of Court Act, which upheld the general prohibition on making jury deliberations inadmissible, Lord Steyn was particularly damning: ‘It is recognised that all actors in the criminal justice system … can be a cause of miscarriages of justice. The consequence of the ruling of the majority is that a major actor, the jury, is immune from such scrutiny on the basis that such immunity is a price worth paying. This restrictive view will gnaw at public confidence in juries. It is likely in the long run to increase pressure for reducing the scope of trial by jury. A system which forfeits its moral authority is not likely to survive intact.’


Following Mirza, in 2005, the government launched a consultation paper, Jury Research and Impropriety, to assess the options for permitting jury research and investigations into misconduct by jurors. Despite submissions from a number of organisations including Justice, proposing changes to the system, the consultation recommended maintaining the status quo. Among many arguments made, the government suggested that as around 20% of all verdicts are majority verdicts rather than unanimous, if every juror who was opposed to the verdict had the right to complain and the court was required to investigate the complaint, ‘it would undermine the finality of verdicts and seriously undermine confidence in the criminal justice system’.


Where everyone seems to agree is that where allegations of jury impropriety arise, it is far better that they are aired before the jury reaches its verdict. Although there is no formal procedure as to how judges should act in these circumstances, the judge will at least then still have the opportunity to take action. The judge can either issue a direction to the jury stressing the need for impartiality and acting solely on the evidence, or, if need be, discharge the jurors. As the law stands, if allegations are made following conviction, it is highly unlikely they will be investigated by the court, unless they concern external influences on the jury, such as alleged attempts to bribe jurors.


As a result of Mirza, judges are now also expected to issue a specific warning to jurors on this issue. Yet it seems not all judges are making this clear.


‘I personally haven’t heard or seen guidance being given to the jury regarding impropriety,’ says Tom Epps, committee member of the London Criminal Courts Solicitors Association. ‘I would certainly support a clearer set of guidance being given to the jury by the judge, throughout the case, outlining their duty to raise any concerns they have of jury impropriety to the judge without delay.’ Few lawyers are likely to disagree with that.


Cameron Timmis is a freelance journalist