The secretive nature of jury deliberations in the UK have come under fierce scrutiny, reports Grania Langdon-Down

The jury forewoman who sent a flirtatious note and a bottle of champagne to prosecuting counsel Richard Latham QC after a fraud trial, asking 'what does a lady need to do to attract your attention?', has been spared the embarrassing prospect of being quizzed in court about her behaviour, after the Court of Appeal ruled that jury deliberations must remain secret even in the face of possible injustice (see [2004] Gazette, 29 January, 3).

Its decision came just a week after a majority ruling of the House of Lords took a similarly strong line in two cases where jurors had complained that the attitudes of their co-jurors had led to potential miscarriages of justice.

But their argument that the secrecy rule is essential to preserve and protect the jury system has raised a potentially fatal question mark over the very future of juries - is it a price worth paying if it allows an injustice to go unchallenged?

For Lord Steyn, who gave the only dissenting opinion in the two Lords' appeals, the answer is a resounding no.

He argued that exceptions must be made where there is evidence that a jury has not been impartial and warned in a scathing criticism of his colleagues' decision: '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.

The question will be whether such a system provides a better quality of justice than trial by professionals.'

Defence lawyers are going to take both the Lords' cases to the European Court of Human Rights.

In one, a juror claimed her co-jurors were racially biased against Shabbir ali Mirza, who was jailed for four years after his conviction for indecent assault, because they said he had been 'devious' in using an interpreter.

In the other, a juror complained that the jury had been looking for a 'quick verdict' in the case of Ben Connor and Ashley Rollock, who were then jailed for 18 months for wounding with intent.

She claimed that some of the jurors had said that, even though they did not know which defendant was guilty, they would give a guilty verdict to both to 'teach them a lesson'.

In the case of the amorous juror who sent her 'summons' to dinner to Mr Latham, the Court of Appeal has said the three defendants, who are appealing against their convictions for conspiracy to defraud, can only argue that her note gave the 'appearance of bias'.

There is to be another hearing on the basis of the note, but without any investigation into how the forewoman may have influenced the jury.

David Corker, a partner in London criminal defence practice Corker Binning, says: 'I am sure Lord Steyn's comments will resound in Strasbourg.

The House of Lords felt rightly that, under UK law, they couldn't pierce the secrecy that surrounds jury deliberations.

But I think that Strasbourg will say that the right to a fair trial must be supreme and must trump legitimate concerns about preventing jurors and the jury system being examined after they have reached a verdict.

'I think it is a penalty we will have to pay and it will ultimately strike at the jury system.

If people lose faith in its infallibility and its fairness, then the system will be undermined.'

The Lords' ruling has prompted the Department for Constitutional Affairs to announce that it will publish a consultation paper in the spring to consider whether or not section 8 of the Contempt of Court Act 1981, which forbids any inquiry into jury deliberations, should be repealed or amended.

Mr Corker says: 'The government wants to get rid of juries as too expensive and too time consuming.

I see a long game being played here that if the government can weaken the public's obsession with the fairness of juries by exposing what they do, it will weaken opposition when it next proposes their abolition.'

The debate over jury secrecy coincides with the publication of the largest ever study of jurors' opinions and attitudes by Professor Roger Matthews, Lynn Hancock and Daniel Briggs, from the Centre for Criminology at Middlesex University.

They questioned 361 men and women who served in six courts in London and Norwich for their report on jurors' perceptions, understanding, confidence and satisfaction in the jury system.

They found that more than half of the jurors did not understand everything that went on in the courtroom, including legal concepts such as 'beyond reasonable doubt', and were unsure how to raise questions with the judge.

This was a concern echoed by Lord Hope of Craighead in the Lords' appeals, who said it needed to be made clearer to jurors that they must inform the court of any irregularities before the verdict is given, when they can be investigated by the trial judge.

Franklin Sinclair, Manchester-based senior partner of Tuckers and past chairman of the Criminal Law Solicitors Association, says the jury system may not be perfect, but adds: 'I still feel it is the best one that we could use and is far preferable to judge-alone trials or professional panels.

'However, I think the time has come for a limited pilot scheme to probe how juries come to their decisions, though juries must be protected so they are not frightened to convict.

But I believe the biggest threat to the jury system is the media and the coverage of high-profile cases, which make it almost impossible for defendants to get a fair trial.'

Keith Oliver, a partner in London-based criminal defence practice Peters & Peters, also extols the virtues of juries over any judicial determination of the facts.

He dismisses the government's moves to try to limit jury trials in complex and/or long fraud trials.

'In the Maxwell case, for instance, you couldn't fail to have been impressed by the commitment and sophisticated approach taken by the jury.

The judge in that case also pioneered the 'Maxwell hours', with jurors sitting from 9.30am to 1.30pm, which worked very well and is being used in current fraud trials so jurors can get on with other work and life commitments.'

While there is huge public attachment to juries, they are now only used in the 1% of criminal cases that culminate in a Crown Court trial, and few civil trials.

One key issue is ensuring juries are properly representative.

Last year, 480,000 people were summoned to serve on a jury but 56% managed to escape doing their civic duty.

One juror told those researching jurors' perceptions: 'It is the poorer workers who were selected for the long case and the more professional workers wriggled out of it.'

The Criminal Justice Act 2003 removes the current automatic exemptions for lawyers, police officers, judges and medical professionals.

The question that has been raging across the Gazette's letter pages of late is whether lawyers will make good jurors and whether their professional knowledge will give them sway over their lay colleagues.

Rodney Warren, director of the Criminal Law Solicitors Association, says: 'I would like to sit as a juror very much out of professional curiosity.

I don't think jurors would allow themselves to be affected by having a lawyer on the jury.

It could be said that we know too many tricks of the trade, as do judges and police officers, but are we to say that is not serving justice?'

Mr Corker adds that the concern lawyers might swing juries by pointing out why a defendant has avoided mentioning their character or background will no longer be an issue once the government has loosened the prohibition on telling juries about previous convictions or evidence of previous bad character.

In the Old Bailey, there is a plaque commemorating the 12 jurors who, in 1670, refused to convict William Penn and William Mead of preaching to an unlawful assembly, despite being locked up without food for two days and fined for reaching a not guilty verdict.

A review on a writ of habeas corbus established the right of juries to reach their verdicts freely.

Today's jurors have shown they are also prepared to ignore the evidence and acquit a defendant if they think it would be unjust to convict, as in the cases of Randle and Pottle, who helped the spy George Blake escape, or Clive Ponting, who revealed the operational details of the sinking of the Argentinian ship the General Belgrano during the Falklands War.

But can they survive if their every deliberation is put under the microscope? The jury is still out.