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Jury Confidentiality Rules: Protector of Honesty or Enabler of Injustice?

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About The Author

Connor Griffith (Consulting Editor)

Connor is a law graduate from the University of Nottingham with a particular interest in intellectual property and corporate law. He is currently a trainee solicitor at a large national firm, sitting in the Real Estate department. Outside the law, he enjoys stand-up comedy and moaning about Brexit.

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When you go into court you are putting your fate into the hands of twelve people who weren't smart enough to get out of jury duty.

Norm Crosby

The jury system is regarded by many to be sacred to the point of unassailability. Countless legal commentators over the centuries have demonstrated nothing short of fervent admiration towards the use of juries: Sir William Blackstone deemed it ‘the glory of English law’; Lord Patrick Devlin described it as ‘the lamp that shows that freedom lives’; and Lord Igor Judge donned it a ‘safeguard against oppression and dictatorship’.

Governments and courts around the world have implemented rules requiring confidentiality over jury deliberations. However, whilst these rules have legitimate purposes which they undoubtedly go some distance towards achieving, they come at the cost of risking a miscarriage of justice every time a jury sits down to hear a trial. It has become unclear whether the rules truly operate in the favour of justice or instead harbour and conceal the bias, ignorance and apathy of some of the lay persons tasked with determining guilt in the most serious criminal trials.

This article will outline the legislation and common law rulings from which the English & Welsh confidentiality rules arose, considering the objectives behind their implementation. It will then evaluate whether the confidentiality rules are sufficient to justify the risks brought about as a result of their operation.

Confidentiality rules: the law

The confidentiality rules provide that it is a contempt of court to inquire into or disclose details of the deliberations undertaken by a jury, or the reasons behind any juror’s vote, in any given trial. This information is privileged and includes any particulars from the moment the jury is empanelled until the trial has concluded.

The rules are rooted in two sources: the common law judgments of courts given over the last two centuries; and legislation enacted to solidify the ability of courts and the Attorney General to bring proceedings for contempt in cases where the confidentiality rules have been breached.

Legislation

The confidentiality rules arose in legislation in England and Wales for the first time in Section 8(1) of the Contempt of Court Act 1981 (CCA 1981), though this has since been repealed in England and Wales (it still operates in Scotland and Northern Ireland). In its place, the Criminal Justice and Courts Act 2015 inserted four new offences into the Juries Act 1974. Of particular importance for present purposes is the offence contained within Section 20D, which states that a person commits an offence if they:

disclose information about statements made, opinions expressed, arguments advanced or votes cast by members of a jury in the course of their deliberations in proceedings before court, or solicit or obtain such information.

Section 20E(2)(b), however, permits a judge to disclose the details of jury deliberations following an allegation of misconduct so as to investigate whether ‘an offence or contempt of court has been committed by or in relation to a juror’.  When conducting this investigation, the judge must adhere to the common law rules on the matter.

Common law rules

As stated by the House of Lords in the leading case of R v Mirza; R v Connor and Rollock [2004], the basic common law rules provide that a ‘court will not inquire into what happens in the jury room’. This covers any statement, opinion, argument or vote made or given by a juror from the moment the jury is empanelled until the trial has concluded.

Over the years, however, the courts have developed three exceptions to this basic rule.

Disregarding the oath

The first exception arises in cases where the jury disregarded its oath to reach a verdict based on the evidence of the case. This will occur where the jury, for example, makes its decision through tossing a coin or, as shockingly occurred in R v Young (Stephen) [1995] QB 324 (CA), consulting a Ouija board for the verdict.

In such cases, the judge may freely inquire into what occurred in the jury room. This is because, as made clear in R v Smith; R v Merceica [2005]:

a trial whose result was determined in such a manner would not be a trial at all.

No valid deliberations will have occurred which otherwise would have been protected by the confidentiality rules. Jury activity in that case may be safely investigated by the judge and, if wrongdoing is found, any connected verdict will be quashed.

Extraneous influences

Secondly, if an allegation is made that an ‘extraneous influence’ has affected the jury, evidence of this influence – provided the evidence does not concern details of jury deliberations – may be admitted. This exception applies regardless of whether the trial is still ongoing or has concluded.

Extraneous influences are those which come from an outside source. Examples seen in previous cases include jury bribery (R v Putnam (1991) 93 Cr App R 281), jury intimidation (R v Mirza), and a juror conducting private research and bringing the results into the jury room (R v K [2005]). If evidence of such conduct exists, the verdict may be deemed unsafe and set aside without the need for the judge to intrude upon what was said within the jury room.

Intrinsic influences

The final exception concerns ‘intrinsic influences’ which were defined in R v Young (Stephen) as those matters ‘arising from within the jury’s deliberations’, such as a juror being racially biased or ignoring the judge’s directions.

The judge may not seek to obtain further information into what actually happened in the jury room. Instead, once the allegation of an intrinsic influence has reached the judge, the judge must receive submissions from counsel on the matter and then follow one of the options provided in Part 26M of the Criminal Practice Directions 2015 (CPD 2015), such as discharging a juror or giving a verbal reminder to the jury on their duty to conduct deliberations properly.

Difficulty is caused, however, by the fact that action may only be taken if the allegation of an intrinsic influence is made to the court before the conclusion of the trial. If the allegation is made after the trial has finished, the court has no jurisdiction to act (as all routes available under Part 26M CPD 2015 involve the current proceedings and would be ineffective if used post-trial), and the verdict delivered stands regardless of whether the alleged jury misconduct occurred or not.

As such, the courts instead operate on the inference that, if no jurors object when the foreman delivers the verdict, all jurors assent to the verdict given and are unable to go back on this verdict at a later date, per Ellis v Deheer [1922] 2 KB 113. This inference may only be rebutted where the jurors were not in the sight and hearing of the foreman and so could not object when the verdict is given, or were unable to assent due to not being sufficiently competent in understanding the proceedings.

Justifications for the confidentiality rules

Before evaluating how the confidentiality rules pose a problem to the criminal justice system, it would be beneficial to consider the justifications for having the rules in the first place. There are four main justifications.

Public confidence

The confidentiality rules help to promote public confidence in the jury system. Concern arose that if jurors were free to publicly disclose deliberations, differences of opinion as to why a defendant was acquitted or convicted could highlight a lack of uniformity amongst the jury. This, as made clear in R v Armstrong [1922] 2 KB 555, could belittle the impression that the jury had arrived at a verdict as a group on definite grounds.

There is also a general apprehension that making deliberations public could unjustly damage the public perception of how such deliberations are undertaken. In particular, it is feared that visibility could, as stated by Michael Zander QC:

lead to a damaging loss of confidence in the system through the mistaken impression that it was working badly when actually it was working perfectly well.

Indeed, jury deliberations generally lead to satisfactory verdicts. Baldwin and McConville found that, amongst other similar positive results, in 88.4% of cases investigated in which the jury convicted the defendants, the convictions were not doubted by the judge, police, defence counsel or prosecution counsel. However, the debates that take place within the confines of the jury room will naturally contain some misunderstandings and, perhaps, arguments. Therefore, despite generally achieving desirable results, the process of jury deliberation itself may appear more convoluted and inconsistent than expected by the public. It would be undesirable to allow this to translate into an undeserved lack of confidence in the jury system as a whole when, in reality, only a minority of cases may involve cause for concern.

Frank discussion

The confidentiality rules allow jurors to become more confident when deliberating in the jury room. As a result, the court in AG v Seckerson [2009] approved of the fact that jurors will not be discouraged from putting forward opinions that might otherwise be embarrassing or unflattering if heard by a family member or colleague.

Likewise, the court in AG v Associated Newspapers [1993] 2 SCR 344 found it is vital that the jurors feel able to speak their mind, or else ‘the accused might be deprived of a persuasive voice in his favour’. Courts have therefore repeatedly asserted that jurors should be, per the Canadian Supreme Court in R v Pan; R v Sawyer [2001]:

free to explore out loud all avenues of reasoning without fear of exposure to public ridicule, contempt or hatred.

This is particularly important in publicly contentious cases: if jurors wished to acquit an unpopular defendant or convict a publicly popular figure, they might be deterred from doing so if the media were able to access the deliberations and brand the acquitters or condemners as the people responsible.

Though it could be argued that the confidentiality rules allow some jurors to feel more comfortable in expressing unseemly views, courts are content to place their faith in the majority of jurors refusing to tolerate any prejudicial views of an inappropriate minority. If offending jurors do not back down and instead maintain their prejudicial stances, the majority of jurors are then trusted to bring forward allegations of wrongdoing to the judges.

Protection of the jury

Keeping jury deliberations and the identities of jurors confidential affords protection to jurors from outside forces. This protection is given in two ways.

Firstly, the courts are keen to ensure that no juror is targeted or punished for their role in acquitting or convicting a defendant. As noted by Lord Justice Auld, if deliberations were made public, it would be easy for criminals to target jurors for the role they played in a trial. Fear of being reprimanded by outside sources would likely cause a chilling effect in the jury rooms of high-profile cases, allowing organised crime to enjoy a greater degree of freedom.

Secondly, revealing the identity of jurors increases the risk that they may be coerced by outside forces, either to sway deliberations towards a particular verdict, or to reveal details of deliberations so as to have a verdict rescinded. If this occurred, the criminal justice system could be flooded with dishonest verdicts and appeals, and courts would struggle to distinguish between the legitimate and illegitimate.

Finality of verdicts

The confidentiality rules operate so as to bring finality to a trial once the verdict has been given. It has long been the case, per Ellis v Deheer [1922] 2 KB 113, that ‘it ought not… be open to an individual juryman to challenge the verdict’.

If this were not the case, it would forever be permissible for jurors to claim that some previously unreported irregularity had occurred during deliberations, and the courts would have to keep reopening cases that were previously believed shut.

For this reason, a line is drawn from the moment a trial concludes. Harman LJ summarised it succinctly in Boston v W S Bashaw & Sons [1966] 1 WLR 1135, stating: ‘Interest reipublicae ut sit finis litum’ (in the interest of society as a whole, litigation must come to an end).

Problems with the confidentiality rules

The above justifications should ideally demonstrate why the confidentiality rules have been adopted in many societies that require citizens to participate in jury service. However, do these justifications excuse the fact that the rules repeatedly risk the occurrence and concealment of miscarriages of justice?

A great number of steps have been taken in an attempt to ensure jury irregularities can and are dealt with in certain circumstances. Lord Slynn gave the following examples in R v Mirza; R v Connor and Rollock [2004]:

  • the initial random selection of jurors;
  • directions from the judge;
  • majority verdicts (which, per Lord Justice Auld, prevent the ‘odd crank or possibly biased juror … [from] frustrating the process’);
  • having the verdict declared in public in front of all other jurors, who may object if anything is awry;
  • the capacity for the judge to discharge jurors or the jury as a whole; and
  • (most importantly for present purposes) the ability for jurors to make allegations of misconduct before the conclusion of the trial.

However, as discussed above, in cases of intrinsic influences the court may only act if an allegation is brought before the conclusion of the trial. As a result, judges in many trials have had no choice but to refuse to consider allegations that jury misconduct improperly influenced deliberations.

Recent prominent examples of alleged jury misconduct include:

  • jurors making racist remarks about the defendant (R v Qureshi [2002] 1 WLR 518);
  • jurors falling asleep during evidence (R v Thompson and others [2010]); and
  • a jury, unsure about which of the two defendants had committed the crime, convicting both despite knowing that it could only have been one of them (R v Connor and Rollock [2002] EWCA Crim 1236).

In each of the above cases, an allegation of jury wrongdoing was made to the court; however, since each instance of wrongdoing concerned an intrinsic influence, and the allegations were made after the verdict had been given, in each of the above cases the judges determined that no action could be taken regarding the jury irregularities. The defendants in each case were given custodial sentences: four years imprisonment for Qureshi; six years for Thompson; and 18 months for Connor and Rollock. If the allegations of jury misconduct were true, a serious miscarriage of justice may have occurred in each of those cases.

When considering the above, it must be remembered that juries are only used in the most serious of criminal trials; the gravity of the crimes tried at the Crown Court surely require that the utmost focus is placed on ensuring every aspect of the trial is fair. When a defendant’s liberty is potentially at stake it seems questionable to create these artificial barriers, preventing investigations into alleged wrongdoing by those very people responsible for reaching a verdict on that defendant’s autonomy.

In addition, it must be considered that these cases are those in which allegations of misconduct were brought to the court’s attention (albeit too late); it is unknown how many additional cases have involved similar jury misconduct that went unreported. Possible explanations as to why misconduct may not be reported is that many jurors seem to not understand (i) which actions constitute jury improprieties and should therefore be reported, and (ii) what to do in the event of a jury irregularity occurring. A study by Cheryl Thomas QC found that 48 per cent of the 797 jurors interviewed ‘said they either would not know what to do or were uncertain’ in the event of an apparent jury impropriety occurring. Furthermore, whether jurors know what to do in the event of a jury irregularity depends on the form of that irregularity. A later study by Thomas found that while 94 per cent of the 239 jurors asked declared that they would inform the appropriate figure if ‘they saw someone associated with the case speaking to a fellow juror’, only 39 per cent would act if ‘a juror was unduly pressuring another juror to reach a verdict’. The combination of these points demonstrates that a worrying proportion of jurors lack understanding of this area of law.

Further difficulties arise through the possibility that other jurors may understand that misconduct must be reported, but choose not to make those reports. This may be because those jurors would rather go home early than further prolong the jury process, or they feel too awkward or intimidated about raising the allegation, particularly if they feel that there aren’t clear and available avenues to disclose this potential misconduct. It is difficult to know how widespread such attitudes may be. However, cases featuring these attitudes have arisen: examples include Attorney-General v Scotcher [2005], which concerned the verdict being changed ‘simply because [the jury] wanted to get out of the courtroom and go home’, and R v Smith; R v Mercieca [2005], in which a verdict was rushed ‘as a certain juror needed to get back to work’.

Conclusion

Lord Hope was correct to recognise in R v Mirza that an ‘allegation, however articulate it may be and however provocative, is no more than an allegation’. It is entirely possible that some of the allegations made in the cases above, rather than being true, merely reflect the disgruntled complaints of individual jurors. Concerns over the legitimacy of allegations are valid since it can often be difficult to provide evidence of jury misconduct, particularly in cases concerning fleeting comments or actions by jurors.

However, even if no misconduct has occurred, it is vital to investigate any potential appearance of bias, misconduct or unfairness: in addition to ensuring that justice is achieved in a higher proportion of cases, this would help to maintain public confidence in the criminal justice system as a whole. Judges must be provided greater opportunity to deduce whether allegations made have merit.

One option could involve the external observation of jury deliberations by trained court staff (i.e. through a video-link). This would place the burden of reporting jury misconduct on more reliable persons, in light of Thomas’ research above, with the result that any allegations brought to the court would carry more weight due to the presumption that the allegation was raised correctly. In addition, it has been demonstrated that the presence of cameras in jury rooms does not deter frank discussion in the same way as the physical presence of court staff, so juries would still feel able to conduct frank deliberations despite being watched.

Due to the seriousness of those trials heard by juries, a proper investigation should be made by the Government into whether the system is operating to its full potential. The current approach, forcing inaction in many cases regardless of the quality of the allegation, cannot be said to work in the interests of justice.

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Tagged: Courts, Criminal Law, Justice

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