QUEEN'S BENCH DIVISION
London, WC2A 2LL
B e f o r e :
MR JUSTICE PITCHFORD
| HM Attorney-General
|- and -
|Keith Richard Scotcher
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr Hugh Southey (instructed by Birnberg Peirce) for the Defendant
Crown Copyright ©
Lord Justice Scott Baker:
"(1) Subject to subsection (2) below, 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 deliberations in any legal proceedings."
Subsections (2) and (3) are of no relevance for present purposes.
"Dear Mrs Anderson
I was the one jury member who held out against the prosecution case at the trial of [A] and [B]. I would like you to seriously consider, as I'm sure you are already, talking to your counsels about appealing the convictions on the grounds of an unsafe conviction, miscarriage of justice, or whatever. [XXXX]
When we first went out the voting was close XXXX. Many changed their vote late on simply because they wanted to get out of the courtroom and go home. I was shocked at how readily some of them were ready to convict on a complete lack of evidence, and I tried to show them how the evidence there was, [A]'s jacket, [B]'s suit, the phone book could so easily have been "fitted" into "[D]'s" statement – given after these items were taken from your house. It was never explained why policeman took these items.
The police searched the house 3 days after the incident. How did they know what items to take? They didn't find any drugs or anything associated with drug dealing. But, they took these items which they thought would be "useful", as they were, when it came to concocting a "statement" from [E]. This statement was not written down nor recorded. We only had the policeman's "word" – evidence for it (all the jury thought he was "dodgy"). Then, lo and behold, [A] and [B] were said to be wearing those very clothes the police just happened to take! Phone numbers from the book were said to have been known by [D]/[E]. In the "statement" he got close, some numbers wrong, but in Court he was further away on [B]'s number. He had plenty of time to try and memorise them anyway, but how could he ever make a successful call? Of course there were other things that decided me they should not be found guilty. [F]? said in her statement that the jacket was GREEN! The only other mention of green was in [A]'s statement when policeman mistakenly said it was green! Indicating she was shown the statement. As well as her belatedly saying she knew of [A] and [B], who [E] said he knew as [G] and [H]. (said before couldn't recognise etc).
I tried to show the Jury that this was how people were fitted up, and that there was not enough evidence to convict anybody. I'm sorry I did not succeed and I wish you XX success in your further efforts.
Yours sincerely – ANON
I was a shop steward XXXX for 18 years and know how people get framed for things.
Some more thoughts on the case [E] was clearly lying about the phone call he made to [B]. He says he keeps the number [B's] in his head. But got it wrong in first statement, and even more wrong in witness box – so how could he make the call at all? DC (1) should have been asked if he is paranormal – knew what to take from [C] house before [E] statement. Why these items and not any others? Does it happen often in DC (1)'s cases, that he picks up the "right" evidence before he even knows about it? What was he looking for in the search? Some of the jury thought the judge wasn't just summing up the case but indicating he wanted them found guilty. Some of the jury said they were ready to believe they were guilty despite almost complete lack of evidence. The "leader" of this pack was XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX saying they are drug dealers,etc, and should be locked away. There was no proof of this. Only [E] said this.
I tried to argue strongly that our duty X was first to presume innocence until proven guilty. Despite the fact that I was prepared to go through all the "evidence" present and show how it was a false case, when I challenged the others to prove the guilt case – none of them even tried! The just decide on prejudice and hearsay. (and wanting to get home for tea!). I hope these are grounds in law to show that the verdict was unsafe. Don't know if it can be shown that the Judge misdirected the jury.
Its a terrible thing to say, but it now looks if it would have been better not to go before a jury. A judge could not have decided on the complete lack of evidence. This is hindsight of course. My opinion was that the Judge should have directed us to find not guilty due to lack of evidence (and clearly false evidence).
Please do not show this letter to: - police/judge/pros Counsel."
"I've blocked out some words because apparently I'm "in contempt of court" for writing to you".
"Warnings are in grey boxes.
You will find them on pages 1, 2 and 10.
Please read them carefully."
On page 1 appeared the following:
When you become a juror you must never discuss the case with anyone who is not a member of the jury. Talk about the case only in the jury room when all the jury are present."
You must not talk about the case outside the jury room.
You must not show or tell anyone details of:
|Statements made||Opinions given|
|Arguments put forward||Votes cast|
by you or any other juror during the jury's deliberations. If you do, you will be in contempt of court and you may be sent to prison or have to pay a fine."
"It is a contempt of court, which may be punishable by imprisonment, to get or disclose the opinions of jurors or the way they voted in their deliberations."
And a little later:
"Please remember that it is an offence punishable by imprisonment for anyone to disclose information about what is discussed in the jury room or the opinions of individual jury members about a case."
There was also a notice to similar effect in the jury room.
- That he had been in a state of panic when questioned by the police and had only recently taken legal advice.
- That he was 55, had worked at Fords Dagenham for 30 years and that he had been an active Trade Unionist for most of the time that he had worked there but retired from that his union activity in 1995 because of high blood pressure.
- That he was not in the best of health and had been forced to come off night shift work.
- That he was of positively good character and had devoted his life unselfishly to the welfare of others. (glowing references were enclosed).
- That he hoped the letter would keep him on the right side of the law whilst at the same time spurring Mrs C to mount an appeal in a case in which he felt, rightly or wrongly, that justice had not been done.
- That over two years had passed since the trial. (it is now of course over 3 years).
The letter concluded:
"We would respectfully submit that this is precisely the sort of case in which your consent should be withheld. It is not suggested that there is such a number of similar cases that a message needs to be sent out to jurors to avoid such misbehaviour. Indeed, we understand that the position at the moment to be the Courts are on occasion having problems finding enough Jurors to sit. A prosecution of someone like Mr Scotcher, which would necessarily be followed by a great deal of publicity, might itself send out a very worrying signal to potential jurors. Mr Scotcher's motivation was clearly of the most laudable kind, his breach of the criminal law at best marginal and no lasting damage has been done.
For all these reasons we ask that you do not give your consent to prosecution of Mr Scotcher."
"I desire to make it clear that the court will never admit evidence from jurymen of the discussion which they may have had between themselves when considering their verdict or of the reasons for their decision, whether the discussion took place in the jury room after retirement or in the jury box itself."
And Atkin L.J. at 121 in the same case:
"The reason why that evidence is not admitted is twofold, on the one hand it is in order to secure the finality of decisions arrived at by the jury, and on the other to protect the jurymen themselves and prevent their being exposed to pressure to explain the reasons which actuated them in arriving at their verdict. To my mind it is a principle which it is of the highest importance in the interests of justice to maintain, and an infringement of the rule appears to me a very serious interference with the administration of justice"
Then he added :
"Clearly, as it seems to us, that reasoning must extend to cover anything said by one juror to another about the case from the moment the jury is empanelled, at least provided what is said is not overheard by anyone who is not a juror. That was the view of the Supreme Court of New South Wales in Andrew Brown (1907) 7 NSWSR 290, which refused to consider the affidavits of five jurymen in order to decide whether a fellow juryman had been guilty of misconduct. "
"We concluded having heard all the arguments that we were entitled to inquire into what happened at the hotel but not as to what happened thereafter in the jury room. Accordingly we ordered that affidavits should be taken from each of the 12 jurors and from the two bailiffs looking after them at the hotel. We asked the Treasury Solicitor to take charge of the inquiry in conjunction with a senior police officer of at least the rank of chief inspector. We required the affidavits to cover what if anything happened at the hotel, but not to breach section 8 of the Act of 1981 by trespassing on what happened during the jury's deliberations in their retiring room"
Then at 334F:
"Having considered all the circumstances, we concluded there was a real danger that what occurred during this misguided ouija session may have influenced some jurors and may thereby have prejudiced the appellant. For those reasons we allowed the appeal but ordered a retrial."
"In Young (supra) this Court recognised the existence of the line of authority to which we have referred, but noted that there were some cases in which possible extrinsic influences on a jury in retirement had been investigated by the Court, and so felt able to investigate what was alleged to have happened overnight when the jury was accommodated in a hotel. The period in the hotel was held not to form part of the "deliberations" for the purposes of section 8(1) of the 1981 Act, so a carefully circumscribed investigation was possible without contravening the provisions of that Act. That decision, considered properly in the context of the line of authority to which we have referred, seems to us to be of no assistance to the appellants in this case. Many of the submissions made to us seemed to be based upon the false proposition that we should be prepared to consider any material the obtaining of which would not constitute an offence contrary to section 8(1) of the 1981 Act, but, as we have attempted to make clear, the barrier to the reception of material is not to be found in the 1981 Act. It is to be found in a long line of authorities, some at least of which set out in terms why the barrier must be maintained."
"It seems to us that we must follow R v Miah unless, as a result of the Human Rights Act 1998, it can be said no longer to represent English Law. If we follow it, we cannot have regard to anything said by the juror thus far. Nor can we initiate any further inquires because the substance of what she has said relates to what was said and done between jurors in private after they were empanelled."
And then at paragraph 28:
"But if trial by jury is properly to be preserved, some allegations can only be investigated if made before the jury's part in the trial process has come to an end. In our judgment, the present juror's allegations fall into that category"
He concluded at paragraph 30:
"We therefore conclude that what was said in R v Miah  2 Cr App R 12 does still represent English law. It follows that the inquiries already made have gone too far, and certainly no more inquiries can be authorised by this court."
- The promotion of candour in jury deliberations.
- Achieving finality with the jury's verdict.
- Protecting the privacy of the jurors.
"It may be that some jurymen are not aware that the inestimable value of their verdict is created only by its unanimity, and does not depend upon the process by which they believe that they arrived at it. It follows that every juryman ought to observe the obligation of secrecy which is comprised in and imposed by the oath of the grand juror. If one juryman might communicate with the public upon the evidence and the verdict so might his colleagues also, and if they all took this dangerous course differences of individual opinion might be made manifest which, at the least, could not fail to diminish the confidence that the public rightly has in the general propriety of criminal verdicts. Whatever the composition of a British jury may be, experience shows that its unanimous verdict is entitled to respect."
"The virtue of our system of trial by jury lies in the fact that, once the case is over and the jury has returned its verdict, the matter is at an end."
"There are two important reasons that may be advanced why things said during the jury's deliberations should not be disclosed afterwards:( (i) the need to protect the jurors themselves, and (ii) the need to preserve the principle that the jury's decision should be treated as final unless upset on appeal. As to (i), obviously jurors might feel inhibited from expressing their opinions freely during their deliberations if they knew that their fellow-jurors might disclose what they said, and they might be seriously embarrassed by pressure to give information about what any juror said or how he voted. As to (ii), whatever opinion one holds as to the merits of the jury system, the committee generally take the view that it is contrary to the public interest that the issue before the jury should be 'retried' in public with the use of information supplied by one or more of the jurors. Such a discussion, without judicial control of its course and very likely with imperfect knowledge of the evidence given at the trial, might well give a false impression of the reasons for the verdict, especially as other members of the jury might feel inhibited by the obligation of secrecy or by dislike of publicity from coming forward and correcting mistaken statements by the juror who supplied the information. This might lead to unjustifiable dissatisfaction with the results of trials."
Then he said at 248B:
"Thus, we believe, the law has long recognised the importance of complete freedom of discussion in the jury room. If a juror were to be deterred from expressing his doubt of the accused's guilt because he feared subsequent recrimination or ridicule, the accused might be deprived of a persuasive voice in his favour. So, too, a jury deciding a plaintiff's claim to damages for libel ought not be exposed to interrogation by the erstwhile defendants or others who share an interest in avoiding liability for, or reducing the consequences of, defamatory publication. We consider that the free, uninhibited and unfettered discussion by the jury in the course of their deliberations is essential to the proper administration of a system of justice which includes trial by jury. The enacted provisions designed to maintain such discussion are confined to soliciting, disclosing or publishing the particular aspects of the discussion in the jury room identified in the section. To that extent only do they restrain freedom expression. There is no restriction, as Mr. Pannick suggested, on the freedom to express opinions, advance arguments, advocate changes or promote reform on the many aspects of jury trial which have already been the subject of public debate and which are, and remain, proper objects of public concern and interest. In due course the European Court of Human Rights may be called upon to decide whether the measures enacted by Parliament are disproportionate to the restriction imposed on freedom of expression. When it does so, it will surely take full account of Parliament's experience of trial by jury as an instrument of justice in the United Kingdom and its appreciation of the need today to protect the secrecy of the jury room. We were invited to take these factors into account to guide our interpretation of section 8. To the extent that it is permissible for this purpose, we have considered them."
And a little later at 248H:
"Section 8 is aimed at keeping the secrets of the jury room inviolate in the interests of justice. We believe that it would only be by giving it an interpretation which would emasculate Parliament's purpose that it could be held that the widespread disclosure in this case did not infringe the section. By declaring such conduct to be a contempt, Parliament recognised the exceptional discretion vested in a court to protect the process of justice and its ability to reflect the varying shades of infringement."
"Like the Commission, the Court considers that Article 6(1) of the Convention imposes an obligation on every national court to check whether, as constituted, it is "an impartial tribunal" within the meaning of that provision where, as in the instant case, this is disputed on a ground that does not immediately appear to be manifestly devoid of merit.
In the instant case, however, the Rhone Assize Court did not make any such check, thereby depriving Mr Remli of the possibility of remedying, if it proved necessary, a situation contrary to the requirements of the Convention."
This case did not concern jury deliberations and the English Court would no doubt likewise have been under an obligation to make some inquires in similar circumstances.
"Jury showing racial overtones. One member to be excused".
"Members of the jury, each of you has taken an oath to reach a true verdict according to the evidence. Remember that is the oath you took two days ago. Not one of you must be false to the oath. You do have a duty, not only as individuals but collectively as a jury. That, of course, is the strength of the jury system. So each of you when you go into your jury room take with you your individual experience and wisdom…Your task is to pool that experience and wisdom. You must do that by giving your views and listening to the views of other people. Of necessity there will be discussion….There has got to be argument and there has got to be give and take within the scope of the oath that each of you have taken. That is the way you achieve agreement. "
"It was also accepted by both the applicant and the Government that it was not possible under English law for the trial judge to question the jurors about the circumstances which gave rise to the note. The Court acknowledges that the rule governing the secrecy of jury deliberations is crucial and legitimate feature of English trial law which serves to reinforce the jury's role as the ultimate arbiter of fact and to guarantee open and frank deliberations among jurors on the evidence which they have heard".
"I have decided I cannot remain silent any longer. For some time during the trial I have been concerned that fellow jurors are not taking their duties seriously. At least two have been making openly racist remarks and jokes and I fear are going to convict the defendants not on the evidence but because they are Asian. My concern is the defendants will not therefore receive a fair verdict. Please could you advise me what I can do in this situation".