England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		16 May 2003

Lord Justice Scott Baker:

1. The Attorney-General represented by Mr Robin Tam moves for the committal to prison of Mr Keith Richard Scotcher for contempt of court in breaching section 8(1) of the Contempt of Court Act 1981.
2. Permission to bring this application was granted by the Divisional Court on 23 October 2002.
3. Section 8(1) provides:

"(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.

The facts

4. The Respondent, Mr Scotcher, served on a jury at a Crown Court in February 2000.
5. The Defendants were two brothers A and B. They were charged with wounding with intent contrary to section 18 of the Offences Against the Person Act 1861 and affray. A was alleged to have stabbed a young man with a carving knife in a dispute over drugs. A was convicted of wounding with intent and sentenced to a number of years' detention. The affray was an alternative allegation and accordingly no verdict was taken in respect of it. B was acquitted of wounding with intent but convicted of the alternative offence of affray and sentenced to a lesser period of detention.
6. The jury was sent out on the seventh day of the trial, convicting the Defendants by a majority of 10/1 on that day. One juror had been discharged during the course of the trial for reasons that are immaterial.
7. On the day after the trial ended Mr Scotcher wrote a letter to the Defendant's mother in these terms:

"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

XXXX

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.

good luck!

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."

8. Certain passages in the letter were blacked out (marked by capital X's above) and at the beginning of the letter there was the following endorsement:

"I've blocked out some words because apparently I'm "in contempt of court" for writing to you".

9. The Attorney-General submits this letter was sent in flagrant breach of the prohibition in section 8(1) of the Contempt of Court Act 1981 because it disclosed details of what went on in the jury room.
10. Mr Scotcher submits that on its true construction there was no breach of section 8, because his sole motive for revealing what he did was to expose what he considered to be a miscarriage of justice.
11. When Mr Scotcher's jury service began on 31 January 2000. He was given, as were all the others on the jury panel, a booklet called "you and your jury service". It said:

"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:

"Warning

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."

"Warning

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."

12. Mr Scotcher was also shown a video. We have a transcript of what was said on it. This includes the following passages:

"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.

13. The letter written by Mr Scotcher in due course came to the attention of the police. The Crown Prosecution Service made inquiries through the usual permitted channels.
14. In May 2001 all eleven jurors were seen. Every one of them including Mr Scotcher denied writing the letter but they all provided samples of their handwriting.
15. The letter and the envelope in which it was sent were analysed by a handwriting expert who compared them with the eleven samples. The conclusion was that the other ten jurors did not write the letter but that Mr Scotcher did. Also, the expert interpreted some of the obliterated words.
16. On 4 September 2001 Mr Scotcher was arrested and interviewed under caution. He repeatedly denied being the author of the letter, albeit admitting the writing looked like his and that at Fords he had been a shop steward for eight years, as the author of the letter claimed to have been. The e-mail address that he gave to the police corresponded with the e-mail address that had been obliterated on the letter but interpreted by the expert; still he maintained his denial that he was the author.
17. Eventually, on 25 March 2002 his solicitor wrote to the Attorney-General, admitting he was the author, giving an explanation for what he had done and inviting the Attorney-General not to give his consent for the prosecution of him for contempt. The letter made the following points:

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."

18. For my part I cannot agree with the sentiments expressed in that passage. It is of the utmost importance that opinions expressed, arguments advanced and votes cast by members of a jury in the course of their deliberations should remain confidential as between the members of the jury and that they should not be disclosed to anyone else.
19. Mr Southey argues that when a juror genuinely believes that there has been a miscarriage of justice section 8 should be so construed that no offence is committed.
20. The first difficulty about this argument is how 'genuine belief' is to be established. What is to prevent every juror who is in a minority of one or two from going public about his views? Also, what of a case where a juror is under pressure or influence from a person or persons outside the jury? The jury system depends on reliance upon the integrity of the members of the jury, of whom there are normally twelve but maybe one or two less by the conclusion of the trial.
21. The rules are such that if a minority of one or sometimes two takes a different view from the others and maintains that view so as to remain unmoved after all the deliberations, the view of the majority prevails, whether that view be in favour of acquittal or conviction. Of course in the case of an acquittal the fact that the decision is by a majority is not made public.
22. Thus the system caters for the individual who may, to use an expression, "have a bee in his bonnet" or take a particularly polarised view about some aspect of the evidence. If there is disagreement by more than one or two members of the jury then statute provides that no verdict is returned and the case may be retried before a different jury. Thus it is that the jury system contains within itself balances to regulate or minimise the risk of any misconduct adversely affecting a defendant. The public places trust in individual jurors to participate properly in the process. Juries, it should be noted, comprise a relatively large number of people (twelve initially) selected at random. For any misconduct by the jury to lead to an unjust conviction would require the participation of the majority of its members.
23. Analysis of Mr Scotcher's letter shows that most of his complaints relate to his assessment of aspects of the evidence. The other ten jurors plainly took a different view. On the face of it they were entitled to. In so far as he complains about failure on the part of the judge, if there is any substance in this, it is a matter that would be dealt with on appeal. The same applies to his complaint that there was a lack of evidence.
24. The only complaint that approaches 'misconduct' is the suggestion that some jurors changed their minds to guilty because they wanted to get home on Friday afternoon. Each juror took an oath to try the case to give true verdicts according to the evidence. Mr Scotcher's allegation amounts to the contention that many of the jurors were not true to their oath. Had such a situation arisen one would have expected a hung jury rather than a conviction by ten votes to one. I note that B was not convicted of the more serious charge.
25. What the other ten members of the jury's response might have been to the respondent's allegation one simply does not know because of section 8 of the Contempt of Court Act. However, reading the rest of Mr Scotcher's letter suggests it could well be that he was a man of fixed and rigid views who knew about miscarriages of justice in other cases and fitting up by the police and who simply was not prepared to listen to rational argument or discussion and would not be moved.
26. The bottom line is that in our system of justice juries are trusted and for obvious reasons it is not possible for the courts to analyse the decision making process after the event. Part of the rationale of the rule is to enable jurors to speak freely among themselves.
27. What should Mr Scotcher have done? During the trial he could have represented to the judge that more time was required, or otherwise that he had concerns he wished to express. The judge could then have decided whether the concerns were matters that fell within or without section 8 and what should or could be done. Faced with any of the concerns expressed in Mr Scotcher's letter it is likely that the judge would have issued a stern warning that the jurors should be true to their oath and continue with their deliberations whilst there was the possibility they might reach a verdict on which at least ten of them were agreed. After the trial, again he could have written to the court, preferably first having taken legal advice about what he could say without running in to the contempt of court difficulties of which he was aware.

The Law

28. The wording of section 8 of the Contempt of Court Act 1981 is expressed in clear enough terms. A juror is prohibited from disclosing any details of the statements opinions or arguments expressed by jurors in the course of their deliberations or how they voted. In short their discussions remain confidential to them. Any breach of this prohibition is a contempt of court.
29. Mr Southey's argument is that an exception must be read into subsection (1) and that it is additional to those already expressed in subsection (2). This exception, he submits, is to cover the case where a juror genuinely believes there has been a miscarriage of justice. He puts it in this way so that the exception would not apply, for example, to a juror who goes to the media for personal gain or to one who has some ulterior motive such as being under the influence of a third party. He submits that the section should be construed as to admit of this exception because otherwise there would be violation of Article 6 of the European Convention on Human Rights and Fundamental Freedoms. The court does not know what went on in the jury room; the only people who do are the jurors and a juror must be permitted to reveal misconduct leading to a flawed verdict. Otherwise the Defendant would remain the victim of an unfair trial.
30. Mr Southey fortifies his argument with the submission that none of the material given to jurors tells them what to do if they have genuine concerns about misconduct during the course of their deliberations. Therefore, he submits, it is understandable that Mr Scotcher should have written to the Defendant's mother albeit he was wrong, with hindsight, to have done so.
31. The starting point is, I think, to consider how the Court of Appeal (Criminal Division) views the deliberations of the jury. Examination of the authorities shows that the deliberations of the jury are sacrosanct. Indeed the rule is, if anything, wider than the prohibition in section 8.
32. In R v Miah and Akhbar [1997] 2 Cr App R 12 Kennedy L.J. giving the reserved judgment of the court said it was a settled rule of long standing that an appellate court could not receive evidence from jurors about discussions or other matters that took place in the jury box or jury room concerning the cases in which they were acting. He cited Bankes L.J. in Ellis v Deheer [1922] 2KB113, 117:

"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. "

33. R v Young [1995] QB 324 was the ouija board case. After retirement, the jury was accommodated overnight in an hotel. Four jurors met in the room of one of them and conducted a session with a ouija board purporting to ask questions of and receive answers from one of the deceased whom the defendant was alleged to have murdered. The "answers" received went to the heart of the case, purporting to deal with points that had been expressly raised by the evidence. They were adverse to the defendant. Next day some discussions took place with other jurors about the ouija board session. The defendant was convicted by unanimous decisions on both counts. One of the jurors consulted a solicitor and provided a statement which formed the basis of an application by the defendant for leave to appeal. Lord Taylor of Gosforth C.J. said at 332B:

"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."

34. Kennedy L.J. in Miah and Akhbar said this about Young :

"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."

35. The next case is R v Qureshi [2002] 1WLR 518. Three days after verdicts of guilty had been returned a member of the jury contacted the defendant's solicitors making a number of claims concerning the conduct of the jury including allegations that some members of the jury had been racially prejudiced against the defendant and had reached a decision as to his guilt at the outset of the trial. The juror later set out her allegations in a letter to the Crown Court. On the instructions of the Court of Appeal a police officer took a statement from the juror, avoiding any inquiry as to what had taken place in the course of the jury's deliberation. The court followed Miah. Kennedy L.J. said at paragraph 14:

"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 [1997] 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."

36. It should be noted that the decision in Qureshi postdates the implementation of the European Convention of Human Rights into English law. Also, it appears from Miah that the Court of Appeal (Criminal Division) is prepared to go further than section 8 in order to protect the privacy of what is said by one juror to another. Kennedy L.J. thought the prohibition applied to anything said by one juror to another from the moment the jury is empanelled. For present purposes, what is important is that the rule applied by the Court of Appeal (Criminal Division) goes at least as far as section 8.
37. I turn next to consider what is the basis for the approach of the Court of Appeal (Criminal Division) and the existence of section 8 of the Contempt of Court Act 1981. Mr Tam, for the Attorney General, has identified three broad reasons. These are:

The promotion of candour in jury deliberations.

Achieving finality with the jury's verdict.

Protecting the privacy of the jurors.

38. These reasons emerge from and are developed in the authorities. Attorney General v New Statesman and Nation Publishing Co Ltd [1981] 1QB 1 predated the Contempt of Court Act 1981. Indeed, the decision was in part responsible for section 8. The case involved the publication of an article following an interview given by a juror. The article contained an account of significant parts of the jury's deliberations in a much publicised criminal trial. The juror felt certain aspects of the case ought to be made public. The Divisional Court refused an order for contempt of court against the publishers. The Attorney-General had brought the case because of the apparently diminishing respect for the convention of jury secrecy.
39. Lord Widgery C.J. giving the judgment of the court cited Lord Hewart C.J in R v Armstrong [1922] 2 KB 555 who said:

"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."

40. After citing from to the judgments in Ellis v Deheer, to which I have already referred, he said that as the observations of these judges demonstrated there were powerful arguments against breaching the secrets of the jury room and added:

"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."

41. Section 8 was considered in Attorney-General v Associated Newspapers and Others [1994] 2 AC 238. Again the subject matter was disclosure in an article of accounts of three jurors as to how they had reached their decisions and also comments about the evidence. It was held that the prohibition in section 8 extended to disclosures made by a third party of details already revealed by a member of a jury and that the newspaper's publisher, editor and journalist had been in contempt. The decision of the Divisional Court was affirmed by the House of Lords.
42. Beldam L. J. in the Divisional Court referred at some length to the background to the enactment of section 8. He referred to paragraph 9 of the 10^th Report of the Criminal Law Revision Committee, Secrecy of the Jury Room (1968) (Cmnd. 3750):

"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."

43. Solicitor–General v Radio New Zealand [1994] 1 NZLR 48 provides a ringing endorsement from overseas of the rationale behind the maintenance of secrecy of the jury's deliberations, especially p.54, 55 of the judgment of the court.
44. There has yet been no consideration in the European jurisprudence of section 8, but there is no reason for supposing that our national courts do not have a wide margin of appreciation in deciding what is necessary to protect our system of justice.
45. There are some pointers from existing decisions. In Remli v France (1996) 22 EHRR 253 the applicant, a French National of Algerian origin was charged with killing a warder whilst attempting to escape from prison. He asked the trial court to take formal note of a racist remark allegedly made by a juror but it refused to do so. A witness had certified she had heard one of the jurors saying: "What's more I'm a racist". The court said at paragraph 48:

"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.

46. In Gregory v United Kingdom (1997) 25 EHRR 577 an hour and three quarters after the jury had retired to consider its verdict a note was sent by the jury to the judge. It read:

"Jury showing racial overtones. One member to be excused".

47. The judge did not discharge the jury or any of the individual jurors but gave them a very careful direction about discharging their sworn duty and deciding the case impartially according to the evidence. Later when they could not agree he gave them the classic direction:

"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. "

48. Eventually they returned a majority verdict of guilty by ten votes to two. The European Court held by eight votes to one that there had been no violation of Article 6(1). The Court said at paragraph 44 on p.594.

"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".

49. The European Court has thus endorsed the fact that the secrecy of jury deliberations is a crucial pillar of the English system of trial by jury. There is no suggestion that the breadth of the rule is so wide as to offend Article 6. Further endorsement is to be found in Miah v United Kingdom Application No 37401/97. This is the same Miah as the one to whom I refer at paragraph 32 above. The European Commission rejected his application as manifestly unfounded. It cited the passage from Gregory to which I have referred to above.
50. Finally there is Sander v United Kingdom (2001) 31 EHRR 44. In this case the European Court specifically noted that the personal impartiality of both the judge and the jurors is presumed until the contrary is proved. On the day the judge had almost completed his summing up and was about to send the jury out one of the jurors sent the following note to the judge:

"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".

51. The judge reminded the jury of their oath and responsibilities and adjourned until the following day to allow them to search their consciences and see if they were able to try the case solely on the evidence without any prejudices. The next morning, the judge was presented with two letters. One, from all the members of jury, related to the allegation. It said they were all offended by it and assured the court they would try the case according to the evidence and without racial bias. The other was from one juror who appeared to have thought he was the one to have caused offence. In it he apologised, said he had many connections with people from ethnic minorities and that he was in no way racially biased. The judge refused to discharge the jury but the court nevertheless found by four votes to three that there had been a violation of Article 6(1). The domestic court should, it said, have reacted in a more robust manner than merely seeking vague assurances that the jurors could set aside their prejudices and try the case solely on the evidence. The court accepted that discharging a jury was not only the means of achieving a fair trial but there were certain circumstances where it was required.
52. Gregory was distinguished because there was no admission by the juror that he had made racist comments. Nor in Gregory had counsel insisted that discharging the jury was the only viable cause of action as had been the case in Sander. Mr Southey relies on Sander to support his proposition that jurors can make complaints that may need to be considered. There are two answers to this. First Sander related to a complaint during the trial and not afterwards and secondly there is no hint by the court of any concern about the secrecy of the jurors' deliberations or its importance to the viability of trial by jury.
53. In my judgment, there is no ambiguity about section 8. On the contrary it is crystal clear on its terms. It is a statutory restriction and a specifically focussed provision that underpins the concept of trial by jury. It is entirely compatible with Article 6. It is in part directed to the interests of jurors themselves.
54. To create an additional exception to section 8 in the manner Mr Southey suggests would be a recipe for disaster. The difficulty in drawing the line between when a juror could make disclosures and when not clearly illustrates the problems that it would create. How could one discover whether a juror had 'genuine' concerns about an injustice without a detailed investigation of the facts? An aggrieved juror in a minority could use such a rule to obtain a new trial before a different jury. Also, if a juror was entitled to break the rule of secrecy the finality of the verdict would be lost and on each occasion a juror 'went public' an appeal by the defendant would almost inevitably follow.
55. Pitchford J in the course of argument drew attention to the fact that this case highlighted a tension between two public interests, on the one hand that of preserving the integrity of the jury system and on the other exposing miscarriages of justice. In my judgment there are checks and balances within the jury system and the likelihood of an injustice being caused by misconduct in jury deliberations is small. That small risk is, however, a price that has to be paid if the integrity of the jury system is to be maintained. That is plainly the view that is taken by Parliament in enacting section 8.
56. As I am clearly of the view that section 8 does not breach Article 6, it is unnecessary to deal with Mr Southey's other arguments. Suffice it to say that freedom of expression in Article 10 is not intended to cover the kind of expression with which this case is concerned. In any event a restriction upon it is amply justified. In my judgment there was in this case a clear and deliberate breach of section 8 of the Contempt of Court Act 1981.
57. In my judgment the Attorney-General's contention that contempt of court is established is made out.
58. Mr Justice Pitchford: I agree.