Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE SWEENEY
| Her Majesty's Attorney General
|- and -
|Michael Alexander Seckerson
|- and -
|Times Newspapers Limited
Mr Rupert Pardoe (instructed by Martin Murray & Associates) for the First Defendant
Mr Gavin Millar QC, Mr Anthony Hudson and Ms Gemma Hobcraft (instructed by Corker Binning) for the Second Defendants
Hearing date: 8th April 2009
Crown Copyright ©
Lord Justice Pill :
"Subject to sub-section (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."
Subject to one point, it is not suggested that sub-section (2) has any bearing on the outcome of the present application.
"The role of expert witnesses in baby death trials was called dramatically into question last night after two jurors spoke out to challenge the conviction of a childminder for killing a baby in her care. Senior judges and law officers faced calls last night for a fresh review of the role of expert witnesses in baby-death cases . . ."
Ms Gibb reported that the recent conviction was disputed by the jurors "in an unprecedented move". Later in the article it is stated: "The case comes amid increasing concern over cases involving baby deaths that turn on the evidence of expert witnesses".
'Jurors break silence to insist that childminder did not kill baby
- Foreman says medical evidence 'contentious'
- MP wants enquiry into role of expert witnesses'
The article again refers to the "unprecedented move" of the two jurors. It continues:
'But the jury foreman, who cannot be named for legal reasons, has told The Times that he does not think the case should ever have come to court.
"A case relying on circumstantial evidence and forensic opinion based on evidential proof from other cases should never have reached a court", he said. He added: "I think that although the trial was very carefully run, the case in my view was flawed and the accused innocent".'
"I believe a miscarriage of justice has occurred but there's nothing I can do about it . . ."
The article continues:
'Jurors are prohibited by law from disclosing secrets of the jury room and the discussions as to how a verdict was reached. But the readiness of two of the 12 in this trial to speak out are an indication of how strongly they feel.'
'The jury foreman told The Times that there was no question, as has been suggested, of the jury being rushed. It was given ample time and the "consensus was taken three minutes after the foreman was voted in. It was 10-2 against, all based on the evidence. After that there was no going back".
He added: The jury majority voted guilty because it could do no other.
"The medical evidence was overwhelming. All the necessary ingredients of what the experts call the 'triad' [a collection of features typically caused by shaking that lead to hypoxic-ischaemic brain injury and death] were there.
"But many expert witnesses vouchsafe that the literature on shaken baby syndrome is contentious and far from complete. And so who caused the death, or whether anyone did, is not proved. The evidence, whether expert or other, was merely circumstantial – probabilities, therefore uncertainties."
The juror said that the defence was good; but up against "the weight of a dozen medical and forensic experts, was clearly on a hiding to nothing.
"The circumstance were that of amateurs made to do a professional's job.
"Such a complex case was made easier by the judge's excellent, well-rounded summary . . . although we were told we could not have a transcript." Had the jury been given a transcript they might have reached a better verdict, he added.
What was not proved, he said, was who caused the death "or indeed whether anyone did."
He added: "Ultimately the case was decided by laymen and laywomen using that despicable enemy of correct and logical thinking, that wonderfully persuasive device, common sense."
The outcome has left him disillusioned with the jury system. "One's peers, however good and true, are generally not up to the job."'
A call by a Member of Parliament for a review of medical expert evidence was then mentioned.
(a) . . . the consensus was taken 3 minutes after the foreman was voted in. It was 10-2 against, all based on the evidence. After that there was no going back.
(b) The jury majority voted guilty because it could do no other.
(c) The medical evidence was overwhelming.
(d) Ultimately the case was decided by laymen and laywomen using that despicable enemy of correct and logical thinking, that wonderfully persuasive device, commonsense.
It was submitted that the disclosures represent a statement of opinions expressed by fellow jurors, of arguments advanced by them and of a vote cast by members of a jury in the course of deliberations. Mr Havers did not urge the court to take the view that the case constituted the most serious breach of section 8(1). There had, however, been a significant breach of the important principle of the sanctity of the deliberations of a jury. It is important that the principle be strictly observed.
"That does not mean that we would not wish to see restrictions on the publication of such an article because we would."
"(1) Everyone has the right of freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
(2) The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."
"It was against this background that Parliament enacted section 8 of the Act of 1981. If breaches of the secrecy of the jury room had escalated to a degree that Parliament deemed a statutory sanction to be necessary, then its duty was to define clearly the circumstances in which an offence would be committed so that criminal sanctions were restricted to those offences which, in Lord Diplock's words in Attorney-General v Leveller Magazine Ltd  AC 440, 449: 'involve an interference with the due administration of justice either in a particular case or more generally as a continuing process.'"
"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 to 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 [counsel for the newspaper] 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."
". . . the mischief which was thought to need a remedy is seen to have included publication of the forbidden particulars as well as their disclosure by individual jurors, which confirms the plain and ordinary meaning of 'disclosure' as the correct meaning in section 8."
"There is no doubt in the light of this background, as Lord Lowry said in Attorney General v Associated Newspapers Ltd . . . that the mischief to which the sub-section was directed was the release of information to the press which ought to be kept secret."
". . . It is a word wide enough to encompass the revealing of the secrets of the jury room by a juryman to his friend or neighbour as well as the opening up of such knowledge to the public as a whole by someone to whom it has been revealed. And in the light of the background to which we have referred, we see every reason why Parliament should have intended the word 'disclose' to cover both situations. Nor do we regard it as significant that the secrets came into the hands of the newspaper indirectly. The existence of a market for the transcript of interviews with jurors containing prohibited details of their deliberations is as inimical to the interests of justice as the direct solicitation for money which occurred in this case. 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. In our judgment the Attorney-General has proved a breach of section 8(1) by the publisher, the editor and the journalist."
"The Commission agrees with the applicants that the fines imposed in the present case amounted to an interference with the applicants' freedom of expression, and also agrees that the interference was 'prescribed by law'. In connection with the question whether the interference pursued a legitimate aim, the Commission finds, as indeed the applicants accept, that the aim was to maintain the authority and impartiality of the judiciary. It would add that the term 'judiciary' comprises the entire machinery of justice, including the proper functioning of the jury system (cf., Euro. Court H.R., Sunday Times judgment of 26 April 1979, Series A no. 30, p. 34, para. 55). It is an important element of that system that jurors should express themselves freely in the jury room without fear of outside disclosure of their views and opinions. To this extent the law may also serve to protect the rights of individual jurors themselves.
. . . In connection with the legislation as such [the 1981 Act], the Commission notes that the jury system in the United Kingdom is founded on the premise that jurors will express themselves freely in the jury room in the knowledge that what they say will not be used outside. If a juror thought that what he said could subsequently be made public, it is possible that he would bear in mind the future use to which his words might be put, and not just the case in hand. The unlimited prohibition on disclosure is then seen to be an inevitable protection for jurors and can therefore be regarded as 'necessary' in a democratic society which has decided to retain this particular form of jury trial."
"The present case relates rather to revelations of the jury's deliberations in one specific case of considerable public interest, including statements by the jurors concerned about the opinions and attitudes of other members of the jury. The applicants were well aware that the information they published was sensitive, and should have been aware that its disclosure could put other individual jurors in an invidious position.
The Commission finds, in the circumstances of the present case, that the interference with the applicants' freedom of expression did not take the State beyond the margin of appreciation which it enjoyed."
"As I have already explained, it was not disputed that the appellant could, if appropriate, invoke sections 3 and 4 of the 1998 Act. In my view, however, neither section avails him in this case. The appellant's rights under article 10(1) were, of course, engaged but in terms of article 10(2) the right to freedom of expression can be subject to a restriction which is prescribed by law and is necessary in a democratic society "for preventing the disclosure of information received in confidence." In Gregory v United Kingdom (1997) 25 EHRR 577, 594, para 44, the European Court acknowledged that the rule governing the secrecy of jury deliberations is a crucial and legitimate feature of English trial law. Therefore, in so far as section 8(1) serves to reinforce that rule by making it an offence for a juror to disclose the information which he receives in confidence from his fellow jurors, the objective is sufficiently important to justify limiting the juror's freedom of expression in this way. The provision is rationally connected to its aim and the means adopted are no more than is reasonably necessary, since the restriction does not apply to bona fide disclosures to the court authorities. The measure is accordingly 'reasonably justifiable in a democratic society.'"
"Section 3 of the 1998 Act comes into play only where it is needed in order to make a legislative provision compatible with a Convention right. As Mr Starmer accepts, however, when properly interpreted according to domestic canons of construction, section 8(1) is compatible with article 10 of the Convention. That being so, section 3 does not apply."
"The Court acknowledges that the rule governing the secrecy of jury deliberations is a 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."
That being so, I see no place for the application of section 3 of the 1998 Act in the respondents' favour so as to interpret restrictively the relevant words in section 8(1). Even if there were to be a place, section 3 would not permit an interpretation of the plain words used in a way that would influence the outcome of this application.
"It is important to take account of the fact that a jury is a judicial tribunal, and is expected to conform to judicial standards."
The House of Lords "took stock" of the nature and scope of the secrecy rule regarding jury deliberations (Lord Steyn, paragraph 13). Lord Steyn cited with approval the rationale of the rule stated by Arbour J, giving the judgment of Canadian Supreme Court in R v Pan  2 SCR 344. Arbour J stated three reasons, the second of which, the need to ensure finality of the verdict, standing alone, not being a convincing rationale. In relation to reasons one and three, Arbour J stated at pp 373-375:
"The first reason supporting the need for secrecy is that confidentiality promotes candour and the kind of full and frank debate that is essential to this type of collegial decision- making. While searching for unanimity, jurors should be free to explore out loud all avenues of reasoning without fear of exposure to public ridicule, contempt or hatred. This rationale is of vital importance to the potential acquittal of an unpopular accused, or one charged with a particularly repulsive crime. In my view, this rationale is sound, and does not require empirical confirmation.
. . . the third main rationale for the jury secrecy rule – the need to protect jurors from harassment, censure and reprisals. Our system of jury selection is sensitive to the privacy interests of prospective jurors (see R v Williams,  1 SCR 1128), and the proper functioning of the jury system, a constitutionally protected right in serious criminal charges, depends upon the willingness of jurors to discharge their functions honestly and honourably. This in turn is dependent, at the very minimum, on a system that ensures the safety of jurors, their sense of security, as well as their privacy.
I am fully satisfied that a considerable measure of secrecy surrounding the deliberations of the jury is essential to the proper functioning of that important institution and that the preceding rationales serve as a useful guide to the boundaries between the competing demands of secrecy and reviewability."
Attorney General's letter
"Thank you for your letter of 10 February. It is something of a tall order to ask me for guidelines before you embark on your investigation of the jury system but I will do my best!
We must start with the wording of section 8 of the Contempt of Court Act 1981. Subject to exceptions which are not relevant, "it is a contempt of court to obtain, disclose or solicit any particulars of statements made, opinions expressed, arguments advanced or votes cast [emphasis in original] by members of a jury in the course of their deliberations . . .". The words underlined show what the section is seeking to protect – the "secrets of the jury room". The section does not prohibit journalists speaking to people who have done jury service, though the journalist buttonholing a juror as he leaves the court house at the end of a sensational trial must not be surprised if his intentions are misunderstood. So there is much that jurors can be asked about the working of the system. How were they treated by the court staff? How much of their time was stated waiting for the opportunity to try a case? Before they went into court, were they given any information about trials and procedure and what was expected of them? Did they think that the allowances they were paid were fair? Then about the trial. Could they follow what was going on?
Did they find the pace too slow? Or too fast? Did they think the performance of counsel adequate? Did they find the judge's summing up helpful? How did they select the foreman? Did he play an active part in chairing their discussions? If there was a disagreement about the verdict at the beginning of their discussions, did each member of the jury explain how he or she had arrived at his or her verdict? Did the discussion lead to change of mind? Did the jury reach a unanimous decision? If not, how long was it before they concluded that they would never do so? Did they then reach a majority verdict? Did he suspect any of his colleagues of having any improper motive in reaching the verdict (prejudice against the police or "authority", or against the defendant or people of the defendant's race)?
As you will have noticed, this list of questions moves closer and closer to the area about which questions are forbidden. But provided the questioner knows that he must not ask for "particulars of statements made, opinions expressed, arguments advanced or votes cast" all will be well. His safest course will be to ask the questions in general terms and not to relate them to a particular trial. Indeed, I see no reason why the journalist needs to know which trial was involved if he is writing about the working of the system in general terms.
Well, I have done my best. I hope that it will be helpful. I wish you every success with the series on which you are embarking."
"To ask the questions in general terms and not to relate them to a particular trial."
It is, in any event, for the court to determine whether there has been a breach of section 8 in this particular trial.
Evidence of defendants
"I then decided to take up the story again (having failed to arouse the interest of the news desk previously) as not one, but two jurors speaking out about a criminal case was significant . . ."
When speaking to the first defendant, whom she has never met, Ms Gibb made clear to him that she could not discuss any matters regarding jury deliberations. The first defendant said that he was only interested in communicating to her what he thought about the verdict and the way the trial had been run, now that the trial had ended.
"It was telling that jurors felt so strongly about the issue as to how the trial had proceeded and the difficulties in weighing the views of different experts that they came forward unprompted to express their opinions in public."
"What was reported in my articles was what I considered to be legitimate comment by the juror about his experience of the trial and his own opinion expressed after the trial."
"My sole intention was to describe my generic experience in this case. I had no intention to disclose any particulars of statements made, opinions expressed, arguments advanced or note, sorry, votes cast by the members of the jury in the course of their deliberations, nor have I done so. I did not intend to, nor have I exceeded the restrictions on disclosure. I do not accept that any part of my writing or conversation constitutes an infringement of those restrictions."
(a) "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" (Associated Newspapers)
(b) "Section 8 is aimed at keeping the secrets of the jury room inviolate in the interests of justice" (Associated Newspapers).
(c) "It is an important element of that system that jurors should express themselves freely in the jury room without fear of outside disclosure of their views and opinions" (Commission).
(d) "If a juror thought that what he said could subsequently become public, it is possible that he would bear in mind the future use to which his words might be put, and not just in the case in hand" (Commission).
(e) "The unlimited prohibition on disclosure is then seen to be an inevitable protection for jurors" (Commission).
(f) "The rule governing the secrecy of jury deliberations is a crucial and legitimate feature of English trial law . . . to guarantee open and frank deliberation by jurors on the evidence which they have heard" (Gregory).
(g) "Confidentiality promotes candour and the kind of full and frank debate that is essential to this type of collegial decision-making" (Mirza, citing Pan).
(h) "The proper functioning of the jury system is dependent, at the very minimum, on a system that ensures the safety of jurors, their sense of security, as well as their privacy" (Mirza, citing Pan).
Mr Justice Sweeney :