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England and Wales Court of Appeal (Criminal Division) Decisions


You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Schot & Anor, v R. [1997] EWCA Crim 3424 (12 May 1997)
URL: http://www.bailii.org/ew/cases/EWCA/Crim/1997/3424.html
Cite as: [1997] EWCA Crim 3424, [1997] 2 Cr App R 383, [1997] 2 Cr App Rep 383

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Neutral Citation Number: [1997] EWCA Crim 3424
Case No: 9701958 Y5 9701959 Y5

IN THE COURT OF APPEAL
CRIMINAL DIVISION

Royal Courts of Justice
The Strand
London WC2
12th May 1997

B e f o r e :

THE VICE PRESIDENT
(LORD JUSTICE ROSE)
MR JUSTICE FORBES
and
MR JUSTICE KEENE

____________________

R E G I N A
- v -
B SCHOT
C BARCLAY

____________________

Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Reporting Limited
180 Fleet Street, London EC4A 2HD
Tel No: 0171 831 3183 Fax No: 0171 831 8838
(Official Shorthand Writers to the Court)

____________________

MR J PERRY QC & MR L REDHEAD appeared on behalf of the Appellant SCHOT
MR S SOLLEY QC & MR M SIDHU appeared on behalf of the Appellant BARCLAY
MR D PANNICK QC appeared as Amicus Curaie

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    THE VICE PRESIDENT: At Knightsbridge Crown Court, on 24th March 1997, his Honour Judge Cooray made a finding that the two appellants were in contempt of court and sentenced them to 30 days' imprisonment. They appeal as of right by virtue of section 13 of the Administration of Justice Act 1960 against the finding of contempt and the sentence. They were granted bail by the Single Judge on 25th March 1997.

    The events leading to the judge's findings were these. On 17th February 1997 proceedings started in relation to the trial of defendants called Gibbons, Abrahams, Campbell and Osbourne at Knightsbridge Crown Court before Judge Cooray and there were, on that date, a number of applications. The defendants were charged with having custody or control of a counterfeit note.

    The jury were sworn in to try the case on 19th February. Before that happened the judge told potential jurors that the trial would take more than two weeks, and asked if that would cause any of them any difficulty. The two appellants were among the jurors sworn. There is before this Court the information which they would have had before they were sworn, which includes the terms of the jury summons from the Knightsbridge Crown Court, an explanatory pamphlet, and a video, of which this Court has a transcript, explaining some of the features involved in jury service.

    After the jury had retired at 12.30pm on 12th March, their first note was received at 3.18pm. It was in these terms:

    "Your Honour,
    We are unable to come to any decisions owing to some jurors conscious beliefs.
    Please advise."

    The judge, in the absence of the jury, discussed the terms of the note with counsel. Thereafter the jury were brought in and were asked to write:

    ".....a much fuller note explaining to the Court what the problem is that you are having. We do not quite understand what you mean by 'conscious beliefs', and so on and so forth".

    The foreman of the jury was the appellant Schot.

    At 4.00pm a second note was received. It was in these terms:

    "Your Honour,
    Some members of the jury cannot bring themselves to make a true judgment due to our beliefs, not religious but personal.
    At the beginning of the trial, before we took the oath we felt that we could not stand up in the court and stress this fact.
    We thought that our feelings may change over time. After retiring we found that we still feel the same and cannot give a true verdict to these defendants."

    There were discussions in the absence of the jury between the judge and the various counsel representing the defendants. In the course of those discussions, as appears from the transcript, on four separate occasions the judge referred to the "contempt" (at one stage "awful contempt") which he said had been committed. The judge decided that the jury should, in its entirety, be discharged. However, before doing so, he asked the jury to write down the names of the members of the jury to whom the second note, in particular, related. The jury, having had that request, retired again, and returned with the names of the two appellants written down. Thereupon, without any further submissions being made to him, the judge discharged the jury. He did so saying this at page 26H of the transcript in relation to the jury note:

    "Well thank you very much madam foreman. I have got your note with the two names in it. I have discussed your problems with counsel. I must say that I am truly surprised and I am truly disappointed and on behalf of the public I do complain very very bitterly that this matter was not brought to the notice of the Court at a much earlier stage. You will remember that before I selected you very carefully indeed I told each and every one of you if you had any problems to let me know particularly in view of the time and so on and so forth.
    This trial has cost this country and the taxpayer an awful lot of money. It has caused a great deal of anxiety and pressure on those five people up there who were relying upon your verdict and you let them all down. And I am going to say to you therefore that I am angered about it and will discharge you from further deliberating on this matter. But in so far as those two jurors are concerned whose names are Carol Barclay and Bonnie Schot I want them to come before this court for the direct contempt that they have shown to this court and show cause why they ought not to be fined substantial amounts of money and I will give them until the 24th March if they so wish to go and see solicitors, have themselves represented and be before me, on 24th March at 10.15 in the morning, okay. That is...show cause why you should not be fined for the deliberate contempt you have shown to this court in wasting so much of court time and leading us into this situation."

    On 14th March the two appellants were each sent, though one of them did not at that stage receive, a summons ordering them to attend at the Knightsbridge Crown Court at 10.15am on 24th March "to show cause why you should not be held in Contempt of Court for the said refusal to deliver a verdict". That summons was accompanied by a letter written by the Deputy Chief Clerk, plainly on the instructions of the judge, who, it said, had taken the view that there appeared to be a prima facie case of contempt of court in refusing to deliver a verdict. The letter went on to indicate that the judge had ordered that:

    ".....legal aid be granted for you to be represented by a Solicitor Advocate or a Barrister alone. In the circumstances, you should notify the Court Clerk immediately on your arrival at Court so arrangements can be made for a Solicitor Advocate or Barrister to be assigned."

    That is what happened. Counsel who happened to be at that Crown Court on 24th March, in relation to other matters, were assigned to represent each appellant. That occurred, clearly, not very long before the learned judge dealt with the matter in court. Counsel appeared on behalf of the Crown. No application was made by counsel on behalf of either appellant that the matter should be adjourned. No warning was given by the judge that, as what was about to be embarked upon was a quasi criminal procedure and his powers under the Contempt of Court Act included a power to imprison for contempt for a period of two years, there was no obligation on either of the appellants to give evidence or to answer questions which might incriminate them. It appears to have been assumed by those participating in this inquiry that, the summonses having been issued and served, it was for the appellants to show cause, by evidence if need be, why they had not been in contempt. Counsel appearing for the appellants had had very little time to consider the matter.

    The appellant Barclay gave evidence first. She said that she had not wanted to perform jury service because she did not like the idea of having to judge people. Her opinion had not changed during the course of the trial. She had not brought her concerns in this respect to the attention of the trial judge, either initially or subsequently, through any note, because she lacked the courage to do so. The second jury note had been written by Schot, the foreman, with the assistance of other jurors. It applied to her, Barclay, and she agreed with its contents, but she had not contributed to its drafting. She said she had taken no part in the jury's discussion of the case. Having heard the evidence, she could not make up her mind as to the guilt or otherwise of the defendants. She said she had tried her best to return a verdict, but felt she could not. She did not intend to disrupt the proceedings of the court nor to be disrespectful towards it. She answered a number of questions from the judge in relation to her participation in another trial, but those are not presently relevant. She denied that she had been approached by anyone in order to seek to persuade her to behave as she had behaved.

    Schot, in her evidence, said that she had had every intention of reaching a verdict when the jury retired. Indeed, she was elected foreman, and she initiated discussion among the jurors and took part in their deliberations. The second note she wrote with the assistance of other jurors. It had been badly expressed. Her own position was that, having made a real effort to arrive at a verdict, she had found herself unable to do so, in that she could not decide if the defendants were guilty or not. The judge again asked a number of questions. She repeated that the second note was badly phrased, and she was not able to provide any satisfactory explanation of the phrase "beliefs, not religious but personal". She also said that she had not been approached by anyone seeking to persuade her to behave in the way which she did.

    The judge, having heard the evidence from the two appellants, concluded that they were both guilty of contempt. He said, at page 29E of the contempt transcript:

    "I know about the facts of the background to this matter much better than any counsel that appears before me here today because I was the trial judge. I do not need to go into details of it because the record will show the details of it. This is a case that occupied 17 days of this court's time involving five defendants, separately represented by counsel and solicitors, charged with this offence of counterfeit currency amounting to something in the region of 100,000. I need not go into all the background details of it. I feel quite content that every juror in the case had every opportunity if they had any personal difficulties in trying this case to inform the court at an early stage. Again, without going into any detail whatsoever, all I have to decide is having heard what the defendants have had to say and having taken account of what the jury did say to the court through their notes, I have no hesitation in saying that both defendants are guilty of a contempt of court because both of them in their own way have intentionally disrupted this entire trial by their refusal. Therefore, I hold them in contempt."

    Submissions were then made in relation to sentence, in the course of which the learned judge did not give any indication that he was contemplating imposing a sentence of imprisonment. It will be recalled that on 12th March, when the judge had told the appellants that he wished them to return on 24th March, he had said that he would wish them then to show cause "why they ought not to be fined substantial amounts". The judge then proceeded to impose the sentence of imprisonment to which, at the outset, we referred.

    On behalf of the appellant Schot, Mr Perry QC first draws attention to the different characterisation of the alleged contempt of court at different stages. When the second note was delivered, the judge referred to the failure to bring these matters to the court's attention at an earlier stage and wasting court time. The summons referred to a refusal to deliver a verdict. The judge's findings, as we have said, included one that there was an intention to disrupt the entire trial.

    Mr Perry makes several succinct submissions. The first is that jurors are entitled to full judicial immunity and are not accountable for anything they say or do or omit to do in the discharge of their office. In that respect, he referred to certain observations by Beldam LJ in the Divisional Court in the Attorney-General v. Associated Newspapers [1994] 2 AC 238, at page 247G. He submits that if jurors have a verdict but refuse to deliver it, that would be contempt, but there could be no sanction against a jury for refusing to reach a verdict. On the assumption that, contrary to that submission, it is possible for jurors to be called upon to answer for contempt, Mr Perry submits that there is a rule of public policy that the secrets of the jury room are immune from judicial or other scrutiny. That is an immunity which derives, in part, from common law and in part from section 8 of the Contempt of Court Act 1981.

    So far as the common law is concerned, Mr Perry drew attention to the case of Ellis v. Deheer [1922] 2 KB 113, and, in particular, a passage in the judgment of Atkin LJ at page 121 which is in these terms:

    ".....the Court does not admit evidence of a juryman as to what took place in the jury room, either by way of explanation of the grounds upon which the verdict was given, or by way of statement as to what he believed its effect to be. 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."

    Mr Perry referred to a passage in the judgment of Bankes LJ at page 118, which is to similar effect and which it is unnecessary to read.

    Mr Perry also referred to Thompson [1962] 1 All E.R. 65, at page 66D, where, in giving the judgment of the Court of Criminal Appeal, Lord Parker CJ said:

    ".....the court is quite satisfied that they would have no right at all to inquire what did occur in the jury room. It has for long been a rule of practice, based on public policy, that the court should not inquire, by taking evidence from jurymen, what did occur in either the jury box or the jury room."

    Mr Perry referred also to comments, in similar vein, by Leggatt LJ in the unreported case of Bean, 25th April 1991, Court of Appeal, Criminal Division transcript at page 14E, and to Brown [1907] 7 NSW St.Rep. 290, in particular at page 299, where the Chief Justice of New South Wales said:

    ".....the authorities are all one way, that the Court cannot look at the affidavits of jurymen for any purpose, whether it be for the purpose of granting a new trial, or for the purpose of establishing the misconduct of a juryman. We cannot look at the affidavits of jurors, or act upon them."

    There are similar observations in other authorities to which Mr Perry referred which include R. v. Miah and Akhbar, unreported, Court of Appeal, Criminal Division, transcript dated 9th December 1996.

    The statutory provisions in section 8 of the Contempt of Court Act 1981 are in these terms:

    "(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. (2) This section does not apply to any disclosure of any particulars - (a) in the proceedings in question for the purpose of enabling the jury to arrive at their verdict, or in connection with the delivery of their verdict, or (b) in evidence in any subsequent proceedings for an offence alleged to have been committed in relation to the jury in the first mentioned proceedings....."

    In the light of those common law authorities and that statutory provision, Mr Perry submits that an inquiry of the kind which the learned judge conducted on 24th March and, furthermore, an inquiry of the kind which he conducted following the receipt of the first note on 12th March was impermissible.

    Mr Perry further submits that the evidence which was obtained by virtue of the impermissible inquiries which we have identified could not be looked at with a view to establishing contempt. The only evidence, says Mr Perry, which was capable of founding a finding of contempt was the contents of the first note. What should have happened, following the receipt of that note, was, says Mr Perry, that there should have been a direction given in accordance with Watson (1988) 87 Cr.App.R. 1, followed, thereafter, as appropriate, by a majority direction.

    Mr Perry drew attention to a decision of a differently constituted division of this Court in Young [1995] QB 324, where the judgment of the Court was given by Lord Taylor CJ, who, at page 330D said:

    "Section 8(1) is in the widest terms and contains no exceptions... Thus, section 8(2)(a) was regarded by Parliament as necessary to enable the court itself to receive notes from the jury and to ask them, for example, whether they require help on any point or in the case of a majority verdict of guilty, how many agreed and dissented."

    He went on:

    "As a matter of principle, the object of the section is clearly to maintain the secrecy of the jury's deliberations in their retiring room"

    and

    "We are in no doubt that section 8(1) applies to the court as to everyone else."

    Mr Perry also referred to a passage in Gough (1993) 97 CrAppR 188, where, at page 191, Lord Goff underlined the importance of not inquiring as to what has occurred in the jury room.

    So, submits Mr Perry, there should have been no investigation, following the receipt of the first note, of what the jury meant by "conscious beliefs".

    Furthermore, says Mr Perry, the judge should never have sought to determine the question of contempt himself. If that was a matter which was justiciable, it should have been referred to the Attorney-General for his consideration as to whether leave should be sought to bring contempt proceedings under Order 52 of the Rules of the Supreme Court or, in appropriate circumstances, it should perhaps have been investigated by some other Crown Court judge. Mr Perry did not seek to exclude the possibility that, in circumstances other than those in the present case, the trial judge himself might investigate the possibility of contempt by a juror.

    There were, however, submits Mr Perry, in any event, substantial defects in the contempt proceedings. The appellants were denied adequate and effective legal representation when they appeared on 24th March. Because of the circumstances in which counsel were appointed on that occasion, it was quite impossible to conduct the necessary research in law or to give mature consideration to the facts giving rise to the alleged contempt. Counsel had no transcript before them or an agreed note as to what had happened on 12th March, and the whole process of obtaining instructions at the court door was, in the circumstances, entirely inappropriate. The impropriety of that, submits Mr Perry, was underlined but the fact that these were quasi-criminal proceedings which carried the risk of imprisonment.

    There was also the added complication that counsel himself, in obtaining his instructions, might be in breach of the provisions of the Contempt of Court Act and the common law principles prohibiting disclosure as to what had happened in the course of the jury's discussion.

    Furthermore, no warning was given by the learned judge to either of the appellants that they were not obliged to give evidence and not obliged to say anything which might incriminate themselves.

    Finally, submits Mr Perry, there was no prima facie case on the basis of which any finding of contempt of court could properly have been made. The first note afforded no such basis. It was a request by the jury for advice. There was no finding of fact by the judge that he rejected the evidence of the appellant Schot, and he certainly could not have been sure, to the necessary high degree of proof, that there was any intention on her part, even if the actus reus of contempt was established, to interfere with the course of justice so as to establish the mental element of the offence before contempt of court could be proved. Mr Perry says that jurors must feel free that, if they ask questions, this will not result in an investigation without any warning as to where such an investigation may lead; still less should such an investigation lead to their imprisonment.

    On behalf of the appellant Barclay, Mr Solley QC adopts much of what Mr Perry said. Mr Solley submits that, if these findings of contempt stand, jurors will fear imprisonment if they do not declare in advance that they have personal conscientious objections to reaching decisions as jurors. They might fear that there was no opportunity properly to declare these matters in order that they could be investigated. There would be a risk that overbearing jurors might threaten with exposure the silence of timid jurors, in order to secure their agreement to the views expressed by the more overbearing jurors. Furthermore, findings of contempt in these circumstances remove the vital role of the jury in standing between the state and the individual. All these considerations are particularly important at a time when juries are drawn from both sexes and mixed races.

    Mr Solley stresses that there was, at no stage, a clear identification of the conduct said to give rise to the contempt of court such as would be an essential prerequisite for conviction of a criminal offence. Indeed, the fact that the contempt never was precisely defined demonstrates the unsatisfactory nature of any finding of contempt at all. He submits that there cannot be contempt by jurors in the discharge of their judicial function. He accepts that it would be part of their judicial function to say whether they had reached a verdict. The information provided to juries, which we have already identified, does not say what the oath or its significance is. Still less does it refer to conscientious objections of the kind arising in this case. If, says Mr Solley, the possibility of contempt arose after the first note had been sent, then the judge should have warned the jury of that possibility. Just as a witness who refuses to give evidence must be warned of the possible consequence, and just as a defendant on whose behalf questions are being asked which may have the result of placing his previous convictions before the court should be warned of this risk, so, too, says Mr Solley, a juror should be warned of the possibility of contempt if he or she is embarking upon behaviour which the judge may regard as being contempt.

    So far as mens rea in relation to contempt is concerned, Mr Solley submits that inference is no substitute for clear evidence of the requisite specific intent. In any event there was here, he submits, so far as Barclay is concerned, no actus reus, because it does not give rise to an interference with justice if a jury declines to return a verdict.

    The further submissions made by Mr Solley were that the judge should not have discharged either the whole jury, nor, which it seems he did not contemplate, either of the jurors whom ultimately he found to have been in contempt: there was no basis for such a discharge to take place.

    As amicus, Mr Pannick QC has advanced a number of submissions. First, as to the substantive law, he submits that, if an individual juror or the jury as a whole refuses to perform the task of giving a true verdict according to the evidence, that is capable of being a contempt of court, and certainly gives rise to the actus reus necessary for contempt. He referred, in particular, to Bushell's Case 6 State Trials 999, and to the judgment of Chief Justice Vaughan at page 1014, where the Chief Justice said that it was a misdemeanor against a juror's oath wilfully not to find for either side; furthermore, a juror might be fined if he withdrew from participation in the deliberations of the jury, whether that withdrawal was by way of leaving the room or by simply not participating in the discussions at all. Furthermore, Chief Justice Vaughan said that jurors would be fineable if they refused to give a verdict.

    Mr Solley referred to that and other old authorities as being of historical interest but no more. We are not persuaded that that is a fitting response to the authority of the Chief Justice in Bushell's Case.

    Mr Pannick also referred to a very briefly reported decision of Mars-Jones J at the Central Criminal Court in a case called Miller.

    Conscientious objection to finding a verdict, submits Mr Pannick, is a reason for being excused from jury service in the first place. It is no answer to a finding of contempt by a juror who has been properly sworn. Mr Pannick referred to the provisions of the Juries Act 1974 and, in particular, section 9, the marginal note of which refers to excusal for certain persons and discretionary excusal in these terms:

    "(1) A person summoned under this Act shall be entitled, if he so wishes, to be excused from jury service if he is among the persons listed in Part III of Schedule 1 to this Act but, except as provided by this Part of that Schedule in the case of members in the forces..., a person shall not by this section be exempt from his obligation to attend if summoned unless he is excused from attending under subsection (2) below.
    (2) If any person summoned under this Act shows to the satisfaction of the appropriate officer that there is good reason why he should be excused from attending in pursuance of the summons, the appropriate officer may excuse him from so attending and shall do so if the reason shown is that the person is entitled under subsection (1) above to excusal.
    (3) Crown Court rules shall provide a right of appeal to the court (or one of the courts) before which the person is summoned to attend against any refusal of the appropriate officer to excuse him under under subsection (2) above.
    (4) Without prejudice to the preceding provisions of this section, the court (or any of the courts) before which a person is summoned to attend under this Act may excuse that person from so attending."

    The persons who are excusable as of right under Part III include:

    "A practising member of a religious society or order the tenets or beliefs of which are incompatible with jury service."

    It is not suggested that either of these appellants is within that category.

    Mr Pannick submits that, compared with the provisions of Part III of the Schedule, which confer a right to be excused from jury service under subsection (1), subsection (2) imposes a broader discretion, if there is good reason, for the administrative staff to excuse someone from attending for jury service, in relation to which there is a right of appeal to the Crown Court judge under subsection (3). Subsection (4), submits Mr Pannick, confers an even broader discretion on the judge to excuse persons from jury service.

    It was, he says, in the light of that broader discretion that the Practice Direction was issued in 1988, ([1988] 1 W.L.R. 1162) whereby a judge, on application to him, has a discretion in relation to excusing from jury service:

    ".....on grounds of personal hardship or conscientious objection to jury service. Each such application should be dealt with sensitively and sympathetically."

    Mr Pannick submits that, having regard to the provisions of the Practice Direction, it may very well be desirable if consideration is given to amending the information with which jurors are provided before they attend for jury service, so that they are at least alerted to the fact that a judge does have a power to excuse them from serving on juries which is wider than the entitlement of those in the specific categories identified in Part III of the Schedule which are set out in the jury summons.

    Mr Pannick accepts that, in order to establish the necessary mens rea for contempt of court, there must have been an intention to interfere with the due administration of justice. But that intention can be established by knowledge of the inevitable consequences of what is done; so, for example, a juror who returns to court drunk, or throws a missile at the judge, or says, when invited to retire and continue deliberating with a view to reaching a majority verdict, that he will not retire, would be in obvious contempt of court.

    Secondly, Mr Pannick accepts that there are, quite separately from the question of whether juries can be called to account for contempt of court, difficulties of proof which arise from the common law principles and from section 8 of the Contempt of Court Act, to which we have already referred.

    In the present case, says Mr Pannick, there was no attempt to challenge the finality of the verdict or to interfere with the substance of the deliberations. There is no prohibition on seeking to prove contempt in relation to defiance, although any prosecution would necessarily have to be brought with sensitivity and proceed with care in order to comply with the Ellis v. Deheer principle enunciated by Atkin LJ.

    In the present case, the learned judge should not, on receipt of the first note, have made the inquiries which he did, either those which resulted in the second note or as to the identity of the jurors who were having difficulties. What the judge should have done was to give the help which the jury sought in some such terms as those indicated by Watkins LJ in R. v. Guildford Crown Court, Ex parte Siderfin [1990] 2 QB 683, at page 691:

    "Members of the public summoned for jury service perform a vital role in the administration of justice in the criminal courts. Doubtless many members of the public find that a jury summons involves difficulty and inconvenience. Serving upon a jury is an onerous task. Many forms of public service are, but without juries the system of justice would collapse. Performance of jury service is an important obligation of every citizen."

    The procedure in fact adopted by the learned judge, submits Mr Pannick, did not reach the high standards of basic fairness which are necessary. It is only in exceptional circumstances that the trial judge should deal with contempt. In this case there was no great urgency. Indeed, the judge himself put the matter off for two weeks. It was highly undesirable that he should hear the matter, having regard to the comments which he had already made about, as he said, "the contempt of court", and the effect which it had had upon him. It was, submits Mr Pannick, particularly unfortunate, having regard to the gravity, difficulty and novelty of the issues, that counsel was only instructed on behalf of each of the appellants on the morning of the hearing.

    As to alternatives, Mr Pannick submits that a reference to the Attorney-General for consideration is somewhat slow and cumbersome, and a preferable course might be, as was suggested by Woolf LJ (as he then was) in DPP v. Channel Four Television [1993] 2 All E.R. 517, to refer the matter to another Crown Court judge, either at the same Crown Court or, possibly, at some other Crown Court. Mr Pannick also accepted the importance having regard to the authorities which are identified in paragraph 5-42 of the Archbold, which it is unnecessary to rehearse, in relation to a judge not raising an expectation of non-custodial sentencing, which this judge might be thought to have done by reference to substantial fines, and then imposing a sentence of imprisonment.

    Mr Pannick's overall submission was that the judge's conclusions in relation to these two appellants could not be sustained because of the defective procedures which were followed, all of which flowed from the inquiries made following the receipt of the first note.

    We sympathise with the judge in having to deal with a very unusual situation which was not, initially, of his own making. However, in our judgment, he did fall into a sequence of errors.

    First, we think it very doubtful indeed whether it was proper for him to seek written clarification of the first note in the terms as he did as to "conscious beliefs and so on and so forth", having regard to the principles which we shall next summarise in relation to what occurs in the jury room. In any event, he ought not, on receipt of the second note, to have then decided to discharge the jury nor, once the names had been ascertained, ought he to have done so without hearing further submissions from counsel. It does not seem to us (contrary to the judge's view) that his enquiry at the outset as to whether the likely length of the trial would cause potential jurors any difficulty, would reasonably have appeared to a juror as an opportunity to canvass her conscientious beliefs. It does appear that the judge assumed, somewhat precipitately, possibly after the first note and certainly after the second one, that the jury as a whole were in contempt of court. This led him to conclude that they should all be discharged. It seems to us, albeit that we have the advantage of hindsight, that, even assuming the second note was properly solicited and received, he ought to have sought in writing, not the names, but the numbers of jurors who were having difficulties. If, on the receipt of the first note or the second, that course had been followed, it would have been possible, with the assistance of further submissions from counsel, to decide what course to take. There were several preferable alternatives to discharging the whole jury. Bearing in mind that they had been deliberating for three and a half hours, the judge could have given them a majority direction. He could have given them a direction not amounting to a full Watson direction, but stressing the importance of the oath taken and reminding them of their obligation to find a defendant guilty if they were sure of guilt, but otherwise to find him not guilty, and incorporating the matters referred to by Watkins LJ in Ex parte Siderfin. Once the judge had ascertained, assuming that it were proper for him to ascertain, that difficulties arose in relation to only two jurors, he could have discharged those two under section 16(1) of the Juries Act 1974. Had any of these courses been followed, it would not have been necessary to abort the trial at that stage.

    Secondly, in any event, as we have said, we entertain considerable doubt as to whether he should have sought, in the terms which he did, clarification of the first note, and certainly he should not have asked at that stage for the names of the jurors to whom the second note related. Such requests, it seems to us, were in breach of the widely expressed terms of section 8(1) of the Contempt of Court Act 1981, which, as we have said, apply to the Court as well as everyone else (see R. v. Young) and prohibit the soliciting of the matters to which section 8(1) refers. Equally, those requests were, as it seems to us, in breach of the long established, and recently re-affirmed, principle that there is no right in anyone to inquire as to what occurred in the jury room: see Brown, the New South Wales case to which we have referred, Thompson, Bean, and Miah and Akhbar.

    It is, of course, always open to a judge to seek clarification of a jury note if his enquiry is directed, within the terms of section 8(2)(a) of the Contempt of Court Act to "enabling the jury to arrive at their verdict". He can seek to identify any point of law or evidence on which he can provide help. But he must take care not to seek such clarification as may disclose the substance of the jury's deliberations or expose their thought processes. In the present case, by asking what was meant "by conscious beliefs and so on and so forth" he ran the very real risk that the jury would disclose material parts of their deliberations to an extent not permitted by section 8(2). Furthermore, in seeking the jurors' names he was plainly not "enabling them to reach a verdict" but was taking a first step in setting in motion proceedings for contempt.

    The inquiry as to the names of the jurors at a time when they were still deliberating was, in any event, capable of giving rise to inappropriate pressure on the jury collectively and on those individual jurors.

    There are obviously circumstances in which identification by name of a juror potentially in contempt or for other reasons is appropriate, for example, if a juror is asleep in the jury box or, during an adjournment, is seen talking to a witness or is taken ill in the jury room or elsewhere. But it is not permissible, while the jury are still deliberating, to seek to identify a juror in relation to something said or done in the jury room relating to the jury's deliberations.

    Thirdly, the Juries Act 1974 does not provide for exemption from jury service on the basis of personal conscientious beliefs nor, as we have said, did the jury summons, the explanatory leaflet which accompanied it, or the video, suggest that this might afford exemption. The summons referred to the statutory provision relating to practising members "of a religious society or order whose tenets or beliefs are incompatible with jury service". The appellant Barclay was not in that category. There is, however, as we have said, the discretionary power under section 9(4) of the Act to excuse from jury service, and in the light of the Practice Direction (Jury Service: Excusal) [1988] 1 WLR 1162, the question to be asked in each case is whether the beliefs of the juror prevent him or her from fulfilling properly, responsibly and honestly his or her duties as a member of a jury: see Ex parte Siderfin.

    We think it desirable that consideration should be given to amending either the summons or the other information for jurors so as to incorporate some reference to the possibility referred to in the Practice Direction that a person may be excused on grounds of conscientious objection to jury service. It is at least possible that, had Barclay known of this possibility, the problem in relation to her might not have arisen. However, in the present case the judge's stricture, "the matter was not brought to the notice of the court at a much earlier stage", even if applicable to Barclay, could not apply to Schot, because, if her evidence was right, she had not refused to give a verdict but found it difficult to decide. Furthermore, proper exploration of the jurors' participation or otherwise in the jury's deliberations would only be possible if evidence were heard from other jurors: to state this demonstrates the impracticability, undesirability and, in the light of the Contempt of Court Act, probable illegality of conducting the sort of inquiry which the judge conducted on 24th March.

    Fourthly, although a juror properly empanelled is not accountable for anything said or done by him or her in discharge of the office of juror (see Halsbury's Laws, 4th edition, volume 26 paragraph 653), is not punishable for contempt for returning a perverse verdict (see Chief Justice Vaughan in Bushell's Case), and is not indictable for breaking his oath as a juror (see Hawkins Pleas of the Crown, 8th edition 432), it is a different matter where a juror would "wilfully not find for either side": in such a case a juror is "fineable", as Chief Justice Vaughan said in Bushell's Case; and Hawkins Pleas of the Crown (1824) volume 2, page 213, section 16 states that it is an offence for a juror to refuse to give a verdict. Both these examples, it is to be noted, are likely to be manifest from the juror's conduct in court. But contempt can occur from conduct in the jury room. There is no difference in principle between a person withdrawing from the obligation of a juror by physically leaving the room and withdrawing from it, though staying in the room, as Chief Justice Vaughan said. There have been cases where jurors have been held in contempt for reaching a verdict capriciously "by hustling half pence in a hat" (Langdell v. Sutton [1737] 94 ER 791), where jurors were ordered to attend to be publicly admonished "that the country may take warning" (see also Oswald's Contempt of Court [1910] 3rd edition 67). Accordingly, contumacious refusal to reach a verdict because of reluctance to judge another person, may, in an appropriate case, establish the actus reus of contempt, though it may be difficult or impossible to prove. The mens rea, namely an intention to impede or create a real risk of prejudicing the administration of justice, must also be proved (see Attorney-General v. Sport Newspapers Ltd and Others [1991] 1 WLR 1194, at page 1,200 per Lord Justice Bingham and Giscombe (1984) 79 Cr.App.R. 79, at page 83 per Lord Lane CJ): This can be established by foreseeability of consequence. But the judge in the present case does not appear to have given any consideration to this, save to say "both of them in their own way have intentionally disrupted the entire trial by their refusal". In the light of Barclay's evidence that she did not want to disrupt the court's process or be disrespectful towards the court, and Schot's evidence that she wanted, or had tried, to reach a verdict, this is a difficult conclusion to sustain in the absence of any finding by the judge that he rejected that evidence. There were clearly, also, questions to be addressed as to whether the judge's decision to discharge the entire jury was properly to be regarded as a foreseeable consequence of one or two jurors refusing, if they did, to reach a verdict, thereby establishing the necessary mens rea on the part of the particular juror whose conduct was called in question. Also, the jury's first note sought advice which was never given. The seeking of advice, it seems to us, is not generally likely to support an inference of intention to disrupt the trial.

    Furthermore, and unfortunately, none of the authorities or principles to which we have referred was cited or addressed in the course of the hearing before the judge. This was no doubt due, in part, to the fact that counsel were only instructed to represent the appellants on the morning of the hearing and, in part, to the "summary" character, as the judge described it, of the proceedings before him.

    This was, on any view, a highly unusual case which required careful consideration by those advising the appellants before sensible submissions could be made on their behalf. Legal representation, whereby counsel at court for other purposes were assigned to the appellants on the morning of and shortly before the hearing, was not, in our judgment, adequate. It led, among other things, to the appellants being called to give evidence without any warning being given to them that they were not obliged to do so, having regard to the criminal nature of the proceedings. It appears to have been assumed that it was for them to show cause by evidence that they were not in contempt.

    Fifthly, there was no "urgent and imperative need" for the judge to deal with the question of contempt himself and there was, in any event, a real danger of bias on his part in view of what he had said on 12th March: see R. v. Gough [1993] AC 646, per Lord Goff at page 670. He had expressed surprise, disappointment, bitterness and anger and said, in terms, that the jurors had shown contempt. The further proceedings which he contemplated were to show cause "why they ought not to be fined". Particularly in the light of these comments, the trial judge should either have referred the matter to another senior judge sitting at that, or another, Crown Court, or to the Attorney-General to apply on motion in accordance with Order 52: see Balogh v. St Albans Crown Court [1975] 1 QB 73, per Stephenson LJ at page 89H to 90A and Lawton LJ at 92H to 93A, Attorney-General v. Times Newspapers Ltd [1974] A.C. 273, per Lord Reid at page 293, and DPP v. Channel Four Television [1993] 2 All E.R. 517, at page 520B and 520H to 521C per Woolf LJ:

    "The judge should not appear to be a prosecutor acting in his own cause."

    On the very rare occasions where the possibility of contempt by a juror arises, it may well be appropriate, where the judge has given no indication of having formed a view or otherwise behaved in such a way as to suggest the possibility of bias, for him to deal with the matter himself. But this will depend on all the circumstances of the particular case.

    Sixthly, in his conclusions, the judge drew no distinction between the two appellants, although their cases were different. As we have said, if Schot's evidence was correct, she was not guilty of contempt. The judge made no express finding as to whether he believed Schot or not. Accordingly, it would be impossible to uphold his finding of contempt against her.

    As to Barclay, the conclusion that she was in contempt, on the basis that she did not want to judge other people and should have disclosed this at an earlier stage and had not played any part in the jury's discussions, might have been sustainable if made by another judge in other circumstances and provided there was evidence of an intention to defy the court and prejudice the administration of justice. But this judge, for the reasons given, should not have been dealing with the matter at this stage.

    Seventhly, perhaps most fundamentally, the nature of the contempt was never clearly defined in the manner which, as it seems to us, is essential for a proper inquiry, assuming a proper inquiry about a juror is possible, in the context of the criminal or quasi criminal nature of contempt of court.

    Accordingly, and for these reasons, we quash the findings of contempt against both appellants.

    We should indicate, with regard to the imprisonment of these appellants, that this was not, in our view, appropriate. First, although there is reference in the authorities to fines and reprimands, there is no instance to which we have been referred of a juror ever having been imprisoned for contempt. Whatever the public perception may be following this case, it seems very doubtful indeed whether any member of the public would, before this case, have contemplated the possibility of a juror being imprisoned. Secondly, the judge himself, on 12th March, referred to the possibility of the jurors being fined substantial amounts of money, and at no stage then or on the 24th indicated that he had imprisonment in mind. Thirdly, of course, almost inevitably, both the jurors were women of good character.

    Before parting with this case we add this. Trial by jury is one of the cornerstones of our democracy. Lord Devlin described it as "the lamp which shows that freedom lives" (Trial by jury). Its restoration or adoption by countries in Eastern Europe has symbolised in recent years their establishment of democracy. Its operation in this country is dependent on the participation and cooperation of the public. A summons for jury service may be unwelcome. It can seriously disrupt a juror's working and private life. Serving on a jury will often be irksome. It may present unusually difficult challenges to the mind and emotions, sometimes over a considerable period. Unpalatable decisions may have to be made. But all these features mark a service to the community without which civilised society, as we know it, would not survive. That is why, however reluctantly and with whatever trepidation, most members of the public recognise that, if summoned for jury service and sworn to try a case, that is a job which they must do conscientiously and to the best of their ability. However, it must be recognised by all members of the public that, if they have been summoned for jury service and properly empanelled without making any reasonable objection, they are at risk of punishment by the court including, in an appropriate case, imprisonment, if they contumaciously refuse or fail to discharge the obligations which they undertook when taking the oath to "faithfully try the defendant and give a true verdict according to the evidence".

    For the reasons given these appeals are allowed.


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