HOUSE OF LORDS
 UKHL 2
on appeal from:  EWCA Crim 1236 and  EWCA Crim 1235
OF THE LORDS OF APPEAL
FOR JUDGMENT IN THE CAUSE
Regina v. Connor and another (Appellants) (On Appeal from the Court of Appeal (Criminal Division))
Regina v. Mirza (Appellant) (On Appeal from the Court of Appeal (Criminal Division))
THURSDAY 22 JANUARY 2004
The Appellate Committee comprised:
Lord Slynn of Hadley
Lord Hope of Craighead
Lord Hobhouse of Woodborough
Lord Rodger of Earlsferry
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
Regina v. Connor and another (Appellants) (On Appeal from the Court of Appeal (Criminal Division))
Regina v. Mirza (Appellant) (On Appeal from the Court of Appeal (Criminal Division)) (Conjoined Appeals)  UKHL 2
The principal question:
- These appeals raise the question whether evidence about the deliberations of a jury, which reveal a lack of impartiality on the part of the jury, is always inadmissible under the common law secrecy rule however compelling the evidence may be and however grave the circumstances of the lack of impartiality may be. Two examples will illustrate the point. A juror reveals after verdict that during the jury deliberations it emerged that some members of the jury were associated with a Neo-Nazi group and that they urged the conviction of the accused because he was a black immigrant. In the second example a juror reveals after verdict that a majority of the jury refused to deliberate and that the jury ultimately arrived at a verdict of guilty by spinning a coin. Nobody would seriously contest that such guilty verdicts would be the result of perverse processes by judicial tribunals. Neither example is fanciful or extreme: both were suggested to me by decided cases. Moreover, anyone versed in criminal practice would be able to match these hypothetical cases with other equally telling examples.
- In the two appeals now before the House, viz Mirza  EWCA Crim 1235;  Crim LR 921; and Connor and Rollock  EWCA Crim 1236, the Court of Appeal gave separate judgments on 13 May 2002. The thrust of the judgments given by the Vice President, Rose LJ, with the concurrence of Hunt and Keith JJ, was that the Court of Appeal was bound by the decision of a differently constituted Court of Appeal in R v Qureshi  EWCA Crim 1807;  1 WLR 518, which had enunciated an absolute rule of the secrecy of deliberations of the jury after verdict. It follows that even in cases such as I have described the Court of Appeal would feel compelled by stare decisis to rule that it has no jurisdiction to examine a possible miscarriage of justice in this corner of the law.
- It is inherent in the opinions of the majority delivered today that even in the exceptional cases postulated the evidence must always be excluded and the conviction upheld. That reflects the submissions of counsel for the Lord Chancellor who asserted "that the residual possibility (of a miscarriage of justice) is the necessary price for the preservation and protection of the jury system": Case para 53. In contradistinction counsel for the Director of Public Prosecutions, when taxed with the problem I identified in paragraph 1, acknowledged that the point is one of great difficulty. Ultimately, he did, however, support the reasoning which has been upheld by the majority. It is to the effect that in the interests of maintaining the efficiency of the jury system the risk of occasional miscarriages of justice may acceptably be tolerated. In other words one must accept some dubious verdicts, even in cases of the utmost gravity, as the cost to be paid for protecting the jury system. While I acknowledge that the problem is one of acute difficulty, I cannot assent to the austere conclusion reached by the majority.
The risk of miscarriages of justice
- Nowadays we know that the risk of a miscarriage of justice, a concept requiring no explanation is ever present. In earlier times courts sometimes approached the risk of a miscarriage of justice in ways which we would not nowadays find acceptable. In 1980 the Court of Appeal denied the Birmingham Six the right to sue the police in civil proceedings. Lord Denning MR said about the possible innocence of the men: "This is such an appalling vista that every sensible person in the land would say: It cannot be right that these actions should go any further": McIlkenny v Chief Constable of the West Midlands  QB 283, at 323D. The men stayed in prison. Some 12 years later their convictions had to be quashed. Together the miscarriages in the cases of the Guildford Four, the Maguire Seven and the Birmingham Six were described by Lord Devlin as "the greatest disasters that have shaken British justice in my time": "The Conscience of the Jury"(1991) 107 LQR 398. It led to the appointment of a Royal Commission on Criminal Justice which reported in July 1993: Report (Cm 2263). One of the key messages of that Report was that the Court of Appeal must be readier to examine possible miscarriages of justice. One of the recommendations was the creation of new and independent arrangements for identifying miscarriages of justice. This recommendation was implemented in 1995 by the setting up of the Criminal Cases Review Commission: section 8 of Criminal Appeal Act 1995. It is an independent body with extensive powers to investigate complaints of miscarriages of justice. There was also a more general change in legal culture. A good illustration of that is the decision in R v Secretary of State for the Home Department, Ex p Simms  2 AC 115 where, in the face of some 60 miscarriages of justice in the 1990s, the House of Lords set aside Home Office instructions denying prisoners access to journalists in their efforts to get their convictions overturned. The philosophy became firmly established that there is a positive duty on judges, when things have gone seriously wrong in the criminal justice system, to do everything possible to put it right. In the world of today enlightened public opinion would accept nothing less. It would be contrary to the spirit of these developments to say that in one area, namely the deliberations of the jury, injustice can be tolerated as the price for protecting the jury system.
- The scope of the problem should be put in context. In only 1% of criminal cases is there a trial by a judge and jury. In all other cases there is no jury and the law is, and always has been, that the accused has an absolute right to a trial before an impartial tribunal: see article 6(1) of the European Convention on Human Rights. If there are substantial reasons to doubt the impartiality of the tribunal, the matter must be examined in order to determine whether there has been a breach of this fundamental guarantee. That is so even if the reasons for doubt about the impartiality of the tribunal only emerged after the verdict. If there has been a breach, the conviction cannot stand. All this is elementary law. But in respect of the 1% of cases where there are jury trials it is said to be essential to prohibit absolutely any examination of evidence about jury deliberations which suggests that the jury was not impartial. On this basis, and to this extent, the law would then subordinate the risk of a miscarriage of justice to the interests of protecting the efficiency of the jury system. And it has to be faced that jury trials involve the most serious cases in the criminal calendar resulting sometimes in lengthy determinate sentences or life imprisonment. One is not dealing with a cost/benefit analysis: a miscarriage of justice bears on real individuals, their families, and communities. If the law requires individual cases to be subordinated to systemic considerations affecting the jury system, one may question whether the law has not lost its moral underpinning.
The jury is a judicial tribunal
- It is important to take account of the fact that a jury is a judicial tribunal, and is expected to conform to judicial standards. Lord Devlin (Trial by Jury, 1956) explained (at p 41):
"As the jury changed its character from a body of witnesses into a body of persons who had to determine facts on the evidence placed before them, it became a judicial tribunal and fit to be invested with judicial attributes. The judges punished as misconduct any deviation by the members of the jury from judicial standards and as contempt of court any interference by outsiders with the discharge of their judicial duties. There is no code embodying this. The rules came into existence piecemeal during the long period in which the jury was changing its character.
Jurymen are invested with judicial immunity. They have full judicial privilege and are not accountable for anything said or done in the discharge of their office, and any threats or abusive language directed towards them as jurymen is punishable as contempt of court."
A jury is not above the law. As a judicial tribunal it must comply with the requirements of article 6(1) of the European Convention on Human Rights. In a case of a grave departure by the jury or jurors from judicial standards, a judge may before verdict have to discharge the jury. A subsequently revealed infringement of judicial standards by the jury or jurors may require the Court of Appeal to quash the conviction. A lack of impartiality would be a classic case requiring such action to be taken.
- Lord Devlin observed "that trial by jury is more than an instrument of justice and more than one wheel of the constitution: it is the lamp that shows that freedom lives": Trial by Jury, (1956), p 164. This was a reference to the candles that were lit in London in the windows of London houses following the acquittal of the seven Bishops in 1688: see Macaulay, The History of England from the Accession of James II, (1849) vol 2, at p 389.The jury is an integral and indispensable part of the criminal justice system. The system of trial by judge and jury is of constitutional significance. The jury is also, through its collective decision-making, an excellent fact finder. Not surprisingly, the public trust juries. What public opinion would not tolerate are jury verdicts arrived at by perverse processes.
- Everything possible must be done to ensure that the system works both efficiently and justly. In this respect counsel for the Director of Public Prosecutions emphasized the many safeguards already in place to ensure that the jury render their verdicts in accordance with a judicial process. All this is, of course, well known and laudable. Unfortunately, however, it does not touch on the problem which I have mentioned. If one wants to address the particular problem, it is necessary to accept that the Court of Appeal has the power in exceptional cases to examine material regarding jury deliberations tending to show that the jury or some of them were false to their oath.
- Undoubtedly, there must be a general rule that the deliberations of the jury must remain secret. In Gregory v United Kingdom (1997) 25 EHRR 577 the European Court of Human Rights observed (p 594, para 44):
"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."
Moreover, there is a strong rebuttable presumption that the jury was impartial: Rojas v Berllaque and HM Attorney General for Gibraltar,  UKPC 76.
- The question is whether the rule about the secrecy of jury deliberations is indefeasible in all circumstances, however extreme, and even in the face of evidence disclosed after a verdict demonstrating a real risk that the jury was not an impartial tribunal. This is ultimately a question of the jurisdiction of our appellate courts.
The decided cases
- Judges of great experience and distinction have held that it is never permissible to admit evidence of what happened during the deliberations of the jury: R v Thompson  1 All ER 65, 66, per Lord Parker CJ; Ellis v Deheer  2 KB 113, 117 - 118, per Bankes LJ; at p 121, per Atkin LJ; Attorney General v New Statesman and National Publishing Company Ltd  QB 1,10, per Lord Widgery CJ; R v Miah  2 Cr App R 12, 18 - 19, per Kennedy LJ; Roylance v General Medical Council (No 2)  1 AC 311, 324B, per Lord Clyde; R v Qureshi  1 WLR 518, per Kennedy LJ. The only exception is that where there has been, or may have been, an irregular occurrence of an extraneous nature, which may have compromised the impartiality of the jury the evidence may be admitted: Ras Behari Lal v King-Emperor (1933) 50 TLR 1; R v Hood  1 WLR 773; R v Brandon (1969) 53 Cr App R 466; R v Young (Stephen)  QB 324. The position is similar in Scotland: Stewart v Fraser (1830) 5 Murray 166; Swankie v H M Advocate (1999) SCCR 1. Subject to differences as to the scope of the exception, a similar exclusionary rule has prevailed in Commonwealth countries: Canada: R v Pan; R v Sawyer  2 SCR 344; Australia: R v Andrew Brown  7 NSWSR 290; R v Medici (Court of Criminal Appeal, Victoria, 5 June 1995); New Zealand: R v Papadopoulos  1 NZLR 621.
The Qureshi case
- It would not be helpful to review the case law in detail. But it is worth returning to Qureshi because it was the basis on which the Court of Appeal dismissed the appeals in the present case. A major complaint in Qureshi was the allegation of overt racism in the jury room. In a note on Qureshi  Crim LR 62 Sir John Smith QC commented as follows:
"If the allegations in the present case were true and if the court had been able to inquire into them, it seems likely that the conviction would have been held to be unsafe. As it is, we shall never know. Not a happy situation. . . ."
"We shall never know" fits in uneasily with modern conceptions of fairness and due process in the criminal justice system. Another perspective of Qureshi is provided by Professor J R Spencer  61CLJ 291 who commented, at p 293:
"The nub of the decision in Qureshi, one suspects, is the remark that if the appeal were allowed it might lead 'to many such complaints, some perhaps owing their origin to friends or relatives of the defendant'. But this simply will not do. The fact that many allegations of this sort are false cannot justify ignoring all of them because, as Young [the ouija board case] so painfully reminds us, some of them regrettably are true."
Qureshi is a questionable foothold of the rule of absolute secrecy in all circumstances. Saying "never" is in law sometimes fraught with future difficulties. Absolutist judicial pronouncements frequently do not survive the gauntlet of experience. Lord Goff of Chieveley and Lord Bingham of Cornhill deliberately avoided this trap and have not closed the door completely: Lalchan Nanan v The State  AC 860, at 872, per Lord Goff of Chieveley; R v Millward  1 Cr App R 61, at 65G, per Lord Bingham of Cornhill.
The rationale of the secrecy rule
- The rationale of the rule that evidence relating to what occurs in the jury room is inadmissible has often been explained. Drawing on English and Canadian jurisprudence Arbour J, in giving the judgment of the Canadian Supreme Court in Sawyer, recently gave the reasons for the rule in terms which cannot be improved on. She said, 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 Court of Appeal also placed considerable weight on the second rationale for the secrecy rule: the need to ensure finality of the verdict. Describing the verdict as the product of a dynamic process, the court emphasized the need to protect the solemnity of the verdict, as the product of the unanimous consensus which, when formally announced, carries the finality and authority of a legal pronouncement. That rationale is more abstract, and inevitably invites the question of why the finality of the verdict should prevail over its integrity in cases where that integrity is seriously put in issue. In a legal environment such as ours, which provides for generous review of judicial decisions on appeal, and which does not perceive the voicing of dissenting opinions on appeal as a threat to the authority of the law, I do not consider that finality, standing alone, is a convincing rationale for requiring secrecy.
"The respondent, as well as the interveners supporting its position and, in particular, the Attorney General of Quebec, place great emphasis on 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."
It is now possible, against the background of the dicta in the decided cases and the reasons for the rule, to take stock of the nature and scope of the secrecy rule regarding jury deliberations.
The interpretation of the decided cases
- The degree of consensus revealed by the case law in this jurisdiction and elsewhere is remarkable. All the decisions hold that, except in the case of extraneous influences on the jury, evidence about the deliberations in the jury room may never be admitted. On the other hand, judgments must be read not mechanically but with reference to the issues considered by the court. A dynamic interpretation of the case law is necessary. In none of the decisions, in England or abroad, did the court face and confront the far-reaching situations which I outlined in paragraph 1 of this opinion. In none of the judgments is there any clear indication that the courts would have been prepared to uphold an absolute rule excluding evidence about jury deliberations in cases where there is credible evidence, disclosed after verdict, showing that the jury was not impartial. In none of the decided cases has it been held that the court may in the interests of the efficient functioning of the jury system tolerate real identifiable risks of miscarriages of justice. In my view therefore as a matter of precedent there is nothing in the case law which prevents the House from ruling today that in the cases of the type postulated evidence impinging on jury deliberations may exceptionally be admitted. The allegiance that a judge owes to earlier precedent is attenuated where it is clear that the precise problem was not considered. This is particularly the case where there is cogent evidence suggesting a real risk that the jury reached their verdict by a fundamentally perverse process.
- It must also be borne in mind that in cases involving extraneous influence on the jury the court may on established principle hear evidence about such issues. That may require the admission of evidence about how the extraneous influence was brought to bear on the jury in their deliberations. For example, adapting the facts of R v Young (Stephen)  QB 324, it is accepted by counsel for the Director of Public Prosecutions, that if the jury brought an ouija board into the jury room and determined the issue by consulting it, the exclusionary rule would not apply. Evidence may then be led about what actually happened. It would, of course, be absurd not to allow such evidence to be led. On the other hand, counsel for the Director of Public Prosecutions felt constrained to argue that, if the foreman of a jury took a coin out of his pocket in the jury room, the evidence about the tossing of a coin in the jury room to obtain a verdict, was inadmissible. Such absurd distinctions do not reflect well on our jurisprudence. Rhetorically I would ask: What justification in logic, common sense and fairness can there then be for not admitting evidence about jury deliberations tending to establish that the verdict was the result of a fundamentally tainted process?
- Public confidence in the legitimacy of jury verdicts is a foundation of the criminal justice system. And there must be a general rule making inadmissible jury deliberations. But it is difficult to see how it would promote public confidence in the criminal justice system for the public to be informed that our appellate courts observe a self denying rule never to admit evidence of the deliberations of a jury even if such evidence strongly suggests that the jury was not impartial. In cases where there is cogent evidence demonstrating a real risk that the jury was not impartial and that the general confidence in jury verdicts was in the particular case ill reposed, what possible public interest can there be in maintaining a dubious conviction?
- The common law rule is a judge made rule. Where the reason for a judge made rule stops, it may be appropriate to qualify its reach. Where a new situation arises which was never previously considered the scope of the rule may be reconsidered. That is the case here. So far as judges have propounded a rule which, in the light of experience, is potentially productive of injustice, it is not beyond their power to put the matter right. I would hold that under our domestic law the court has the power to admit evidence about the deliberations of the jury in the circumstances I described in paragraph 1 of this opinion.
- The European Court of Human Rights have considered issues regarding jury trials, notably in the context of the disclosure before verdict of matters reflecting on the impartiality of the jury: see Gregory v United Kingdom (1997) 25 EHRR 577; Sander v United Kingdom (2000) 31 EHRR 1003. These decisions turned on their facts and are not directly in point. If the problem which I have posed arises before it, the ECHR will in my view be bound to uphold the fundamental guarantee of a right to a trial before an impartial tribunal under article 6(1). It would have to act so as to give effective protection to that fundamental right. An indication of the likely approach of the ECHR is to be found in Remli v France (1996) 22 EHRR 253. It involved an alleged racist remark by a juror. The defendant raised an objection. The court declined to investigate the matter. The defendant was convicted. It was therefore a post verdict case and relatively close to the issues under consideration in the present case. The ECHR held:
"It is not for the Court to rule on the evidential value of Mrs M's written statement or on whether the racist remark attributed to the juror in question was actually made. It notes merely that Mrs M's statement - which contained a serious allegation in the context of the case - was filed with the Assize Court by the applicant's lawyers, who asked the Court to take formal note of it. The Court dismissed their application without even examining the evidence submitted to it, on the purely formal ground that it was 'not able to take formal note of events alleged to have occurred out of its presence'. Nor did it order that evidence should be taken to verify what had been reported - and, if it was established, take formal note of it as requested by the defence - although it could have done so. Consequently, the applicant was unable either to have the juror in question replaced by one of the additional jurors or to rely on the fact in issue in support of his appeal on points of law. Nor could he challenge the juror, since the jury had been finally empanelled and no appeal lay against the Assize Court's judgment other than on points of law.
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 Rhône 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 finding, regard being had to the confidence which the courts must inspire in those subject to their jurisdiction, suffices for the Court to hold that there has been a breach of article 6(1)."
This is, of course, an approach diametrically opposite to that which prevailed in Qureshi.
- In my view it would be an astonishing thing for the ECHR to hold, when the point directly arises before it, that a miscarriage of justice may be ignored in the interests of the general efficiency of the jury system. The terms of article 6(1) of the European Convention, the rights revolution, and fifty years of development of human rights law and practice, would suggest that such a view would be utterly indefensible.
20. I would hold that under article 6(1) the question I posed in the first paragraph of this opinion ought to be answered by saying that in such exceptional circumstances the evidence may be admitted.
The consequences for the jury system.
- As I have already made clear I regard the jury system, albeit that it is involved in only 1% of criminal cases, as a most valuable part of our criminal justice system. The principle that I have favoured will not damage the jury system and will enhance the moral authority of trial by judge and jury.
- The effect of the ruling of the majority will in the long run damage the jury system. Leaving aside the jury, we have reached a position where it is recognised that all actors in the criminal justice system, and notably the judge, prosecuting counsel, defence counsel, police, expert witnesses, as well as lay witnesses, can be the cause of miscarriages of justice. Every effort is made to reduce this risk and to expose miscarriages of justice. But the consequence of the ruling of the majority is that a major actor, the jury, is immune from such scrutiny on the basis that such immunity is a price worth paying. This restrictive view will gnaw at public confidence in juries. It is likely in the long run to increase pressure for reducing the scope of trial by jury. A system which forfeits its moral authority is not likely to survive intact. The question will be whether such a system provides a better quality of justice than trial by professionals.
- I have taken into account the judgments of the majority, and particularly the comprehensive judgment of Lord Hope of Craighead. I am not persuaded. The only point on which I need to comment is the observation of Lord Hope in paragraphs 117-119 of his opinion on evidential difficulties. For my part such difficulties - a perennial problem for appellate courts dealing with irregularities at trial - cannot justify overlooking a real risk of a miscarriage where the context justifies such a view. In any event, in cases involving extrinsic influences on jury deliberations the Court of Appeal has to grapple with such difficulties. Where appropriate it has power to conduct an inquiry. A good illustration is R v Young (Stephen)  QB 324 where some jurors in their hotel room conducted a session with an ouija board and purported to consult a deceased. Lord Taylor of Gosforth CJ explained the inquiry conducted by the Court of Appeal as follows, at p 332B-D:
"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. In the result, we obtained affidavits from all 12 jurors and from the two bailiffs. The affidavits were provided to the parties although the names of the jurors (save for the four who were alleged to have been involved with the ouija board at the hotel) were not disclosed, numbers being substituted instead. We also received an affidavit from the appellant's solicitor describing how the matter raised on the appeal come to his attention."
If the ouija board had been used in the jury room, it is conceded by the Crown that the case would fall within the exception. A similar inquiry could then have been undertaken about the use of the ouija board in the jury room. As Professor Spencer emphasised in the note cited at paragraph 12 above: "The fact that many allegations of this sort are false cannot justify ignoring all of them because, as Young so painfully reminds us, some of them regrettably are true". There are also other illustrations of inquiries about extrinsic matters: Ras Behari Lal v King-Emperor 50 TLR 1 (about whether a juror could understand English) and R v Hood  1 WLR 773 (an affidavit about juror's knowledge of previous convictions). For my part the evidential difficulties postulated do not warrant the conclusion drawn by Lord Hope.
Lord Justice Auld's recommendation
- In 2001 Lord Justice Auld recommended that legislation should be introduced, inter alia, to permit enquiry "into alleged impropriety by a jury, whether in the course of its deliberations or otherwise"; Review of the Criminal Courts of England and Wales, Report of October 2001, para 98. My view is, of course, that such a jurisdiction already exists. But I am in a minority of one. For my part, therefore, the importance and urgency of the recommendation cannot be overstated. There is comfort in the fact that on 11 September 2003 the Lord Chancellor indicated in a written answer in the House of Lords that he would publish a consultation paper which will also deal with Lord Justice Auld's recommendation (Hansard (HL Debates), col WA 135). It is perhaps too optimistic to hope that the very real problem can be solved by legislation before the matter goes to Strasbourg.
The subsidiary question
- Section 8 of the Contempt of Court Act 1981 reads as follows:
"(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 that 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,
or to the publication of any particulars so disclosed.
(3) Proceedings for a contempt of court under this section (other than Scottish proceedings) shall not be instituted except by or with the consent of the Attorney General or on the motion of a court having jurisdiction to deal with it."
The certified question regarding section 8 was as follows:
"Does section 8 of the Contempt of Court Act 1981, when interpreted in the light of section 3 of the Human Rights Act 1998 and article 6 of the European Convention, prohibit the admission into evidence of a statement from a juror which if admitted, would provide prima facie evidence of partiality in breach of article 6? If [so], is section 8 incompatible with article 6 to the extent that it prohibits the admission into evidence of such a statement?"
During oral argument it was, however, common ground that it is not necessary to resort to the interpretative obligation under section 3 of the Human Rights Act 1998. The reason is simple: the notion that the Court of Appeal could be in contempt of itself if it exercised the jurisdiction to hear evidence about what happened in the jury room is an absurdity. Properly construed, on ordinary principles of construction, section 8 does not impinge on the jurisdiction of the Court of Appeal to receive evidence which it regards as relevant to the disposal of an appeal. I understand this to be an agreed position between counsel. But I would, in any event, rule accordingly. Section 8 is therefore not an impediment to a consideration of the appeals before the House on their legal merits. If it had been such an impediment, it would in my view have been an appropriate case for reading down the statute under section 3. Moreover, if the issue were to arise whether a juror who reported an irregularity during jury deliberations to the Court of Appeal would commit an offence by so doing, an appropriate reading down of the statute might become necessary.
The Mirza appeal
- I can take the matter relatively shortly. The appellant is a Pakistani who settled in England in 1988. He was a man of good character. He was charged with six courts of indecent assault, being specimen charges reflecting alleged sexual abuse of his step-daughter. He was convicted by the jury by a majority of 10:2 and sentenced to four years imprisonment, subsequently reduced on appeal to three years. This was upon a retrial after an earlier jury had failed to agree.
- Since English was not his first language he used an interpreter. The jury found this suspicious and on two occasions sent notes to the judge about the matter. Counsel for the Crown told the jury to draw no adverse inference against the accused. In this summing up the judge directed the jury that they must draw no adverse inference against the accused.
- Six days after the verdict a juror wrote a letter to counsel for the appellant. It was a lengthy letter. An agreed summary reads as follows:
"From the beginning of the trial, there was a theory, among some of the jury, that the use of an interpreter was in some way a devious ploy. The writer of the letter was not able to convince anyone that she knew from her experience that there was nothing suspicious about the use of an interpreter. The writer of the letter claimed to be the only juror with any insight into the defendant's culture which others on the jury regarded with undue suspicion. The question of the interpreter was raised early during the jury's deliberations and the letter writer claimed that she was shouted down when she objected to this and sought to remind the other members of the jury that there was an admission to the effect that the interpreter was not a matter which should count adversely against the defendant."
In a careful and measured speech counsel for the appellant submitted to the House that, stripped of its emotive content, the letter suggests that the jury disregarded the direction of the judge; attached undue significance to the idea that the appellant did not need an interpreter; described an admonition not to attach importance to the use of an interpreter as "playing the race card"; and were influenced by racial prejudice. In my view there are substantial grounds for concluding that the jury reached their verdict on perverse grounds which included a pronounced racial element.
- In these circumstances I would allow this appeal and quash the conviction of the appellant Mirza.
The appeal of Connor and Rollock
- The appellants Connor and Rollock faced a joint charge of wounding. They were both convicted by a majority verdict of 10:2. Again, there is a letter from a juror about the course of the deliberations of the jury. It raised matters which could not possibly support a ground of appeal. The only part of the letter which requires consideration reads as follows:
"The most worrying was that although many thought it could be one defendant or another they would give the guilty verdict to both, because as many of them said this would teach them a lesson, things in this life were not fair and sometimes innocent people would have to pay the price. Also as the defendants were young, the sentence would not be too severe.
When I raised objections to this, and said we must then look at whether it was one or the other, they maintained their guilty stance, and said that we could be here for another week. I said better that, than convict an innocent man, but then it developed into bedlam, and the majority guilty verdict was agreed."
Counsel for the appellants Connor and Rollock concentrated his submissions on the first quoted paragraph.
- From the rest of the letter it is clear that there was some irritation among the jury about the length of the jury deliberations. After a six day trial the course of events is summarised in the agreed statement of facts and issues as follows:
"The jury retired for four hours and forty-six minutes prior to being given the majority direction. After another two hours they returned to give their verdicts. Initially they found Ashley Rollock not guilty whereupon there was a disturbance amongst them and the learned judge asked them to retire to again discuss their verdicts. The jury returned within four minutes and found both defendants guilty by a majority of 10:2."
It is not unusual for disagreements about the length of discussions to arise.
- Turning to the complaint of the juror, one must take into account that there is a strong presumption that the jury was impartial. The juror raised no complaints before verdict. She appeared to have been generally dissatisfied with the views of the majority. I am not persuaded that her account can be accepted as factually entirely accurate. It may to some extent be the exaggerated protest of a disgruntled juror. Certainly I am not prepared to conclude that there was a real risk of bias on the part of the jury. The presumption has not been displaced.
- I would dismiss this appeal.
LORD SLYNN OF HADLEY
- In these two appeals the defendants were convicted of serious offences—Mirza of indecent assault, Connor and Rollock of wounding with intent to cause grievous bodily harm. They were given custodial sentences. The Court of Appeal dismissed their appeals against conviction but reduced the sentence of Mirza from four years to three years six months concurrent in respect of counts 1 to 5, that sentence to be concurrent with a sentence of three years in respect of count 6.
- Two important questions were raised in the Court of Appeal as to matters which it is alleged occurred in the jury room and which it is said require that the convictions be set aside. The Court of Appeal refused to admit evidence of these matters, holding itself bound to follow the decision of the Court of Appeal in R v Qureshi  EWCA 1807;  1 WLR 518 itself a decision based on a long line of authority.
- In Mirza the accused came to the United Kingdom from Pakistan in 1988 so that he had been living here for some 13 years. He asked for, and was provided with, an interpreter. Before the defence case was opened the jury sent a note to the judge asking "The jury would like to know. What year did the defendant come to this country. How old is the defendant. What is his job at the restaurant." But after the accused had given evidence the jury sent another note. "Questions for the interpreter—In your experience as a Court interpreter would it be typical for a man of the defendant's background to require your services, despite living in this country as long as he has? How long have you held the position of Court interpreter?"
- Counsel for the Prosecution and for the Defence agreed that in complex and serious cases it was usual for people who are not fluent in English to ask for an interpreter. Prosecuting Counsel told the jury to make full allowances for the accused's linguistic difficulties and the Judge in his summing up clearly emphasised that even if a foreigner spoke some English he might not be fluent or confident enough in court proceedings so that "you should draw no adverse inferences from the defendant exercising his right to have an interpreter".
- Six days after the conviction, on 26 February 2001, the appellant's counsel received a letter from a juror which was summarised in these terms:
"From the beginning of the trial, there was a theory, among some of the jury, that the use of an interpreter was in some way a devious ploy. The writer of the letter was not able to convince anyone that she knew from her experience that there was nothing suspicious about the use of an interpreter. The writer of the letter claimed to be the only juror with any insight into the defendant's culture which others on the jury regarded with undue suspicion. The question of the interpreter was raised early during the jury's deliberations and the letter writer claimed that she was shouted down when she objected to this and sought to remind the other members of the jury that there was an admission to the effect that the interpreter was not a matter which should count adversely against the defendant".
- In R v Connor and Rollock the foreman of the jury first said that the jury had found Rollock not guilty. That produced a reaction from the jury and after returning for a few minutes he announced that the decision was guilty. The first was obviously a slip which was corrected and in my view nothing turns on that in this appeal. On 15 August 2001 when the case was listed for sentence the Judge told Counsel of a letter dated 30 July 2001 which he had received from a juror. He did not record the contents of the letter but sent the letter in a sealed envelope to the Court of Appeal. It now transpires that the letter set out the juror's anxiety about the conduct of the deliberation viz:
"There was an overall feeling that most of the people were looking for a quick verdict ie they did not want to be there until the end of the week or longer.
One of the Jurors had made references to other people that had been in the Press recently and when challenged about this, gave their verdict and then refused to participate anymore, doodling and reading a paper.
There was talk of trying to reach a verdict by the tossing of a coin, this was quickly given short shrift.
The most worrying was that although many thought it could be one defendant or another they would give the guilty verdict to both, because as many of them said this would teach them a lesson, things in this life were not fair and sometimes innocent people would have to pay the price.
Also as the defendants were young, the sentence would not be too severe.
When I raised objections to this, and said we must then look at whether it was one or the other, they maintained their guilty stance, and said that we could be here for another week. I said better that, than convict an innocent man, but then it developed into bedlam, and the majority guilty verdict was agreed"
- The facts of the two cases are thus of course different but the central issues of law are the same. Those issues are encapsulated in the two questions certified by the Court of Appeal, namely:
"Should the common law prohibition on the admission of evidence of the jury's deliberations prevail even if the Court of Appeal is presented with a statement from the juror, which, if admitted, would provide prima facie evidence of jury partiality in breach of Article 6?
Does section 8 of the Contempt of Court Act 1981, when interpreted in the light of section 3 of the Human Rights Act 1998 and Article 6 of the European Convention, prohibit the admission into evidence of a statement from a juror which if admitted, would provide prima facie evidence of partiality in breach of Article 6? If [so], is section 8 incompatible with Article 6 to the extent that it prohibits the admission into evidence of such a statement?".
- As to the first question, the basic rule as recognised in Qureshi is long-established. Thus in Vaise v Delaval (1785) 1 TR11, where Lord Mansfield said that the court cannot receive an affidavit from a juror as to the nature of the juror's deliberations. In Ellis v Deheer  2 KB 113, Bankes LJ said at pp 117-118 "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". In R v Miah  2 Cr App R 12 the court cited apparently with approval a statement by Darley CJ in R v Andrew Brown (1907) 7 NSWSR 290 at p 299 viz:
"I have come to the conclusion that the authorities are all one way, and 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".
Thus, the prohibition on receipt of evidence takes effect from the moment the jury is empanelled and covers not only what took place in the jury box or the jury room but covers any statement as to what the jury believed the attitude of other jurors to be as deduced from their behaviour in the box or as to what the juror thought the effect of the verdict to be. Once the verdict is given in the presence of all the other jurors then that is the end of the matter and the Court of Appeal will not inquire as to whether the verdict truly reflects what the jurors thought.
- These cases are all reflecting the view of the domestic courts but it is significant to notice that in eg Gregory v United Kingdom 25 EHRR 577, the European Court of Human Rights said, at p 594, para 4:
"that 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." (Emphasis added).
- Although the rule is stated positively, from time to time exceptions to the rule or qualifications of the rule have been recognised. A good illustration of this is to be found in Harvey v Hewitt (1840) 8 Dowl 598, where Coleridge J said in a case in which it was alleged, on information provided by an affidavit from the jury bailiff and persons in an adjoining room, that the jurors had arrived at their verdict by drawing lots:
"No doubt . . . that we cannot take the affidavit of a juryman stating his own misconduct, or that of his brother jurymen . . . The affidavits here produced, however, are not made by the jurors themselves . . . but they are the affidavits of persons who witnessed the transaction itself, of agreeing to draw lots, and drawing lots".
In R v Brandon (1969) 53 Cr App R 466, on the other hand the evidence was that a jury bailiff had told the jury of the accused's previous convictions. This was held to be a grave irregularity and the conviction accordingly was quashed.
- In Ras Behari Lal v King-Emperor (1933) 50 TLR 1, it was accepted that evidence might be given that a juryman had not understood English, the language in which the case had principally been conducted. It was held on appeal that the conviction must be set aside on the ground that the effect of the jury's inability to understand the language was to deny the accused persons an essential part of the protection afforded to them by law, and that the result of the trial was a miscarriage of justice.
- In R v Young (Stephen)  QB 324, evidence was given that the jurors had consulted a ouija board in their hotel in order to arrive at a decision. This evidence was held to be admissible. In the Canadian case of Sawyer v R  2 SCC 344, a distinction was drawn between the admission of intrinsic evidence (which was not admissible) and extrinsic evidence (which was) as eg where there was evidence of pressure on or corruption by an outsider of a member or members of the jury. Such evidence may have to be admitted regardless of the person actually giving the evidence but it is clear that it is not always easy to draw the distinction in what is extrinsic and what is intrinsic.
- I cite these only as a very small number of cases illustrating that some modifications of the rule have been accepted. On the other hand it seems clear that although the courts' approach may have to be flexible in order to admit evidence where justice requires it (R v Zacharias (1987) 39 CCC (3d) 280), the basic rule has been followed that the court should not receive evidence as to what happens in the jury room or in the jury box. On the fringe there may be difficult cases and exceptions but the rule has been strictly followed in relation to communications between the jurors.
- How far this rule is justified has been examined in a number of cases. The courts have indicated a number of considerations to show that it is justified. Thus the need to encourage jurors to speak frankly without fear of being quoted or criticised has been very much relied on. Jurors need to be protected from pressures to explain their reasons and it is important to avoid an examination of conflicting accounts by different jurors as to what occurred during the deliberation. It has also been said on a number of occasions that the need for finality once a verdict has been given justifies the rule being applied strictly. On the other hand it has to be observed that in the Canadian Supreme Court case of Sawyer (supra) finality was thought to be an unsatisfactory basis for the rule. On the other hand it seems plain that discussion and disagreement in public as to what happened in the jury room is likely to undermine public confidence in the jury system (R v Armstrong  2 KB 555, at p 568.
- Even if there may be limited exceptions, experience has led the courts to conclude that it is important that there should be a basic rule and that it is not appropriate that every case should be looked at individually in order to see whether it can be sufficiently said that there has been a breach of the obligation to preserve the confidentiality of jury deliberations.
- It is apparent that from time to time jurors may be influenced by what is said or done to them—maybe they will even be bribed—outside the court room or in the jury room. It is also apparent that from time to time jurors may show in the course of the trial, or their deliberations, that they have been influenced by strongly held views which result in prejudice or bias which override their obligation to listen and decide impartially. The result in either case might be seen as an unjust decision by the jury.
- If there were no way of dealing with such allegations the courts' procedures would be seriously defective; this is so regardless of the provisions of the Human Rights Convention but reinforced by it. There are, however, as has been submitted to the House, safeguards which should prevent such a result happening. In the first place there is random selection of a jury even if it may not be as efficient as the elaborate voire dire employed in the American system. The judge himself gives directions to the jury as to how they should deal with interference or improper behaviour. The verdict is declared in public in the presence of all the jurors so it can be said that, if they do not object at that stage, this should be taken as the verdict of them all to which they assent. Moreover it is obvious that if something is alleged to have gone wrong the Court of Appeal can check whether there has been sufficient evidence to justify the verdict or whether fresh evidence is available to justify the Court of Appeal in setting aside the verdict. It is obvious that jurors come to the jury box with a background of ideas and social and educational influence which may affect what they do and it is quite impossible to assume that either they or even judges can be utterly devoid of the influence of outside ideas. By allowing jurors to raise allegations of outside interference or overt bias or improper behaviour in the deliberations, the judge can ensure that the jury system has worked as it should.
- It is of particular importance, as the courts have accepted, that evidence of bribery or influence outside the trial procedure may be admitted in the Court of Appeal so as to justify that court interfering with the jury's decision. It is also, of perhaps even greater importance, possible for a juror who seeks to allege misconduct or bias to raise the matter with the judge during the trial and before the verdict. It seems to me that as long as the jury is told before it sits and again told by the judge during the trial that if a juror feels something improper has happened that he should bring it to the attention of the jury bailiff or of the judge at the earliest possible opportunity the matter can be dealt with. It is obvious that some juries may feel reluctant to make such a complaint particularly if they have to stand up and do it in public. But the judge can readily inform them that this kind of comment can be made in writing and discreetly so that it does not draw any great attention to the juror personally. I think that it may well be that from time to time jurors are not sufficiently advised as to their rights and opportunities in this respect. It is important that they should be. At the end of the day the question really is whether these considerations override the objection that if it is alleged that evidence of what happened in the jury room is available it should be looked at to avoid injustice. This is a serious contention but despite the forceful arguments of my noble and learned friend Lord Steyn I consider that these considerations do override the objections.
- In the first place observance of the basic rule, as both the Court and the Commission of Human Rights have accepted, is essential to the operation of the jury system as we know it. If there can be a review of what happens between jurors, whether in the jury box or in the jury room, the advantages relied on as justifying the rule will disappear or fundamentally be diminished. I do not thus find it possible to accept that candour would not be affected.
- In the second place there is a real risk that allegations will be made which are without foundation but which will reduce confidence in the jury system.
- It is to my mind clear that allegations by jurors cannot be decided simply on the say so of one juror whether by letter or orally. An inquiry would be needed to assess whether the facts alleged were true and what was the response of the other jurors. If the jurors disagree, the inquiry might become complex and lengthy. If such allegations have to be investigated this could lead to considerable controversy between one or more jurors and other jurors. At the very least it could involve a long inquiry and if the issue is only raised at a late stage jurors may well have forgotten what happened. It is as I see it, both inappropriate and undesirable that there should be a public inquiry as to what happened in the jury room after the verdict has been given. This is not something which can be done in private and kept out of the public gaze. It would have to be done in public with a full inquiry. It seems to me it is much better that it should be dealt with during the trial by the trial judge rather than after verdict by the Court of Appeal.
- The admission of evidence as to what happened in the jury room cannot be allowed without seriously detracting from the advantages which flow from the present system and which in my view need to be protected. If a case arose when all the jurors agreed that something occurred which in effect meant that the jury abrogated its functions and eg decided on the toss of a coin the case might be, and in my opinion would be, different. In the present case everything that happened is said to have happened in the jury room.
- I have accordingly come to the conclusion that the present rule of the common law is one which should be upheld and I would therefore reject the contentions which have been made.
- As to the second question it seems to me clear that in enacting section 8 of the Contempt of Court Act 1981 (primarily with the intention of preventing disclosure by and to the press) Parliament did not intend to fetter the power of a court to make investigation as to the conduct of a trial. Properly construed, section 8 (1) does not apply to the court of trial or to the Court of Appeal hearing an appeal in that case. It cannot properly be read as categorising what the court does in the course of its investigation as a contempt of the court itself. What was said in R v Young (Stephen)  QB 324, at p 330 should not be followed. The court is restricted in its inquiry into what happened in the jury's deliberations, not by section 8 of the Act but by the longstanding rule of the common law.
- I would accordingly answer the first question in the affirmative and the second question in the negative and I would dismiss these appeals.
LORD HOPE OF CRAIGHEAD
- The right to trial by jury has a unique and vital role to play in our criminal justice system. But so too has the right to a fair trial. The European Court of Human Rights has repeatedly emphasised that it is of fundamental importance in a democratic society that courts inspire confidence in the public and that a tribunal, including a jury, must be impartial: Gregory v United Kingdom (1997) 25 EHRR 577, 593, para 43. When the time comes for them to reach their verdict jurors must cast aside the prejudices that inevitably, as men and women of the world, they will have brought with them as they entered the jury box.
- As a rule, jury trial is normally reserved for serious criminal offences. It is usually held out as the ideal mode of trial for these cases, so its performance must be judged by high standards: Baldwin and McConville, Jury Trials (1979), p 130. The system as a whole does what it can, within the limits that are humanly possible, to ensure that juries will indeed cast aside their prejudices and reach a true verdict according to the evidence. The random selection process, the rules of evidence, the directions that juries are given by the trial judge, the steps the judge can take during the trial to deal with irregularities and the remedies that are available if there has been a miscarriage of justice are all directed to that end.
- But the law also recognises that confidentiality is essential to the proper functioning of the jury process, that there is merit in finality and that jurors must be protected from harassment. These requirements too are directed to the essential object of maintaining public confidence in this mode of trial. So the general rule is that, after the verdict has been returned, evidence as to things said by jurors during their deliberations in private is inadmissible. The question which these cases have raised is whether this rule is incompatible with the right to a fair trial and, if so, to what extent it can and should be modified.
- On 20 February 2001 the appellant Shabbir Ali Mirza was convicted at Snaresbrook Crown Court after a retrial on six counts of indecent assault. The verdict on each count was by a majority, of 10 to 2. Some months later, on 21 May 2001, he was sentenced by the trial judge, Judge Pitman, to four years' imprisonment on the first five counts and to three years' imprisonment on the sixth. These sentences were reduced on appeal by the Court of Appeal (Criminal Division). A term of three and a half years' imprisonment was substituted on the first five counts, to run concurrently with the period of three years that had been imposed on count six. An appeal against conviction was dismissed.
- The appeal against conviction was based primarily on a letter which one of the jurors had written to the appellant's counsel after the trial was over and was brought to the attention of the trial judge before he passed sentence. It was not suggested that the conviction was in any other respect unsafe. The following details need to be set out to place the terms of the letter into its proper context.
- The complainant, who was aged 17 at the date of the trial, alleged that she had been sexually abused by the appellant from the age of six until she was about 15 or 16. The appellant's case was that he had never been alone with her, that he had never behaved indecently towards her and that the complaints which had been made against him were false. He was provided throughout the trial with the services of an interpreter. When he came to give evidence he said that he had come to the United Kingdom in 1988, that he spoke Urdu but that he could understand some English. During the course of the trial the jury sent two notes which were brought to the attention of the trial judge. In their first note, which was sent before the opening of the defence case, they asked:
"The Jury would like to know. What year did the defendant come to this country. How old is the defendant. What is his job at the restaurant."
In their second note, which came after the appellant had given evidence, they directed their questions to the interpreter:
"Question for the interpreter. In your experience as a court interpreter, would it be typical for a man of the defendant's background to require your services, despite living in this country as long as he has? How long have you held the position of court interpreter?"
- It was obvious that the jury suspected that the system was being abused and that they were in need of guidance as to the practice of the court in the use of interpreters. The prosecution and the defence made an admission which was given to the jury before counsel made their final speeches. It was in these terms:
"It is usual for persons who are not fluent in English to require the services of an interpreter in police investigations and court proceedings which are complex, serious and involve complicated legal terms. This is a safeguard; in the interests of justice and of all persons involved in the trial, including the jury. All such persons are assisted by this. The courts see many people who have lived here for many years who cannot speak English at all."
Thereafter in their final speeches counsel addressed the issue of the interpreter. Prosecuting counsel told the jury that they should make full allowance for the appellant's difficulties. Defence counsel warned the jury against the possibility of prejudice and advised against prejudice operating when they were considering their verdict.
- The judge then dealt with this aspect of the case in his summing up. He referred to the fact that, as they had observed, the appellant could understand some words in English. He suggested that they might think of friends or relatives who had gone to live in Spain, for example, and could speak a bit of Spanish but suddenly found themselves charged with a motoring accident that killed a lot of people:
"What would you think if your friend or relation was denied an interpreter on the basis, well, they can understand a bit of Spanish; why should they have an interpreter? Look at it that way; and this was the sort of case where you are entitled to understand not only most or some of what is said in your trial, but every single word. So that in those circumstances you should draw no adverse inferences from the defendant exercising his right to have an interpreter."
- The letter which was brought to the attention of the trial judge after the trial was over revealed the depth of feeling among the jurors on this issue. But it went further, as it alleged that the jury's verdict was based not a fair assessment of the evidence but on prejudice. The critical part of the letter was in these terms:
"From the beginning of the trial there was a theory among some of the jury that the use of an interpreter was in some way a devious ploy to help his case. I still do not understand the theory myself, there was no apparent logic behind it, but bigots do not need logic. I was unable to convince anyone that I know from my many years of experience as a nurse in the East End that there was nothing suspicious about the use of an interpreter. I was the only juror with any insight into the defendant's culture; cultural matters other than the use of an interpreter were also regarded with undue suspicion. Early in the deliberations the matter of the interpreter was raised. I was shouted down when I objected to this, and tried to remind them that this was not part of the evidence, the counsel for the prosecution had told us that this was not part of his case, and there was an admission on the subject. At this point, your warnings about prejudice was referred to as 'Playing the race card'. The bigots had decided that the case brought by the prosecution was not good enough for them, so they embellished it. They effectively brought their own case, and found the defendant guilty of pretending to need an interpreter."
- The writer of the letter acknowledged that she was breaking the confidentiality of the deliberations of the jury when they were considering their verdict. But she said that she felt compelled to do this, as she felt that the majority verdict was unsound and based on preconceptions rather than the evidence.
(b) Connor and Rollock
- On 25 July 2001 the appellants Ben Connor and Ashley Kenneth Rollock were convicted at Southwark Crown Court of wounding with intent to cause grievous bodily harm. The verdict in this case too was by a majority, of 10 to 2. They were both sentenced on 24 August 2001 to an 18 months' detention and training order. A co-accused, Gillian Naughton, was acquitted on the same count on the direction of the trial judge at the close of the prosecution case.
- Five days after the verdict, but before the case was listed for sentence, a letter was received from a member of the jury. It was dated 30 July 2001 and addressed to the Crown Court. The judge drew counsel's attention to the fact that the letter had been received, but he did not disclose its contents. He granted a certificate of fitness to appeal, and the contents of the letter and the proper approach to it formed the basis of an appeal against conviction to the Court of Appeal (Criminal Division). It was not suggested in this case either that the conviction was in any other respect unsafe. The appeal was dismissed.
- The allegation against the appellants arose out of an incident which occurred when the complainant was standing with friends at a bus stop. A car driven by Gillian Naughton, Rollock's mother, in which the appellants were both passengers stopped nearby, the appellants alighted and a fight took place in which the complainant received a stab wound to his back. The central issue in the case related to possession and knowledge of the knife and its use. The prosecution case was that Connor stabbed the complainant and that Rollock knew that he had a knife and at least contemplated that he might use it in the course of the fight. Rollock said that he was unaware of the presence of any knife until the incident was over. Connor denied participating in the fight, but he did not dispute the fact that the complainant was stabbed. It followed, on his version of events, that the person who used the knife must have been Rollock. The case was left to the jury on the basis that if they were unsure who stabbed the complainant the appellants should be acquitted. They were told that if they were sure that Rollock stabbed the complainant then, subject to the requisite intent having been proved, they should find Rollock guilty and Connor not guilty. They were also told that if they were sure that Connor stabbed the complainant they should find him guilty and Rollock not guilty unless they were satisfied that Rollock was part of a joint enterprise in the use of the knife.
- The jury retired for four hours and forty six minutes before being given the majority direction. After another two hours they returned to give their verdicts. When the foreman was asked if the jury had reached a verdict in relation to Rollock he replied "Not guilty". At this, there was a disturbance among the jury members. The judge invited them to retire again and to discuss their verdicts. The jury returned within four minutes and delivered their verdicts finding both appellants guilty by a majority. The Court of Appeal held that the step which the judge took and the rectification of the verdict when the jury returned to the jury box cured any possible impropriety. That point is no longer is issue. The question that remains relates to the contents of the juror's letter.
- In her letter the juror said that she wanted to raise her concerns on serving on the jury. She stated that there was an overall feeling that most of the jurors were looking for a quick verdict. There was talk of reaching the verdict by tossing a coin, but this was quickly given short shrift. She went on:
"The most worrying was that although many thought it could be one defendant or another they would give the guilty verdict to both, because as many of them said this would teach them a lesson, things in this life were not fair and sometimes innocent people would have to pay the price.
Also, as the defendants were young, the sentence would not be too severe.
When I raised objections to this, and said that we must then look at whether it was one or the other, they maintained their guilty stance, and said that we could be here for another week. I said better that, than convict an innocent man, but then it developed into bedlam, and the majority guilty verdict was agreed."
- The writer of the letter invited the court to look into the matters and said that she would be happy to be interviewed by counsel and, if necessary, the judge.
The questions of law
- The Court of Appeal in both cases certified the following questions as raising questions of law of general public importance:
"1. Should the common law prohibition on the admission of evidence of the jury's deliberations prevail even if the Court of Appeal is presented with a statement from a juror which, if admitted, would provide prima facie evidence of jury partiality in breach of article 6?
- Does section 8 of the Contempt of Court Act 1981, when interpreted in the light of section 3 of the Human Rights Act 1998 and article 6 of the European Convention, prohibit the admission into evidence of a statement from a juror which, if admitted, would provide prima facie evidence of partiality in breach of article 6? If [so], is section 8 incompatible with article 6 to the extent that it prohibits the admission into evidence of such a statement?"
- The context for these questions is provided by the jurors' letters, in both of which allegations are made about statements made and opinions expressed by members of the jury during the jury's deliberations. We are concerned with discussions which took place in the jury room when the jury were considering their verdict, and with allegations about the reasons which led them to deliver guilty verdicts. The argument to which we listened in both cases seeks to confront the common law rule, founded on considerations of public policy, that the court will not inquire into what happens in the jury room. It also raises issues about the meaning and effect of section 8(1) of the Contempt of Court Act 1981.
- In Mirza's case the allegations suggest that some of the jurors may have been motivated by racism. The eradication of racism is a priority goal in a multicultural society: Sander v United Kingdom (2000) 31 EHRR 1003, 1008, para 23. But prejudice among jurors on the grounds of other characteristics that the defendant may have such as his religion, social group or place of origin, is just as objectionable. So I would not attach any special importance to the fact that racism may have been the basis for prejudice in Mirza's case. The questions that have been raised by his case extend to all forms of juror prejudice. There cannot be one rule for racist prejudice and another for prejudice on grounds other than race.
- The common law rule had existed for about two hundred years before section 8 of the 1981 Act was enacted. It had survived the reforms which were introduced by the Criminal Appeal Act 1907 and there was no suggestion that the rule itself, which is essentially a judge-made rule about the admissibility of evidence, needed to be altered or clarified. The purpose of the statute was to reinforce the common law by enabling proceedings for contempt to be brought in circumstances where the common law had declined to provide that remedy. As Mr Fitzgerald said at the outset of his argument, the crucial issue in these appeals relates to the scope of the common law rule, to which the statutory provisions are ancillary. It is the common law rule that presents the primary obstacle to the admission of the evidence which he seeks to adduce. But there are some points about the statute that need to be dealt with. It will be convenient to consider them first, before subjecting the common law rule itself to scrutiny.
The statutory prohibition
- Section 8 of the Contempt of Court Act 1981 ("Confidentiality of jury's deliberations") 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.
(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 that 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,
or to the publication of any particulars so disclosed.
(3) Proceedings for a contempt of court under this section (other than Scottish proceedings) shall not be instituted except by or with the consent of the Attorney General or on the motion of a court having jurisdiction to deal with it."
It is to be noted that consideration is to be given to the question whether the section should be repealed or amended to permit research into how the jury system operates: 11 September 2003 (Hansard (HL Debates), col WA 135.
- The meaning that was to be given to the word "disclose" in section 8(1) was considered in Attorney General v Associated Newspapers Ltd  2 AC 238. Information about how the verdict was reached in a criminal trial had been disclosed by jurors to a third party, who passed the information on to a journalist whose article was published by a newspaper. It was submitted on behalf of the publisher, the editor and the journalist that the subsection was intended to apply to direct contact by or with the jury, and that three types of conduct only were prohibited: obtaining information from a member of the jury, disclosing the information as a member of the jury and soliciting information from a member of the jury: p 250C. The issue was whether it also prohibited publication of the information in a newspaper. The argument that the word "disclose" had a narrower and more restricted meaning than that was rejected.
- Lord Lowry, with whom all the other members of the House agreed, sought to identify the mischief which the Act was designed to remedy. He drew attention at p 256B-D to a sentence in para 355 of the Report of the Departmental Committee on Jury Service (1965) (Cmnd 2627) in which the Committee said:
"we agree with those of our witnesses who argued that if such disclosures were to be made, particularly to the Press, jurors would no longer feel free to express their opinions frankly when the verdict was under discussion, for fear that what they said later might be made public."
Later in his speech, at p 260A-C, he quoted with approval a passage from Beldam LJ's judgment in the Divisional Court, at p 248E-249A, where these sentences appear:
"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."
- It has not been suggested that the meaning which was given in that case to section 8(1) has given rise to difficulty, and I would respectfully endorse everything that Lord Lowry said about it. But a question has been raised about the way in which it was interpreted in R v Young (Stephen)  QB 324, where it was alleged that four jurors during their accommodation overnight in an hotel had conducted a session with an ouija board and that a discussion had taken place about this with the other jurors afterwards. Leave to appeal was granted in that case to enable the court to determine the limits of investigation that were available, having regard to the provisions of section 8(1) of the Act. For the appellant it was submitted that the court was not bound by the subsection, as it could not be in contempt of itself and public policy required it to be able, in the interests of justice, to look into any irregularities which were alleged to have occurred in the jury room: 327F, 330E-F.
- Rejecting this argument, Lord Taylor of Gosforth CJ said at p 330F-H:
"Section 8(1) is in the widest terms and contains no exceptions. Moreover, section 8(2)(a) does expressly allow the disclosure of particulars in the proceedings in question to enable the jury to arrive at their verdict or in connection with their delivering it. 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. If the court were excluded from the embargo in section 8(1), section 8(2)(a) would not have been necessary. 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. To give the court power, after verdict, to inquire into those deliberations, would force the door of the jury room wide open. If one dissentient juror or sharp-eared bailiff alleged irregularities in the jury room, the court would be pressed to inquire into the jury's deliberations. We are in no doubt that section 8(1) applies to the court as to everyone else."
The court ordered affidavits to be taken from each of the jurors and the two bailiffs who were looking after them as to what, if anything, happened at the hotel. But it was made clear that they were not to "breach" section 8 of the 1981 Act by trespassing on what happened during the jury's deliberations afterwards when they were in their retiring room: p 332C.
- This decision has had the effect of restricting the way the court can react to cases of the kind which is illustrated by the these appeals. In Mirza's case the Court of Appeal said that it could not initiate any further inquiries into the allegations that had been made, because the substance of what the juror said in her letter related to what was said and done between jurors in private after they were empanelled which can never be known because of the provisions of section 8(1) of the 1981 Act: para 21. In Connor and Rollock's case the Vice President (Rose LJ) observed that the trial judge "no doubt very properly, being conscious of his possible susceptibility to proceedings for contempt of court, in the light of this court's decision in Young" did not disclose the juror's letter to counsel but sent it instead to the Court of Appeal in a sealed envelope. These comments indicate the extent to which the court feels inhibited by that decision from reacting in a robust manner to allegations which raise doubts about the jury's impartiality, notwithstanding the requirements of article 6(1) of the Convention: see Sander v United Kingdom (2000) 31 EHRR 1003, 1010-1011, para 34.
- The concept of the court being in contempt of itself is, as was submitted in Young's case, difficult to grasp. In Scottish Criminal Cases Review Commission, Petitioners 2001 SLT 1198, 1202G-H, para 15, the court drew attention to the difference between the situation where the court itself makes inquiries with the aim of bringing the court in question into contempt and that where it makes inquiries with the aim of trying to ensure that justice does not miscarry. The proposition that the court ought not to "breach" section 8(1) of the 1981 Act, in the sense of permitting others to act in breach of the statute, is perhaps more intelligible. But it raises questions, which do not seem to have been fully considered in Young, about the true meaning and effect of the subsection. At the heart of this issue is the question, to whom is the subsection addressed? In particular, do the persons to whom it is addressed include the court itself whether at first instance or on appeal?
- The key to the meaning and effect of the subsection lies in its use of the verbs "obtain, disclose or solicit". The word "disclose" is addressed in the first instance to jurors, but it is plain that it extends also to those who, having received the prohibited information from a juror either direct or at second-hand, extend the chain of communication by disclosing it to someone else: Attorney General v Associated Newspapers Ltd  2 AC 238. The word "solicit" is directed to persons who seek to obtain the information from anyone else who is in possession of it. The prohibited activity is inviting somebody to pass on particulars which he is not bound to give, but which may nevertheless be obtained from him by asking for them. The effect of the inclusion of the word "obtain" is to widen the reach of the subsection, so that it catches those into whose hands the prohibited information comes as a result of some deliberate act without their having to ask for it.
- This analysis does not, by itself, solve the problem as to whether the subsection applies to the court. But it does invite more careful examination of the question what the words mean in this context. Section 8 was enacted against the background of the decision in Attorney General v New Statesman and Nation Publishing Co Ltd  QB 1. The Attorney General had applied for an order of contempt of court at common law following the publication in the "New Statesman" of a juror's account of significant parts of the jury's deliberations in the course of arriving at their verdict in the trial of the prominent politician, Jeremy Thorpe. The application failed on the ground that the contents of the article did not justify the title of contempt of court. The court held that there were no special circumstances, other than publication of some of the secrets of the jury room, that called for condemnation.
- The Divisional Court referred in its judgment to the 10th Report of the Criminal Law Revision Committee, Secrecy of Jury Room (1968) (Cmnd 3750). The Committee had concluded, in response to the Home Secretary's request that it should consider whether statutory provision should be made to protect the secrecy of the jury room, that the rule of secrecy should remain one of conduct and that it was to be hoped that intervention by the Press Council would be effectual to check any abuse of the freedom which then existed to approach jurors for this information. The court observed that the Committee evidently did not take the view that there was already a sufficient obligation imposed by the common law to protect the secrecy of the jury room, but that it did not think that it was immediately necessary or desirable to do this by statute:  QB 1, 10G-11C. It is plain that events following the Jeremy Thorpe trial led to a different view being taken on the question whether legislation was necessary.
- There is no doubt in the light of this background, as Lord Lowry said in Attorney General v Associated Newspapers Ltd  2 AC 238, 256D, that the mischief to which the subsection was directed was the release of information to the press which ought to be kept secret. There is nothing, apart perhaps for the provisions of section 8(2)(a) to which Lord Taylor of Gosforth CJ referred in Young's case, to suggest that it was intended to prevent the court itself from doing what is necessary in the interests of justice if presented with an allegation that the defendant did not receive a fair trial. As the Criminal Law Revision Committee observed in para 10 of its Report, the obligation to maintain secrecy cannot be absolute:
"Jurors are clearly under a duty to inform the court at once of any irregularity which occurs during their deliberations. Even after a trial disclosure may be necessary in the interests of justice."
- Section 8(2)(a) permits the disclosure of information "in the proceedings in question" for the purpose of enabling the jury to arrive at their verdict or in connection with its delivery. It was suggested in R v Young (Stephen)  QB 324, 330G that, if the court were excluded from the embargo in section 8(1), this provision would not have been necessary. But some relaxation of the embargo was obviously needed, as the Criminal Law Revision Committee had predicted, to permit jurors to perform their duty of informing the court of any irregularity which occurs during their deliberations. To exclude the court itself from the embargo would not deprive the provision of its content. The better view is that a court cannot be in contempt of itself. In my opinion section 8(1) is addressed to third parties who can be punished for contempt, and not to the court which has the responsibility of ensuring that the defendant receives a fair trial. The observations to the contrary in R v Young (Stephen) at p 330 F-H should now be disapproved.
- Mr Fitzgerald QC made it clear that his primary submission was that section 8(1) could be interpreted, according to the ordinary rules of statutory construction, in such a way as to exclude from its scope disclosure of the prohibited information to the Court of Appeal and the obtaining of any further information that was needed on its authority. But he said that, if that was not possible, the interpretative obligation in section 3(1) of the Human Rights Act 1998 should be applied, failing which your Lordships should consider making a declaration of incompatibility.
- I would, for my part, hold that the ordinary rules of statutory construction provide a sufficient vehicle for giving a meaning to section 8(1) of the 1981 Act which will enable the court to do what is necessary in the interests of justice. Where allegations are made which suggest that a defendant is not receiving, or did not receive, the fair trial to which he was entitled under article 6(1) of the Convention, they must be considered and investigated. Any investigation must, of course, be within the limits that are set by the common law. Evidence which is struck at by the common law rule will be inadmissible, and the court should not ask for or receive such evidence. But there is nothing in the statute that expressly inhibits or restricts the court in its performance of this task, and I do not think that an intention to do this can or should be read into it.
- It is obvious that the court cannot release jurors, journalists or anyone else from the constraints of section 8(1). But it is going too far to suggest, as the Court of Appeal appears to have done in Young's case, that the trial court will be in contempt of itself if during the trial, having received allegations such as those made by the jurors in these cases, it investigates them and discloses the result of these investigations to counsel so that they may have an opportunity of making submissions about them to the court; or that the Court of Appeal in its turn, or persons acting under its direction, will be in contempt if the Court of Appeal decides that in the interests of justice the allegations must be investigated. The court must look to the common law for guidance as to the extent to which any such investigation is permissible.
The common law prohibition
- It is common ground that the primary obstacle to the admission of the evidence which the appellants seek to adduce in this case is to be found not in the statute but in the common law rule that evidence of jury deliberations after the verdict has been delivered is inadmissible. This raises the question whether the common law rule is incompatible with article 6(1) of the Convention and, if so, whether it requires to be modified. But it is first necessary to examine the existing state of the rule and the reasons on which it is based.
- The general rule is that the court will not investigate, or receive evidence about, anything said in the course of the jury's deliberations while they are considering their verdict in their retiring room. The importance of this rule was recognised long ago in an opinion given by Lord Mansfield in Vaise v Delaval (1785) 1 TR 11, 99 ER 944 (KB), where it was held that the court could not receive affidavits from two jurors indicating that they had decided on their verdict by tossing a coin to resolve the issue. The rationale that was given was that this was to protect them against self-incrimination for what he described as a very high misdemeanour. So the evidence had to come from some other source. This was an innovation upon the prior practice, which had been to receive evidence from jurors and others about misconduct or irregularities during the trial without discrimination: 8 Wigmore, Evidence in Trials at Common Law, J McNaughton rev ed (1961), para 2352.
- The rule was also recognised long ago in Scotland: see Hume, Commentaries of the Law of Scotland respecting Crimes, the first edition of which was published in 1797. What, Hume asked, was to be done if the verdict is challenged on the ground that it had been obtained improperly, such as by the use of unlawful means to obtain the jurors' assent to it? He gave this answer, as it appears in the 4th edition (1844) at p 429, in terms which place the rationale for the rule on a more secure basis:
"If a plea of this sort, in impeachment of the substance of a verdict, can at all be listened to, one thing at least seems to be clear, that it can only be in those cases, comparatively but few in number, where the jury re-enter the Court straightway on breaking up their private sitting. For if they disperse, and disclose their verdict (as sometimes happens,) then are they exposed to all those temptations, from the opinions and commentaries of the world, against which it is the very object of our law to guard, when it orders them to be inclosed; and they may thus be prevailed with to disavow their genuine verdict, on false and affected grounds. Nay, though they conceal even, as they ought to do, the result of their deliberations, yet still they learn the sentiments of others concerning the case and the evidence, and are liable to be influenced, less or more, by what they thus hear passing in the world."
- In Pirie v Caledonian Railway Company (1890) 17 R 1157, 1161 Lord President Inglis said that it was out of the question for the court to entertain any challenge after the trial to a verdict which had been delivered and agreed to by the jurors as their verdict. He said that this point had been regarded as settled in Scotland in Stewart v Fraser (1830) 5 Murray 166, in which the Lord Chief Commissioner Adam had referred to the passage from Hume's Commentaries which I have set out above in which, as the Lord President put it, the principle could not have been better expressed.
- The common law rule which prohibited the admission of juror testimony to impeach a jury verdict was firmly established in the United States also by the beginning of the twentieth century: Tanner v United States (1987) 483 US 107, 117. Substantial policy considerations were thought to support the rule. In McDonald v Pless (1915) 238 US 264, 267-268, the court set out the reasons for it in terms which are equally valid in this jurisdiction:
"Let it once be established that verdicts solemnly made and publicly returned into court can be attacked and set aside on the testimony of those who took part in their publication and all verdicts could be, and many would be, followed by an inquiry in the hope of discovering something which might invalidate the finding. Jurors would be harassed and beset by the defeated party in an effort to secure from them evidence of facts which might establish misconduct sufficient to set aside a verdict. If evidence thus secured could be thus used, the result would be to make what was intended to be a private deliberation, the constant subject of public investigation - to the destruction of all frankness and freedom of discussion and conference."
- In Ellis v Deheer  2 KB 113 the Court of Appeal heard an application for a new trial of a civil action which had been tried before a jury on the ground that the verdict as delivered by the foreman was not the verdict of the jury. The opportunity was taken to reaffirm the rule that once a verdict has been given it is not open to a juror to challenge it, or to attempt to support it if it is challenged. Bankes LJ expressed the consequences of the rule in these terms, at pp 117-118:
"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. It has for many years been a well accepted rule that when once a verdict has been given it ought not to be open to an individual juryman to challenge it, or to attempt to support it if challenged. I have spoken of this as a rule of law, but it has also been generally accepted by the public as a rule of conduct, that what passes in the jury room during the discussion by the jury of what their verdict should be ought to be treated as private and confidential."
At p 121 Atkin LJ said that the rule prohibits the leading of evidence as to what took place in the jury room by way of explanation of the grounds upon which the verdict was given or by way of a statement as to what the juror believed its effect to be. He added this explanation as to its rationale:
"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."
- In Boston v W S Bagshaw & Sons (Note)  1 WLR 1135, 1136, following Ellis v Deheer, Lord Denning MR said that once a jury have given their verdict, and it has been accepted by the judge, and they have been discharged, they are not at liberty to say that they meant something different, adding by way of elaboration of what had been said in that case by Atkin LJ:
"The reasons for this are twofold: first, to secure the finality of decisions arrived at by the jury; secondly, to protect the jury themselves and to prevent them being exposed to pressure or inducement to explain or alter their views. If this were to be permitted, where is it to stop? After a jury have solemnly found a man 'Guilty' and he has been sentenced, are they to be at liberty next day to return and say they meant to find him 'Not Guilty'? It cannot be."
- In R v Miah  2 Cr App R 12, 18 the Court of Appeal said that the reasoning in Ellis v Deheer must extend to anything said by one juror to another about the case from the moment the jury is empanelled. In R v Qureshi  1 WLR 518 a juror alleged after the trial was over that disparaging remarks about the defendant had been made by jurors throughout the trial which were of a racist nature. The Court of Appeal, observing that the court must follow R v Miah, said, at p 522E, para 14:
"If we follow it, we cannot have any regard to anything said by the juror thus far. Nor can we initiate any further inquiries because the substance of what she has said relates to what was said and done between jurors in private after they were empanelled."
- The common law recognises exceptions to the rule, but they are confined to situations where the jury is alleged after the verdict has been delivered to have been affected by what were described by O'Connor J in Tanner v United States 483 US 107, 117 as extraneous influences. In R v Papadopoulos  1 NZLR 621, 627, Cooke J said that the rule of exclusion is usually understood not to apply to evidence, even by the jurors themselves, about matters extrinsic to their deliberations. Examples can be given of cases that fall on either side of this exception.
- In Ellis v Deheer  2 KB 113, the rule was departed from in highly unusual circumstances, following R v Wooller (1817) 2 Stark 111, when some of the jurors, although present when the verdict was delivered, were so placed that they were not able to hear what the foreman said and were in fact in disagreement with it. The exclusionary rule was held not to be infringed by evidence that the jurors could not see or hear what was taking place when the verdict was announced.
- In Ras Behari Lal v King-Emperor (1933) 50 TLR 1 it was alleged that one of the jurors did not understand English, which was the language in which some of the evidence was given, the addresses of counsel were made and the judge had delivered his summing up. An inquiry was held, and it was reported that it was indeed the case that the juror had insufficient English to be able to follow what had been said. Giving the judgment of the Board, disapproving R v Thomas  2 KB 489 where the Court of Criminal Appeal had refused to receive evidence that two Welsh-speaking jurors at Merioneth Quarter Sessions did not have sufficient knowledge of English to enable them to follow the proceedings, Lord Atkin said, at p 2:
"The question whether a juror is competent for physical or other reasons to understand the proceedings is not a question which invades the privacy of the discussions in the jury-box or in the retiring-room. It does not seek to inquire into the reasons for a verdict."
- Commenting on that case in Lalchan Nanan v The State  AC 860, where the Board refused to admit the evidence of four members of the jury, including the foreman, that they were acting under a misapprehension when they agreed to the verdict, Lord Goff of Chieveley said, at p 872D-E, that their Lordships did not wish to exclude altogether the possibility that other cases might arise in the future where the presumption might be rebutted. In R v Millward  1 Cr App R 61, where the foreman wrote to the judge the next day saying that she had made a mistake when she said on the jury's behalf that the verdict of guilty was the verdict of them all, Lord Bingham of Cornhill CJ said, at p 65:
"It would in our judgment set a very dangerous precedent if, save in quite extraordinary circumstances, an apparently unanimous verdict of a jury delivered in open court, and not then and there challenged by any juror, were to be re-opened and subjected to scrutiny."
- These observations may be contrasted with the decisions reached in cases where the argument undoubtedly was that the jurors' deliberations had been affected by extraneous influences. In R v Hood  1 WLR 773 the juror was acquainted with one of the witnesses and may have known of the appellant's record. In R v Brandon (1969) 53 Cr App R 466 remarks were made by the bailiff which might have indicated that the appellant had previous convictions. In R v Young (Stephen)  QB 324, 331C-D (the ouija board case) the Court of Appeal held that it could consider an alleged irregularity which related to something other than the jurors' deliberations among themselves in the jury room.
- These exceptions do not, of course, provide an avenue for dealing with the allegations that have been made in these cases. These allegations are directed to what took place during the jury's deliberations in the jury room. There is no suggestion that the comments which were made were extrinsic to those deliberations. It is obvious that we are not dealing here with events that took place outside the jury room. Nor are we dealing with irregularities which may have led to the jury being provided with information which they should not have had, or with the possession by a juror of knowledge or characteristics which made it inappropriate for that person to serve on the jury. The question which these cases raise is whether the boundary between what is admissible and what is inadmissible, between what is extrinsic and what is intrinsic to the deliberations, has been drawn in the right place.
The Strasbourg jurisprudence
- The rationale which underpins the common law rule has been recognised and accepted by the European Court of Human Rights. It has examined allegations that jurors were racially biased on two occasions. In Gregory v United Kingdom (1997) 25 EHRR 577 the applicant, who was black, was on trial for robbery. On the final day of the trial, while the jury were considering their verdict, a note was passed by the jury to the trial judge to the effect that the jury were showing racial overtones and that one member ought to be excused. The judge showed the note to the prosecution and the defence. Having consulted them, he warned the jury to put aside any prejudice and try the case according to the evidence. Following his conviction the applicant complained that he had not received a fair trial. He said that he had been discriminated against on the ground of race. The court noted at p 593, para 43 that it was of fundamental importance in a democratic society that the courts inspire confidence in the public and above all, as far as criminal proceedings are concerned, in the accused. At pp 593-594, para 44 the court said:
"The court observes that it was not disputed that there was no evidence of actual or subjective bias on the part of one or more jurors. 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 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.
Furthermore, the members of the jury were committed by oath or affirmation to faithfully try the applicant and to give a true verdict according to the evidence."
- In Sander v United Kingdom (2000) 31 EHRR 1003 the applicant, who was an Asian, was on trial with two others for conspiracy to defraud. The judge had almost completed his summing up when a juror handed a letter to the court usher in which he alleged that at least two of the jurors had been making remarks which were openly racist and expressed his concern that the defendants would not receive a fair verdict. The judge, having discussed the complaint with counsel in chambers, decided not to discharge the jury immediately or to conduct an inquiry. He told the jury to search their conscience overnight and to let the court know if they felt that they were not able to try the case solely on the evidence. Having received assurances by letter the next morning that they would do so without racial bias, he allowed the trial to proceed and the applicant was convicted. The European Court held by four votes to three that there had been a violation of article 6(1), on the ground that the judge should have acted in a more robust manner and that he had failed to provide sufficient guarantees to exclude any objectively justified or legitimate doubts about the impartiality of the court: pp 1010-1011, para 34. Sir Nicolas Bratza, joined by two other judges, dissented on the grounds which are carefully set out in his closely reasoned opinion. The case is important for present purposes because the court took the opportunity to recall its observation in Gregory, p 593, para 43 about the fundamental importance of public confidence in the courts: see p 1008, para 22. It did not repeat its observation in Gregory, pp 593-594, para 44, that the rule governing the secrecy of jury deliberations was a crucial and legitimate feature of English trial law, although it was not overlooked as Sir Nicolas Bratza referred to it in his dissenting opinion: see p 1013, para O-II4. It is significant, in view of that dissent, that the European Court did not depart from the rule in any respect in Sander and that nothing was said in the judgment which casts doubt on its validity.
- My noble and learned friend Lord Steyn has drawn attention to what the Court said in Remli v France (1996) 22 EHRR 253, 271-272, paras 47 and 48. The critical passage in that case is to be found in para 48, where the Court said that it agreed with the Commission that article 6(1) imposes an obligation on every national court to check whether, as constituted, it is "an impartial tribunal" within the meaning of that provision where this is disputed on a ground that does not immediately appear to be manifestly devoid of merit. The Court did not mention the Remli case in its judgment in Sander. But it is worth noting the observations that were made about the case in Gregory, p 595, para 49, where it said:
"The Court further observes that the facts at issue are to be distinguished from those which led it to find a violation in the abovementioned Remli case. In that case, the trial judges failed to react to an allegation that an identifiable juror had been overheard to say that he was a racist. In the present case, the judge was faced with an allegation of jury racism which, although vague and imprecise, could not be said to be devoid of substance. In the circumstances, he took sufficient steps to check that the court was established as an impartial tribunal within the meaning of article 6(1) of the Convention and he offered sufficient guarantees to dispel any doubts in this regard."
- It is not hard to see that, if an objection of the kind that was raised on the second day of the trial in Remli were to be raised during the trial in an English court and ignored by the trial judge, there would be grounds for saying that the article 6(1) guarantee had been breached. The facts of that case, however, offer no guidance as to what should be done when the issue is raised for the first time when the trial is over - when the verdict has been delivered and all the jurors have assented to it. It is worth noting also that in Remli it was a third party who overheard the remark before the trial began, and that the reason given by the judges for refusing to deal with it - namely that the words were spoken before the first hearing in the case and not in the presence of the judges of the court (see p 257, para 12) - is not one to which any weight would be attached by any court in this country.
- The Court's decisions in Gregory and Sander do not sit easily with each other on the facts, for the reasons that Sir Nicolas Bratza explained in his dissenting opinion in Sander; see also Professor Michael Zander, "The Complaining Juror" (2000) 150 NLJ 723. But they do have this in common, that they were both dealing with the way the judge should react to such allegations when they are made during the trial and the jury has not yet returned its verdict. One must start with the proposition that a tribunal is presumed to be impartial until there is proof to the contrary: Le Compte, Van Leuven and De Meyere v Belgium (1981) 4 EHRR 1, 21, para 58; Remli v France (1996) 22 EHRR 253, 262, para 38 in the opinion of the Commission; Sander v United Kingdom (2000) 31 EHRR 1003,1008, para 25. If this is disputed the court is in a position at that stage to investigate the matter (unimpeded, as I have said, by the provisions of section 8(1) of the Contempt of Court Act 1981) and to deal with the allegations as the situation may require. The cases do not answer the question how the court should react when the allegations are made after the trial is over when, it must be remembered, the presumption of impartiality still applies. But some guidance is provided by the emphasis which the decisions place on the principle of public confidence and on the Court's recognition of the crucial and legitimate role that is played in English law by the rule of secrecy.
- On one view these two points may be thought to pull in different directions. Confidence in the system would be undermined, it may be said, if the allegations cannot be investigated. That was the basis for Mr Fitzgerald's submission that, in order to give effect to the article 6(1) Convention right, a court faced with allegations of the kind that were made in those cases should ask itself two questions: (1) is the allegation capable of belief, and (2) does it cast doubt on the safety of the conviction. On the other hand, the jury seems to enjoy the considerable confidence of the public and to return verdicts that are generally deemed to be reasonable: Baldwin and McConville, Jury Trials, p 134. In the Supreme Court of Canada, in R v G (RM)  3 SCR 362, 374, para 13, Cory J said that he thought that the reliance that is placed on jury verdicts flows from public awareness that twelve members of the community have worked together to reach a unanimous verdict. The same point can be made in those jurisdictions, like England and Wales, which accept verdicts by a majority. It is the process of collective decision making, during which the jurors are free from outside interference and after which they are protected from ridicule, criticism and harassment, that gives it its strength. That, too, is the experience in Scotland: see McCadden v H M Advocate 1985 JC 98; Russell v H M Advocate 1991 JC 194.
- In R v Pan  2 SCR 344, another decision of the Supreme of Canada, at pp 373-374 Arbour J reviewed the competing rationales for the jury secrecy rule. She did not regard finality, standing alone, as convincing. But she took a different view of the need for full and frank debate and the need to protect jurors from censure, reprisals and harassment. At p 373 she said:
"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."
At p 374 she said that the proper functioning of the jury system depends on the willingness of jurors to discharge their duties honestly and honourably, which depends in turn on a system that ensures the safety of jurors - their sense of security, as well as their privacy.
- These observations take us to the heart of the matter. The appeals raise questions about a rule which makes it impossible, after a guilty verdict has been returned, to investigate allegations that the jurors were biased or that they ignored directions by the trial judge. But the rigour of the secrecy rule operates, and is designed to operate, in exactly the same way if the verdict is one of not guilty. A defendant does not need to invoke his article 6(1) right where he has been acquitted. But the rule protects jurors who acquit the unpopular, such as members of minority groups, or who acquit those accused of crimes that the public regards as repulsive, such as the abuse of children who were in their care. It protects them too against pressure that might otherwise be brought to bear, in less enlightened times, by the executive.
- This is an important safeguard against biased verdicts. One cannot have a rule that operates in one way where the jury acquits but operates differently where they convict. Full and frank discussion, in the course of which prejudices may indeed be aired but then rejected when it comes to the moment of decision-taking, would be inhibited if everything that might give rise to allegations of prejudice after the verdict is delivered were to be opened up to scrutiny. Attempts to soften the rule to serve the interests of those who claim that they were unfairly convicted should be resisted in the general public interest, if jurors are to continue to perform their vital function of safeguarding the liberty of every individual.
- The case for wishing to soften the rule is easy to state. No-one has done it better than my noble and learned friend Lord Steyn. As he says, the position which the majority feel compelled to adopt is an austere one. But the alternative which he suggests does not seem to me to answer the problem that he seeks to solve. The examples with which he begins assume, as he explains later, that the allegations which the juror makes are the subject of cogent and compelling evidence. His conclusion in Mirza's case is that the juror's letter provides that evidence. Taking the letter simply at its face value, without further inquiry (for there has been no inquiry in Mirza's case), he holds that there are sufficient grounds for holding that there is a real risk that the jury in that case reached their verdict on perverse grounds which included a pronounced racial element.
- If this approach is sound, it will be unnecessary for any of the jurors to be interviewed. All the court need do is examine the letter. It need only ask itself whether it contains a cogent and compelling allegation demonstrating a real risk that the jury was not impartial. If the allegation measures up to that standard, the verdict will be set aside. It is a simple solution but, to my mind, is unacceptable. An allegation, however articulate it may be and however provocative, is no more than an allegation. It cannot be assumed that the facts it alleges are true. If that were so, every verdict would be at the mercy of the malicious and the unscrupulous. At the very least the allegation must be checked to see whether there are good grounds for believing that what is alleged to have happened really did happen. How else can one assess whether it provides cogent and compelling evidence?
- So there must be an inquiry. But as soon as one reaches that stage, the rule of secrecy has to be breached. One letter alleging that racist remarks were made, for example, will be enough. Lord Steyn's first example shows the kind of language that will make that course inevitable. If that is so, the chance that a letter in such terms may be sent will be present every case. The writer of the letter will need to be interviewed. So too will those against whom the allegation is made, if the court is to decide whether the allegation is genuine. All jurors will know that they are exposed to the risk of being questioned about what they said and heard during their deliberations in private in the jury room.
Whether the rule should be modified
- In R v Pan  2 SCR 344 the Supreme Court of Canada drew a distinction between (a) statements made, opinions expressed, arguments advanced and votes cast by members of a jury in the course of their deliberations, which were held to be inadmissible and (b) evidence of facts, statements or events extrinsic to the deliberation process, whether originating from a juror or a third party, that may have tainted the verdict, which were held not to be inadmissible under the common law rule: p 386.
- The New Zealand Law Commission, in section 77 of the draft Evidence Code in their 55th Report, Evidence (1999), proposed a provision in these terms:
"A person cannot give evidence about the deliberations of a jury concerning the substance of a proceeding except in so far as that evidence tends to establish that a juror has acted in breach of the juror's duty."
It was explained that the intention was to do away with the distinction made in the common law that depends on whether the impropriety occurred within or outside the jury room. In Preliminary Paper 37, Juries in Criminal Trials (1999), vol 1, Part 2, paras 270 and 276, the Commission repeated this proposal for reform. The proposal is not mentioned in their 69th Report, Juries in Criminal Trials (2001). But the Commission say in para 454 that any attempt at legislation in this area must proceed very carefully because of the potential for anomalies and difficulties of the kind illustrated by R v Young (Stephen)  QB 324. In para 455 they observe that, although section 8 of the Contempt of Court Act 1981 is aimed at stopping newspapers in the United Kingdom publishing interviews with jurors, it operates undesirably to block the investigation of gross misbehaviour of a type that makes a conviction unsafe.
- I would, for my part, not wish to adopt either the Canadian model or the wording in the draft Criminal Code that has been proposed for New Zealand as they seem to me to relax the common law rule too much and to risk creating uncertainty. I would place much greater emphasis on the need for a clear and precise rule. It is worth noting the point made in Summing-up to Juries in Criminal Cases - What Jury Research says about Current Rules and Practice  Crim L R 665, 689, by William Young, a Judge of the High Court of New Zealand, that isolated instances of jury misconduct or perversity should not be taken as the norm. As he has said, it is right to recognise that juries are generally diligent and, if given the right assistance, are usually collectively willing and able to determine cases on the evidence and in accordance with the law as laid down by the trial judge. The risk of perversity cannot be entirely eliminated. But the balance of advantage lies firmly in favour of preserving the common law rule as a proportionate response to the needs of the jury system.
- I would be inclined to make only one modification to the rule that distinguishes, after the verdict has been delivered, between things which are intrinsic to the deliberation process and those which are extrinsic to it. Article 6(1) of the Convention requires that the common law rule be scrutinised carefully, to ensure that it is compatible with the right to a fair trial. So it is arguable that an allegation that the jury as a whole declined to deliberate at all, but decided the case by other means such as drawing lots or by the toss of a coin, can be placed into a different category. Conduct of that kind, were it ever to occur, would amount to a complete repudiation by the jury of their only function which, as the juror's oath puts it, is to give a true verdict according to the evidence. A trial which results in a verdict by lot or the toss of a coin, or was reached by consulting an ouija board in the jury room, is not a trial at all. If that is what happened, the jurors have no need to be protected as the verdict was not reached by deliberation - that is, by discussing and debating the issues in the case and arriving at a decision collectively in the light of that discussion. The law would be unduly hampered if the court were to be unable to intervene in such a case and order a new trial. But that is not the situation which is before us in these appeals.
Improvements in practice
- Although I would make no changes to the common law rule that the deliberations of the jury must remain confidential, I suggest that consideration should be given to making two refinements to current practice with a view to strengthening the system of jury trial and retaining public confidence. I would also respectfully endorse the points made by my noble and learned friend Lord Hobhouse of Woodborough, and I agree with him that the implications of the opinions delivered in this case should be considered by the Judicial Studies Board.
- The first refinement relates to the advice which is given to jurors before they are empanelled and enter the jury box. The current practice in all courts in England and Wales is for them to be shown a video which tells them how they were selected, what happens in court and how to perform their role as jurors. They are told, amongst other things, that they should tell the court usher immediately if anyone outside the jury approaches them about the case or tries to influence them about it and to talk to a member of the court staff if they have any queries about any aspect of their jury service.
- There is no mention, however, of the point made by the Criminal Law Revision Committee in its 10th Report, Secrecy of Jury Room, para 10, that jurors are under a duty to inform the court at once of any irregularity which occurs during their deliberations. If that step is taken before the verdict is given the matter can, of course, be considered, investigated and dealt with by the trial judge: Archbold: Criminal Pleading, Evidence & Practice (2003), para 4-254. If the step is not taken until after the verdict has been given, it may be too late for the court to do anything about it. In practice jurors do from time to time draw such matters to the attention of the court during the trial. The cases of Gregory v United Kingdom (1997) 25 EHRR 577 and Sander v United Kingdom (2000) 31 EHRR 1003 illustrate this point. But this does not always happen, as the events that occurred in the case of the appeals which are before the House demonstrate. The system would be strengthened if jurors were told before the trial begins that they are under a duty to inform the court at once of any irregularity which occurs while they are deliberating.
- The second refinement relates to the information which is provided to the Court of Appeal by the trial court. In R v Papadopoulos  1 NZLR 621 the Court of Appeal in New Zealand had the benefit of a report from the trial judge made under rule 22 of the Criminal Appeal Rules 1946. The court had requested this, on the application of counsel for the Crown, because of the nature of some of the grounds of appeal and some of the allegations in the juror's affidavit: see p 623, lines 11-14. It is standard practice in Scotland for reports to be provided by trial judges for the assistance of the appeal court: see Criminal Procedure (Scotland) Act 1995, section 113; Renton & Brown's: Criminal Procedure, 6th ed, para 30-27. These provisions enable the appeal court in those jurisdictions to make use of the fact that the judge who presided over the trial, and had the advantage of being able to observe the jury as the trial progressed, is in a good position to tell the appeal court if there were any signs of irregularity while the jurors were in the jury box. Sir Nicolas Bratza placed considerable weight on this point in his dissenting opinion in Sander, p 1015, para O-II14.
- Section 87(4) of the Supreme Court Act 1981 provides that Criminal Appeal Rules may require courts from which an appeal lies to the criminal division of the Court of Appeal to furnish that division with any information or assistance which it may request for the purpose of exercising its jurisdiction. Requests to the court of trial for such information or assistance may be communicated by the registrar: see rule 22 of the Criminal Appeal Rules 1968 (SI 1968/1262). These powers are wide enough to enable to the Court of Appeal to call for a report from the trial judge if it is alleged that there was an irregularity at the trial. There will be no need for it to take that step if all the information that is required to deal with the allegation can be provided by members of the court staff. But allegations of juror prejudice go to the heart of the question whether the defendant has received a fair trial. To enable it to deal with them the Court of Appeal ought to be provided with as complete and accurate an account of the events of the trial as possible. In that situation to call for a report by the trial judge would seem to be a step worth taking, to ensure that the allegations are subjected to the high degree of scrutiny that is needed to comply with the defendant's article 6 Convention right.
- The allegations which were made in each case relate to things said by jurors during their deliberations. The common law rule which holds that after the verdict has been delivered evidence directed to matters intrinsic to the deliberations of jurors is inadmissible must be applied. Viewing the proceedings as a whole, I do not think that it can be said that the appellants did not have a fair trial. I would dismiss both appeals.
LORD HOBHOUSE OF WOODBOROUGH
- The issue on these appeals necessitates that the discussion start with a restatement of some of the basic principles of English criminal justice:
(a) A system of criminal law, including its enforcement by the state, is an essential component (and always has been) in the existence of a civilised society under the rule of law and the social contract between the state and the citizens.
(b) The function of the criminal trial is to convict those whose guilt has been proved by the evidence adduced at the trial and to acquit those whose guilt has not been so proved.
(c) Under the common law system of jury trial, all findings of fact are to be made by the jury and it is ultimately their decision whether to convict the defendant. Special verdicts may not be asked for.
(d) Where the evidence adduced does prove the defendant's guilt, it is the jury's duty and oath to return a verdict of 'guilty' and, where not, it is the jury's duty and oath to return a verdict of 'not guilty'.
(e) It is recognised that a jury has the ability ultimately to choose to acquit a defendant notwithstanding that his or her guilt has been proved and, on some occasions, juries have done so.
(f) A convicted defendant has the right, subject to a leave filter, to appeal and the Court of Appeal has the power and duty to quash the conviction whenever it considers that the conviction is for any reason unsafe; it is not confined to questions of law, it can review the evidence given at the trial and it has the power to entertain fresh evidence. The Criminal Cases Review Commission has the power to investigate convictions alleged to have resulted from miscarriages of justice and refer the conviction appeal back to the Court of Appeal for further consideration.
- The next point it is necessary to make at the outset is that it is fundamentally wrong to use the phrase 'miscarriage of justice' selectively as if it only related to perverse convictions. This presents a false picture. Most miscarriages, including those referred to be my noble and learned friend Lord Steyn, occur because of some corruption of the evidence used by the prosecution to prove guilt. Such corruptions may take many forms, eg non-disclosure of evidence or information favourable to the defence, undetected lies, undiscovered witnesses, partial or incompetent expert evidence. None of these involve any failure of the jury system: the verdict returned was in accordance with the evidence adduced at the trial. This leads on to the other reason why it presents a false picture: a perverse verdict of not guilty, whatever the reason for it, is also a miscarriage of justice. The criminal justice system has failed to convict a person whose guilt has been proved.
- The consequences of either type of miscarriage are different but equally serious. A failure to convict a defendant whose guilt has been proved is a breach of the social contract between the State and its citizens. It is a failure of the state to provide to citizens the protection to which they are entitled against the criminal activities of others. It leads to a failure of public confidence in the justice system and the ability of the state to maintain "the Queen's peace". It encourages vigilantes. It encourages intimidation and discourages witnesses from giving evidence. These are, to coin a phrase, 'clear and present dangers'. In simple Human Rights terms, they are a breach of the victims' human rights: Article 8 and the First Protocol Article 1.
- The conviction of an innocent defendant is likewise serious and a breach of the defendant's social contract with the state. It results in the defendant being publicly stigmatised and being subject to a criminal sanction which may be as serious as life imprisonment. The defendant is right to be aggrieved but the Human Rights Convention does not guarantee to him that this will never occur. Article 5.1(a) of the Convention permits imprisonment after a conviction by a competent court. Article 6 gives a person charged with a criminal offence certain rights but, provided that these requirements are met, it does not give him a human right only to be convicted if he is in fact guilty. The reason is obvious: it would make every conviction before a municipal court provisional and require that every contested charge be re-tried before a Human Rights court or courts (no less fallible and no better placed than the original trial court). In any human system mistakes and errors are bound to occur from time to time. The remedy is to have a review procedure before an appellate court which, among other things, objectively reviews whether the evidence sufficed to prove the appellant's guilt. English law provides such a procedure.
- It was accepted by counsel before your Lordships that whatever answer was given to the certified questions would have to apply where the defendant was acquitted as much as to where the defendant was convicted. The questions have only achieved their current special significance since the introduction of majority verdicts. Before that the jury had to be unanimous and a dissenting juror could always get his or her way by declining to agree the verdict wanted by the others. Since the only persons allowed into the jury room were the jurors themselves, only the jurors would know what course their deliberations and discussions had taken. It could only be some blatant misconduct externally observable which could give rise to a report by someone else or something occurring when they were not deliberating and not in the jury room (as was the case in the more modern R v Young  QB 324).
- Since majority verdicts were permitted by s.17 of the Juries Act 1974, a different situation has existed. Your Lordships were informed that, on average, about 20% of all convictions after a trial on indictment result from majority verdicts. (No corresponding figures are available for acquittals since, when, after a majority direction, a jury returns a verdict of not guilty, the jury are not asked whether it was unanimous or by a majority.) It follows that in 20% of conviction cases there will be one or more jurors whose views and arguments have not been accepted by the majority. This is inevitably a fertile scenario for a dissident juror, maybe honestly, maybe not, to claim that the majority disregarded or misunderstood the judge's direction, did not understand the facts, were not prepared to listen to argument or were prejudiced in some way. It must also be commented that it is often possible by watching the individual jurors when they return to court to tell which the dissenter(s) is/are, thus rendering them liable to be covertly approached by those with an interest in upsetting the verdict.
- The letters written by the dissenting jurors in the cases which have given rise to these appeals illustrate the type of complaints likely to be received if these appeals are allowed. In the case of Mirza the issue for the jury was essentially one of credibility, whether the jury preferred the evidence of the defendant or that of the complainant whom he was alleged to have indecently assaulted over a number of years. She was 17 years old at the time of the trial. The jury retired and, after having returned to court and being given a direction on majority verdicts (of which no criticism is made), retired again and later returned with majority guilty verdicts, the majority being 10 to 2. The juror's undated letter, written after the conclusion of the trial and the discharge and dispersal of the jury, to Mirza's counsel contains some telling phrases - "I was the only juror with any insight into the defendant's culture" - "I still do not understand the [majority's] theory myself, there was no apparent logic behind it, but bigots do not need logic" - "The bigots had decided that the case brought by the prosecution was not good enough for them, so they embellished it." These remarks are more indicative of an animus of the juror against her colleagues than of providing significant evidence of a mistrial. The jury had earlier, during the course of the trial, shown suspicion of Mirza for giving his evidence through an interpreter. Both counsel had agreed a statement saying that it was normal for a defendant whose first language was not English to use an interpreter when faced with a serious criminal charge and the judge gave the jury a careful and sufficient warning and direction on the point of which, again, no criticism is made. However the credibility of Mirza's evidence remained solely a question for the jury and the majority of jurors clearly did not believe him.
- In the case of Connor and Rollock, after a retirement of 6 hours and 46 minutes, the jury convicted both of them by a majority of 10 to 2 of wounding their victim with intent to cause him grievous bodily harm. The weapon alleged to have caused the wounds was a knife. It appears that the indictment, in that it contained only this single count, was most unfortunately drafted since it gave no scope for convicting either defendant of any of the alternative or lesser offences with a different actus reus which on the prosecution case had been committed. There was no issue that the victim had been seriously assaulted and that the defendants had been involved in a concerted attack on him. What was disputed was which of them had carried and used the knife. After a summing up in which the judge may be thought to have given legal directions which were in places too favourable to the defendants but included a direction on joint enterprise (which was the prosecution's primary case), the jury retired. Five days after the verdicts had been given and the jury discharged and had dispersed, a juror wrote a letter to the court clerk. The main thrust of the letter was that the majority jurors were determined to convict both defendants and the deliberations reached the stage where they were no longer prepared to listen to the dissenting juror's arguments. "When I raised objections to this, and said we must then look at whether it was one or the other, they maintained their guilty stance, and said that we could be here for another week. I said better that, than convict an innocent man, but then it developed into bedlam, and the majority guilty verdict was agreed." This letter gave vent to the dissenting juror's frustration at her failure to persuade the majority to accept her views and having to accept that majority verdicts could be returned. But this is just the type of case which the majority verdict procedure was designed to deal with - prolonged period of deliberation - inability of the jury to reach a unanimous verdict - a majority direction - a final verdict returned by the majority. It can be commented that the disagreement whether either of the defendants were "innocent" perhaps arose from the dissenting juror having overlooked the fact that joint enterprise was a possible conclusion.
- In fact both these letters, even though received after the jury had been discharged, were treated seriously by the judge who presided at the trial and the Court of Appeal. Leave to appeal was given in both cases and the letters were disclosed to counsel for the parties. Copies are in the bundles of documents provided to your Lordships. Both appeals to the Court of Appeal were heard by a constitution presided over by Rose LJ. The fully reasoned judgment was given in the Mirza appeal; in Connor and Rollock they followed Mirza. On both appeals they considered that they were bound by R v Qureshi  1 WLR 518. No other grounds of appeal than the letters were raised or, if raised, upheld.
- I agree with all of your Lordships that s.8 of the Contempt of Court Act 1981does not carry the decision of these matters any further. The outcome of these appeals raises a question of the compatibility of the common law with the requirement of impartiality in Art 6(1) of the Human Rights Convention. If the common law rule is incompatible, s.8, at any rate in the present factual context, cannot be compatible. But it must be added that the concept of a court being in contempt of itself cannot, on any view, be correct. Thus a communication by a juror to the court itself cannot without more, eg malice, dishonesty or improper motive, be a contempt of court; nor can be an inquiry addressed by the court or an authorised agent of the court to a person and a response to the court by that person to that inquiry.
- In English law the impartiality of the determination of criminal guilt is protected at a number of levels. It is protected by the trial judge's supervision of the trial and his ability to discharge the jury or individual jurors. The judge gives them guidance during the trial and, before they retire, gives them directions both upon the law and upon the correct approach to the evidence given. Thus, the judge includes a direction about discarding prejudice. The judge is required to exclude prosecution evidence which is prejudicial not probative. The Court of Appeal has the role already described. The jurors are randomly selected and are required to take the juror's oath before being empanelled. They are specifically required not to discuss the case with others or to be influenced by anything they hear or read outside the court room. The European Court of Human Rights have endorsed the English system in the cases cited by Lord Hope and Lord Rodger, in particular in Gregory v UK 25 EHRR 577.
- The Remli case (22 EHRR 253) stressed by Lord Steyn is clearly different. The offensive remarks made by the individual before he had been finally selected and empanelled for the relevant case were overheard by a member of the public standing at the door of the court before the actual trial had started. The defence did not know about this at the time and did not have the opportunity to challenge his inclusion in the jury. The subsequent municipal right of appeal was confined to questions of law and apparently left no scope for an appeal based on the event complained of. No question of jury confidentiality arose. The court was told about the event during the second day of the three day trial. The Court of Human Rights held that their response to it had been inadequate. In England there would have been no difficulty. The trial judge would be expected to respond adequately by investigating the report and dealing with it appropriately across a range of options including discharging the juror in question or the whole jury. The judge's duties and powers were in no way inadequate. If he got it wrong, the Court of Appeal could put it right. In Sander v UK 31 EHRR 1003, a bare majority of the Human Rights Court held, in disagreement with the Court of Appeal, that the trial judge's response had been inadequate. Paradoxically the Court went on to hold that no reparation was called for as no causal connection was established between the alleged partiality of the jury and the fact that, under the sentence of the court following his conviction, he had spent 3 years in gaol.
- The confidentiality of jury deliberations is a well established principle of both English law and Scottish law. (eg, Ellis v Deheer  2 KB 113, R v Miah  2 Cr App R 12, Russell v HM Advocate 1991 JC 194, 1992 SLT 25) The confidentiality is not temporary: it is permanent and not capable of waiver. Thus, the duty of the juror to respect that confidentiality continues, indeed it especially applies, after the case is over and the jury has been discharged and dispersed. Nothing could be more destructive of the duty of confidentiality than the juror coming out of court and communicating his or her views about the jury's deliberations to the media or to persons who are likely to disagree with the verdict which was returned. The rationale of the rule includes the need for finality. A verdict returned in the presence of all of the jurors and on their behalf is not to be open to second thoughts and must, subject to very limited exceptions, eg patent inconsistency with another verdict, be accepted by the trial judge. This finality works as much in favour of the accused as against him. Finality is what the acquitted defendant wants and needs; the convicted defendant on the other hand can always invoke his right of appeal to the Court of Appeal. But for present purposes, another reason for the principle is more important. It underpins the independence and impartiality of the jury as a whole. It enables them to be true to their oath to return a true verdict according to the evidence without fearing the consequences of the reporting of things individual jurors have said or the arguments they have advanced. They can play their part in the collective deliberations of the jury without fear of quotation, embarrassment or victimisation. A jury is a collection of lay citizens selected at random. They arrive at the court with all their preconceptions and misconceptions. They are shown a video explaining the framework within which a jury is required to play its part and the duty of confidentially. Those randomly selected are each required to take the juror's oath before they are empanelled. The trial judge will himself, as the course of the trial dictates, reinforce the message, for example reminding them that the only evidence is that adduced at the trial not what their friends and relations or the media say, and that they must discard any prejudices they may have had and approach the case with an open mind and he will direct them further during his summing-up.
- The result is a jury which acts collectively and cohesively which arrives at a verdict which represents the agreed conclusions of the collective deliberation. Jurors are drawn from all walks of life. Many of them will be unaccustomed to discussing an issue in such company in a structured way. Their deliberations may be stormy requiring the reconciliation of strongly held views. It is essential to their ability nevertheless to perform cohesively and properly deliberate together within the confines of the jury that they are protected by the confidentiality rule. Before 1974, whilst the verdict had to be unanimous, there were problems which arose from the requirement of unanimity - over lengthy or inconclusive deliberations, time pressures distorting the deliberations or being used to bring pressure upon dissenters. It also increased the risk of successful jury nobbling. Hence the introduction of majority verdicts. This change provided another support to the integrity of the jury. But it created the risk that, if combined with an abandonment of the confidentiality rule, it would have precisely the opposite effect.
- The jury trial has been adopted in all the main common law jurisdictions. It is rightly regarded as a bastion of the criminal justice system against domination of the state and a safeguard of the liberty of its citizens. This is an affirmation of human rights principles. The detail in each country may differ in order to suit their own culture. For example in the United States of America there is a very thorough and public procedure of jury vetting which precedes the empanelling of the jury, including an investigation of their prejudices and whether they are prepared to put them on one side and this compensates for allowing individual jurors to be interviewed after the end of the trial upon their reasons for voting for the verdict. If the criminal justice systems of the United Kingdom were to abandon the jury confidentiality rule, I see no stopping point in the other changes which would consequentially have to be made short of introducing a full-blown pre-trial procedure of jury vetting in order to maintain an acceptable minimum level of finality and public confidence in the jury verdict. At present, with the jury confidentiality rule, there is an appropriate degree of finality in guilty verdicts and a high level of public confidence in the system. For the public it is a highly valued part of our unwritten constitution. The present lack of public confidence relates to the defective enforcement of the criminal law both before and after the trial.
- Thus far, the arguments of the appellants under Art 6(1) of the Convention are clearly unsound. The rationality of the jury confidentiality rule is incontrovertible. The objects of the rule are all ones which reinforce the values in that Article. They provide essential assistance for the jury to operate as a collective body independently of outside influences and be impartial. It helps them to reach a determination of the criminal charge within a reasonable time without the need for retrials every time a juror wanted to change his or her mind or express his or her dissatisfaction with the reasoning of the majority. In so far as a verdict of guilty returned at the trial may be alleged to be unsafe, there exists the procedures of the Court of Appeal objectively to review the safety of the conviction and remedy any miscarriage of justice disclosed. The Court of Appeal also has very wide powers to hear fresh evidence and direct the Registrar to obtain documents and make inquiries.
- The only tenable argument against the jury confidentiality rule relates to its expression as a rule of admissibility of evidence. It might be argued that a rule expressed in such terms is disproportionate. This however is an over-simplification. The question of admissibility relates not to what the judge or judges see or read but what they take into account in making a substantive decision and what they treat as legitimate evidence for the parties to use in argument. Thus a jury note or letter will, save in exceptional circumstances, always be looked at by the trial judge and, if there is an appeal, by the Court of Appeal (the legal expression is de bene esse - ie for what it is worth); its existence and character will normally be disclosed to the parties' counsel and submissions as to its significance, and/or responded to, be invited. But once its status as a breach of jury confidentiality has been established, the only appropriate response is to treat it as inadmissible in the sense I have described. A semi-certain doctrine of confidentiality would effectively mean abandoning the rule as such and the protection of the values which it provides. In the law, it is necessary to have some rules which draw bright lines. Perhaps the most striking example of this is the rule of legal professional privilege as stated by Lord Taylor CJ with the agreement of all the other members of the House in Reg v Derby Magistrates' Court, Ex p B  AC 487 at 508 that the rule applies "across the board in every case, irrespective of the client's individual merits". (This statement has been approved and applied in many subsequent cases.) The bright line is necessary in order to preserve the beneficial rule: it is not disproportionate. I therefore reject this argument, however seductively it is presented.
- For these reasons and those given and to be given by my noble and learned friends Lord Hope of Craighead and Lord Rodger of Earlsferry, I would dismiss both of the appeals.
- But like Lord Hope, I would point out that the operation of the existing rule needs additional clarification and explanation. I can of course only speak about England and Wales.
(a) There have been statements in the past that the duty of confidentiality applies from the moment the jurors are empanelled or so long as they are in the "jury box". (See eg the passages quoted from earlier cases, and adopted, in Miah and Qureshi.) The original statements were coloured by the position at the time they were made: it was not in earlier days the general practice to require juries to retire to consider their verdict and they would confer and decide upon their verdict in the jury box without leaving the court-room; in murder trials, the jury were enclosed, ie segregated, from the moment they were empanelled. The modern position is more sophisticated and the statement of principle should reflect this. Obviously from the time the jury are empanelled they must be reminded by the judge what the words "in accordance with the evidence" mean: they must not discuss the case, or any aspect of it, with or be influenced by anyone not of their number, least of all outsiders or the media. The judge will usually remind them of this when they first disperse on the first day of the trial (assuming the trial is not over by then). Then, during the course of the trial, it is the continuing duty of the trial judge to deal with any problems which arise with the jury and be alert to detect any signs which may lead to a risk of a mistrial. To this end the jury must be told of their right and duty both individually or collectively to inform the court clerk or the judge in writing if they believe that anything untoward or improper has come to their notice. The judge can then deal with the matter in an appropriate way. He already has to deal with such matters as improper approaches to the jury, an unexpected recognition of or knowledge of a defendant or a witness and personal difficulties of jurors and has a power, within limits, to discharge individual jurors. He may of course, if necessary, discharge the whole jury and start again. He should also include in his summing up such suitable reminders warnings and directions as the circumstances require. After the judge has told the jury to retire and decide upon their verdict and the jury bailiff has been sworn, the trial enters upon a new phase.
(b) After retirement, the judge may either of his own motion or in response to a jury note call the jury back into court and give them further directions or assistance with the evidence in the case. This he will do in open court. The jury should however be reminded that everything that is said during their deliberations is confidential to them and may not ever be repeated or discussed outside the jury room. After verdict and the discharge and dispersal of the jury, the jury's role in the case has come to an end and cannot be resurrected; any matter arising thereafter will be for the Court of Appeal. But the duty of the juror not to breach the confidentiality continues.
(c) Any communication received at any stage of the trial from the jury or any member of it or any communication or report from any one else about the jury or a member of it should be preserved. The same will apply, within reason, to anything received by the court after the end of the trial so that it can be forwarded or made available to the Court of Appeal or other relevant body. Any discussion with counsel regarding any communication, whether in the judge's room or in court, must be recorded in a transcribable form and preserved.
(d) The adequacy of the existing jury video should be reviewed to see that it adequately covers all the points which deal with the rights and duties of jurors in this regard covering and distinguishing between the various stages: during the trial from the time of being empanelled to the time of retirement, during the retirement and the deliberations upon their verdict(s), and the period after they have delivered their verdict(s) and been discharged. My impression is that it does not. It is also desirable that the Judicial Studies Board consider the implications of the Opinions delivered in these appeals and whether it would be desirable that trial judges and court clerks receive appropriate additional guidance. All matters of detail are for the JSB and those responsible for the video to take further in accordance with their more direct experience of current perceptions and practices. The same applies to any further Practice Directions that the Court of Appeal might decide to make.
LORD RODGER OF EARLSFERRY
- I have had the privilege of reading the speeches of my noble and learned friends, Lord Hope of Craighead and Lord Hobhouse of Woodborough, in draft. I respectfully agree with them but add some observations of my own since there is a division of opinion among your Lordships.
- The central allegation advanced on behalf of the appellant Mirza is that members of the jury at his trial were prejudiced against him on racial grounds and so did not deliberate impartially on his case. The appellants Connor and Rollock contend that the jury in their trial decided to convict both of them because it would have taken too long to consider the case against each of them separately and, in any event, this would teach them a lesson, things in life not being fair and innocent people sometimes having to pay the price. In both appeals the allegations are based on a letter sent by a member of the jury after the trial was over.
- Racial prejudice is an especially corrosive form of prejudice that has come to prominence with changes in the make-up of the British population. It may take different forms, some being more prevalent in some parts of the country than in others. The eradication of such prejudice is regarded as a common priority goal for the member states of the Council of Europe: Sander v United Kingdom (2000) 31 EHRR 1003, 1008, para 23. But, unhappily, racial prejudice is no new phenomenon in Britain: until fairly recently, for example, anti-semitism was frequently encountered, especially in middle-class milieux. Since jurors are drawn from a cross-section of the population, we must therefore suppose that in their everyday lives some may indeed be racially prejudiced, whether against black people or against white people, or against particular racial groups. But, unhappily too, this is just one of many prejudices which may be found, we must also suppose, in the pool of people summoned for jury service. Some may be affected by religious bias, others may make it a rule always to believe an Irishman but never to trust a Scotsman, others again will never trust a man in a suit or a woman in trousers, while still others may be predisposed to believe anything - or nothing - that a police officer says. Except to the extent that the law forbids it, people are free to hold, and to run their lives by, such prejudices - however irrational, unattractive or downright pernicious. Not so, however, when the same people deliberate as jurors since, if given free rein, any of these prejudices might make for a partial verdict. The point goes deeper. Even jurors who harbour no such particular antecedent prejudices will usually identify more readily with people whose way of life is similar to their own and, correspondingly, look askance at those with very different, and apparently inferior, lifestyles. Yet, more often than not, jurors from ordinary respectable backgrounds have to judge those who, the evidence in the trial shows, lead very different lives - not working, ruthlessly exploiting the social security system, taking drugs, regularly drinking to gross excess and generally acting in an anti-social fashion. There is an obvious risk that, hearing this kind of evidence, jurors may be biased against such a defendant. What matters therefore is not the particular type or source of prejudice but the risk that it may result in a partial verdict.
- The risk that those chosen as jurors may be prejudiced in various ways is, and always has been, inherent in trial by jury. Indeed, only the most foolish would deny that judges too may be prejudiced, whether, for example, in favour of a pretty woman or a handsome man, or against one whose dress, general demeanour or lifestyle offends. The legal system does not ignore these risks: indeed it constantly guards against them. It works, however, on the basis that, in general, the training of professional judges and the judicial oath that they take mean that they can and do set their prejudices on one side when judging a case. Similarly, the law supposes that, when called upon to exercise judgment in the special circumstances of a trial, in general, jurors can and do set their prejudices aside and act impartially. The recognised starting-point is, therefore, that all the individual members of a jury are presumed to be impartial until there is proof to the contrary: Le Compte, Van Leuven and De Meyere v Belgium (1981) 4 EHRR 1, 21, para 58; Sander v United Kingdom (2000) 31 EHRR 1003, 1008, para 25.
- The appeal by Connor and Rollock also raises a familiar type of complaint. They allege that the jurors chose the easy way out - convicting both of them - rather than spend time deliberating on their individual guilt. Alexander Pope skewered that type of abuse almost 300 years ago in his chilling remark, "And wretches hang that jurymen may dine".
- The particular allegations in these appeals are therefore modern examples of kinds of criticism that could always, potentially, have been made of jury deliberations and verdicts not only in this country but wherever the jury system has established itself in the English-speaking world. Various safeguards have been introduced to guard against these possible abuses. Some systems allow jury vetting, with an elaborate voire dire when the jurors are chosen. That is not the practice in Britain where jurors are simply chosen at random, with the defence having a right to challenge a juror only on cause shown. In England, however, the jurors swear an oath, or affirm, that they will "faithfully try the defendant and give a true verdict according to the evidence." A not dissimilar formula is used in Scotland. The trial is then conducted in a serious atmosphere and in a manner that constantly reminds the jurors that the crucial responsibility for deciding the case rests with them. Before they retire to deliberate, the judge gives them directions which they are duty-bound to apply. Not least they are told that, when considering their verdict, they must put aside all prejudices of whatever kind and reach their verdict only on the evidence. Therefore, despite what is sometimes said, the idea is not that the jurors may indulge their different prejudices and that these will then, mysteriously, cancel one another out. On the contrary, the jurors are expected - perhaps for the only time in their lives - to decide the issues without prejudice. They are also expected to apply the other directions on law that the judge has given them. Individual jurors will usually come under group pressure to fulfil these expectations. The European Court of Human Rights ("the European Court") recognises that these features of jury trial in Britain help guarantee the objective impartiality of the jury: Pullar v United Kingdom (1996) 22 EHRR 391; Gregory v United Kingdom (1997) 25 EHRR 577.
- Like any other human institution, however, trial by jury in criminal cases is neither perfect nor infallible. Some distinguished commentators therefore advocate its abolition and replacement with a system of trial by (imperfect and fallible) judges - as has largely happened in civil cases in England and Wales. Trial by jury must, of course, be fair. But counsel did not submit that a fair jury trial was impossible in cases like the present. Nor did they submit that, whether by virtue of article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") or otherwise, juries should be required to give reasons for their verdicts. On the contrary, the appeals were argued on the footing that, in principle, jury trial was fair, even though the jury did not give reasons for their verdict.
- Allegations of misconduct by jurors may surface at any stage of a trial before the jury has returned a verdict. In such cases there is no reason why the allegations should not be investigated. Judges must accordingly take appropriate steps to investigate and deal with any such matter that arises then. For instance, after the appellant Mirza gave evidence in his trial, the jury questioned his use of an interpreter. This was thought to be indicative of possible prejudice. The problem was addressed by a joint admission of counsel for the prosecution and the defence, by passages in counsel's speeches to the jury and in the judge's summing up. In practice the court will respond in various ways, depending on the circumstances. If it turns out on investigation of an allegation that the jury as a whole is fatally compromised, the judge will discharge them. Where only one particular juror is fatally compromised, the judge will discharge that juror and the trial will proceed with the remaining jurors. In less serious cases the judge will deal with the matter by giving the jury appropriate directions. The approach adopted by the English courts is to be contrasted with that of the court in Remli v France (1996) 22 EHRR 252. That court refused to take any notice of a racist remark that a juror was alleged to have made before the hearing of the case began. Not surprisingly the European Court held that there had been a breach of article 6(1) of the Convention.
- The flexible approach of the English courts was approved by the European Court in Gregory v United Kingdom 25 EHRR 577 which I discuss below. There the careful directions of the judge were held to be sufficient to guarantee that the jury's deliberations would ultimately be impartial, even though there had been a suggestion of racial prejudice in the earlier stages of those deliberations. Even in Sander v United Kingdom (2000) 31 EHRR 1003, which is not easy to reconcile with Gregory, the majority found that there had been a breach of article 6(1), not because of the general approach of English law to dealing with racist remarks and similar improprieties during a trial, but because they were not satisfied that the directions given by the judge would have cured the problem in the particular circumstances. Sir Nicolas Bratza's dissenting opinion makes a persuasive case for the opposite view.
- In the case of the appellant Mirza, the steps taken by the trial judge and by counsel to deal with the possible prejudice are not criticised. The contention in the appeal is that, despite them, when the jurors came to deliberate on their verdict, they displayed racial prejudice against the appellant in various ways, including disregarding what they had been told about the use of the interpreter. The appeal therefore centres around the allegations of misconduct during the jurors' deliberations.
- In advancing their submissions, counsel for the appellants acknowledged that, when jurors deliberate on their verdict, their discussions should in principle be confidential. Contrary to what is sometimes suggested, confidentiality is not maintained for fear that letting in daylight upon magic would reveal the jury as an unjust and irrational institution. Rather, confidentiality is maintained to help juries to do their work efficiently. And that work is of social significance, for the jury acts as "an absorber of the discontent of citizens whose everyday affairs are subjected to the control of the courts": L Green, Judge and Jury (1930), p 376. For this purpose the very simplicity of the jury's verdict, guilty or not guilty, is crucial. Therein lies its value - not in the process by which the jurors believe they arrived at it: cf R v Armstrong  2 KB 555, 568 per Lord Hewart CJ. This characteristic would be compromised if the views and reasons of individual jurors became known and could subsequently be debated. When at one time that looked like happening, Parliament enacted section 8 of the Contempt of Court Act 1981 to ward off the danger. Even more importantly, perhaps, the confidentiality of the jurors' deliberations ensures that they can discuss the case freely, without any fear that individuals' views, whether provisional or final, should later become known and make them the butt of public criticism and ridicule, or worse. Not surprisingly, therefore, a recognition of the importance of maintaining this confidentiality runs through the British and Commonwealth authorities that Lord Hope of Craighead has cited.
- Since the appellants base their argument, in part at least, on article 6(1) of the Convention, it is especially important to notice the approach of the European Court in Gregory v United Kingdom. The applicant, Mr Gregory, who was black, was tried for robbery in the Crown Court. After the jury had been deliberating for about two hours, a note was passed from the jury to the judge, saying "Jury showing racial overtones. One member to be excused." The judge showed the note to the prosecution and the defence. He then recalled the jury and gave them a careful direction on the need for them to put any form of prejudice out of their minds and to decide the case, in accordance with their oath, on the evidence. Mr Gregory was convicted and his appeal against conviction was dismissed. Holding that there had been no breach of article 6(1), the European Court said, 25 EHRR 577, 593 - 594, para 44:
"The Court observes that it was not disputed that there was no evidence of actual or subjective bias on the part of one or more jurors. 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 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."
In other words, faced with a situation where the rule that jurors' deliberations had to be kept secret made it impossible for the trial judge to find out what had given rise to the note, the European Court acknowledged that that rule was not only a legitimate, but a "crucial", feature of English trial law which served worthwhile objectives. Thus the incorporation of article 6 of the Convention into our domestic law can be regarded as reinforcing, rather than as calling into question, the rule that jury deliberations should be kept secret.
- The perceived need to maintain the confidentiality of the deliberations of the jury has been a vital element in the response of appeal courts to allegations by one or more jurors - made after the verdict - that during their deliberations jurors displayed bias against a defendant, did not apply the judge's directions on law or otherwise failed to consider the issues properly. To protect that confidentiality, the courts have held that evidence as to what was said during the jurors' deliberations is inadmissible. Phipson on Evidence, 15th ed (2000), para 24-32 states the law succinctly: "Jurors may not give evidence of discussions that took place in the jury box or jury room concerning the case in which they were acting." See also Walker and Walker, The Law of Evidence in Scotland, 2nd ed (2000), para 13.20.3. This is a clear and well-settled rule as to the admissibility of such evidence.
- Where, on the other hand, the allegation is that the jury has been subjected to some improper influence from outside, such as bribery or intimidation, appeal courts have been prepared to admit evidence relating to that allegation, investigate the matter and set aside the jury's verdict if the allegation is made out. Since proof of the improper extrinsic influence will be sufficient by itself to make the jury's verdict unsafe, no question of admitting evidence as to actual deliberations of the jurors need arise. For the most part at least, such cases are relatively easy to deal with.
- Undoubtedly, the rule that evidence about jurors' deliberations is inadmissible can provoke the kinds of criticism which my noble and learned friend, Lord Steyn, has articulated so effectively. At first sight indeed, that rule might seem to involve a conflict between two competing objectives of the legal system, maintaining the confidentiality of the jury's deliberations and ensuring a fair trial. But, in deliberately adopting this rule, the courts have proceeded on the basis that the defendant's right to a fair trial is indeed respected. In that connexion they have relied on two familiar features of the public part of any jury trial: the judge's directions to the jurors on the law they are to apply and the foreman's declaration of the verdict in the presence and hearing of all the jurors. In the absence of any overt indication to the contrary, such as returning inconsistent verdicts on different counts on the indictment, the law assumes that the jurors will have duly applied the judge's directions. So, if the judge gets the directions wrong in a material respect, the jury's verdict must usually be quashed. The law proceeds on the view that, if a juror who can hear the foreman's words makes no objection when the verdict is announced, he or she must be taken to have assented to the verdict as accurately reflecting the proper conclusion of the jurors' deliberations. Accordingly, when duly announced, the verdict is regarded as the authentic expression of the outcome of the jury's deliberations on the issues in the case, in the light of the directions given by the judge.
- These assumptions are not peripheral but central to the idea of jury trial as fair trial. While they are not easily tested by research, they have been tested by the experience of generations of judges, lawyers, parties and jurors. Thus scrutinised, jury trial has won a degree of respect in the community that would be unthinkable if there were real reason to believe that in their secret deliberations jurors generally failed to discharge their duties conscientiously and so returned wayward verdicts. I refer in general to the observations of Lord Hope of Craighead, citing a number of overseas authorities, in Montgomery v HM Advocate  1 AC 641, 673F - 674F. Occasionally - as in the case of Rollock - when the foreman announces the verdict, one or more jurors immediately indicate that he has got it wrong. The situation is then clarified. Since jurors do in fact intervene in this way when something goes wrong, there is a sound basis for inferring that, in cases where the jurors remain silent, it is because the verdict is acceptable to them.
- For these reasons, even though invited from time to time to reconsider their approach, the highest appeal courts have consistently refused to entertain appeals based on the allegation of a juror, made later, that during their deliberations other jurors showed bias, failed to apply the judge's directions or otherwise acted improperly. If that was indeed the juror's view, then the time to make it known was before the verdict was returned - either by sending a note to the judge, or by speaking to the jury bailiff or by declaring the objection in open court. At that stage matters can be investigated and any appropriate remedy given. Once returned, however, the verdict becomes the verdict of the jury as a whole and, as such, it cannot be impugned by any of the individual jurors who have publicly assented to it. To hold otherwise would not only call into question the entire status and authority of the jury's verdict but would also expose jurors to pressure, especially from convicted defendants and their associates, to make such allegations. The rule that evidence of alleged impropriety during the jurors' deliberations is inadmissible is thus based both on principle and on practical experience. Counsel suggested, however, that some jurors, at least, might be unaware of the position and therefore would not know that they could, and in an appropriate case should, take steps to make their views known. I accept that this may be so. Steps should therefore be taken to minimise that risk. This could be done, for instance, by explaining the position in suitable terms in any guidance sent to jurors when they are summoned for jury service and again in the information video which they are shown when they come to court. I respectfully associate myself with Lord Hobhouse's suggestions in this regard.
- The deemed assent of the jurors to the verdict announced by the foreman is of significance when considering another kind of case that is found in the books: a juror subsequently alleges that one or more of the jurors decided on their verdict by drawing lots, tossing a coin or using a ouija board - the precise mechanism is of no importance. That is not an allegation about the way those jurors deliberated on their verdict but about them reaching their "verdict" by a totally different, illegitimate and irrational process. Therefore, the policy of the law that jurors' deliberations should be kept confidential is no obstacle to admitting such evidence. The objection is, rather, that, if the jurors really reached their verdict in that way, the juror who later makes the complaint should not have stayed silent and assented to the verdict - and he cannot subsequently undermine it. The factors in favour of upholding that objection are powerful. Since, however, one of the two policies underlying the rule against admitting evidence of what allegedly went on in the jury room is not in play, the case against admitting such evidence is correspondingly weaker in these cases. I would accordingly reserve my opinion on the point, which does not arise for determination in these appeals.
- Counsel submitted that, while the approach enshrined in the rule against admitting evidence about jurors' deliberations might have been good enough in the past, it did not meet the standards that an appeal court should apply today: when allegations were made about their deliberations, it should be open to the court, in a suitable case, to admit the evidence and investigate the matter.
- It is not immediately obvious why the rule should be changed today. The law has always been concerned that trials should be fair. So nothing has altered in that respect. Neither article 6(1) of the Convention nor the jurisprudence of the European Court suggests, far less mandates, a different approach. Indeed it supports the policy behind the existing rule. Nor should today's jurors readily be regarded as so much less scrupulous, less conscientious, less intelligent, less well educated or less articulate than their predecessors that all former assumptions must pass away and a new régime be introduced for investigating their deliberations. On the contrary, when Parliament progressively widened the pool from which jurors were to be chosen, it must have been on the assumption that, as a rule, all would be equally capable of serving properly. The underlying considerations that have shaped the law have not changed.
- It is even less obvious how, exactly, it is said that the law should be modified. In attractive submissions counsel for the appellants invited the House to open the door of the jury room just enough to deal with the particular allegations of impropriety in these cases - on the implied assurance that this would not mean having to open it as widely or more widely in other cases. Mr Fitzgerald QC just wanted the Court of Appeal to be able to investigate allegations of racial prejudice. But it is impossible to single out one among many types of prejudice that, left unchecked, could potentially infect jurors' deliberations. Similarly, Mr Gledhill QC just wanted the Court of Appeal to be able to investigate the allegation that, to save time, the jurors had failed to apply the judge's directions on the need to consider the case against each of the appellants separately. But, again, it is impossible to single out the failure to apply one particular kind of direction. In reality the logic of counsel's submissions was that the House should hold that, except where manifestly incredible or unreliable, any evidence as to material impropriety or irregularity in a jury's deliberations should be admitted. The House would have to reverse the present rule that such evidence is inadmissible.
- Lord Steyn considers that he has identified a middle way. He is concerned to uphold the general rule that evidence about jury deliberations is inadmissible, but at the same time to admit "cogent evidence demonstrating a real risk that the jury was not impartial and that the general confidence in jury verdicts was in the particular case ill reposed". It respectfully appears to me that this is not a tenable solution. The rules on the admissibility of evidence rest on general policy considerations and apply to categories of evidence, irrespective of the apparent cogency in any given case of evidence falling within the category. So, for example, in a criminal trial defence counsel cannot lead hearsay evidence of a conversation, however cogent or favourable to the defendant's case the witness's evidence might appear to be. The judge has no discretion to hold a voire dire and then to admit the evidence if it appears to him or her to be cogent. Similarly, I see no proper basis for introducing an exception of the kind envisaged by Lord Steyn to a general rule that the evidence of a juror about the jury's deliberations is inadmissible.
- The unpalatable truth is that there is no sure touchstone for deciding whether the allegation of a juror, considered in isolation, is truly cogent. What at first appeared cogent might look very different if the matter were fully investigated and evidence taken from the other jurors. Conversely, the allegation of a less articulate juror, which at first appeared weak, might look more cogent after investigation. In any event, it would be impossible to allow an appeal - as Lord Steyn envisages in the case of Mirza - simply on the basis of the written statement of one juror, however apparently cogent, without testing it and without ascertaining the position of the other jurors. Respect for their reputations and interests, as well as the wider interests of justice, would demand nothing less. So, in reality, Lord Steyn's approach, too, would soon dismantle the general rule that evidence relating to jurors' deliberations is inadmissible.
- If it were indeed possible to devise a workable exception which would not eat up the rule, then that might be the ideal solution. But over the years judges of the highest authority have considered the matter and have not found such a solution. They have therefore affirmed the rule that evidence about jurors' deliberations should not be admitted. The opinions of Lord Goff of Chieveley in Lalchan Nanan v The State  AC 860, 872, a capital case, ("not excluding altogether the possibility") and of Lord Bingham of Cornhill CJ in R v Millward  1 Cr App R 61, 65 ("save in quite extraordinary circumstances") can stand for all. Unfortunately, in formulating the law judges today can claim no greater skill or knowledge than their distinguished predecessors. They cannot draw lines or make distinctions which those predecessors rightly felt unable to draw or to make. Significantly, when Parliament stepped into the arena in section 8 of the Contempt of Court Act 1981, it was to strengthen, rather than to water down, the protection for the confidentiality of jurors' deliberations. I respectfully agree with what Lord Hope of Craighead says about the construction of that provision. But, as the High Court of Justiciary pointed out in Scottish Criminal Cases Review Commission, Petitioners 2001 SLT 1198, 1202, para 15, even if that provision leaves the appeal court with the necessary powers to investigate jurors' deliberations, this does not mean to say that the court would use those powers in cases like the present. The rule against admitting evidence about the jurors' deliberations stands in the way.
- The law on this matter is well settled. But, of course, despite the endorsement of their approach by Parliament and by the European Court, it may be that the courts have attached undue weight to the confidentiality of jurors' deliberations. Or, for some other reason, the law as laid down in the authorities may not be well suited to conditions today. If that is found to be so, it should, of course, be changed - as some respected critics have indeed suggested. Notably, in the Report of his Review of the Criminal Courts of England and Wales (2001), Chapter 5, para 98 Lord Justice Auld recommended that the Court of Appeal should be able to inquire into alleged impropriety by a jury, whether in the course of their deliberations or otherwise. This would involve a substantial, if not complete, departure from the present law and from its underlying policies. There is, as yet, no sign that the Government intend to bring forward legislation to implement the recommendation. Any such far-reaching reform of the law on this topic must, however, be a matter for Parliament rather than for this House in its judicial capacity. Only Parliament is in a position to weigh the competing policy arguments and, if so advised, to produce a new and suitably sophisticated solution. Unless and until that happens, the existing law must be applied.
- For these reasons, the evidence of the allegations in the letters by the former jurors in these cases is not admissible and is not a basis for concluding that the verdicts of the juries were unsafe. I would accordingly dismiss the appeals.