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Course of study: LA1031 Legal system and method

Extract title: The confidentiality of jury deliberations
Title author: The Honourable Lord Reed
Publication year, Volume, Issue: 2003, 37(1)

Page extent: pp.1–17

Source title: The law teacher

ISBN:
 THE CONFIDENTIALITY OF JURY DELIBERATIONS*

The Honourable LORD REED†

IN 1994 Stephen Young was tried for the murder of Harry Fuller and his
wife Nicola. After the jury retired to consider their verdict, they were
unable to reach a decision that day and were sent to a hotel overnight. The
following day they convicted the accused of both charges. One member of
the jury then consulted a solicitor and alleged that, in the hotel, some
members of the jury had held a seance and had purportedly made contact
with the spirit of one of the victims and received information bearing on
the case. This led the Court of Appeal to ask the Treasury Solicitor to make
inquiries, which revealed that the foreman and three other members of the
jury had set up a ouija board in the hotel: in other words, they sat at a
table with a glass in the centre and pieces of paper around the edge with
the letters of the alphabet on them. The jurors each put a finger on the
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glass, which then moved towards the letters so as to reveal a message from
beyond the grave. In the words of one of the jurors:

Ray [the foreman] then asked Is anyone there?'. The glass went to
'Yes'. Ray said, 'Who is it?'. The glass spelt out 'Harry Fuller' . . .
Ray said, 'Who killed you?'. The glass spelt out 'Stephen Young done
it'. . . . Ray also asked who killed Nicola and the glass spelt out
'Stephen Young' . . . . It continued, 'Vote guilty tomorrow'.1

The most bizarre feature of this case is perhaps not the fact that the
jurors held a seance to discover whether the accused was guilty. It is
perhaps even more surprising that, legally, it was not a straightforward
matter to have any inquiry made into the allegation. The difficulty lay in
the court's reluctance to breach the confidentiality of a jury's deliberations,
and in the statutory embargo imposed by section 8 of the Contempt of
Court Act 1981.2 The court found a way around those difficulties by
holding that the jury was not in the course of its deliberations while it was
in the hotel. It remains to be seen how the court would respond if a jury
were alleged to have set up a ouija board in the jury room; but the
precedents—cases where the jury was alleged to have tossed a coin or
drawn lots3—suggest that the court should do nothing whatever about it.
This might be thought to be rather an odd situation, and it may be of
interest to examine why a rational system of law has developed in this way.

* This paper was presented as the 36th Lord Upjohn Lecture at the Inns of Court School of Law
on 6 December 2002.
† Senator of the College of Justice in Scotland.
1 R v. Young [1995] Q.B. 324, 332-333.
2 c. 49.
3 See the cases cited in n. 8.

1
 2 THE HONOURABLE LORD REED

It is also an issue of some topicality. The recent report by Lord Justice

Auld4, which was published in October 2001, recommended:

Section 8 of the Contempt of Court Act should be amended to permit,

where appropriate, enquiry by the trial judge and/or the Court of
Appeal (Criminal Division) into alleged impropriety by a jury,
whether in the course of its deliberations or otherwise.5

In the White Paper issued in July 2002, the Government said that they
would consider this recommendation further.6 My final excuse for adding
to all that has already been said about this topic rests on my having sat as
a member of the High Court of Justiciary in Scotland—our Court of
Criminal Appeal—on the last occasion when it had to consider the issue of
confidentiality of jury deliberations.7 The Scottish approach has not been
quite the same as that followed in England and Wales, and it may be of
interest in the context of the current debate.
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It was established by at least the early nineteenth century, both in Scots

law and in English law, that a verdict could not be challenged on the basis
of evidence from jurors that the verdict had been arrived at as the result of
a mistake or the drawing of lots.8 A number of reasons were put forward.
One which was prominent in relation to jury misconduct was the bar at
that time on admitting evidence of the commission of an offence which
emanated from the offender himself. Other reasons rested on wider issues
of public policy. As some of the considerations put forward in these older
cases have continued to be treated as compelling, it is worth taking a
moment to consider them.
One consideration has been the importance of an uninhibited discussion
of the case when the jurors are deliberating. There has been a concern that
jurors need to be confident that their discussions will not be disclosed if
they are to deliberate freely.9 This concern has been endorsed in more
recent times, for example in the reports of the Departmental Committee on

4 Review of the Criminal Courts of England and Wales (2001).

5 Recommendation 29.
6 Justice for All (2002) CM 5563, Appendices, p. 15.
7 Scottish Criminal Cases Review Commission, Petitioners, 2001 S.C.C.R. 775.
8 For Scots law, see e.g. Mill v. Nicol (1767) MacLaurin, No. 78; Hume, Commentaries on the Law of
Scotland (1819), Vol. II, p p . 429-430; Stewart v. Fraser (1830) 5 Murray 166. For English law, see
e.g. Vaise v. Delaval (1785) 1 T.R. 11; Owen v. Warburton (1805) 1 Bos & Ful. (N.R.) 326; R v.
Wooler (1817) 2 Stark 11; Straker v. Graham (1839) 4 M & W 721; Roberts v. Hughes (1841) 7 M &
W 399.
9 See e.g. Stewart v. Fraser, at p p . 179-180 per Lord Chief Commissioner Adam.
 THE CONFIDENTIALITY OF JURY DELIBERATIONS 3

Jury Service10 and of the Criminal Law Revision Committee11, during the
Parliamentary debates on the Contempt of Court Bill, and in judgments of
the courts.12 As a judge who spends much of his time sitting with juries, I
share the view that this is an important consideration. Many members of
the public are nervous even at the prospect of jury service, and it often
imposes a considerable strain.13 It is not uncommon for jurors to be
concerned for their personal safety, and unfortunately they sometimes have
reason to be fearful. If their deliberations were liable to be reported in the
media, that would be an additional source of anxiety.
At the same time, there are a number of observations which might be
made. First, this consideration is only concerned with the jury's discussion
and decision of the case: the exchange of ideas and opinions, and the
casting of votes. It is not a consideration, as it seems to me, which need
cause a court to hesitate before inquiring into an allegation that the jury
had tossed a coin or had held a seance in the jury room. Second, this
consideration is directed towards ensuring that jurors carry out then-
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deliberations in the expectation that those deliberations will be treated as

confidential. That is an expectation which it is important that jurors should
hold, as regards their impartial discussion of the evidence and of the issues
which they have to determine, in order to foster free and frank discussion.
It is more questionable whether the jury need to have, or can legitimately
have, an expectation that confidentiality will extend to expressions of bias,
such as racial prejudice, or to discussion of extrinsic issues which should
not form any part of their deliberations, such as private knowledge about
the accused's record. They will have taken an oath to give a true verdict
according to the evidence, and they will have been directed by the trial
judge to base their verdict on the evidence. Third, if jurors are to have an
expectation of confidentiality, and if the legal system is to treat jurors with
integrity in leading them to believe that their deliberations are confidential,
then any rules permitting inquiry into what has happened in the jury room
have to restrict inquiry to circumstances in which confidentiality cannot
legitimately be expected; they have to be applied sufficiently restrictively
for inquiry to be the exception rather than the rule; and any inquiry has to
be carried out in a way which has regard to the jurors' safety, their privacy
and their sense of security.
That first consideration is closely related to a second, namely the need to
protect jurors from reprisals or censure. That seems to me to be a
consideration whose weight in support of an exclusionary rule depends on
the extent to which any inquiry could be carried out without jeopardising
the jurors' privacy and security.

10 (1965) Cmnd. 2627, para. 355.

11 10th Report, Secrecy of the Jury Room (1968), Cmnd. 3750, para. 9.
12 e.g. Attorney-General v. Associated Newspapers Ltd [1994] 2 A.C. 238, 247-248 per Beldam L.J.
13 Darbyshire, Maughan and Stewart, "What Can the English Legal System Learn from Jury
Research Published up to 2001?", www.criminal-courts-review.org.uk, pp. 42, 46.
 4 THE HONOURABLE LORD REED

A third consideration is related to the first two. That is that if the courts
were willing to admit evidence from members of a jury tending to
undermine the verdict which the jury had returned, then jurors might be
exposed to inducements, intimidation or other forms of pressure to produce
such evidence after delivering their verdict.14 That again appears to me to
be a legitimate consideration. At the same time, it is not self-evident that
this consideration must in all circumstances outweigh countervailing
considerations. A complete ban on inquiry into allegations made by jurors
would clearly be calculated to discourage the inducement of jurors to make
false allegations, but it may be arguable that a less absolute approach could
strike a better balance between the protection of jurors and the prevention
of miscarriages of justice.
A fourth consideration has been the desirability of finality within the
judicial process.15 That is a consideration to which, in general, we appear to
attach less importance than previous generations. Appeals based on fresh
evidence or on defective representation, and the establishment of the
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Criminal Cases Review Commission and its Scottish equivalent, are

examples of our prioritising justice over finality. We appear in most aspects
of criminal appeals to have adopted Lord Atkin's dictum, "Finality is a
good thing, but justice is a better".16 Views may differ as to the merits of
this approach; but our unwillingness to accept the need for finality as
sufficient justification for refusing to investigate possible miscarriages of
justice in other contexts renders it difficult to regard it as a convincing
justification for refusing to inquire into what has gone on in the jury room.
A fifth consideration has been the undesirability of enabling the issue
before the jury to be "retried" in the media on the basis of information
provided by jurors, possibly leading to unjustifiable dissatisfaction with the
results of trials, unjustified criticism of juries and a loss of confidence in the
administration of justice. This consideration has been emphasised in
discussion of whether jurors should be prevented from disclosing their
deliberations to the media, for example in the report of the Criminal Law
Revision Committee.17 They pointed out that such a "retrial" would take
place without any judicial control and probably with imperfect knowledge
of the evidence given at the trial, and might well give a false impression,
especially as other jurors might feel inhibited from coming forward and
correcting mistaken statements by the juror who had supplied the
information. These concerns do not arise in the context of inquiry by an
appellate court. In that context, the dangers inherent in a "retrial" by the
media ought to be absent.
A sixth consideration relates to the distinction between deliberations and

14 See e.g. Mill v. Nicol, (n. 8) at p. 375; Hume, n. 8.

15 See e.g. Stewart v. Fraser (n. 8), at pp. 188-189 per Lord Pitmilly; Straker v. Graham (n. 8), per
Lord Abinger C.B.
16 Ras BehariLalv. The King-Emperor (1933) 50 TLR 1, 2.
17 n. 11, ante, at para. 9.
 THE CONFIDENTIALITY OF JURY DELIBERATIONS 5

reasons. When a judge decides a case, his deliberations may be reflected to

some extent in the successive drafts of a judgment. An examination of
those drafts may reveal misunderstandings of the law or of the evidence.
But that process of deliberation is beside the point if an appeal is taken
against his decision. What then matters is his concluded view as to the
reasons which justify his deciding the case in a particular way, rather than
the thought processes leading u p to those final reasons. When one
considers the position of a jury, it is equally important to remember that
their deliberations are not the reasons for the verdict. Jurors may or may
not take part in the deliberations; they may or may not be persuaded by
what is said by others. 18 The point of this consideration is that the jury's
deliberations will reveal what was said by some members of the jury, but
may not disclose the reasons for the jury's verdict, since the jury are not
required to articulate such reasons.
Some preliminary points emerge, I would suggest, from this discussion.
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One is that the strength of the arguments against disclosure of what has
occurred in the jury room depends to some extent on the nature of the
information whose disclosure is sought and the circumstances under which
the disclosure might take place. The arguments against the disclosure of
discussions between jurors seem to me to be stronger than the arguments
against the disclosure of occurrences which are extrinsic to such
discussions, such as the tossing of coins, the holding of seances, the
carrying out of experiments or site visits or the making of telephone calls.
The arguments against the disclosure of discussions which the jury ought
properly to be having—discussion of the evidence and of the relevant
issues—seem to me to be stronger than the arguments against the
disclosure of discussion of extrinsic matters, such as private information
about the accused's record, or racist assumptions about the accused or the
complainer. The arguments against disclosure to the media seem to me to
be stronger than the arguments against disclosure in the context of a
judicial inquiry. The arguments against disclosure for the purpose of
ascertaining the reasons for the jury's verdict seem to me to be stronger
than the arguments against disclosure for the purpose of ascertaining
whether some impropriety or irregularity occurred during the deliberations.
A second point, I would suggest, is that the extent to which the arguments
against disclosure should prevail over countervailing considerations is a
matter of judgment. It may be, as the Supreme Court of Canada has said,
that a legal system has to strike "a balance between, on the one hand,
preserving the secrecy of deliberations to permit the effective functioning of
the jury system and, on the other hand, ensuring that accused persons are
not at risk of being convicted as a result of a perverse process". 19 It is also

18 An interesting survey of research material on jury deliberations is provided by Darbyshire

et al. (n. 13).
19 R v. Pan [2001] 2 S.C.R. 344, para. 38.
 6 THE HONOURABLE LORD REED

important to remember however that ensuring the effective functioning of

the jury system encompasses ensuring that juries do not convict or acquit
as the result, for example, of the toss of a coin or racial prejudice. In other
words, the appellate process is not antithetical to the effective functioning
of the jury system: on the contrary, the appellate process and the
confidentiality of deliberations are both means of ensuring that jury trial
works properly, but they are means which to some extent are in tension
with one another, and between which a balance therefore has to be struck.
During the twentieth century, the policy considerations put forward in
the older cases continued to be treated by the courts as extremely powerful,
and in the leading case of Thompson in 1962 the Court of Appeal held that
it had no right to inquire, by evidence from jurors,20 into what occurred in
the jury room. The court therefore refused on principle to inquire into an
allegation that during the jury's deliberations a member of the jury had
produced information about the accused's previous convictions.21 This
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decision could be contrasted with the slightly later case of Brandon, in 1969,
where the allegation was that, after the jury had retired to consider their
verdict, the jury bailiff had made a remark to jurors whom he was
escorting to the lavatory which revealed that the accused had previous
convictions. That case was referred to the Court of Appeal by the Home
Secretary after inquiries had been made. The Crown did not seek to
support the conviction, and it was quashed.22 Even if the matter had not
already been inquired into, it seems to me that it would have been possible
for the court to have admitted evidence to establish whether the allegation
was true, in the circumstances of that case, without departing from the
principle laid down in Thompson. The rationale for the different results in
these two situations is legally intelligible: in one case the prejudicial
information emanated from a source outside the jury room, whereas in the
other case the information, although equally prejudicial, was provided by
one of the jurors. Nevertheless this is an incongruous outcome: in each
case, the information was the same, the impropriety of the jury's taking it
into account was the same, and the danger of its having a prejudicial effect
upon the jury was the same. Another aspect of the principle in Thompson
which might be thought to be curious is that if, during a trial, the judge
became aware of an irregularity which had occurred during the jury's
deliberations, such as the revealing of private information about the
accused23, the judge would be expected to make inquiries and to take

20 In R v. Bean [1991] Crim.L.R. 843 it was said that the principle applied also to evidence
coining from third parties. For the reasons explained in Prof. Sir John Smith's commentary,
these observations may best be regarded as obiter dicta.
21 R v. Thompson (1962) 46 Cr.App.R. 72. Dicta to the same effect had been pronounced in Ellis v.
Deheer [1922] 2 K.B. 113 and Ras BehariLalv. King-Emperor (n. 16).
22 R v. Brandon (1969) 53 Cr.App.R. 466. See also R v. Hood [1968] 1 WLR 773, which is perhaps
more difficult to distinguish convincingly from Thompson.
23 The Criminal Law Revision Committee suggested that any juror would be under a duty to
inform the court at once of such an irregularity: n. 11, para. 10.
 THE CONFIDENTIALITY OF JURY DELIBERATIONS 7

appropriate action, provided the matter came to his attention before' the
verdict had been delivered.24 A defendant would therefore be protected if a
conscientious juror revealed an impropriety during the trial, but not,
apparently, if the juror waited until the verdict had been delivered. As Lord
Atkin observed, in the passage which precedes the dictum I quoted earlier:

It would be remarkable indeed, if what would be 'a scandal and

perversion of justice' may be prevented during the trial, but after it
has taken effect the courts are powerless to interfere.25

I suggested earlier that a legal system has to decide to what extent the
confidentiality of jury deliberations should be preserved, so as to ensure the
effective functioning of the jury system, bearing in mind that another
objective—or, rather, another aspect of ensuring the effective functioning of
jury trial—is to ensure that accused persons are not convicted without a fair
trial. Any rule governing the confidentiality of jury deliberations requires
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the demarcation of what is confidential from what can be inquired into by

an appellate court. The boundary which is drawn around what is
confidential is thus also a boundary which is set to the appellate process.
The approach adopted in Thompson draws the boundary around the jury
room. What is internal to the jury room—in other words, what the jury say
or do while they are there together—is confidential: only extrinsic matters
can be investigated. From the perspective of preserving the confidentiality
of jury deliberations, and in that respect ensurmg the effective functioning
of jury trial, this approach offers the attractions of clarity and predictability.
From the perspective of enabling appellate courts to inquire into possible
unfairness, and in that respect ensuring the effective functioning of jury
trial, the Thompson approach is less attractive, as we have seen. That is
because the boundary which it sets to the appellate process is not related to
the objectives of that process: the court's ability to deal, for example, with
an allegation that the accused's' record improperly came to the knowledge
of the jury depends on whether the source of the information was a
member of the jury—a matter which is not germane to the question
whether the accused received a fair trial. A question worth considering is
whether it would be possible to set a boundary which made better sense
from both perspectives.
The rule which we have been considering so far is an embargo placed
by the courts upon themselves. During the twentieth century it became
apparent that it was necessary in addition to have in place a rule which
dealt with disclosures by jurors to the media. The problem first emerged
after a sensational murder trial in the 1920s,26 when it was suggested that

24 As occurred in Hood (n. 22) and in R v. Lucas [1991] Crim.L.R. 844.

25 Ras Behari Lal (n. 16) at p . 2.
26 R v. Armstrong [1922] 2 K.B. 555.
 8 THE HONOURABLE LORD REED

such conduct might amount to a contempt of court.27 The issue came to a

head in 1980, after the Divisional Court held that the publication in the New
Statesman of a juror's account of the jury's deliberations in the trial of
Jeremy Thorpe had not amounted to a contempt of court.28 The following
year the issue was addressed by section 8 of the Contempt of Court Act.
Section 8 lays down a general rule, and then disapplies that rule in
certain circumstances. The general rule is this:

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.29

That rule however does not apply:

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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.30

The scope of section 8 was considered by the Court of Appeal in a case

in 1993 where a juror had had a mobile phone with him during the jury's
deliberations and there was a concern about the calls he might have made
or received. The court considered a statement which the Crown had
obtained from the juror, but emphasised that they were looking at it solely
to be assured that the juror had not been subjected to pressure from
outside, and were not inquiring into what had passed between the jurors in
the discussions leading to their verdict. Since the statement was not
concerned with the deliberations themselves, section 8 did not apply.31
Section 8 was considered again by the Court of Appeal in 1994 in the
case of Stephen Young, with which I began this paper.32 You will recollect
that the first thing the court had to decide was whether to make any
inquiry into the juror's report that a seance had been held. This was

27 Ellis v. Deheer (n. 20), at p. 118 per Bankes L.J., at pp. 119-120, per Warrington L.J. and at
pp. 121-122, per Atkin L.J.
28 Attorney General v. New Statesman [1981] 1 Q.B. 1.
29 s. 8(1).
30 s. 8(2).
31 R v. McCluskey (1994) Cr.App.R. 216: The Court also emphasised that, regardless of section 8,
inquiries of jurors should in future be undertaken only with the consent of the court similarly
R v. Mickleburgh (1995) 1 Cr.App.R. 297.
32 n. 1.
 THE CONFIDENTIALITY OF JURY DELIBERATIONS 9

opposed by the Crown on the basis that, once the jury had retired to
consider their verdict, section 8 applied and no inquiry could be made into
their activities. It was argued on behalf of the appellant and by the amicus
curiae, on the other hand, that section 8 did not bind the court: the court
could not itself be in contempt of court. That argument was rejected:

We cannot accept this. 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 or 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
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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.33

It seems to me, with the greatest respect, that it is perhaps possible to

maintain the contrary argument. The fact that section 8(1) is in the widest
terms and contains no exceptions does not, as it seems to me, address the
point being made. The argument is not that section 8(1) is in limited terms
or contains an implied exception. The argument is, rather, that by providing
that to obtain information about a jury's deliberations is a contempt of
court, Parliament cannot have intended the provision to apply to the
conduct of the court itself. The argument that, if the court were excluded
from the embargo in section 8(1), section 8(2)(a) would not have been
necessary, is also perhaps questionable: section 8(2)(a) would not be otiose,
since it would protect persons, such as jurors, to whom section 8(1)
undoubtedly applies. The sharp-eared bailiff is also not someone who
would have caused such concern to those judges, from Lord Mansfield 34 to
Lord Atkin, 35 who accepted the admissibility of evidence of impropriety in

33 At p. 330.
34 Vaise v. Delaval (n. 8): T h e Court cannot receive such an affidavit from any of the jurymen
themselves, in all of whom such conduct is a very high dismeanour, but in every such case
the court must derive their knowledge from another source; such as some person having seen
the transaction through a window, or by some other means." Similarly, Stewart v. Fraser (n. 8)
at pp. 168, 182 per Lord Chief Commissioner Adam. See also Pirie v. Caledonian Railway Co
(1890) 17R. 1157, 1161 per Lord President Inglis, 1162 per Lord Shand; R v. Miah (n. 37).
35 Has Behari Lal (n. 16).
 10 THE HONOURABLE DORD REED

the jury room provided it did not come from a juror. More generally, it
might be argued that the mischief at which section 8 was aimed was
disclosure to the media and other third parties, and that Parliament did not
have in mind the powers of appellate courts. An examination of Hansard,
for example, reveals no consideration of appeals: the mischief which the
Government had in mind when it introduced the Bill was disclosure to
journalists, while those responsible for the amendment of clause 8 of the
Bill had in mind the potential mischief, as they perceived it, of social
science research into juries.
In any event, the court reviewed the common law authorities and
interpreted the cases where the court had investigated what had happened
after the jury retired as being cases which related to possible extrinsic
influences on the jury: something other than the jurors' deliberations among
themselves.36 The court, it was said, had resolutely refused to consider
what might have taken place between jurors during their deliberations or
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how the jury reached their verdict. At this point in the reasoning, one
might have thought that Mr Young faced an uphill task; and, if the
allegation had been of a seance being held in the jury room—which one
might have thought would be even worse—it rather looks as though the
court would have refused to make any inquiry. As I have said, however,
the court held that the jury could not be said to be "in the course of its
deliberations" while it was in the hotel, and the court was therefore entitled
to inquire, but only into the events in the hotel.
Since Young, the Court of Appeal has applied the same approach in a
number of cases. In the case of Miah, in 1996, the court said that, even
where the 1981 Act did not apply, the common law rule barred the court
from inquiring into anything said by one juror to another about the case
from the moment the jury was empanelled, at least provided what was said
was not overheard by anyone who was not a juror.37 More recently, in the
case of Qureshi,3S a juror wrote to the court after the trial, alleging that
racist remarks had been made throughout the trial by some members of the
jury. The court held that it was not proper to make any inquiry into these
allegations, because they concerned what was said and done between jurors
in private after they were empanelled. The court emphasised the need to
enforce a strict rule so as to protect jurors, observing that if such a
complaint were to be investigated and led to a successful appeal, it might
lead to "many such complaints, some perhaps owing their origin to friends
or relatives of the defendant who may be tempted to discover and target

36 Whether a ouija board is, on this analysis, distinguishable from a mobile telephone (cf. R v.
McCIuskey, n. 31), depends on one's beliefs about the occult.
37 R v. Miah (1997) 2 Cr.App.R. 12, 18. See also R v. Millward (1999)] 1 Cr.App.R. 61. Contrast
however R v. Brackley and Weller, 3 November 2000, unreported, where the court heard oral
evidence from jurors covering inter alia what was alleged to have been said by one juror to
the others about his knowledge of the accused, prior to the jury's retiring.
38 [2002] 1 W.L.R. 518.
 THE CONFIDENTIALITY OF JURY DELIBERATIONS 11

jurors who disagree".39 The court rejected the argument that a departure
from the approach adopted in the earlier authorities was required by the
Human Rights Act 1998. Prof. Sir John Smith, in a commentary on the
decision, observed that if the allegations were true and the court had been
able to inquire into them, then the conviction would probably have been
held to be unsafe; but that, as it was, we would never know. In Sir John's
words, this was "not a happy situation".40 The decision in Qureshi was
followed by the Court of Appeal in the recent case of Mirza,41 where the
accused was a Pakistani who had lived in the United Kingdom for twelve
years and had an interpreter at his trial. During the course of the trial, the
jury sent a note asking when the accused had come to the United
Kingdom, and another note asking the interpreter whether, in his
experience, it would be typical of someone of the accused's background to
require an interpreter, despite living in this country as long as he had. The
issue of the interpreter was then made the subject of an admission by the
prosecution and the defence; it was addressed in both the final speeches;
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and it was the subject of a specific direction by the trial judge that no
adverse inference should be drawn from the accused's having an
interpreter. Shortly after the accused had been convicted, a juror wrote to
the accused's counsel saying that, from the beginning of the trial, there
was a theory among some of the jury that the use of the interpreter was
in some way a devious ploy. The question of the interpreter had been
raised at an early stage during the jury's deliberations, and the writer of
the letter had been "shouted down" when she sought to remind the other
jurors of the judge's direction. Members of the jury had refused to accept
the judge's direction, and the writer concluded that some members of the
jury had decided that the accused was guilty because he had pretended to
need an interpreter. The Court of Appeal held that it could not inquire
into this allegation, because it was bound by the earlier authorities, but it
certified for the House of Lords two points 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?
(2) 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

39 Para. 15.
40 [2002] Crim.L.R. 62, 63.
41 [2002] Crim.L.R. 921.
 12 THE HONOURABLE LORD REED

into evidence of a statement from a juror which, if admitted,

would provide prima facie evidence of partiality in breach of Article
6? If not, is section 8 incompatible with Article 6 to the extent that
it prohibits the admission into evidence of such a statement.

The Court refused leave to appeal, but I understand that leave has recently
been granted by the House of Lords.
In Scotland, the High Court of Justiciary has also required on a number
of occasions to deal with appeals based on allegations of bias or improper
behaviour on the part of jurors,42 but only a small number of cases have
been concerned directly with inquiries after the trial into discussions
between jurors in the course of their deliberations. The first case, in 1916, is
of little assistance as a precedent, but is nevertheless of interest. It was
alleged that, after the jury had retired to consider their verdict, one juror
had communicated to the others private knowledge about the accused. No
objection was taken to the competency of the appeal, and the court ordered
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that an inquiry should be undertaken by the trial judge. He found that the
allegation was true. At that stage, the Crown belatedly challenged the
competency of the appeal and of the inquiry undertaken. The court
quashed the conviction, but stated that the case was not to be regarded as a
precedent.43 The case illustrates the possibility of miscarriages of justice to
which the approach usually followed requires appellate courts to turn a
blind eye.
The second case was in 1998. The allegation was that a juror had
disclosed to the jury during their deliberations that the accused, who was
charged with drugs offences, had a previous conviction for a drugs offence.
The allegation was based on an affidavit by a person who claimed to have
spoken to a member of the jury after the trial. The court held that the
evidence before it was not prima facie sufficiently substantial, convincing
and trustworthy to warrant an inquiry. The court did not discuss the
question whether section 8 applied to the court itself, but appears to have
approached the case on the basis that in principle it could have ordered an
inquiry into an allegation of that nature.44
The scope of section 8 was considered by the court in a case in 2001
which was brought by the Scottish Criminal Cases Review Commission.45
The Commission has a statutory power to undertake inquiries and obtain
statements, and it sought the court's opinion on the question whether that
power extended to inquiries of jurors as to discussions between them

42 See e.g. McCadden v. HMA, 1985 S.C.C.R. 282; Pike v. HMA 1986 S.C.C.R. 633; Russell v. HMA,
1991 S.C.C.R. 790; Blance v. HMA 1992 S.C.C.R. 470; Pullar v. HMA, 1993 S.C.C.R. 514; Gray v.
HMA, 1994 S.C.C.R. 225; Kerr v. HMA, 1999 S.C.C.R. 763; McLean v. HMA, 2001 S.C.C.R. 526;
and Smith v. HMA, 15 November 2002.
43 Ventner v. HMA, 1916, 2 S.L.T 330.
44 Swankie v. HMA, 1999 S.C.C.R. 1.
45 n. 7
 THE CONFIDENTIALITY OF JURY DELIBERATIONS 13

during their deliberations or at earlier stages of a trial. The court considered

that the Commission was bound by section 8. It interpreted the reference to
"deliberations" in section 8 as meaning that the ambit of the provision was
restricted to what occurred when the jurors were considering their verdict
in the jury room after being directed by the judge to retire to do so. More
precisely, the court observed that that was the moment when the jury
engaged in the formal discussion of the evidence and determined the
accused's guilt or innocence: a solemn matter, appropriately described by
the term "deliberations".
The court also considered the question whether its own powers of
investigation 46 were limited by section 8. 47 In relation to that question, the
court referred to the decision of the Court of Appeal in Young48, and
acknowledged that the arguments accepted in that case were powerful and
consistent with a considerable tract of powerful authority that the court
should never enquire into the jury's deliberations. The court observed
however that there were arguments on the other side, and said:
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In particular, we note that, according to the long title, the purpose of

the 1981 Act was 'to amend the law relating to contempt of court and
related matters'. In that context we have some difficulty in applying
the idea of contempt of court to a situation where a court itself makes
enquiries not with the aim of bringing the court in question into
contempt but with the very different aim of trying to ensure that
justice does not miscarry Moreover, Parliament has not qualified the
appeal court's powers under section 104 of the 1995 Act by reference
to section 8.49

The court also adverted to the unsatisfactory situation if the court had to
dispose of an appeal based, for example, on an allegation that racist
comments were made during the jurors' deliberations, without being able
to inquire into the allegation. Since the point did not require to be decided,
the court reserved its opinion both as to the effect of section 8 on the
court's powers of enquiry, and as to whether in any event the court would
use those powers to enquire into a jury's deliberations.
The secrecy of deliberations, including jury deliberations, is not of course
unique to the common law world: 50 it is for example established in French

46 Section 104 of the Criminal Procedure (Scotland) Act 1995 provides inter alia: "(1) Without
prejudice to any existing power of the High Court, it may for the purposes of an appeal
under section 106(1) or 108 of this Act—. . .. (b) hear any evidence relevant to any alleged
miscarriage of justice or order such evidence to be heard by a judge of the High Court or by
such other person as it may appoint for that purpose;—. . . (d) remit to any fit person to
enquire and report in regard to any matter or circumstance affecting the appeal . . .."
47 The Court also considered the position of the prosecution and the defence in (and in advance
of) the subsequent proceedings envisaged by s. 8(2)(b).
48 n. 1.
49 At pp. 783-784.
50 It is not as strictly enforced in all common law jurisdictions as in England and Wales. In the
 14 THE HONOURABLE LORD REED

law that the Cour de Cassation will not inquire into the deliberations of a
jury.51 It has to be remembered however that a French jury deliberate
together with the trial judges, who can take action if, for example, racist
comments are made.52 The European Court of Human Rights equally
respects the secrecy of deliberations: indeed, when I have sat as a member
of the court, I have had to swear an oath to keep secret all deliberations.53
In cases brought against the United Kingdom, the Court has expressly
acknowledged that the rule of English law governing the secrecy of jury
deliberations is, in the Court's words, "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".54 At the same time, the Court has
made it clear that if domestic courts are not willing to investigate
allegations of racist remarks or other improprieties in the course of the
jury's deliberations, then they may have to quash the conviction, depending
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on the nature and strength of the allegation. In particular, the conviction

will have to be quashed if it is impossible to exclude any objectively
justified or legitimate doubts as to the impartiality of the jury.55 In other
words, it appears that the confidentiality of jury deliberations is not
regarded as being in itself incompatible with Article 6 of the Convention;
but if an appellate court is unwilling to investigate an allegation of jury
impropriety, then it appears that Article 6 will require it to quash the
conviction in circumstances where the allegation is prima facie sufficiently
substantial. That was something which the High Court of Justiciary had in
mind when, in the case brought by the Scottish Criminal Cases Review
Commission, it expressed concern that if it did not inquire into such
allegations, it would have to decide appeals on the basis that the allegation
might be true, when in fact it could well not be; or on the basis that the
allegation did not appear to be true, when it might in fact be well-founded.
Drawing these various threads together, it seems to me that a rule which
prohibits an appellate court from ever inquiring into what has been said or
done by jurors after they have retired to consider their verdict (or even
during earlier stages of the trial) is liable to result in miscarriages of justice;
and I am not myself persuaded that such an absolute prohibition is justified
by the considerations I mentioned earlier, important though those
considerations are. I suggested earlier that the weight of those

United States of America, for example, the media cannot normally be prevented from
interviewing jurors by reason of the First Amendment to the Constitution. In the context of
inquiries into the validity of a verdict, rule 606B of the Federal Rules of Evidence permits
jurors to testify as to "extraneous prejudicial information", but not otherwise as to statements
made during deliberations. For Canada, see R v. Pan (n. 19).
51 Crim. 22 June 1988: Bulletin des arrêts de la chambre criminelle de la Cour de Cassation, no. 285.
52 cf. Remli v. France (1996) 22 E.H.R.R. 253.
53 As required by rules 3 and 29 of the Rules of Court.
54 Gregory v. United Kingdom (1997) 25 E.H.R.R. 577, para. 44. Similarly Miah v. United Kingdom
(1998) 26 E.H.R.R. C.D. 199.
55 Sander v. United Kingdom (2001) 31 E.H.R.R. 1033; cf. Gregory (n. 54).
 THE CONFIDENTIALITY OF JURY DELIBERATIONS 15

considerations depended to some extent on the nature of the information

whose disclosure was sought and the circumstances under which the
disclosure might be made, and that it was necessary to strike a balance
between the competing demands of confidentiality and reviewability in
order to secure an effective system of jury trial. Specifically, it appears to
me that the considerations in favour of confidentiality are weakest, and the
countervailing considerations are strongest, where what is in issue is not
the jury's examination of the issues and evidence properly before them, but
an allegation of bias or procedural irregularity. If, in such a case, the court
were to order an inquiry only where, to use the formula adopted in the
Scottish cases, the evidence was prima facie sufficiently substantial,
convincing and trustworthy to warrant an inquiry, and if the inquiry took a
form which protected the jurors' safety, privacy and sense of security,56
then I am not persuaded that the institution of trial by jury would be
jeopardised.. If, on the other hand, the court refuses to make any inquiry
where an appellant has prima facie a substantial case that the jury was
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biased or behaved improperly, then it will have either to refuse the appeal
or to allow it, without knowing whether the allegation is in fact true. If the
appeal is refused, then in any case where the allegation was in fact true,
there will have been a miscarriage of justice. If the appeal is allowed, then
in any case where the allegation was in fact false, a sound conviction will
have been quashed. The first of those was the likelier possibility in the past.
The second may be more common in the future, under the influence of
Article 6 of the ECHR. Each possibility appears to me to be unattractive.
How might a principled distinction be drawn between the type of
allegations which the court should investigate and those which it should
not? The distinction drawn, implicitly at least, in the cases concerned with
the confidentiality rule as it exists at common law and also in the cases
concerned with section 8, between matters which are intrinsic to the process
of deliberation and matters which are extrinsic, is one which is capable of
development beyond the level of distinguishing between events in the jury
room and events in a hotel, or between information provided by a juror
and information provided by a jury bailiff. A more sophisticated distinction
between the intrinsic and the extrinsic has for example been drawn by the
Supreme Court of Canada. In a recent judgment, it reinterpreted the
common law rule of confidentiality in these terms:

Statements made, opinions expressed, arguments advanced and votes

cast by members of a jury in the course of their deliberations are
inadmissible in any legal proceedings. In particular, jurors may not

56 cf. Scottish Criminal Cases Review Commission, Petitioners (n. 7), at para. 8. The suggestion that
jury deliberations should be tape-recorded has been made on a number of occasions, e.g. by
Prof. Sir Rupert Cross [1967] Crim.L.R. 575, and by Prof. J. R. Spencer [2002] 61 C.L.J. 291. I
doubt whether this would be acceptable to public opinion, and I would also be concerned that
it might inhibit discussion in the jury room.
 16 THE HONOURABLE IJDRD REED

testify about the effect of anything on their or other jurors' minds,

emotions or ultimate decision. On the other hand, the common law
rule does not render inadmissible evidence of facts, statements or
events extrinsic to the deliberation process, whether originating from
a juror or from a third party, that may have tainted the verdict.57

On that approach, evidence could be admitted on appeal to establish, for

example, whether one juror had told the others about the accused's record,
but not, apparently, to establish whether the jurors had expressed racial
prejudice58, or had reached their verdict by tossing a coin.59
I would suggest that one way forward would be to continue to
distinguish between matters which are intrinsic to the process of
deliberation and matters which are extrinsic to that process, but to construe
the term "deliberation" in a strict sense, along the lines in which it was
construed by the High Court of Justiciary in the case I mentioned earlier,60
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as meaning the jury's formal discussion of the evidence and their

determination, on the evidence, of the deceased's guilt or innocence.
Improper conduct such as tossing a coin, for example, should not, I would
suggest, be regarded as part of a process of deliberation. It is the antithesis
of deliberation: a different type of decision-making process altogether. The
introduction of information which bears or purports to bear on the case but
does not form part of the evidence before the jury and goes beyond the
general knowledge and experience that jurors can legitimately bring to their
task—for example, information about the accused's record, or the results of
a seance or an experiment—is equally extrinsic to deliberation on the
evidence, whether the information emanates from inside the jury or from
outside it. It might well be argued that bias is equally extrinsic to a process
of deliberation: a predisposition to reach a conclusion because of the ethnic
origins of the accused or the complainer, or his having an interpreter to
assist him, is arguably not part of the process of deliberation on the
evidence, but something which prevents or hinders that process from
taking place. Put another way, the "deliberation" which is required of a jury
is impartial deliberation.
It may be said that the approach I am suggesting depends on a
distinction, between what falls within the scope of deliberations and what
is extrinsic to deliberations, which is imprecise and may be difficult to
draw. I do not suggest that the distinction is capable of being articulated
with precision and finality. The distinction has been drawn in one way by
the Court of Appeal, by treating "deliberations" as covering everything that
takes place between the jury when they are in their jury room together. The

57 R v. Pan (n. 19), para. 77.

58 See para. 74.
59 See para. 76.
60 n. 7.
 THE CONFIDENTIALITY OF JURY DELIBERATIONS 17

distinction has been drawn in a different way by the Supreme Court of

Canada, by defining "deliberations" more narrowly. I have suggested that
the scope of "deliberations" might be defined more restrictively still. I
recognise that it could be defined even more restrictively, for example by
building into the concept of "deliberations" that they should be conducted
in accordance with the directions of the trial judge. Like most other legal
distinctions, it has the open-textured character which language entails, and
has to be applied in practice by making a judgement as to how the balance
between confidentiality and reviewability should best be struck so as to
ensure the effective functioning of a system of fair trial by jury.
As I mentioned earlier, Lord Justice Auld in his recent Review of the
Criminal Courts of England and Wales61 recommended that "section 8 of the
Contempt of Court Act should be amended to permit, where appropriate,
enquiry by the trial judge and/or the Court of Appeal (Criminal Division)
into alleged impropriety by a jury whether in the course of its deliberations
or otherwise".62 "In my view", he said, "the effective bar that section 8 puts
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on an appellate court inquiring into and remedying possible bias or other

impropriety in the course of a jury's deliberation is indefensible and
capable of causing serious injustice". The review was not concerned with
the Scottish courts, but that particular recommendation concerns a United
Kingdom statute, so it is perhaps permissible for a Scottish judge to
comment on it. As I have explained, the Scottish courts have questioned
whether section 8 has the effect which the English Court of Appeal has
attributed to it, and have not committed themselves to a common law
approach as restrictive as that currently followed in England and Wales.
Subject to that observation, I respectfully agree with what Lord Justice Auld
has said.
In its response to the Auld Report, the Government said that the Home
Office were currently conducting research on juries, and that they would
consider this and other recommendations further when the findings of the
research were available. The only observation I would make about that
response is that such research may not necessarily bear decisively on the
issue which I have been discussing. If, for example, it emerges that bias or
procedural misbehaviour are statistically as rare as one would hope, that is
nevertheless of little consolation to the defendant convicted as the result of
racism in the jury room into which the court has felt unable to inquire, or
to the complainer who has to give evidence for a second time at a retrial
after a conviction has been quashed because of a false but apparently
serious allegation of bias.
What of Stephen Young? At his retrial, the second jury also convicted
him. Whether it also received supernatural assistance is not known.

61 n. 4.
62 n. 5.