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)
51. 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.
52. 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.
53. 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.
54. 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.
55. 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.
56. 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.
57. 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.
58. 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
59. 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.
60. 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.
61. 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.
62. 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.
63. 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.
64. 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:
In their second note, which came after the appellant had given evidence, they directed their questions to the interpreter:
65. 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:
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.
66. 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:
67. 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:
68. 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
69. 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.
70. 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.
71. 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.
72. 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.
73. 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:
74. 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
75. The Court of Appeal in both cases certified the following questions as raising questions of law of general public importance:
76. 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.
77. 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.
78. 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
79. Section 8 of the Contempt of Court Act 1981 ("Confidentiality of jury's deliberations") provides:
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.
80. 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.
81. 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:
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:
82. 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.
83. Rejecting this argument, Lord Taylor of Gosforth CJ said at p 330F-H:
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.