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Her Majesty's Attorney General (Respondent) v. Scotcher (Appellant) (Criminal Appeal from Her Majesty's High Court of Justice)
OF THE LORDS OF APPEAL
FOR JUDGMENT IN THE CAUSE
Her Majesty's Attorney General (Respondent)
Scotcher (Appellant) (Criminal Appeal from Her Majesty's High Court of Justice)
THURSDAY 19 MAY 2005
The Appellate Committee comprised:
Lord Rodger of Earlsferry
Baroness Hale of Richmond
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
Her Majesty's Attorney General (Respondent) v. Scotcher (Appellant) (Criminal Appeal from Her Majesty's High Court of Justice)
 UKHL 36
1. I have had the advantage of reading the opinion of my noble and learned friend, Lord Rodger of Earlsferry. I agree with it. I would also dismiss the appeal.
2. I have had the advantage of reading in draft the opinion of my noble and learned friend Lord Rodger of Earlsferry. I agree with it and for the reasons which he gives I would also dismiss the appeal.LORD RODGER OF EARLSFERRY
3. This appeal concerns the interpretation and application of section 8(1) of the Contempt of Court Act 1981 ("section 8(1)"), which provides:
4. In January 2000 the appellant, Keith Scotcher, was summoned for jury service at Blackfriars Crown Court. Like all the other potential jurors, Mr Scotcher was given a booklet entitled "You and Your Jury Service", which he read. Just below the list of Contents the booklet said this:
Page 1 included this warning:
There was another warning on page 10:
5. On the first day of their service the jurors were also shown a video, part of which said:
It went on to say:
There was a notice to the same effect in the jury room.
6. The appellant was balloted to serve as a juror in a trial in which the two defendants were brothers. By the end of the trial on Friday 11 February, the jury had been reduced to eleven members. That afternoon the jury convicted both defendants by a majority of 10 votes to 1.
7. The following day, the appellant wrote to the defendants' mother in these terms:
Yours sincerely - ANON
At the beginning of the letter the writer explained: "I've blocked out some words because apparently I'm 'in contempt of court' for writing to you." In the letter as reproduced above the words blocked out in this way have been marked by capital Xs and initials have been substituted for names.
8. Mrs Anderson sought advice about the letter from her solicitor who brought it to the attention of the Court of Appeal. The court in turn contacted the police, who then interviewed 11 of the original 12 jurors, including the appellant. All of them denied writing the letter. Handwriting samples were taken from the jurors and a handwriting expert examined the letter. The expert discovered that one piece of obliterated writing was the appellant's email address, while two other pieces of obliterated writing said "Keith S". On comparing the letter with the handwriting samples, the expert concluded that the appellant had written it. The appellant was then arrested and interviewed under caution. Despite the evidence of the expert, the admitted similarity between his writing and that in the letter and the similarities between some of the contents of the letter and his own personal history as a trade union official, the appellant continued to deny being the author.
9. The material assembled by the police was referred to the Attorney General for him to consider, in terms of section 8(3) of the 1981 Act, whether to give his consent to proceedings for contempt of court being instituted against the appellant in terms of section 8(1). On 25 March 2002 the appellant's solicitors wrote to the Attorney General admitting that he had written the letter but arguing that no proceedings should be taken against him. On 16 July 2002 the Attorney General informed the appellant that he had given his consent to proceedings being instituted.
10. On 23 October 2002 the Divisional Court granted the Attorney General permission to apply for a committal order against the appellant. When the matter came before the court again on 8 May 2003, the court decided to hear argument on whether a defence was available to a juror who disclosed the deliberations of the jury if the juror was motivated by a desire to expose a miscarriage of justice.
11. On 16 May 2003 the Divisional Court (Scott Baker LJ and Pitchford J) held that no such defence was available:  EWHC 1380 Admin. The appellant then accepted that he had committed a contempt of court in terms of section 8(1). The Divisional Court ordered that the appellant should serve a two-month prison sentence suspended for one year and should pay costs of £2500. In passing sentence the court accepted that the appellant had a genuine belief that there had been a miscarriage of justice, although he was probably someone who was blind and unreceptive to the views of others.
12. The House gave leave to appeal on 2 December 2003. Subsequently the House gave judgment in R v Mirza  UKHL 2;  1 AC 1118. That decision corrected the previous interpretation of section 8(1), which the Divisional Court had applied in this case. As a result, the arguments for both sides before the House were different from those in the Divisional Court. Nevertheless, it remained common ground that, in terms of section 8(1), the appellant had revealed statements, opinions, arguments or votes of the members of the jury in the course of their deliberations. It was not disputed, either, that the mens rea for the offence was an intention to disclose and that the appellant had deliberately disclosed these aspects of the jury's deliberations to Mrs Anderson. So, unless some defence was available to the appellant in the circumstances of the case, he was guilty of contempt of court in terms of section 8(1).
13. The suggestion was that a juror is not guilty of contempt if he discloses the jury's deliberations with the bona fide aim of preventing a miscarriage of justice. On its face, section 8(1) makes no provision for a defence of that kind and Mr Starmer QC did not suggest that there was anything in the statute itself which would permit that defence to be implied into section 8(1). He argued, however, that in the particular circumstances of this case, by virtue of section 3 of the Human Rights Act 1998 ("the 1998 Act"), section 8(1) had to be interpreted as including such a defence so as to make it compatible with article 10 of the European Convention on Human Rights and Fundamental Freedoms. If this could not be done, then the House should make a declaration of incompatibility under section 4 of the 1998 Act.
14. Article 10 of the Convention provides inter alia:
At its broadest, Mr Starmer's submission was that the appellant was free to impart information about the jury's deliberations without interference by the Attorney General when his intention was to secure the defendants' article 6 Convention right to a fair trial by a tribunal comprising an impartial jury. In fact, however, during the hearing Mr Starmer really confined his argument to the circumstances of this case.
15. The appellant wrote the letter containing the disclosures about the jury's deliberations on 12 February 2000, more than seven months before the 1998 Act came into force on 2 October 2000. Nevertheless, Mr Havers appeared to accept that the Act, and in particular sections 3 and 4, applied to these proceedings. In the absence of argument to the contrary, without deciding the point, I proceed on that basis.
16. Prior to the decision of the House in R v Mirza, the general assumption in the English courts was that the terms of section 8(1) were so broad as to apply to any court, whether the trial court or the Court of Appeal (Criminal Division), which might otherwise have wished to inquire into a matter relating to the jurors' deliberations. Section 8(1) in effect ruled out such inquiries by the courts. See, in particular, R v Young (Stephen)  QB 324, 330 per Lord Taylor of Gosforth CJ. So a juror disclosing the jury's deliberations to the court would be in contempt under section 8(1). This understanding of the law presumably lay behind the blanket terms of the warnings in the leaflet for prospective jurors which the appellant was given and in the video which he saw. The House held, however, that if a trial judge were informed about any misconduct during the jury's deliberations but before they had returned their verdict, then section 8(1) did not prevent him from looking into the matter. Since jurors might well not appreciate that they could tell the judge about any misconduct of their fellow jurors, the House suggested that in future they should be given further guidance. This suggestion led Lord Woolf CJ to issue the Practice Direction (Crown Court: Guidance to Jurors)  1 WLR 665, which amended the consolidated criminal practice direction so as to provide inter alia:
Subsequently, in R v Smith (Patrick)  UKHL 12;  1 WLR 704 the House looked further at what form the trial judge's inquiries might take when a matter was drawn to his attention during the trial.
17. In reaching its decision in R v Mirza the House held that section 8(1) does not apply to the trial court or to the Court of Appeal. Nevertheless, as the House also held, by virtue of a long-standing common law rule, after the jury have returned their verdict, evidence directed to matters intrinsic to the jurors' deliberations is inadmissible. Such evidence is excluded in order to protect the confidentiality of the jurors' deliberations and the finality of their verdict. So neither the trial court nor an appeal court would use their powers of investigation to obtain evidence of those deliberations which would be inadmissible. Where, however, the jury is alleged to have been affected by extraneous influences, e g contact with other persons who may have passed on information which should not have been before the jury, evidence of those extraneous influences is admissible. The law is conveniently summarised in the speech of my noble and learned friend, Lord Carswell, in R v Smith (Patrick)  1 WLR 704, 712 - 713, para 16.
The Appellant's Broad Submission
18. Starting from R v Mirza, Mr Starmer submitted that if, before the verdict, the trial judge could enquire into allegations of misconduct in the jurors' deliberations, or the Court of Appeal could enquire into allegations of improper extrinsic influences even after the jury had returned their verdict, then in either event it must be lawful for a juror to disclose the deliberations of the jurors to the extent necessary to bring these matters to the attention of the trial judge or the appeal court. In practice the line between intrinsic and extrinsic factors relating to the jury's deliberations was not clear-cut: what appeared at first sight to be nothing more than the stubborn refusal of a juror to follow the judge's directions (and so a matter intrinsic to the jury's deliberations) might turn out on investigation to be due to bribery (an extraneous influence). So a juror could not be expected to know on which side of the line his disclosure would fall. It followed that, in proceedings for contempt of court under section 8(1), a defence must be open if the juror was motivated by a genuine desire to remedy a miscarriage of justice, irrespective of whether the complaint was of intrinsic or extrinsic misconduct.
19. I would accept the substance of much, but not all, of that submission. A juror who complains to a court about misconduct which is intrinsic to the jury's deliberations is in effect tendering evidence which, on examination, turns out to be inadmissible. The mere fact that the evidence is inadmissible does not mean that there is anything improper or unlawful about the juror's action in bringing it to the attention of the court. On the contrary, the juror may well be acting from the very best of motives in an effort to avoid what he regards as a miscarriage of justice. Not surprisingly, therefore, there is nothing to suggest that, before the 1981 Act, his action would have been regarded as a contempt of court or as being otherwise unlawful.
The Origins of Section 8(1)
20. The circumstances which prompted the enactment of section 8(1) are well known and they were examined in some detail in the speech of Lord Lowry in Attorney General v Associated Newspapers  2 AC 238. Following the acquittal of a prominent politician on a charge of conspiracy to murder, the New Statesman magazine published an article, based on an interview with one of the jurors, which gave an account of significant parts of the jury's deliberations. The Attorney General applied for an order for contempt of court against the New Statesman. In Attorney General v New Statesman and Nation Publishing Co Ltd  QB 1 the Divisional Court held that a juror's disclosure of the jury's deliberations was not a contempt of court unless it tended, or would tend, to imperil the finality of jury verdicts, or to affect adversely the attitude of future jurors and the quality of their deliberations. Since, the court held, the article in question would not have had that effect, the Attorney General's application was refused. Towards the end of his judgment Lord Widgery LCJ said this:
21. Taking their cue from the wish expressed by the Divisional Court, the government introduced a clause into the Contempt of Court Bill, which was designed to make it a contempt of court to publish details of a jury's deliberations or to disclose them with a view to their being published, or with knowledge that they might be published, or to solicit their disclosure with intent to publish them or to cause or enable them to be published. As a result of pressure during the course of the passage of the Bill through Parliament, the original clause was considerably amended so as to produce the wider provision which is now to be found in section 8(1). The discussions in both Houses suggest - what the trilogy of verbs in section 8(1) also suggests - that the principal concern of Parliament was to prevent jurors from being harassed to reveal their deliberations. By contrast, the case of a juror spontaneously communicating his worries about the jury's deliberations to the court authorities does not feature in the debates as a cause for concern. There is accordingly nothing, either in the circumstances preceding its enactment or in the debates in Parliament, to suggest that section 8(1) was ever intended to apply to a juror who communicated to the court authorities his worries about misconduct during the jurors' deliberations.
The Reasoning in R v Mirza
22. In R v Mirza the House was concerned with two matters: first, the admissibility of allegations of misconduct made by a juror after the verdict and, secondly, the power of the trial court to investigate allegations of misconduct coming to light before the jury returned their verdict. In these circumstances the House did not need to consider the position of the juror making the complaint. Nevertheless, the reasoning of the House casts light on that question.
23. Section 8(1) specifies types of conduct which constitute contempt of court. So, if that subsection applied to a court, it would mean that the court could itself be in contempt of court. This would be a very strange notion, as the High Court of Justiciary pointed out in Scottish Criminal Cases Review Commission, Petitioners 2001 SLT 1198, 1202G - I:
In this passage the High Court referred to the provision containing the Scottish appeal court's powers of investigation. The equivalent English provision is section 23(1) of the Criminal Appeal Act 1968 under which the Court of Appeal can receive evidence relating to an alleged irregularity in a trial. When enacting section 8 of the 1981 Act, Parliament did not qualify that power in section 23(1).
24. In R v Mirza  1 AC 1118, 1146, para 57, it therefore seemed clear to Lord Slynn of Hadley
My noble and learned friend, Lord Steyn, dissented from the decision of the majority to dismiss the appeals, since he considered that in the cases then before the House evidence of misconduct during the deliberations of the jury was admissible. But he agreed with the majority in holding that section 8 did not impinge on the powers of the Court of Appeal. Explaining why there was no need to resort to section 3 of the Human Rights Act when interpreting section 8, Lord Steyn said, at p 1139, para 25:
Lord Hobhouse of Woodborough was equally clear that section 8(1) did not apply to a court. He was also prepared to hold that it did not apply to a juror who brought misconduct to the attention of a court. He said, at pp 1169 - 1170, para 139:
He said further, at p 1172D - F, para 146:
Lord Hope of Craighead's treatment of the point is entirely consistent with that construction. He explained that counsel had suggested two possible approaches, one being based on section 3 of the 1998 Act. He continued, at p 1155, para 92:
Lord Hobhouse agreed with the reasons given by Lord Hope: p 1172, para 147. I agreed with both of them: p 1174, para 149.