Her Majesty's Attorney General (Respondent) v. Scotcher (Appellant) (Criminal Appeal from Her Majesty's High Court of Justice)
25. The decision of the House in R v Mirza is accordingly authority for the proposition that section 8(1) of the 1981 Act does not apply to a court when it considers a juror's complaints about misconduct during the jury's deliberations, since a court cannot be in contempt of itself. By necessary implication, the complaint which the court may lawfully consider must itself be lawful. Therefore, as Lord Hobhouse held, a juror who discloses to the court what is said or done during the jury's deliberations with the intention of prompting an investigation is not, without more, e g malice, dishonesty or improper motive, in contempt of court in terms of section 8(1). The subsection no more applies to the juror than to the court. The background to the enactment of the provision is wholly consistent with that interpretation, which can be reached on ordinary principles of statutory construction without resort to section 3 of the 1998 Act.
Applying the Law to this Case
26. It is not disputed that the appellant genuinely believed that there had been a miscarriage of justice due to what he perceived to be failings on the part of his fellow jurors. Accordingly, if he had written his letter to the Crown Court or to the Court of Appeal, he would not have been in contempt of court in terms of section 8(1). During the hearing of the appeal before the House, Mr Havers accepted this. Mr Starmer sought to take the matter further, however, by arguing that, although the appellant had not written to the court directly, he had written to the defendants' mother with an intention that the matter should be raised by lawyers presenting an appeal to the Court of Appeal on their behalf. Even though he had chosen this indirect route, the appellant was intending to disclose the matter to the appeal court. This was, Mr Starmer submitted, sufficient to exclude him from the scope of section 8(1).
27. Frequently, what can be done directly can also be done indirectly and to hold otherwise would be to promote form over substance. For example, if instead of writing to the trial judge or to the appeal court, the appellant had spoken or written to the jury bailiff or to the clerk of court, he would not have been in contempt. Similarly, if he had sent a sealed letter containing his complaint to the defendants' solicitors or counsel, or even to a citizens' advice bureau or similar organisation, and had asked them to forward it unopened to the appropriate court authorities, any disclosures in the letter would have been disclosures to the court and so outside the terms of section 8(1). There may be other such cases.
28. What the appellant actually did was very different. By writing the letter to the defendants' mother he was not merely disclosing the jurors' deliberations to the court authorities by an indirect route; on the contrary, he was disclosing them to a third party who had no authority to receive disclosures on behalf of the court and who might, or might not, pass the contents of the letter on to the court. Indeed, the closing words of the letter, where the appellant urged Mrs Anderson not to show it to the police, to the judge or to prosecuting counsel, are scarcely consistent with an intention on the appellant's part that she should, in effect, act as a conduit between him and the court authorities. Moreover, the appellant had no control over what Mrs Anderson did with his letter. She could have passed it on to anyone, including the media. It does not lie in his mouth to argue that, unlike him, Mrs Anderson or anyone else would necessarily have been restrained by section 8(1). Fortunately, thanks to her good sense, all that happened was that the jurors were interviewed by the police and the appellant's - doubtless very one-sided - version of their deliberations was not given any wider circulation. By his action the appellant created all the risks to the confidentiality of the jurors' deliberations which section 8(1) was designed to prevent. In these circumstances section 8(1) applied to the appellant and he was accordingly - as he himself realised at the time - in contempt of court.
Section 3 of the 1998 Act
29. As I have already explained, it was not disputed that the appellant could, if appropriate, invoke sections 3 and 4 of the 1998 Act. In my view, however, neither section avails him in this case. The appellant's rights under article 10(1) were, of course, engaged but in terms of article 10(2) the right to freedom of expression can be subject to a restriction which is prescribed by law and is necessary in a democratic society "for preventing the disclosure of information received in confidence." In Gregory v United Kingdom (1997) 25 EHRR 577, 594, para 44, the European Court acknowledged that the rule governing the secrecy of jury deliberations is a crucial and legitimate feature of English trial law. Therefore, in so far as section 8(1) serves to reinforce that rule by making it an offence for a juror to disclose the information which he receives in confidence from his fellow jurors, the objective is sufficiently important to justify limiting the juror's freedom of expression in this way. The provision is rationally connected to its aim and the means adopted are no more than is reasonably necessary, since the restriction does not apply to bona fide disclosures to the court authorities. The measure is accordingly "reasonably justifiable in a democratic society": de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing  1 AC 69, 80. Mr Starmer indeed accepted that, once the Practice Direction came into force, section 8(1) did not infringe a juror's article 10 rights, since he would know that he could draw his worries to the attention of the trial judge before the jury returned their verdict.
30. He pointed out, however, that when the appellant served as a juror, the material shown to him suggested that the ban on disclosure was absolute - and that indeed was the position as generally understood following the earlier rulings of the Court of Appeal. Therefore, he argued, the appellant did not know, and could not have been expected to know, that he could contact the trial judge or the Court of Appeal. In those circumstances the law was not sufficiently clear and there was a disproportionate interference with the appellant's freedom of expression. Section 8(1) should therefore be interpreted as being subject to a defence that it did not apply to a juror who disclosed the jury's deliberations to a third party rather than to the court, if the juror was motivated by a desire to expose a miscarriage of justice and he did not contact the court authorities because he had been told that he could not disclose the deliberations to anyone.
31. I would reject that argument. Section 3 of the 1998 Act comes into play only where it is needed in order to make a legislative provision compatible with a Convention right. As Mr Starmer accepts, however, when properly interpreted according to domestic canons of construction, section 8(1) is compatible with article 10 of the Convention. That being so, section 3 does not apply. In reality Mr Starmer is complaining about the warnings to jurors, which were based on a misinterpretation of section 8(1). But the terms of those warnings could not affect either the interpretation of the statute or the appellant's guilt, one way or the other. At most, they might have been relevant to mitigation. In fact, however, the warnings are irrelevant since, by writing the letter, the appellant showed that he was not restrained by being warned that he would be in contempt of court if he disclosed the jury's deliberations to anyone. That being so, the warnings would not have stopped him from contacting the court authorities, or consulting a lawyer about the matter, if he had wanted to. Instead, he deliberately chose to write to Mrs Anderson, even though - as the letter makes clear - he was well aware that in doing so he was in contempt of court.
32. For these reasons I would dismiss the appeal.
BARONESS HALE OF RICHMOND
33. For the reasons given in the opinion of my noble and learned friend Lord Rodger of Earlsferry, with which I agree, I too would dismiss this appeal.
34. I have had the advantage of reading in draft the opinion prepared by my noble and learned friend Lord Rodger of Earlsferry. For the reasons which he has given I too would dismiss the appeal.
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