Juries: Scotland and England

Question 1

Where does the Contempt of Court Act 1981 s.8 apply?

Answer 1

In Scotland only

Question 2

What does s.8(1) of the Contempt of Court Act 1981 state?

Answer 2

That it is 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 a course of deliberations in any legal proceedings

Question 3

What is the exception to s.8(1) of the Contempt of Court Act?

Answer 3

s. 8(2) subsection (1) does not apply to any disclosure for any particulars:
(a) in proceedings in question for the purpose of enabling the jury to arrive at their verdicts, 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

Question 4

What does s.15A(1) of the Juries Act 1974 state?

Answer 4

s. 15A Juries Act 1974
(1) Judge dealing with an issue may order members of the jury to surrender any electronic communications devices for a period

Question 5

When may a judge make an order for surrender of electronic communications by jurors?

Answer 5

s. 15A(2)of the Juries Act 1974 states a judge may make an order if he considers -
(a) the order is necessary in the interests of justice, and
(b) the terms of the order are a proportionate means of safeguarding those interests

Question 6

When do orders relating to the surrender of electronic communications apply?

Answer 6

s.15A(3) of the Juries Act 1974

(a) When jury members are in the building of which the trial is being heard
(b) Jury members are in other accommodation provided at the judge’s request
(c) Visiting a place in accordance with arrangements made by the court
(d) Travelling from a place mentioned in (b) or (c)

Question 7

Will a juror be guilty of an offence for failing to surrender an electronic communications device?

Answer 7

YES

per s.15A(5) of the Juries Act 1974

Question 8

What must a court security officer do under s.54A(2) of the Courts Act 2003?

Answer 8

If ordered to do so by a judge, an court security officer must search jurors to determine whether or not they have failed to surrender an electronic device

Question 9

What are the limitation to a court security officers powers of search under s.54A(3) of the Courts Act 2003?

Answer 9

s.54A(3)
Subsection (2) does not grant the officer the power to require jurors to remove any clothing other than a juror’s coat, jacket, headgear, gloves and shoes

Question 10

Under s.54A(4) of the Courts Act 2003 what may a court security officer do in the finding of an electronic device after conducting a search?

Answer 10

s. 54A(4)(a) - the officer must ask the juror to surrender the device and
(b) if the juror refuses to surrender the device and officer may seize it form the juror

Question 11

Does a court security officer have the right to retain an article under s.54A(4) of the Courts Act 2003?

Answer 11

YES
per s.55(1A) a court officer may retain an article
(a) surrendered in response to a request under s.54A(4)(a) or
(b) seized under s.54A(4)(b)

until the end of the period specified in the relevant order under section 15A of the Juries Act 1974.

Question 12

Is it an offence for a juror to research matters of a case during a trial?

Answer 12

YES

per s.20A(1) of the Juries Act 1974

Question 13

When would a juror be deemed to have ‘researched’ a case?

Answer 13

Per s.20A(2) of the Juries Act 1974
if a juror
(a) intentionally seeks information, and
(b) when doing so, knows or ought ton know that the information is or may be relevant to the case

Question 14

What ‘ways’ may a juror seek information that is prohibited by law?

Answer 14

s.20A(3) of the Juries Act 1974

(a) Asking a question
(b) searching an electronic database, including the internet
(c) visiting or inspecting a place or object
(d) conducting an experiment
(e) asking another person to seek information

Question 15

What information is deemed relevant to a case and therefore prohibited from being researched by jurors?

Answer 15

s.20A(4) of the Juries Act 1974

(a) A person involved in event relevant to the case,
(b) The judge dealing with the issue
(c) Any other person involved with the trial, whether as a lawyer, witness or otherwise,
(d) The law relating to the case,
(e) The law of evidence, and
(f) Court procedure

Question 16

What does s.20A(5) of the Juries Act state in relation to the “trial period”

Answer 16

In relation to a member of the jury that tries an issue, the trial period is the period

(a) beginning when the person is sworn to try the issue
(b) ending when a judge discharges a jury or earlier if a judge discharges that person

Question 17

What are the exceptions to S.20A(1) of the Juries Act 1974?
That being ‘It is an offence for a member of a jury that tries an issue in a case before a court to research the case during the trial period, subject to the exceptions…’

Answer 17

s. 20A(6) of the Juries Act 1974
- For a person to seek information if the person needs the information for a reason that is not connected to the case

s. 20A(7)
(a) to attend proceedings before the court on the issue
(b) to seek information from the judge dealing with the issue
(c) to do anything which the judge dealing with the issue directs or authorises a person to do
(d) to seek information from another member of the jury, unless the person knowns or ought to reasonably know, that the other member has sough information in contravention with this
(e) to do anything which is reasonably necessary in order for a jury to try the issue

Question 18

Under what circumstances will a juror be guilty of an offence for sharing information with another member of the jury?

Answer 18

s.20B(1) of the Juries Act 1974

• It is an offence for a juror to intentionally disclose information to anther juror during the trial period if
  (a) The member contravened s.20A of the 1974 Act in the process of obtaining the info that has been shared
  (b) if the information has not been provided by the court

Question 19

Under s.20C(1) of the Juries Act 1974 it is an offence for jurors to intentionally engage in prohibited conduct during the trial period, but what is meant by “prohibited conduct”?

Answer 19

s.20C(2) of the Juries Act 1974

“prohibited conduct” means any conduct from which it may be reasonably concluded the the person intends to try the issue otherwise than on the basis of the evidence presented at trial

Question 20

Under s.20C(1) of the Juries Act 1974 it is an offence for jurors to intentionally engage in prohibited conduct during the trial period, but what is meant by “prohibited conduct”?

Answer 20

s.20C(2) of the Juries Act 1974

“prohibited conduct” means any conduct from which it may be reasonably concluded the the person intends to try the issue otherwise than on the basis of the evidence presented at trial

Question 21

Describe s.20D of the Juries Act 1974

Answer 21

s. 20D(1) states that it is an offence to intentionally -
(a) disclose information about statements made, opinions expressed, arguments advanced or votes cast by jurors in the their deliberations
(b) solicit or obtain such information

Question 22

Taxquet v Belgium 2011

Answer 22

• T was charged with murder in 2003 and attempted murder
• Charges alleged that defendants had either perpetrated directly or had assisted or incited offences
• The jury answered four questions put to them namely asking whether T was guilty of the crimes listed in his indictment
• The jury answered YES to all questions finding him guilty
  APPEAL
• On the grounds T did not have a fair trial under Art.6 as the jury did not give reasons for their verdicts
  HELD
• there had been a breach of T’s right to a fair trial
• Although convention does not specifically state reasons were to be given by jurors, it should be done so that public may be able to understand jury’s verdict of trial is to be regarded as fair
• Procedural safeguards are needed during jury trial to enable defendant to understand why he was found guilty

Question 23

Remli v France 1996

Answer 23

FACTS
- Applicant was a French national of Algerian origin
- Applicant charged with murder whilst attempting to escape prison
- A juror allegedly made a racist remark about the applicant and the applicant asked the court to take a formal note of the remark
- The court refused and subsequently the applicant was found guilty
- Reason given by the court was that they could not take formal note of events alleged to have occurred outside of its presence
APPEAL TO ECtHR
- Appealed on the grounds that there was a breach of Art.6
HELD
- it is not for the court to rule on the evidential value of a witnesses written statement on whether racist remarks were actually made
- the applicant was left unable to have the juror removed or challenged
- ART.6 IMPOSES OBLIGATION ON EVERY COURT TO CHECK WHETHER A TRIBUNAL IS ONE OF IMPARTIALITY WHERE THE IMPARTIALITY OF THAT TRIBUNAL IS IN DISPUTE AND THE DISPUTE IS NOT DEVOID OF MERIT
- IN THIS CASE THE COURT MADE NO SUCH CHECK THUS DEPRIVING APPLICANT WITH A FAIR TRIAL

Question 24

R v Austin 2003

Answer 24

(1) Appeal against judges decision not to make further inquiries in to a juror’s concern with verdict
(2)Appeal against charges of ABH after the number of dissenting jurors had not been stated by the jury
HELD
(1) Appeal dismissed as verdict was given in presence of entire jury and thus a presumption that all members of the jury assented to it
(2) Appeal granted, the Juries Act 1974 required the jury foreman to state in open court the number of jurors who respectively agreed and dissented before a judge may accept a verdict of guilty
- the requirements of statute had not been copied with and thus the conviction was unsafe

Question 25

R v M 2004

Answer 25

FACTS
- M convicted at Crown Court by majority of 10-2
- Complaint was made by M’s daughter of sexual assualt
APPEAL
- Juror wrote letter to judge stating another juror had stated she had the appellant as guilty from day 1 of the trial as she was trained to deal with sex offenders from her previous employment
- No further investigations were made by the court such an investigation would be complex and it would be difficult to investigate without intruding on forbidden ground of what is said in the jury room between jurors
- Court stated they must take letter from juror at face value
- The appeal was made that the defence would have challenged the juror had they known she worked for social services, in an area where she may be familiar with either the appellant or his family
HELD
- Court dismissed the appeal
- The court held there to be no reason to assume the juror had done anything other than be loyal to her oath and had she known the appellant she would have stepped forward at outset of the trial
-The court asked the question as to whether the is any reason to say the knowledge and experience of this juror was so particular and unreasonable that someone holding it should not be present in the jury room at all and their answer was that the juror may have simply had a better understanding of the case because of her past employment
- The court further found that any investigation they may conduct would conflict with the juror’s own though process which conflicted with the guidance of the HOL decision in R v Mirza
- Secrecy rule extended to prohibit court from asking individual jurors who may appear to have been bias whether they had acted on any prejudice they may have add

Question 26

R v Mirza 2004

Answer 26

FACTS
- First case related to an Asian man who needed an interpreter during his trial
- The jury sent two notes to the judge questioning the use of an interpreter
- The jury was advised by both the prosecution and the defence that they should not draw adverse inferences from the use of an interpreter, a point reiterated by the judge in his summing up
- The defendant was convicted and subsequent to this a juror sent a letter stating some jurors had been racially prejudiced against the defendant
- Second case related to two defendant charged with wounding to intent
- Both defendants denied inflicting the injury and at the central issue at trial related to who had possession of the weapon and its use
- Both were found guilty but a juror wrote to the judge stating that the jury had convicted both men to save time
- COA dismissed appeals by the appellants on the grounds that allegations raised by the juror were not admissible in respect of s.8 of the Contempt of Court Act 1981
HOL HELD
- Evidence of this type in both cases must always be excluded
- After the verdict things said by jurors intrinsic to their deliberations were inadmissible
- If the impartiality was raised before the verdict was delivered the court may investigate unimpeded by s.8(1) of the Contempt of Court Act

Question 27

Attorney General v Scotcher 2005

Answer 27

FACTS

• S (Appellant) appealed against decision that he was guilty go contempt of court within the meaning of s.8(1) of the Contempt of Court Act 1981
• the appellant was a juror on a trial in which he was the sole dissenting juror, he sent a letter to the mother of the defendant urging her to consider an appeal
• The juror had deliberately disclosed statements, opinions, arguments and votes of jurors and had done so with the intention of proving there had been a miscarriage of justice
• Had the juror disclosed what was said during deliberations to the court, or indirectly to the court, with the intention of prompting an investigation was not in contempt of court
• The fact the juror contacted a third party with no authority to receive such disclosures on behalf of the court she appellant was in contempt of court

Question 28

R v Smith, R v Merceica 2005

Answer 28

FACTS
- After jury began deliberations the trial judge received a letter from a juror alleging that certain jurors were disregarding the judge’s direction in law, indulging in speculation and improper bargaining over verdicts
- The judge decided after consulting counsel to give further direction rather than discharging the jury
APPEAL
- On appeal the appellant argued that the judge was obliged to question members of the jury about the letter
- Absence of questions meant judge had to assume truth of letter , with the result that further directions were not sufficient and jury ought to be discharged
HELD
- Appeals allowed
- Judge correct to assume authenticity of letter
- Not appropriate for judge to question jurors about letter as he would likely have had to question about deliberations
- Judge had the right to exercise discretion by either discharging jury or giving further direction
- The further directions must be apposite, clear and emphatic as the situation requires
- in this case the judge fell short of that threshold and it could not be said that the jury discussion afterwards would be done in a proper manner

Question 29

R v Momodou 2005

Answer 29

FACTS
- Juror alleged during deliberations that two jurors were being prejudiced towards the defendant and were not judging the case on its evidence
- the judge asked the jury to consider whether their collective ability to give an impartial verdict had been compromised
- Jury rejected allegation and said nothing discriminatory or prejudiced had been said
- Judge refused applications to discharge any jurors
APPEAL
- Appellant alleged that the judge had approached the alleged impropriety wrongly
HELD
- Judge has discretion to discharge any member of the jury, but to do so, a judge must ask the question as to whether the impropriety had occurred and if so whether it was irremediable
- The judge in this case had taken steps to discover whether any irregularities had occurred and he was not obliged to interview each juror individual

Question 30

Mcteer v HM Advocate 2003

Answer 30

FACTS
- Four accused persons appealed against conviction of assault on the ground that the jury foreman (C) had caused a miscarriage of justice as he knew one of the accused (M)
- Throughout school there had been ill will between M and G who was C’s son
HELD
- Appeals allowed
- C quite obviously knew M personally and of the connection between G and M constituted a clear ground for disqualification which C had been obliged to disclose
- The verdict lacked impartiality as C knew one of the the accused had already committed a serious assault and a fair minded observe would likely conclude C would likely be hostile to M as well as the other accused persons
- The entire verdict was rendered impartial

Question 31

Pullar v HM Advocate 1993, Pullar v UK 1996

Answer 31

FACTS
- P had been a member of a planning committee of Tayside RC, who was convicting of soliciting money from M, a partner in the firm
- P appealed unsuccessfully, contending that a miscarriage of justice had occurred through an employee of M’s being present on the jury
- The employee’s place on the jury was not challenged despite it being brought to the trial clerk of court’s attention
APPEAL
- Appeal to the ECtHR on the grounds that the appellants right to a fair and impartial tribunal had been breached
HELD
- Complaint was dismissed
- Subjectively the court will hold a presumption of impartiality, that no jurors are bias or prejudiced and there was no justification to deviate from that presumption
- P’s concerns could not be objectively justified as the juror was a junior employee who was recently informed of redundancy and on these facts it is by no means clear to an objective observer that then juror would have been more inclined to favour prosecution evidence over defence
- Further safeguards were in place such as random jury selection and judge’s directions and therefore no basis by which the court’s impartiality could be called into question

Question 32

Adams v HM Advocate 2006

Answer 32

FACTS
- X convicted of murder
APPEAL
- X appealed after a juror allegedly inspected the locus contrary to the judge’s directions
- X submitted that the purpose of the juror’s visit was to ingather evidence and see the layout
HELD
- Appeal dismissed
- It had not been shown that the juror had actually inspected the locus, and even by visiting the locus it was not shown he had done anything improper
- the visit would only be an impropriety if it deprived the accused of a fair trial which could not be said to be the case as the locus was a public place well known to the juror and was visible to any juror passing to and from court

Question 33

Gray v HM Advocate 2005

Answer 33

FACTS
- Two accused (G) were convicted of murder standing trial with three other convicted of a lesser crime
- G alleged a miscarriage of justice had arisen as during the trial one of the jurors had viewed the locus whilst in the general area for reasons connected with his employment
- That juror proceeded to tell other jurors about the visit
- Furthermore the brohter of one of the co-accused (X) had been having intimate relations with two female jurors who were convicted of culpable homicide
APPEAL
- G submitted that the locus visit should be regarded as a juror who had taken evidence outwith the presence of the accused or that he acquired knowledge outwith the scope of the trial
HELD
- Appeals dismissed
- Juror visit to locus not result in miscarriage of justice as it was a common public place and many crimes happen in common places
- The visit had been disclosed to the trial judge who directed jury to only consider evidence heard in court
- In respect of the intimate relations the court accpeted that had this information came to light during the trial it would have been necessary to discharge the jurors or desert pro loco tempore
- Despite that fact it could not be said that the two female jurors would in any way be bias towards G in this instance just because they may have been inclined to act more favourably toward the other co-accused

Question 34

Mclean V HM Advocate 2001

Answer 34

FACTS
- Judge informed that member of the jury had had disclosed to other jurors that she knew the accused to be a shop lifter
- The judge made an inquiry in open court to which the forewoman confirmed the disclosure was made after the verdict was reached
- The juror made herself known and the sheriff questioned her as to whether her decision was solely based on evidence led in court to which she replied it was
- the verdict was returned and the accused convicted
- Defence counsel appealed on the grounds the verdict was tainted
HELD
- Appeal allowed and conviction quashed
- The allegation made was capable of causing the accused and any objective observer to hold legitimate doubts about the impartiality of the court
- The doubt was objectively justified and the action taken by the sheriff was no as such to give sufficient guarantees excluding such doubts

Question 35

McCadden v HM Advocate 1985

Answer 35

FACTS
- Appeal lodged by appellant on grounds that a juror at the trial had made statements in public of an intention to find the accused guilty
HELD
- The court held that before an inquiry could be ordered it must be satisfied that evidence of the allegation was substantial, convincing and trustworthy to warrant an inquiry
- In this instance the evidence was not sufficient to warrant an inquiry
- No evidence to establish that the juror’s statements were translated in to effective action in the jury room

Question 36

What did Lord Craighead state in Mirza about the conduct of juries?

Answer 36

• jury refusing to deliberate at all but deciding the case another way would be conduct that amounted to a repudiatory breach of their only function. ‘o give a true verdict according to the evidence’
• A trial in which a verdict is determined by the tossing of a coin or consulting of a ouija board is no trial at all
• If that is what happened, the jurors have no need to be protected as the verdict was not reached by deliberation

Question 37

What does s.20E of the Juries Act 1974 allow for?

Answer 37

Initial Exceptions to the offence of disclosing jury deliberations

Question 38

What are the initial exceptions to disclosing jury deliberations under the Juries Act 1974?

Answer 38

s.20E(1) It is not an offence for a person to disclose information in the proceedings mention in s.20D, for the purpose of enabling the jury to arrive at their verdict, or in connection with delivery of their verdict

s. 20E(2) Not an offence under s.20D for a JUDGE dealing with those proceedings to disclose information -
(a) for purpose of dealing with the case
(b) For purpose of an investigation by a relevant investigator into whether an offence of contempt of court has been committed by or in relation to a juror in the proceedings mentioned in s.20D

s.20E(3) Not an offence under s.20D for a person who reasonably believes that a disclosure described in (2)(b) has been made, to disclose information for the purposes of an investigation

Question 39

What are the further exceptions to an offence committed under s.20D of the Juries Act?

Answer 39

s. 20F(1) It is not an offence for a person to disclose information to a person listed in subsection (2) if -
(a) the disclosure is AFTER jury in proceedings has been discharged
(b) the person making the disclosure believes that -
(i) an offence of contempt of court has been, or may have been committed by or in relation to a juror in connection with proceedings, or
(ii) conduct of a juror in connection with those proceedings may provide grounds for an appeal against conviction or sentence

Question 40

Who are the persons that disclosure of jury deliberation may be made to under s.20F(2)?

Answer 40

(a) Police
(b) Judge of the COA
(c) Registrar of Criminal Appeals
(d) Judge of the original court
(e) member of staff of the court who would reasonably be expected to disclose to person (b) or (d)