BLOG: Tell me Lies to Tell me Why: Revisiting the Confidentiality of Jury Deliberations

In light of the widely-discussed decision of the Court of Appeal in R v Usman [2021] EWCA Crim 360, regarding a Crown Court judge’s decision to discharge a juror who sang lyrics of the Fleetwood Mac song “Tell me lies, tell me sweet little lies”, second-six pupil Anthony James revisits the issues of juror prejudice and the confidentiality of jury deliberations.

In England and Wales, there is a wide-ranging prohibition on the disclosure of the content of jury deliberations. The case of Usman has brought the topic of juror prejudice into sharp focus. It is perhaps also time to reconsider not only the influence of prejudice on deliberations but the prohibition more generally.

The Current Law

The Statutory Rules

It is an offence for a person intentionally ‘to disclose information about statements made, opinions expressed, arguments advanced or votes cast by members of a jury in the course of their deliberations in proceedings before a court’ (Juries Act 1974, section 20D).

There is therefore a general prohibition on the disclosure of what goes on during jury deliberations, whether to the court or the wider public. There are however some express statutory exceptions:

1. Jurors may disclose information about deliberations for the purposes of allowing them to arrive at their verdict. For example, sending a note about whether a majority verdict direction would be useful (section 20E(1));
2. A judge may disclose information about a case to either deal with the case or to investigate whether an offence or contempt of court has been committed by or in relation to a juror (section 20E(2)(b));
3. Anyone may disclose information about deliberations so long as the jury has been discharged, and (i) that person believes there has been an offence or contempt of court committed, or (ii) a juror’s conduct may provide a ground of appeal (section 20F).

The Common Law Rules

The legislation must also be read in line with the common law rules, which add other exceptions. Generally, a ‘court will not inquire into what happens in the jury room’ (R v Mirza [2004] 1 AC 1118 at [76]).

Historically, the main justification for both the statutory and common law prohibition has been threefold:

Firstly, to provide juries with the confidence to express views unconstrained by ‘fears a juror would legitimately have if his friends and neighbours, and the general public, may come to know of his views, which could be unpopular views.’ (AG v Seckerson [2009] EWHC 1023 (Admin) at [50]–[52]);

Secondly, to promote the finality of decisions arrived at by juries; and

Thirdly, to protect jurors from being exposed to pressure to explain their reasoning (Ellis v Deheer [1922] 2 KB 113 at 121).

There are however, three exceptions:

1. Where the jury has disregarded its oath to faithfully try the defendant and give a true verdict according to the evidence. A clear example of this was the shocking decision of the jury in R v Young [1995] QB 324 to consult a Ouija board before delivering its verdict.
2. In cases where an ‘extraneous influence’ has affected the jury. For example, there is evidence of pressure or corruption or, as is so often feared nowadays, a juror has consulted the internet or social media regarding the case.
3. Where an ‘intrinsic influence’ has affected the jury. These are matters such as a juror being racially biased or, as in Usman, outwardly prejudicial towards a defendant.

Regarding intrinsic influences, during the trial, a judge can, address the issue by following the steps set out in Criminal Practice Direction 26M. One such course of action would be to discharge the juror as the judge did in Usman. However, if there is evidence after trial of an intrinsic influence, the general rule prevents a court looking at the issue. For example, in Mirza, a letter from a juror came to the court’s attention six days after the verdict, alleging that other jurors were racially prejudiced against the defendant and as a result had not considered his case impartially. The common law rules do not allow a court to inquire further into the jury’s deliberations in such a case.

The US Perspective

The position is substantially different in certain jurisdictions in the United States. On the federal level, there is a general prohibition on inquiring about juror deliberations. Federal Rule of Evidence 606 makes plain that:

‘a juror may not testify about any statement made or incident that occurred during the jury’s deliberations; the effect of anything on that juror’s or another juror’s vote; or any juror’s mental processes concerning the verdict or indictment.’

Again, there are exceptions to this, which share similar characteristics with our common law rules, namely a juror may testify about whether:

1. extraneous prejudicial information was improperly brought to the jury’s attention;
2. an outside influence was improperly brought to bear on any juror; or
3. a mistake was made in entering the verdict on the verdict form.

What is perhaps most pertinent on a comparative level is that, recently, the US Supreme Court has “constitutionalized” a racial bias exception to this general rule ‘where a juror makes a clear statement that indicates he or she relied on racial stereotypes or animus to convict a criminal defendant’ (Peña-Rodriguez v Colorado 137 S. Ct. 855, 879 (2017)). This appears to allow a court to revisit a conviction if there is evidence of an ‘intrinsic influence’ on the jury even after trial.

There is a different approach in some states, which allow the questioning of jurors. State habeas petitions which seek to appeal against conviction typically include allegations of juror misconduct, which need thorough investigation and, in some states, unencumbered access to jurors once they have delivered their verdict. Indeed, most death row prisoners in the southern states who obtain relief do so because critical facts are uncovered by post-conviction counsel through investigation. In the infamous Texas case of the sleeping lawyer in a death penalty trial, prejudice was demonstrated principally on the basis of juror testimony post conviction.

Questioning of jurors can therefore be a key tool in discovering misconduct which prejudices a defendant. This can be of great utility in overturning miscarriages of justice.

Time to Revisit the Issue

In light of the above, there is clear scope for England and Wales to revisit the whole issue. Perhaps, an expansion of the ‘intrinsic influence’ exception to post-conviction cases would be a limited yet workable and welcome reform. There does not appear to be a material difference between revisiting a conviction because a juror consulted supernatural powers or because a juror consulted their own racial biases or indeed social media.

More generally, it is perhaps also time to revisit the general prohibition on inquiring into juror deliberations. It is arguable that the confidence justification does not stand up to much scrutiny.

Firstly, how aware are jurors of the rules prohibiting inquiry of their deliberations? The judge’s address at the start of a Crown Court trial does not state the ambit of the rules or that they should be entirely confident to express their views on the case, free of any judgement from those outside their number. There is also little evidence that the rules themselves give jurors confidence.

Secondly, is it desirable for jurors to be fully aware that they can exercise prejudice, racial or otherwise, in coming to their verdicts?

Finally, a lifting of the prohibition could lead to wider-ranging benefits for defence practitioners and the system as a whole:

1. Investigations of juries could occur as in many US States for the purposes of appeals. Instead of the Court of Appeal ruling that that ‘jury must have been satisfied of…’ or ‘the admission of that evidence is unlikely to have prejudiced the jury’, the Court could look at hard evidence of what decisions the jury came to. This argument particularly exercised Professor Ashworth who commented in his article on Mirza that ‘[i]t is unacceptable for the rule of confidentiality to be preserved, at the cost of miscarriages of justice, on grounds relating to such nebulous concepts as “public confidence”’ ([2004] Crim LR 1041).
2. Accurate studies could be carried out on juries especially on the issue of the extent to which the admission of evidence such as bad character prejudices a jury.
3. Arguably, public confidence could be better served through transparency. It could be reported, for example, why the jury in the PC Harper case came to the conclusion that the correct verdict was one of manslaughter.

As the prejudice in Usman came to light during the trial, there were procedures in place to deal with the issue. If the issue had come to light after trial, as in Mirza, there would have been no remedy. This does not appear to be satisfactory.

More widely, perhaps it would be instructive to be able to question that jury on the prejudice and its impact to allow defence practitioners to counter tell me lies with tell me why.

Anthony James is a working pupil at Carmelite Chambers, currently under the supervision of Joe Hingston. He is a Lincoln’s Inn and Advocacy Scholar. Prior to pupillage, he volunteered with various post-conviction charities including in the US with the California Innocence Project, working on both appeals and habeas petitions.