Jurors behaving badly

A group of campaigners recently called for the suspension of a circuit judge in a letter to the Lady Chief Justice. The letter alleged that the Judge had warned the Jury they could face criminal prosecution for returning a verdict based on their conscience and not the evidence. Charles Hannaford explores the current legislation governing jurors conduct in England and Wales.

Those who have undertaken jury service will know that it begins with a stern warning against discussing the trial outside their number, discussing the case unless all are present and conducting research of any kind. If the judge’s oral warning is not enough, jurors are also asked to take a home a pink leaflet with the same exhortations and more. Some judges appear to take pleasure in regaling jury panels with examples of badly behaved jurors of the past and in particular emphasise the custodial sentences that have been passed.  

Some of those stories include the juror in 2012 sentenced to 6 months imprisonment for researching a defendant’s past on the internet and then sharing the results with fellow jurors in a 2011 trial (AG v Dallas [2012] EWHC Admin 156). In Solicitor General v Dean, Solicitor General v Smith (2016, unreported) a juror was handed a 3-month sentence suspended for 12 months after writing to two defendants at the conclusion of their trial disclosing accounts of the jury’s deliberations.

In R v Steen & Alexander [2004] EWCA Crim 2341,  a female juror sent a bottle of champagne and note of congratulations to a prosecuting silk after the two defendants and another were convicted of fraud. Although no proceedings were brought against the juror, an appeal was lodged by the two defendants which Lord Justice Rose later rejected on the basis a “fair-minded and informed observer” would not have found the juror in question to have been biased.

Verdicts contrary to evidence and direction

Jurors have on occasion been subject to chastisement and adverse legal consequences for the verdicts they returned or failed to return.

One famous example is Bushel’s case of 1670 (124 ER 1006), otherwise known as the trial of Penn and Mead, in which each juror on the panel was fined forty marks and imprisoned until payment was received. Edward Bushel, one of the jurors trying William Penn and William Mead, refused to pay the fine and issued a writ of habeas corpus. Sir John Vaughan, Chief Justice of the Court of Common Pleas held that no jury could be punished for giving a verdict contrary to evidence and direction of the court. They could however be punished individually if it could be shown the juror had behaved improperly and so the door was left ajar in respect of a juror’s conduct.

The trial of Parker and Thompson in September 1917 (cited in “Before the Criminal Justice and Courts Act 2015: Juror Punishment in Nineteenth- and Twentieth Century England” by Dr Kay Crosby) is a less well-known case of a Jury being punished for returning a not guilty verdict. There was an issue surrounding an earlier indication by both defendants at a pre-trial hearing that they were guilty before subsequently entering not guilty pleas at their trial. Montagu Sharpe, the Chairman of the Assizesremarked “All I can say, gentlemen of the Jury, is that you have been absolutely regardless of your oath. These men have pleaded guilty, and the evidence is of the clearest possible nature. You are none of you fit to sit on a Jury, but you will remain here until the end of the Sessions”. The Foreman of the Jury, George Lathan, first wrote to the Judge and then the Home Office to lodge his complaint at what he saw as an abuse of judicial power. It would take a month before the situation was resolved and the Jury released from their perceived imprisonment of sorts.

More recently, in R v Schot & Barclay [1997] 2 Cr. App. R. 383, a jury sent a note to their trial judge whilst deliberating on their verdicts in the following terms: “We are unable to come to any decisions owing to some jurors conscious beliefs”. Having made further enquiries, which established that two of the jurors were uncomfortable judging fellow human beings, the trial judge established the identities of the two jurors concerned and sentenced them to 30 days imprisonment. In fact, the marginal notes to the original section 9 of the Juries Act 1974 suggest that conscientious objection might be a reason for excusal from jury service, but the Court of Appeal held that the trial judge should not have inquired into the names of the jurors concerned, nor indeed any further enquiries whilst the jury was in deliberation. The findings of contempt were quashed for these and a number of other reasons.

Thereafter in R v Connor, R v Mirza [2004] UKHL 2, the House of Lords reiterated the inviolability of the secrecy of jury deliberations, but nonetheless quashed the conviction of Mirza following a finding that the jury had reached the guilty verdict based on perverse considerations, namely the fact the defendant had used an interpreter at trial, and racist bias against him, disclosed by one of the jurors in a letter to defence counsel after the verdicts. The conviction of Connor was upheld, however, despite another letter from a juror suggesting that the jury had thought that only one of the defendants in Connor’s two-handed trial was guilty, but since they could not decide which, they convicted them both on the basis that life was unfair sometimes. None of the jurors faced any consequences, but their Lordships gave a useful tour of the law on jury secrecy.

In the celebrated case of R v Young [1995] QB 324, the jury used a Ouija board to assist them in asking the deceased who was responsible for his murder. When the answer came back that it was the defendant, Young was convicted. The Court of Appeal in that case did allow an investigation to be conducted by the Treasury Solicitor in conjunction with a senior police officer as to the events in a hotel to which the jury were consigned during deliberations, arguing that since they were not actually deliberating at the time, this did not breach the prohibition on investigation into deliberations under section 8 of the Contempt of Court Act 1981.

Juries Act 1974

Modern cases of jurors finding themselves in legal hot water are more likely to involve their behaviour and not their verdict. Changes to the law brought about by the Criminal Justice and Courts Act 2015 (“the 2015 Act”) saw the introduction of specific offences to address jurors conducting research, sharing research with other jurors and powers to compel jurors to hand over their electronic devices.

There is also now a specific offence of jurors engaging in prohibited conduct whilst serving on a Jury panel (inserted by the 2015 Act as Section 20C of the Juries Act 1974):

“Prohibited conduct means conduct from which it may reasonably be concluded that the person intends to try the issue otherwise than on the basis of the evidence presented in the proceedings on the issue.”

Returning to the letter to the Lady Chief Justice, according to the Times article the circuit judge in question is alleged to have directed the jury in the following terms:

“It is only on the evidence you are able to try the case and not on conscience … It is a criminal offence for a juror to do anything from which it can be concluded that a decision will be made on anything other than the evidence.”

Subject to the absence of either a transcript or the full context of the judge’s directions in the case, it appears the judge may have been referring to the section 20C offence of engaging in prohibited conduct. Calling for the judge’s suspension in those circumstances is therefore unlikely to be successful.

Whether the legislation is at risk of undermining the jury’s judicial function by scrutinising the foundation upon which they reach their verdict is another matter entirely. 

There is a tension between section 20C and the prohibition in section 20D on disclosing jury deliberations which has yet to be explored. However, that may happen shortly.

Proceedings have been commenced against a protestor named Trudi Warner by the Attorney General for contempt, following her alleged conduct outside Inner London Crown Court in one of the protest trials involving the same circuit judge, where it is said she held up a sign with the message “Jurors: You have an absolute right to acquit a defendant according to your conscience”. This proposition may have been based on the plaque on display at the Central Criminal Court (copies of which were held by other protestors), which asserts, based on Bushel’s case above, “Chief Justice Vaughan delivered the opinion of the Court which established the right of juries to give their verdict according to their convictions.” 

This proposition, known as jury nullification in the United States, was subject to a substantial challenge in the Report of Auld LJ into the criminal justice system in 2001. He proposed making them subject to prosecution appeal, where a verdict was perverse. He did not, however, propose any consequences for the jurors themselves.

In the forthcoming Warner proceedings, it has been anticipated that the AG may argue that section 20C trumps section 20D, and that Trudy Warner’s sign no longer represents the law. The more nuanced argument, however, is that jurors should be free to come and go from court without being confronted or told by members of the public how they should be discharging their duties.

Conclusion

At present the law does not criminalise reaching a verdict which, in the opinion of the trial judge, is contrary to the evidence or direction, unless there is evidence that prohibited conduct has been engaged in. The law is therefore concerned with jurors whose intentions are to try the case without regard to the evidence presented in court and in spite of it. That goes far beyond an unusual or unexpected verdict but a deliberate intention to frustrate the trial process and undermine the principles of justice. The question of course is how evidence of that comes to light.