We need more transparency on jury trial deliberations, says Frances Gibb

Does the jury system work? No one knows — because under the present law, no disclosures can be made about what goes on when a jury retires; nor can research be conducted into how juries deliberate and arrive at their verdicts. So a cornerstone of the criminal justice system remains hidden from public scrutiny.

The law to protect the secrets of the jury room was enshrined in statute in section 8 of the Contempt of Court Act 1981. The idea was to protect jurors from being identified, so that they could not be blackmailed or bribed; and so they would feel free to express their opinions frankly when the verdict was under discussion and not fear subsequent dislosure by a fellow juror. Anything less than full and frank discussion would, it was said, impede the proper administration of justice.

But the Act casts its net widely, making it a criminal offence “to obtain, disclose or solicit any particulars of statements made, opinions expressed, arguments or votes cast by members of a jury in the course of their deliberations in any legal proceedings.”

Even when it was debated in Parliament, both Lord Mackay of Clashfern, then Lord Advocate (and later Lord Chancellor), and the then Lord Chancellor, Lord Hailsham of St Marylebone, argued aginst it. The former said that “the jury system, great institution that it is, surely can stand up to properly conducted research”; while the latter added that he would not vote for “a new criminal offence which is to my mind thoroughly bad because it is too draconian.”

Yet the law was passed. Sir Michael Havers, then Attorney General, relaxed the position in 1982. In guidelines set out to the Sunday Times, he drew up an extensive list of information that might be obtained from jurors and, with impunity, be publicised. In practice, too, prosecutions under the Act have been extremely rare.

But the recent ruling in May by the Divisional Court in a case against a juror and Times Newspapers made clear that section 8, in its strictest interpretation, is alive and well. Lord Pannick QC, in The Times law pages, condemned the scope and application of section 8 as “absurdly wide”. The offence was an absolute one: the section did not require the newspaper to prove that its disclosures had damaged the administration of justice (nor could it have done, he adds). Nor does section 8 allow for a public interest defence. If it did, The Times could have “had a strong case” for arguing that any such damage was outweighed by the contribution made by the article to a debate on a matter of public concern: namely, how juries assess expert medical evidence in cases of alleged child cruelty.

As applied by the Divisional Court, he concluded, section 8 “is an embarrassment to the legal system”. Even though there is no “conceivable” damage to the administration of justice, and no naming of any juror, the court has punished publication of information in an important matter of public interest.

Other lawyers have voiced similar views. Mark Stephens, head of media law at Finers Stephens Innocent, has described the decision to prosecute “in a genuine case of conscience” as “surely a retrograde step” and the conviction (The Times was fined £15,000 and the juror £500) “disquieting”, if only “for its failure to address the balance necessary between Article 10 of the Human Rights Act (the juror’s right to speak) and Article 6 (the right to a fair trial).

Gary Slapper, professor of law at the Open University, has said there is now a “compelling argument to change the law”. He said: “The jury is probably a very good institution but we do not really know how it works and it is preposterous in 2009 for the law to be keeping its operation sealed off from investigation.”

Transparency is now all the cry — and should apply, with appropriate safeguards, where possible to the justice system as much as to the political one. As Professor Slapper put it: “We no longer accept that important parts of government should be operated on blind trust and in dark secrecy. We have a Freedom of Information Act and we expect openness in all parts of the justice system unless there is some compelling reason — like national defence secrets — to stop something being open to all.”

The jury remains an important feature of our democracy. With something that important, he said, we need to know how it works. Section 8 is an anachronistic law — and urgently needs reform.

Frances Gibb is legal editor of The Times