Lord Justice General

Lord Kingarth

Lord Clarke

[2010] HCJAC 49

Appeal No: XM35/08



in Petition of



(NO.1 OF 2008)


Appellant: Lake, Q.C.; Office of the SCCRC

Respondent: MacLeod, Q.C., A.D.; Crown Agent

28 May 2010

The reference
[1] This is a reference (by way of petition) made by the Scottish Criminal Cases Review Commission ("the Commission") under section 194D(3) of the Criminal Procedure (Scotland) Act 1995 for the opinion of the High Court. The point on which the Commission desire assistance relates to their ability to investigate an allegation concerning the conduct of a juror or jurors prior to seclusion. Although the point arises in the context of a particular application made to them, the Commission seek assistance more generally.

The Contempt of Court Act 1981
[2] In Scottish Criminal Cases Review Commission, Petitioners 2001 SCCR 775 the court addressed the question whether the Commission were bound by section 8 of the Contempt of Court Act 1981, which renders it a 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 the course of their deliberations in any legal proceedings". The court was satisfied that section 8 was binding on the Commission (para [4]). It then addressed the statutory expression "in the course of their deliberations in any legal proceedings" and concluded that that was a reference to the stage after the jury had been directed by the judge to retire to consider their verdict (para [5]). At paras [7] and [8] it added:

"[7] It follows that the limitation on the scope of the Commission's powers of investigation which derives from section 8 applies only to the investigation of what passes among the jurors while they are considering their verdict after the judge has directed them to retire to do so. The Commission can therefore make enquiries and obtain statements from witnesses, including jurors, about matters which occur before the jurors retire. Obviously, the Commission will have to conduct those enquiries with the degree of discretion needed to avoid trespassing into the prohibited area. Provided they act in this way, however, we see nothing in section 8 which would prevent the Commission, for example, from asking a juror whether he had visited the locus and whether he had discussed this with other jurors before they retired to consider their verdict. Equally, section 8 would not prevent an investigation designed to discover whether female jurors had formed a relationship with a co-accused during the trial, since ex hypothesi this must have occurred at a time when the jurors were not engaged in their deliberations and the verdict. On the other hand, the Commission could not investigate what had happened during those deliberations in order to see whether any such relationship had affected the jurors' assessment of the evidence or their decision as to the guilt of the other accused.

[8] We would observe that investigations involving approaches to jurors, even if not intended to interfere with the administration of justice, may nevertheless have that result. Jurors generally serve in the impression that their privacy will be respected and their identities remain undisclosed. It is also necessary to bear in mind that jury service can be an anxious responsibility for many jurors. For these reasons, and bearing in mind also that a jury have to be brought together by compulsion to perform a vital public duty, the privacy of jurors is a factor to which due weight should be given. We also observe that the Commission's power of investigation is ancillary to their power to refer a case to the High Court where they believe that a miscarriage of justice has occurred and that it is in the interests of justice that a reference should be made; and that the case is then to be heard and determined as if it was an appeal. Investigations by the Commission into the conduct of jurors will therefore be appropriate only to the extent that such conduct can be considered by the High Court when hearing and determining an appeal."

[3] As is plain from para [7], the court was there concerned with what limitations, if any, were placed on the investigative activities of the Commission by section 8 of the 1981 Act. However, para [8] touches on the privacy of jurors and the possibility that approaches to them may interfere with the administration of justice. The present reference is concerned with what restrictions, if any, are imposed by the common law on approaches, including approaches by the Commission, to those who have served as jurors.

Enquiries of jurors
[4] In Clow v HM Advocate 2007 SCCR 201 the court held that the confidentiality (privacy) of jury deliberations was a well-established principle of Scots, as of English, law (paras [6] - [8]) and that that confidentiality extended to their internal communications before as well as after enclosure. At para [18] it was noted that it had been suggested in the course of the hearing that there was some uncertainty as to whether agents acting for an appellant could at their own instance precognosce persons who had served on the relative jury. The court said:

"Suffice it to say that we are satisfied that any enquiry into the words or actions of serving jurors should be made only by the court or in furtherance of orders made by it."

[5] That statement was made in the context of a case in which no investigations had been made or were contemplated by the Commission. On the other hand, it does not expressly exclude the Commission from its ambit. The Commission has in the past made at its own instance investigations of former jurors. Following the judgment of the court in Scottish Criminal Cases Review Commission, Petitioners the Commission made enquiries of former jurors on certain matters (apparently an unauthorised visit by a juror to the locus and an intimate relationship between a relative of one of the accused and a member of the jury). They then referred the case to the High Court, the outcome of the relative appeal being reported at 2005 JC 233; 2005 SCCR 106. No adverse comment was made by the court on the Commission's having undertaken those enquiries.

[6] Counsel for the Commission in the present proceedings submitted that at common law, as under the Contempt of Court Act 1981, the line between what could be investigated legitimately and what could not was to be drawn at the point when the jury retired to consider their verdict.

Submissions on behalf of the petitioners

[7] Mr Lake's submissions focussed on three propositions. The first, which was the most fully elaborated, was that the common law rule of jury confidentiality did not apply before a jury retired to deliberate on their verdict. That was a key stage in a criminal trial. Only then did section 8 of the Contempt of Court Act 1981 apply (Scottish Criminal Cases Review Commission, Petitioners 2001 SCCR 775, per Lord Justice General Rodger at para [5]). Before, but not necessarily after, that point a trial judge could make enquiries of jurors (per Lord Rodger in Scottish Criminal Cases Review Commission, Petitioners at para [6]; cf R v Mirza [2004] 1 AC 1118, per Lord Rodger of Earlsferry at para 156; R v Smith [2005] 1 WLR 704, per Lord Carsewell at para 20). Jurors had a duty to report any prejudicial matters before they retired, but their deliberations could not be inquired into (R v Mirza, per Lord Slynn of Hadley at para 51 and cf Lord Hobhouse of Woodborough at para 142; Attorney General v Scotcher [2005] 1 WLR 1867). The scope of the common law confidentiality should be the same as the scope of the statutory restriction on investigating deliberations viz. after seclusion. A clear line could be drawn there. On its facts, the appeal in Clow v HM Advocate 2007 SCCR 201 concerned matters which arose after the jury had retired: the trial judge had given sufficient directions to deal with anything which had occurred prior to that stage. It could be distinguished. Alternatively, it should be departed from, possibly by an enlarged bench.

[8] The authorities did not support an extension of the rule. The majority in R v Mirza confined its scope to the jury's deliberations on the verdict (per Lord Steyn at para 11; Lord Hope of Craighead at paras 61, 76, 94 - 95, 101 - 102, 107 and 123; Lord Hobhouse at paras 142 and 148; Lord Rodger at paras 161 - 162, 165 and 172; but cf Lord Slynn at para 41). That approach was followed in later cases (R v Smith, per Lord Carsewell at para 16; Attorney General v Scotcher, per Lord Rodger at para 17). In R v Miah [1997] 2 Cr App R 12 and R v Qureshi [2002] 1 WLR 704 the English Court of Appeal had relied on earlier authorities which suggested the rule applied to discussions "in the jury box itself" (Ellis v Deheer [1922] 2 KB 113, per Bankes LJ at page 117). However, they had to be considered in context: historically jurors could deliberate on the verdict while in the jury box (R v Mirza, per Lord Hobhouse at para 148). R v Brown (1907) VII NSWR 290, which was also cited, concerned the admissibility of jurors' evidence and was not in point. The earlier Scottish cases also focussed on deliberations on the verdict and suggested that any evidence from jurors was inadmissible (Stewart v Fraser (1830) 5 Murray 166, per Lord Chief Commissioner Adam at pages 177 - 187, per Lord Pitmilly at page 188 and 191, per Lord Gillies at page 192, per Lord Cringletie at pages 193-4 and per Lord Mackenzie at pages 194-5; Pirie v Caledonian Railway Company (1890) 17 R 1157, per Lord President Inglis at pages 1160 - 1). Recent authority confirmed an approach which focussed on deliberations on the verdict (Ready v HM Advocate 2007 SLT 340, per Lord Osborne at paras [15] - [17]). Hume discussed the rule by reference to matters arising after the jury retired (Commentaries, p 429, volume ii).

[9] The rationales for the rule included the need to ensure candour in discussions, particularly in relation to an unpopular accused, the need to protect jurors from reprisals, undue pressure or harassment and the need for finality in verdicts (R v Pan [2001] 2 SCR 344, per Arbour J at paras 50 - 53). These rationales were less applicable prior to seclusion (cf "The Confidentiality of Jury Deliberations", Lord Reed, (2003) The Law Teacher 1, at pages 2 - 5). A powerful countervailing factor was the prevention of miscarriages of justice (Ras Behari Lal and others v The King-Emperor (1933) 50 TLR 1, per Lord Atkin at page 2). It was assumed that jurors would follow the standard direction not to consider their verdict before retiring. They would have no legitimate expectation of confidentiality until then. An inquiry carried out by the petitioner, an independent body with legally qualified staff, would avoid unnecessary intrusion into the privacy of the jurors. In cases involving individuals, the "floodgates" argument could be addressed by the courts performing a "gatekeeping" role and examining whether there was a prima facie arguable case supported by trustworthy evidence worthy of further enquiry, an approach already adopted in some cases (McCadden v HM Advocate 1985 SCCR 282, per Lord Justice Clerk Wheatley at page 287; Swankie v HM Advocate 1999 SCCR 1, per Lord Justice Clerk Cullen at page 6). Concerns about criticism of jurors, and a loss of confidence in the administration of justice, did not arise in any inquiry by an appellate court.

[10] The second proposition was that, if the rule did apply before the jury retired, there was an exception for matters which were extrinsic to their deliberations (R v Mirza; R v Smith). Such matters were not always easy to determine, each case having to be considered on its facts. Mr Lake referred to a number of examples. He submitted that, if the scope of the rule was wider than he had contended, the petitioner should nonetheless be permitted to investigate extrinsic matters. He also referred to a possible additional exception where a jury declined to deliberate and instead reached their verdict arbitrarily (R v Mirza, per Lord Hope at para 123).

[11] The third proposition was that it would be inappropriate to require that the petitioner seek permission from this court before making enquiries of jurors. Such enquiries had been carried out previously, without criticism (Gray v HM Advocate 2005 SCCR 106). Whatever the scope of the rule, controls could be put in place for individual appellants and their representatives. For example, even for extrinsic matters they required court approval in England (R v Adams [2007] 1 Cr App R 34, per Gage, LJ at para 180). The Scottish cases suggested a number of procedural approaches which could be adopted, such as an enquiry by the court, by a sheriff principal or by a third party (Clow v HM Advocate; Swankie v HM Advocate; McCadden v HM Advocate). However, the petitioner was in a different position. It was an independent public body with a statutory duty to review criminal cases for possible miscarriages of justice. That statutory duty would limit any enquiry it carried out to relevant grounds of appeal. Moreover, its delicate relationship with this court would be compromised if it had to seek its permission (cf Scottish Criminal Cases Review Commission, Petitioner, per Lord Justice General Rodger at para [12]). It was doubtful whether it had the statutory power to make such a request: section 194D(3) of the 1995 Act only allowed it to ask for assistance on a matter of law. It had no power to ask the courts to carry out enquiries on its behalf.

Submissions by the Advocate depute

[12] The Advocate depute addressed each of the propositions made on behalf of the petitioner. He submitted, firstly, that the common law rule applied from the moment of empanelment. The principles underpinning its application applied equally at that stage (cf Clow v HM Advocate, per Lord Justice General Hamilton at para [13]). It ensured finality in decisions, encouraged candour in jurors' discussions and protected them from harassment (R v Pan). If undermined, it might affect the public's willingness to participate in juries and erode confidence in the justice system. In reality discussions between jurors took place throughout trials (Clow v HM Advocate, per Lord Justice General Hamilton at para [13]; Hoekstra v HM Advocate (No 5) 2002 SLT 599, per Lord Justice General Cullen at para [71]). Following the judge's charge and counsels' speeches, discussion during formal deliberations might be less frank. Fairness dictated that the rule should apply to comments made before that stage. Whatever the historical context, R v Miah and R v Qureshi were authority that the rule extended to anything said following empanelment. They had been referred to with approval in R v Mirza which did not suggest that they were wrongly decided. Section 8 of the Contempt of Court Act had not superseded the common law which protected jurors at every stage of proceedings.

[13] Secondly, it was acknowledged that extrinsic matters did constitute a well established exception to the general rule. They were not always easy to differentiate from matters intrinsic to deliberations (cf R v Mirza, per Lord Hope at paras 102 -107; R v Pan, per Arbour J at para 62). Nevertheless, there was no suggestion in the authorities that this distinction ought to be abandoned.

[14] Finally, the Advocate depute submitted that the petitioner should, in every case, seek permission from this court before contacting jurors. Had Parliament intended to grant it an unfettered discretion in breach of the common law it would have done so. Unlike other provisions governing its investigations, the power to take statements in section 194F of the 1995 Act did not exempt the petitioner's officers from complying with duties of secrecy or confidentiality (cf section 194I(2)). The petitioners could seek guidance under section 194D(3) of the 1995 Act. That would ensure a consistency in approach and maintain the court's control in what was a sensitive area requiring its expertise. It would also prevent appellants flooding the petitioners with allegations of jury impropriety, which, in terms of its statutory duty, it would have to investigate. The overriding reason for the Crown's position was the need to protect the jury from any intrusion into their privacy. The Advocate depute accepted that the Crown's position did not necessarily sit squarely with the Opinion of this court as regards its relationship with the petitioner in Scottish Criminal Cases Review Commission, Petitioners (cf Lord Rodger at para [12]). However, that case might be distinguished on the basis that it concerned the court itself carrying out enquiries, not the provision of guidance as to whether such enquiries could be made.

Discussion - the general rule
[15] In England the rule that the principle of confidentiality of jury deliberations applies from the moment the jury is empanelled appears to be well-established. It was expressly so stated in a reserved judgment in R v Miah by a Court of Appeal presided over by Kennedy LJ (at page 18). It was reiterated by a Court of Appeal differently constituted but again presided over by Kennedy LJ in R v Qureshi, another reserved judgment (see pages 521-2). Between these decisions the House of Lords had had an opportunity of addressing the point, in R v Mirza. There Lord Slynn of Hadley, referring to among other cases R v Miah, observed that "the prohibition on receipt of evidence takes effect from the moment the jury is empanelled ..." (para 41). Lord Hobhouse (para 142) referred with apparent approval to R v Miah. It is true that one of the cases (Rex v Andrew Brown) relied on by Kennedy LJ appears to have been concerned with whether affidavits sworn by jurymen about the conduct of a fellow juror were admissible in proceedings against the juror for contempt of court. It was not directly concerned with an attempt by a convicted person to challenge the verdict. However, Darley CJ (as noted by Kennedy LJ in Miah) observed at page 299:

"... I have come to the conclusion that the authorities are all one way, and that the Court cannot look at the affidavits of jurymen for any purpose, whether it be for the purpose of granting a new trial, or for the purpose of establishing the misconduct of a juryman."

The alleged misconduct began on the first day of the trial, shortly after the jury was empanelled and well before they were enclosed, and there is no suggestion that any distinction fell to be made at common law between conduct prior to seclusion and conduct after it.

[16] The rationale for the principle of confidentiality of jury "deliberations" (in the widest sense) was expanded upon by Lord Hobhouse at para 142 in Mirza. Three rationales for the jury secrecy rule were given by Arbour J (delivering the judgment of the Supreme Court of Canada) in R v Pan. These rationales were noticed by this court in Clow v HM Advocate (at paras [7] and [12] respectively). It is unnecessary to repeat what was said there. At para [13] of Clow it was stated:

"These rationales appear, at least in large part, to be as applicable to internal jury communications before as after enclosure. Where, in practical terms it is impossible, as it is, to prevent jurors sharing in the jury room their impressions of the case as it proceeds, the rule cannot be restricted to 'deliberations' in the narrow sense of exchanges after the jurors have retired to consider their verdict. The discussion by their Lordships in Mirza does not suggest that any such line can properly be drawn. While it may be that in the result the protection afforded by the criminal sanction under the Contempt of Court Act 1981 is not as extensive as the common law rule, that is not a sufficient reason for giving to that rule an unnaturally restricted scope. The need, based on the rationales discussed, for jury secrecy distinguishes private comments and conduct of jurors in the jury room from public comments or conduct of judges in open court."

We see no reason for departing from that view, nor a basis for convening a larger court to review it.

[16] We should add that the principles discussed are concerned with the secrecy or confidentiality of jury communings when sought to be explored by third parties after the trial. They do not prevent the court in the course of the trial before the jury retire to consider their verdict making, in appropriate circumstances, enquiry of what has happened in the jury room (SCCRC, Petitioners, at para [6]). It is unnecessary for the purposes of this case to explore in what circumstances such enquiry would be appropriate. Nor do the principles necessarily inhibit what steps may be taken by the court in the course of an appeal.

The extrinsic/intrinsic distinction
[17] This, of course, leaves available the distinction between extrinsic and intrinsic matters made in R v Pan at para 60 and adopted in Clow v HM Advocate at para [15]. As Arbour J said at the paragraph referred to:

"The distinction between intrinsic and extrinsic matters is not always self-evident and it is not possible to articulate with complete precision what is contemplated by the idea of a matter 'extrinsic' to the jury deliberation process."

In a particular case it may call for judicial adjudication.

[18] There have been instances where the court has had regard to extrinsic factors, albeit this did involve enquiry of jurors. Illustrations of such are given in para [15] of Clow. We see no reason to doubt that in a truly "extrinsic" case (and perhaps in some other types of case - for example, the use of a ouija board, where what is claimed amounts to an assertion that the jurors had not come to their verdict by deliberation at all), the confidentiality ordinarily allowed to jurors will not run.

The position of the Commission
[19] It remains to consider in what circumstances enquiry may be made of jurors. In the final sentence of Clow this court said:

"... we are satisfied that any enquiry into the words or actions of serving jurors should be made only by the court or in furtherance of orders made by it".

As a general proposition we adhere to that view. However, the discussion in that paragraph was in relation to enquiries being made by agents for appellants. Any specialty about the Commission did not arise.

[20] The Commission are a body constituted by statue (Criminal Procedure (Scotland) Act 1995 (as amended), Part XA). Their function is to consider whether a miscarriage of justice may have occurred in any case and whether it is in the interests of justice that a reference be made to the High Court. If they believe both these things they may make a reference (section 194C). The Commission may take any steps which they consider appropriate for assisting them in the exercise of any of their functions, including themselves undertaking enquiries and obtaining statements, opinions or reports (section 194F). There is no statutory restriction on what enquiries they can make. They may seek the assistance of a court: they may apply to the sheriff for a warrant to cite a person for precognition on oath (section 194H) and to the High Court for an order requiring a person or body to produce a document or other material (section 194I). There is no automatic right to secure a precognition on oath; the sheriff must be satisfied that it is reasonable in the circumstances to grant the warrant. Nor is an application under section 194I to be granted without appropriate judicial scrutiny (Scottish Criminal Cases Review Commission v Lord Advocate 2000 SCCR 842, per Lord Clarke at paras [20] - [21]). It does not, however, follow in our view that in every case where the Commission wishes to make enquiry of jurors it will require to come to the court for authority to do so. The relationship between the court and the Commission is one of some delicacy since much of the raison d'être of the Commission is to review cases where the court has refused an appeal and, if appropriate, to refer the case to this court to consider de novo (Scottish Criminal Cases Review Commission, Petitioners at para [12]). This suggests that the court should be circumspect in its dealings with the Commission, lest there is a risk that it inhibits or, gives the impression of inhibiting, the work of the Commission in seeking to investigate possible miscarriages of justice. Further, the Commission is a public body charged with public functions. The court is entitled to have confidence that, without its monitoring their enquiries in every case where the activities of jurors are to be investigated, the Commission will act with like circumspection in their investigation to avoid encroaching into prohibited areas. For these reasons we have come to the view that the restriction laid down in the final sentence of paragraph [18] in Clow need not, and should not, apply to the Commission.

[21] The Commission's application seeks the opinion of the court on the question of "Whether the common law of confidentiality applicable to jurors affects the ability of the petitioners, under sections 194F, 194H and 194I, of the Criminal Procedure (Scotland) Act 1995 to investigate an allegation relating to the conduct of a juror or jurors prior to seclusion". We answer that question in the negative, subject to the observation that the distinction between extrinsic and intrinsic factors will apply to the Commission as to others, the former being open to investigation, the latter not. Where it is unclear on which side of the line a proposed enquiry may fall, it will be open to the Commission to seek the assistance of the court under section 194D(3) of the 1995 Act.