KERAN HENDERSON CASE; PART 23; BRITISH LAW PROFESSOR CALLS FOR INCREASED TRANSPARENCY OF JURY VERDICTS; THE TIMES;

"IN THE CASE AGAINST THE TIMES, LORD JUSTICE PILL SAID THAT THE STRENGTH AND VALUE OF THE JURY DEPEND ON “THE OPEN AND FRANK EXPRESSION OF VIEWS BETWEEN 12 PEOPLE IN THE SECRECY OF THE JURY ROOM” AND THAT “CONFIDENCE TO EXPRESS VIEWS IN THAT WAY DEPENDS ON THE JUROR’S KNOWLEDGE THAT THE VIEWS WILL NOT BE REVEALED OUTSIDE THE JURY ROOM”. THE REASON FOR THAT PRINCIPLE IS THAT BY KEEPING SECRET WHAT ANY NAMED JUROR SAYS, OR HOW HE OR SHE VOTES, THE SYSTEM PREVENTS BLACKMAIL AND BRIBERY. BUT THAT PROTECTION REMAINED INVIOLATE AFTER THE TIMES ARTICLE BECAUSE ONLY A VOLUNTEER, MICHAEL SECKERSON, HAD BEEN IDENTIFIED. NO JUROR WHO WANTED TO REMAIN ANONYMOUS HAD BEEN EXPOSED."

PROFESSOR GARY SLAPPER: THE TIMES;

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Professor Gary Slapper set out his views on this issue - raised by the imposition of fines for contempt on the Times and the foreman of the jury in the Keran Henderson case - in a column in the Times which ran on May 23, 2009.

"Research on how real juries decide cases is illegal," Professor Slapper began.

"That is a bizarre and unsustainable law in the age of openness," he continued.

"Taxpayers fund more than 800,000 juror sitting days a year: why should we not be allowed to discover how juries operate?

The 21st-century society is an open one. We no longer accept that important parts of government should be operated 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, such as national defence.

There is no more important feature of our democracy than the jury, the forum in which it is decided which of us are convicted and punished with up to life imprisonment. In 1957, Sir Patrick, later Lord, Devlin observed that one of the first things a dictator taking over Britain would do was abolish the jury, because “no tyrant could afford to leave a subject’s freedom in the hands of 12 of his countrymen”.

With anything that important, there is a need to know how it works. In so far as Section 8 of the Contempt of Court 1981 prevents research on how juries work, it is an anachronistic law and should be reformed urgently.

In the case against The Times, Lord Justice Pill said that the strength and value of the jury depend on “the open and frank expression of views between 12 people in the secrecy of the jury room” and that “confidence to express views in that way depends on the juror’s knowledge that the views will not be revealed outside the jury room”.

The reason for that principle is that by keeping secret what any named juror says, or how he or she votes, the system prevents blackmail and bribery. But that protection remained inviolate after the Times article because only a volunteer, Michael Seckerson, had been identified. No juror who wanted to remain anonymous had been exposed.

There is now a compelling argument to change the law. The jury is probably a good institution but we do not really know how it works. Experiments with simulated juries have generated some curious results. In 2007, a study suggested that jurors are less likely to return guilty verdicts against attractive defendants. In an American experiment involving 715 people, a truthful speaker was judged to be lying by 74.3 per cent of the subjects and a lying witness was judged to be truthful by 73.7 per cent.

A Crown Court prosecution can be proven only if it is made “beyond a reasonable doubt”. So it is remarkable that if we ask ourselves whether we are sure, beyond a reasonable doubt, that the jury system itself works well, the answer is one worthy of Alice in Wonderland: we do not know and it is illegal to find out.

The author is director of the Open University law programme."

Harold Levy...hlevy15@gmail.com;

KAREN HENDERSON CASE: PART 22; ANOTHER BRITISH LAWYER CHALLENGES BRITISH CONTEMPT LAW;

"NOR DOES SECTION 8 ALLOW FOR A PUBLIC INTEREST DEFENCE. WERE IT LEGALLY RELEVANT, THE TIMES WOULD HAVE HAD A STRONG BASIS FOR ARGUING THAT ANY DAMAGE TO THE ADMINISTRATION OF JUSTICE WAS OUTWEIGHED BY THE CONTRIBUTION MADE BY THE ARTICLE TO A DEBATE ON A MATTER OF PUBLIC CONCERN, THAT IS HOW JURIES ASSESS EXPERT MEDICAL EVIDENCE IN CASES OF ALLEGED CHILD CRUELTY."

LAWYER DAVID PINNICK: THE TIMES;

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Lawyer David Pinnick argues in the Times that the fines levied against the Times and the jury foreman in the Keran Henderson case prove the need for reform of an indefensible law.

I couldn't agree more - and I hope his arguments will also resonate in Canada and other countries where there are rigid restrictions against reporting the jury's deliberations;

"The decision of the Divisional Court (Lord Justice Pill and Mr Justice Sweeney) last Friday to fine Times Newspapers £15,000 for a report in this newspaper about a jury’s verdict in a manslaughter case strengthens the campaign for reform of an indefensible law of contempt of court," Pinnick's column begins;

"The article, published in December 2007, reported the concern of the foreman of a jury about how the decision was reached to convict a childminder for shaking a baby to death," the column continues;

"The court found that there was a breach of Section 8 of the Contempt of Court Act 1981 that makes 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”.

The Divisional Court concluded that the article breached Section 8 for two reasons. First because it disclosed that the jury had split 10-2 immediately after they began their deliberations and that there was “no going back”. The court said that this was a breach of Section 8 because it revealed that the jury had formed their views early on, with a determination not to change their minds. The court so found even though it was, of course, announced at the end of the criminal trial that the jury had reached a 10-2 majority verdict.

The second basis for the finding of contempt was that the article reported the foreman’s concern that “the case was decided by laymen and laywomen using that despicable enemy of correct and logical thinking, that wonderfully persuasive device, common sense”, when there was a need carefully to consider expert evidence. According to the Divisional Court, this was to “reveal the approach of this jury to the evidence in this case”.

Section 8 was enacted after the New Statesman was acquitted by Lord Chief Justice Widgery in 1980 of contempt of court for publishing an interview with one of the witnesses in the sensational 1979 Old Bailey trial in which Jeremy Thorpe, the Liberal politician, and other defendants were acquitted of conspiracy to murder.

The terms of Section 8 are absurdly wide in their scope and application. The prosecution in the Times Newspaper case did not need to prove, nor could it have done, that the information published was damaging to the administration of justice. Such an absolute offence is rare. Even in the context of the Official Secrets Act 1989, most of the offences depend on proof that the disclosure is “damaging” to the public interest.

Nor does Section 8 allow for a public interest defence. Were it legally relevant, The Times would have had a strong basis for arguing that any damage to the administration of justice was outweighed by the contribution made by the article to a debate on a matter of public concern, that is how juries assess expert medical evidence in cases of alleged child cruelty.

The absolute nature of Section 8 of the Contempt of Court Act 1981 is indefensible, especially when Section 5 of the same statute says that if a person is charged with another category of contempt by publishing an article that creates a substantial risk of impeding or prejudicing court proceedings, it is a defence to show that the publication is part of a discussion in good faith of a matter of public interest and the risk of impediment or prejudice is merely incidental to that discussion.

The offence created by Section 8 is absolute in another important respect. When Section 8 was first debated in Parliament in 1981, it prohibited a publication only that identified a juror or the trial. Against the wishes of the Government, legal peers persuaded the House of Lords to introduce an amendment that removed that restriction. Section 8, as enacted, therefore prohibits any form of research into the deliberations of juries. Lord Mackay of Clashfern, then the Lord Advocate and later Lord Chancellor, argued in vain that “the jury system, great institution that it is, surely can stand up to properly conducted research”. Lord Chancellor Hailsham added that he would not vote for “a new criminal offence which is to my mind thoroughly bad because it is too draconian”.

Section 8, as applied by the Divisional Court in the Times Newspapers case, is an embarrassment to the legal system. Even though there is no conceivable damage to the administration of justice, and no naming of any individual juror, the court has punished the publication of information that contributes to a debate on an important matter of public interest. Any sensible jury would unanimously conclude that Section 8 is guilty as charged and is badly in need of amendment.

The author is a practising barrister at Blackstone Chambersin the Temple, a Fellow of All Souls College, Oxford and a crossbench peer in the House of Lords;

Harold Levy...hlevy15@gmail.com;

KERAN HENDERSON CASE: PART 21; BRITISH LAWYER WANTS THE JUROR'S VOICE TO BE HEARD; MARK STEPHENS; THE TIMES ONLINE;

"JURORS HAVE EXPOSED YET ANOTHER FLAW IN THE SYSTEM RECENTLY, EXPRESSING CONCERN ABOUT THE SAFETY OF CRIMINAL CONVICTIONS IN A SHAKEN-BABY SYNDROME CASE. SOME DOCTORS HOLD THE BELIEF THAT IF THREE INDICIA TOWARDS THE SYNDROME EXIST WHEN A CHILD PRESENTS, THEN A “DEDUCTIVE DIAGNOSIS” MAY BE MADE SAFELY. MEDICAL OPINION IS DIVIDED STRONGLY. TWO JURORS CONCERNED ABOUT THIS CONFLICT AND CONSEQUENT RELIABILITY OF A CRIMINAL CONVICTION SPOKE OUT AFTER KERAN HENDERSON, A CHILDMINDER, WAS FOUND GUILTY BY 10-2 OF A CHILD IN HER CARE.

THERE IS NO OFFICIALLY PUBLICISED METHOD OF BRINGING INJUSTICE TO LIGHT. SO WHAT IS THE RESPONSIBLE JUROR, PRICKED BY CONSCIENCE, TO DO? IN THE CASES ABOVE, JURORS SOUGHT OUT RESPONSIBLE MEDIA AND GAVE INTERVIEWS AIRING THEIR CONCERNS IN VERY MEASURED TONES. NOT SUFFICIENTLY MEASURED FOR THE ATTORNEY-GENERAL, IT TRANSPIRED, WHO INSTITUTED CRIMINAL PROCEEDINGS FOR CONTEMPT."

LAWYER MARK STEPHENS; THE TIMES ONLINE;

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"Lawyer Mark Stephen's perspective on the punishments for contempt of court imposed on The Times and the jury foreman of the Keran Henderson trial was published earlier today in the Times Online;

Stephen's column appeared under the brilliant heading: "Would you want to know if a Ouija board decided your case?"

"It seems trite law that the secrets of the jury room, however compelling, must never be revealed, the column began;

"The British have a penchant for locking away in the closet distasteful truths about much loved institutions — whether jury deliberations or Liberal politicians," it continued;

"After the acquittal of Jeremy Thorpe, the former leader of the Liberal Party, on a charge of conspiracy to murder in the Old Bailey in 1979, Parliament reacted swiftly to protect its own, passing the modern strict liability offence as an absolute bar against revelation of almost anything from inside the jury room.

Unsurprisingly, this step backwards into secrecy caused disquiet. With others, Lord Steyn, the law lord, was demonstrably concerned (in a case before the law lords in 2004) that evidence that could reveal a lack of impartiality in a jury’s deliberations would no longer become public. This meant that the law had no jurisdiction to examine possible miscarriages of justice emanating from the jury room.

He cited two examples. A juror reveals that during deliberations some of the jury who were affiliated with a neo-Nazi group had urged the conviction of the accused, a black immigrant. In the second example, a juror reveals that a majority of the jury refused to deliberate and that the guilty verdict was decided by spinning a coin. “Neither example is either fanciful or extreme: both were suggested to me by decided cases,” he said.

No one would seriously contest that such verdicts would be unsafe and procedurally perverse.

Many will also remember the notorious 1994 case when Stephen Young, an insurance broker, was convicted of murdering Harry and Nicola Fuller. It transpired that the jury at Hove Crown Court had used a Ouija board in deliberations.

Jurors have exposed yet another flaw in the system recently, expressing concern about the safety of criminal convictions in a shaken-baby syndrome case. Some doctors hold the belief that if three indicia towards the syndrome exist when a child presents, then a “deductive diagnosis” may be made safely. Medical opinion is divided strongly. Two jurors concerned about this conflict and consequent reliability of a criminal conviction spoke out after Keran Henderson, a childminder, was found guilty by 10-2 of a child in her care.

There is no officially publicised method of bringing injustice to light. So what is the responsible juror, pricked by conscience, to do? In the cases above, jurors sought out responsible media and gave interviews airing their concerns in very measured tones. Not sufficiently measured for the Attorney-General, it transpired, who instituted criminal proceedings for contempt.

To date, jurors have been interviewed in a number of cases, including that of Barry George, the alleged killer of Jill Dando. These interviews occurred because, until recently, it was believed that the legal matrix had been relaxed so as to permit general disquiet to be expressed by a responsible juror, who would nonetheless be under a continuing obligation to keep the detail of deliberations secret to ensure the proper and effective functioning of a jury. This loosened position was set out in guidance issued in 1982 by Sir Michael Havers, QC, when his was Attorney-General, and reinforced with the adoption into UK law of the European Convention on Human Rights.

A stake was driven through the heart of that guidance in the recent prosecution by the present Attorney-General. In a twist of irony, she instructed Sir Michael’s son, the eminent QC Philip Havers, to prosecute. It was with a certain lightness of touch that Mr Havers said of his father’s guidance: “However eminent the Attorney-General may have been, he may also have been incorrect.”

The decision to prosecute in a genuine case of conscience is surely a retrograde step and the conviction by the Divisional Court is more disquieting, if only for its failure to address the balance necessary between Article 10 (the jurors right to speak) and Article 6 (the right to a fair trial).

One hopes that the House of Lords will accept the petition in this case and give clear guidance as to how a juror may properly express concern at unsafe verdicts and practices, while safeguarding the real noesis: the necessary secrets of the jury room."

Mark Stephens is head of media law at Finers Stephens Innocent LLP;

Harold Levy...hlevy15@gmail.com;