The ‘Times’ is justifiably proud of its law report coverage, but it is not every day that it figures in one of the reported cases. That happened this week when two High Court judges fined it for contempt of court in revealing how the jurors in a manslaughter trial reached their verdict.

Michael Seckerson, the jury foreman, was one of two jurors who dissented from the verdict in the case of Keran Henderson, a childminder, who was convicted for the manslaughter of 11 month old Maeve Sheppard while in her care, and jailed for three years. Their comments were published by the ‘Times’ in an article headlined “Jurors break silence to insist childminder did not kill baby”. In the article, the jurors, who were not named, expressed the belief that Henderson was wrongly convicted of killing the child by shaking her so violently that she was left blind and brain damaged. The contempt case was brought by the Attorney-General under Section 8 of the Contempt of Court Act 1981. The ‘Times’ and Mr Seckerson argued that contempt proceedings could not be justified in the light of Article 10 of the European Convention on Human Rights, which guarantees the right to freedom of expression, subject to exceptions such as the need to maintain the authority and impartiality of the judiciary. They said that there had been no damage to the administration of justice, no individual juror was identified, no individual’s opinions were disclosed and the articles were written in good faith, after taking legal advice. The heavy reliance placed on expert medical evidence in “shaken baby” cases made it a matter of public importance.

Section 8 of the Contempt of Court Act 1981 states that:

“(1) Subject to subsection (2) below, it is 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 judges said that it was not suggested that sub-section (2) had any bearing on this particular case. They explained the traditional arguments in favour of the total secrecy of the jury system. “Its strength and value depend on the open and frank expression of views between twelve people in the secrecy of the jury room. Confidence to express views in that way depends on juror’s knowledge that the views will not be revealed outside the jury room. Jurors should not be constrained 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. If views were expressed in the hope of their being disclosed, or with an intention to disclose, that would also have a deleterious effect on the quality of deliberations”. Lord Justice Pill said that the court acknowledged the mitigating factors but had to impose penalties “sufficient to mark the seriousness of breaches of Section 8 and to deter others from following the example of this juror and this newspaper”. The ‘Times’ was fined £15,000 and Mr Seckerson £500. The Attorney-General was awarded £27,426 costs.

The full text of the judgement in Her Majesty’s Attorney General and Michael Alexander Seckerson and Times Newspapers Limited in the High Court of Justice, Administrative Division, (Case No: CO/12411/2008) can be found at:
http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/Admin/2009/1023.html

It is always an event when the Lord Chief Justice reveals his views on the judicial system and so it was when the new holder of the office, Lord Judge of Draycote, addressed the University of Hertfordshire on 4 November. The title of his speech was “The Criminal Justice system in England and Wales – time for change?” and the full text can be found at http://www.judiciary.gov.uk/docs/speeches/lcj-speech-uni-hertfordshire-041108.pdf

Among many aspects considered was the relationship between the internet and the jury system. Lord Judge’s concerns are twofold. Firstly the availability of the internet to jurors. At the outset of a trial, judges direct the jury not to look at the internet in connection with the trial. They must reach their verdict only on the basis of what they hear in the courtroom. But, inevitably, from time to time an individual juror will disregard the direction and make his own private enquiries. Lord Judge referred specifically to a recent case when a juror went online using a Blackberry during a rape case, causing the conviction to be quashed. And he is not just concerned with today, “but the technology which will be available to our successors in, say, 2020 or 2025. I cannot begin to imagine the extent of the changes which lie ahead.”

His second concern is the extent to which internet culture is inimical to the traditional jury system. “Our system of jury trials depends on twelve good men and women and true coming to court and listening to the case. Orality is the crucial ingredient of the adversarial system. Witness speak and answer questions. Counsel speak and address the jury. Judges speak and give directions.” He described how the young get much information from the internet, how they consult and refer to it. “They are not listening. They are reading.” The potential problem he identifies is whether, learning as they do in this way, they will be accustomed to listening for prolonged periods. “What will happen to our oral tradition? Should it, will it, be forced to change?”

Writing in “The Guardian” Marcel Berlins wonders if the jury system can survive the internet. Accepting the validity of Lord Judge’s observations, he points out that although members of the internet generation are currently in the minority of today’s juries, progress is relentless, and it will not be long before they start to dominate them. He poses the question “what can be done to convey the evidence during a trial in a more palatable way, without destroying the essence of the jury system?”

Neither he nor the Lord Chief Justice (“I do not have solutions”) come up with answers.