Three centuries of jury privacy under threat from Lord Chancellor's review

The sanctity of the jury room could be breached for the first time in more than three centuries under government plans to consult the public on how to investigate allegations of juror misbehaviour.

The sanctity of the jury room could be breached for the first time in more than three centuries under government plans to consult the public on how to investigate allegations of juror misbehaviour.

A change in the law would end the strict prohibition on jurors disclosing anything said in the privacy of the jury room. The consultation document, to be published next year, will look at ways of investigating juries alleged to have returned guilty verdicts on grounds of racial or other prejudice.

Lord Falconer of Thoroton, the Lord Chancellor, told The Independent that "impropriety in the jury room" was one of two reasons ministers were considering allowing research into jury deliberations. He said a recent House of Lords case had considered the issue of an allegation of race bias following the conviction of a Pakistani chef from east London who was accused of assault. Afterwards a juror had alleged fellow jurors were racially prejudiced because they had argued the defendant had tried to "play" the system by asking for an interpreter.

Although a majority of law lords ruled against any inquiry that breached the sanctity of the jury room, Lord Steyn, in his judgment, said there should be a mechanism for righting a wrong where there was serious allegation of jury impropriety.

Echoing Lord Steyn's dissenting view, Lord Falconer said: "We need to see whether or not it would help for there to be proposals ... in which [investigations] could occur. So if you say 'look I'm convicting this person because they are black or white' - how do you investigate that?"

Any change to the present law should only be done in rare cases said Lord Falconer: "You need people to be absolutely confident that it's only in the absolute extreme circumstances that the confidentiality of the jury will be breached. Because people have got to know that what they say in the jury room is absolutely confidential."

The sanctity of the jury was established by the case of Penn and Mead in 1670, when a judge tried to force a jury to convict two Quakers of unlawful assembly. When the jurors persisted in their refusal to convict, the court fined them and committed them to prison until the fines were paid. On appeal, the Court of Common Pleas ordered the jurors released, holding that they could not be punished for their verdict.

Lord Falconer's consultation paper could also lead to a more structured system for the way juries consider the facts and issues of the case. He said: "The other thing is to try to work out in appropriate cases whether or not there are ways by which you could help the jury better involve themselves in reaching a decision. Would it help to have bits of paper explaining things and more ability to take notes?"

Lord Falconer added: "The issue is not how should one do it but whether one should do it at all ... You need to make juries convinced that their confidentiality is preserved."

Under Section 8 of the Contempt of Court Act (1981) it is a criminal offence 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". But this year, the Lord Chancellor gave permission to a team from the Centre for Criminology at Middlesex University to interview jurors.

Some 361 men and women were questioned. While individual cases were not discussed, the study revealed most jurors feel their time in court is positive, but for a significant number it can also be confusing and intimidating. Just under two thirds of those engaging in jury service had a more positive view of the system afterwards.

The main factors associated with this positive change were the professionalism of the judge and court staff, and how jurors were treated. But just over a third of jurors felt "intimidated" or were made "very uncomfortable" by the defendant or by the prospect of meeting the accused's family outside the court.

THE PRECEDENT OF 1670

By Danielle Demetriou

When the Quakers William Penn and William Mead stood trial in 1670, it marked the start of a case that would change the course of legal history.

Penn, a barrister who later founded Pennsylvania, and Mead faced charges of preaching to an unlawful assembly in Grace Church Street, London. The jury acquitted the two men of the charges, but were told by the judge: "You shall not be dismissed 'til we have a verdict that the court will accept."

The jurors were subsequently locked up "without meat, drink, fire or tobacco" for two nights before being fined and imprisoned until they paid.

However, they boldly refused to succumb to the pressures applied by the authorities and did not change their decision.

Their defiance paid off. The Chief Justice released Penn and Mead, upholding "the right of juries to give their verdict by their conscience".

One of the jurors, Edward Bushel, later brought an action that led to the establishment of today's jury autonomy.