Her Majesty's Attorney General v Scotcher

The appeal concerned the scope of section 8(1) of the Contempt of Court Act 1981 and whether a juror who disclosed the jury's deliberations to a third party could rely on a defence of bona fide intent to expose a miscarriage of justice or on the Human Rights Act 1998 to read such a defence into the statute. The House held that disclosures by a juror to the trial court or the Court of Appeal to prompt an investigation are not caught by section 8(1), but that disclosure to an unauthorised third party is within section 8(1) where it creates the very risks to confidentiality and finality which the provision was designed to prevent. The court rejected the submission that section 3 of the Human Rights Act 1998 required reading into section 8(1) a defence for a juror who disclosed deliberations to a third party with a bona fide motive, and held that article 10 rights were lawfully restricted by section 8(1) in pursuit of the legitimate objective of protecting the confidentiality of jury deliberations.

Background and facts. The appellant, Keith Scotcher, served as a juror in a criminal trial. After the jury returned a majority verdict, he wrote to the defendants' mother describing his dissent and disclosing statements, opinions and votes that had arisen during the jury's deliberations. His letter was traced to him by handwriting analysis. The Attorney General gave consent under section 8(3) of the Contempt of Court Act 1981 and the Divisional Court found him guilty of contempt, sentencing him to two months' imprisonment suspended for one year and ordering costs.

Procedural history. The Divisional Court ([2003] EWHC 1380 (Admin)) held that no defence was available to a juror who disclosed deliberations to a third party even if motivated by a desire to expose a miscarriage of justice. Leave to appeal to the House of Lords was granted. In the meantime the House decided R v Mirza [2004] UKHL 2, which altered the prior understanding of the reach of section 8(1) and informed the submissions in this appeal.

Issues considered.

• Whether a juror who disclosed jury deliberations to a third party could rely on a defence based on bona fide motive to prevent a miscarriage of justice.
• Whether section 3 of the Human Rights Act 1998 required the court to read such a defence into section 8(1) to make it compatible with article 10 of the European Convention on Human Rights.
• Whether section 8(1) was a proportionate restriction on freedom of expression under article 10.

Court's reasoning and conclusions. The House accepted the reasoning in R v Mirza that section 8(1) does not apply to a court investigating jury misconduct (a court cannot be in contempt of itself) and that a juror who brings complaints directly to the court, absent improper motive, would not be guilty under section 8(1). However, the court distinguished disclosure to a third party. The appellant's letter to the defendants' mother was a disclosure to an unauthorised third party, might be circulated publicly and thus created the very risks of harassment and erosion of confidentiality that section 8(1) was enacted to prevent. The House rejected the argument that section 3 of the Human Rights Act required reading in a defence, because the statute properly construed is compatible with article 10: the restriction is prescribed by law, pursues the legitimate aim of protecting confidential jury deliberations, and is proportionate, particularly because bona fide disclosures to the court remain permissible. The warnings given to jurors did not alter the statutory construction or absolve the appellant. The appeal was dismissed.

Appeal dismissed. The House held that section 8(1) of the Contempt of Court Act 1981 covers a juror who discloses jury deliberations to an unauthorised third party and that no defence may be read into the statute under section 3 of the Human Rights Act 1998 to protect such disclosures; restrictions on article 10 freedom of expression were justified and proportionate because bona fide disclosures to court authorities remained permissible.

Divisional Court ([2003] EWHC 1380 (Admin)) — permission to apply for committal granted; leave to appeal to the House of Lords granted 2 December 2003; appeal decided by the House of Lords [2005] UKHL 36 (19 May 2005). The House's decision was informed by its earlier decision in R v Mirza [2004] UKHL 2.