Her Majesty's Attorney General (Respondent) v. Scotcher (Appellant) (Criminal Appeal from Her Majesty's High Court of Justice)

Contempt of Court Act 1981, section 8(1), does not prevent a juror from making a bona fide disclosure of jury misconduct to the court to prompt an investigation, unless the disclosure involves malice, dishonesty or another improper motive. The protection can extend to a communication transmitted to the court through an authorised or secure conduit.

It does not extend to disclosure to an unauthorised third party, even where the juror genuinely wishes to expose a miscarriage of justice. The statutory restriction protects the confidentiality of jury deliberations and is compatible with article 10. Incorrect official warnings about the scope of the prohibition cannot alter the statute or determine guilt, though they may potentially bear on mitigation.

After serving on a criminal jury, the appellant wrote to the convicted defendants' mother. He disclosed statements, opinions, arguments and votes from the jury's deliberations and encouraged an appeal. He genuinely believed that the convictions involved a miscarriage of justice, but asked the recipient not to show the letter to the police, the judge or prosecuting counsel.

The Divisional Court held that a desire to expose a miscarriage of justice provided no defence and found the appellant in contempt under section 8(1) of the Contempt of Court Act 1981: [2003] EWHC 1380 (Admin). It imposed two months' imprisonment, suspended for one year, and costs.

Following R v Mirza [2004] UKHL 2, the issue before the House was whether section 8(1), interpreted consistently with article 10, protected a bona fide disclosure made to a third party with the ultimate aim of exposing a miscarriage of justice.

1. Appeal dismissed unanimously. Lord Rodger of Earlsferry delivered the leading speech. Lord Steyn, Lord Hutton, Baroness Hale of Richmond and Lord Carswell agreed with it.

2. Per Lord Rodger, section 8(1) of the Contempt of Court Act 1981 does not apply to a court considering a juror's complaint about misconduct during deliberations. A court cannot be in contempt of itself. R v Mirza [2004] UKHL 2 established that the court's ability to investigate is limited by the common-law rule of admissibility, rather than by section 8(1).

3. By necessary implication, a juror may disclose what was said or done during deliberations to the court with the intention of prompting an investigation. Such a bona fide disclosure is not within section 8(1), unless accompanied by malice, dishonesty or another improper motive. The same applies where the juror uses an authorised or secure conduit whose function is to pass the communication to the court.

4. The appellant did not use such a conduit. He disclosed the deliberations to the defendants' mother, who had no authority to receive the disclosure for the court and remained free to distribute it elsewhere. His request that she should not show the letter to the judge, police or prosecuting counsel also contradicted the contention that she was intended to act merely as a conduit. The disclosure therefore created the risks to jury confidentiality which section 8(1) was designed to prevent.

5. Per Lord Rodger, the appellant's genuine belief in a miscarriage of justice did not provide a defence to this unauthorised disclosure. His deliberate disclosure of statements, opinions, arguments and votes accordingly constituted contempt under section 8(1).

6. The restriction engaged article 10 but was justified under article 10(2). Protecting the secrecy of jury deliberations was sufficiently important; section 8(1) was rationally connected to that objective; and the restriction went no further than reasonably necessary because bona fide disclosures to court authorities remained permitted.

7. Section 3 of the Human Rights Act 1998 was unnecessary because section 8(1), properly construed by ordinary domestic principles, was compatible with article 10. Official warnings which incorrectly suggested an absolute prohibition could not change the statute or the appellant's guilt. At most, such warnings might bear on mitigation, but they did not assist this appellant.

1. House of Lords: The appeal was dismissed unanimously: [2005] UKHL 36. The House affirmed the finding of contempt, while applying the corrected interpretation of section 8(1) established after the Divisional Court's decision.

2. Divisional Court: Scott Baker LJ and Pitchford J held that a juror's desire to expose a miscarriage of justice provided no defence under section 8(1): [2003] EWHC 1380 (Admin). After the appellant accepted that he had committed contempt, the court imposed two months' imprisonment suspended for one year and ordered him to pay £2,500 costs.