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Justice: Academic Research on Jury Decision-making

Volume 752: debated on Wednesday 12 March 2014


Asked by

To ask Her Majesty’s Government whether they have any plans to reconsider the ban on academic research into the process of decision-making by juries in criminal trials under Section 8 of the Contempt of Court Act 1981.

My Lords, I beg leave to ask the Question standing in my name on the Order Paper. At the same time, I should make clear to the House that this Question is not topical, as would be normal for a fourth Question on a Wednesday, and it is not connected to any verdict in any recent trial.

My Lords, it is the Government’s general position that juror deliberations should be confidential. The noble Lord will know that the Law Commission’s recent report, published in December last year, Contempt of Court (1): Juror Misconduct and Internet Publications, recommends a limited exception to the general prohibition to allow for academic research. The Government are considering that recommendation and will respond in due course.

I am grateful to the Minister for that considered reply. However, it is a fact that this provision in the Contempt of Court Act 1981 was not aimed at academic research but has had the effect of stifling it. We simply do not know how juries work. We have no objective or academic window into these rooms. Lord Devlin described juries as,

“the lamp that shows that freedom lives”.

If so, it is a lamp which is certainly being kept under a bushel. Is the Minister aware of any other area of public policy and expenditure in relation to which objective and academic-based research is illegal? If he is not, does he agree with me that, more than 30 years on from that Act, it must be possible in the internet age to design research that anonymises individual jurors and verdicts, and that it is now time to reconsider this legislation fully?

My Lords, at the present time, any researcher into this area has to obtain authorisation sponsorship from HM Courts & Tribunals Service and then apply to the data access panel, whereafter various safeguards, including anonymity and safeguards to ensure that the conviction or the innocence of a particular defendant is not called into question, will be made part of that condition. There is research. For example, Professor Cheryl Thomas has provided valuable research on this issue.

The Minister has referred to Professor Cheryl Thomas of UCL, who produced a report for the MoJ in 2010, Are Juries Fair? One of her findings through talking to 797 jurors was that only 31% of them understood the directions in law that the judge was giving to them at the end of the trial. She recommended that, in every case, written direction should be given by the judge to the jury. Has that been carried out?

Directions to the jury are a matter for the judge in the individual case. Judges are making ever more use of written directions, particularly in difficult cases. Very often, they will provide a direction having heard submissions from both prosecution and defence counsel so that they can arrive at an agreed direction. They will give the direction orally and then again in writing. In simple cases, that may not be necessary, but in other cases it is clearly desirable.

My Lords, is the Minister aware that academic research of this kind has been permitted in New Zealand for at least 20 years and the product of that research is in the public domain? Its system of justice is very similar to ours. Does the Minister think that we might have something to learn from its experience?

In answer to the first Question, I indicated that the Ministry of Justice is considering the Law Commission’s recommendation and will of course bear in mind what is said there. The safeguards identified in that report are the same safeguards as exist at the moment. We remain open to persuasion. A Bill will in due course be coming to your Lordships’ House containing various provisions about juries. It is possible that there may be some amendment to that effect.

My Lords, in addition to the recommendations about research, the Law Commission has proposed the creation of some new offences that apply to juries in the light of current developments, particularly in technology, and that better guidance be given, not merely in the form referred to in the question of the noble Lord, Lord Thomas. Are the Government in a position to respond to them, and to the recent suggestion by the Lord Chief Justice that in serious fraud cases, for example, a different method might be instituted which would mean that juries would not try such cases?

As to the latter question, as the noble Lord will know, that is no new suggestion. It dates back as long ago as when the Roskill commission made suggestions to that effect. There are no current plans to remove trial by jury. As to other changes in the jury system and legislating to that effect, the noble Lord may be aware that there are provisions in Part 3 of the Criminal Justice and Courts Bill dealing with, among other things, questions of electronic communication devices and the restriction on them and the restriction on jurors using the internet to obtain information during the course of the trial, which can of course compromise a fair trial, which is in no one’s interest.

My Lords, will the Minister bear in mind that the legal profession has traditionally been very conservative about certain changes? When, in the 1960s, I was a Home Office Minister and we introduced majority verdicts, the general view of the Bar was that the sky would fall and that that would be the end of justice as we knew it. More recently, it has been accepted that that is one of the most important changes that has taken place. Is it not highly desirable that we should know how juries proceed and work, based not on anecdotal evidence but on solid evidence of the kind that the noble Lord, Lord Blair, described? That is obviously in the interests of justice.

I have considerable sympathy with what my noble friend says. He will probably be familiar with Professor Cheryl Thomas’s work in which, despite certain doubts about the ability of some jurors to reach reasoned decisions, she remains a considerable enthusiast for the jury system. I accept that no system of trial should be beyond research or examination.