BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
FOURTH
SECTION
DECISION
Applications nos. 32844/10 and 33510/10
Michael Alexander
SECKERSON against the United Kingdom and
TIMES NEWSPAPERS LIMITED
against the United Kingdom
The
European Court of Human Rights (Fourth Section), sitting on
24 January 2012 as a Chamber composed of:
Lech Garlicki,
President,
David Thór Björgvinsson,
Nicolas
Bratza,
Päivi Hirvelä,
George
Nicolaou,
Ledi Bianku,
Nebojša Vučinić,
judges,
and Lawrence Early,
Section Registrar,
Having regard to
the above applications lodged on 4 and 3 June 2010,
Having
deliberated, decides as follows:
THE FACTS
- The
applicants are Mr Michael Alexander Seckerson (“the first
applicant”) and Times Newspapers Limited (“the second
applicant”). The first applicant is a British national who was
born in 1943 and lives in Maidenhead. He is represented before the
Court by Mr M. Uddin, a lawyer practising in Slough. The second
applicant is the proprietor and publisher of The Times
newspaper and is a company registered in England. It is represented
before the Court by Mr M. Stephens, a lawyer practising in
London.
A. The circumstances of the case
- The
facts of the case, as submitted by the applicants, may be summarised
as follows.
1. The background facts
- The first applicant was the foreman of the jury at the
trial of a childminder, K.H., for the manslaughter of a baby who
sustained fatal injuries while in her care. The prosecution case was
that she had shaken the baby so violently that she had died. The
prosecution did not call any eye witnesses to testify that K.H. had
injured the child but instead relied on expert medical evidence as to
how the injuries were sustained.
- The
trial lasted for five to six weeks and the jury deliberated its
verdict over a period of about three days. K.H. was convicted by a
majority of ten of the twelve members.
- In
late 2007, following the conviction, the first applicant contacted
The Times to express grave concerns about the trial and the
conviction.
- On
19 December 2007 The Times published two articles based on the
first applicant’s comments. One article appeared on the front
page in the following terms:
“Jurors question guilt of
killer childminder
The role of expert witnesses in baby death trials was
called dramatically into question last night after two jurors spoke
out to challenge the conviction of a childminder for killing a baby
in her care. Senior judges and law officers faced calls yesterday for
a fresh review of the role of expert witnesses in baby-death cases.
In an unprecedented move, the jurors disputed the recent
conviction of [K.H.] 42, a mother of two married to a former police
officer, for shaking 11-month-old [M.S.] so violently that the baby
was left blind and irreparably brain-damaged. She died days later.
The jury foreman, who cannot be named for legal reasons,
has told The Times that he believes [K.H.] is innocent. ‘A case
relying on circumstantial evidence and forensic opinion based on
evidential proof from other cases should never have reached a court.’
The case comes amid increasing concern over cases
involving baby deaths that turn on the evidence of medical experts.
[S.C.], [A.C.] and [T.P.] were all accused of killing their children,
only later to be found innocent. [S.C.], a solicitor who was finally
released from prison after three years, died in March from alcoholism
and psychological trauma caused by her ordeal.
... [T]he chairman of Justice for Families, called
yesterday on the Lord Chief Justice and Attorney-General to set up a
fresh inquiry into the way that courts use medical expert evidence.
‘Jurors think that [K.H.] is innocent,’ he said. ‘When
we are asking medical expert witnesses to diagnose innocence or
guilt, we need more certainty than is the case for most medical
treatment — a false diagnosis of guilt can generally cause far
more damage than a false medical diagnosis.’”
- The
second article appeared on the inside pages in the following terms:
“Jurors break silence to insist
childminder did not kill baby
Two jurors have spoken out to question the guilty
verdict in a case last month in which a childminder was jailed for
shaking a baby to death.
In an unprecedented move, the two jurors – a man
and a woman – say they believe that [K.H.], 42, a childminder
and mother, was wrongly convicted of killing 11-month-old [M.S.] by
shaking her so violently that she was left blind and brain damaged.
[K.H.], a respected Scout leader, allegedly lost her
temper and shook the baby so hard that she was taken to hospital,
blind and unconscious. She died two days later.
But the jury foreman, who cannot be named for legal
reasons, has told The Times that he does not think the case should
ever have come to court.
‘A case relying on circumstantial evidence and
forensic opinion based on evidential proof from other cases should
never have reached a court,’ he said. He added: ‘I think
that although the trial was very carefully run, the case in my view
was flawed and the accused innocent.’
He said: ‘I think [K.H.’s] heartrending
response [she broke down in uncontrolled weeping] to the verdict
confirms that it was flawed.’
A second juror named as Carol told BBC Radio 5 Live
yesterday: ‘I believe a miscarriage of justice has occurred and
there’s nothing I can do about it.
I don’t think you can get a fair outcome. I will
never know, as long as I live, whether the verdict was right or not
because we have not got all this medical expertise and I think if
medics can’t decide between themselves, what chance have we
got?’
Jurors are prohibited by law from disclosing the secrets
of the jury room and the discussions as to how a verdict was reached.
But the readiness of two of the 12 in this trial to speak out is an
indication of how strongly they feel.
A campaign has already begun by friends and relatives
who maintain that [K.H.] is innocent and want to secure her release.
She was jailed for three years. And yesterday an MP called for an
inquiry into the use of medical experts in trials.
At the time of the trial, some media commentators
suggested that the verdict was unjust. They said that it raised a
question mark over majority verdicts, implying that given more time
the jury might have reached a different verdict.
But the foreman of the jury insisted that the verdict
was understandable on the basis of medical expert evidence presented.
[K.H.] qualified as a childminder in 2000 and often had
up to eight children in her care at her home in Iver Heath,
Buckinghamshire. She had looked after [M.S.] since January 2005,
having been recommended to her parents ... by a mutual friend.
On the day [M.S.] died she was described as ‘full
of energy’ although she had been unwell in the weeks before her
death.
The jury foreman told The Times that there was no
question, as has been suggested, of the jury being rushed. It was
given ample time and the ‘consensus was taken three minutes
after the foreman was voted in. It was 10-2 against, all based on the
evidence. After that there was no going back.’
He added: ‘The jury majority voted guilty because
it could do no other.
‘The medical evidence was overwhelming. All the
necessary ingredients of what the experts call the “triad”
[a collection of features typically caused by shaking that lead to
hypoxic-ischaemic brain injury and death] were there.
But many expert witnesses vouchsafe that the literature
on shaken baby syndrome is contentious and far from complete. And so
who caused the death, or whether anyone did, is not proved. The
evidence, whether expert or other, was merely circumstantial –
probabilities, therefore uncertainties.’
The juror said that the defence was good; but up against
‘the weight of a dozen medical and forensic experts, was
clearly on a hiding to nothing.
The circumstances were that of amateurs made to do a
professional’s job.
Such a complex case was made easier by the judge’s
excellent, well-rounded summary ... although we were told we could
not have a transcript.’ Had the jury been given a transcript
they might have reached a better verdict, he added.
What was not proved, he said, was who caused the death
‘or indeed whether anyone did’.
He added: ‘Ultimately the case was decided by
laymen and laywomen using that despicable enemy of correct and
logical thinking, that wonderfully persuasive device, common sense.’
The outcome has left him disillusioned with the jury
system. ‘One’s peers, however good and true, are
generally not up to the job.’
The ... chairman of Justice for Families, called on the
Government and the judiciary to set up a review of medical expert
evidence. ‘[K.H.’s] case had been taken up by the Angela
Cannings Foundation, who believe that a miscarriage of justice has
occurred,’ he said.
‘This makes it clear that the way in which our
courts use expert evidence, and particularly medical expert evidence,
has insufficient intellectual rigour. Evidence which is clearly
unreliable and based upon pet theories without proper research
groundings is accepted as fact in court.’”
2. The contempt of court proceedings
- Section
8 of the Contempt of Court Act 1981 (“the 1981 Act”)
prohibits the disclosure of information regarding the deliberations
of a jury (see “Relevant domestic law and practice”,
below).
- The
first applicant was interviewed under caution by the police on
26 February 2008 as a result of the comments he had made
regarding the K.H. case. He accepted that he had written an article
and given interviews about his experience on the case. However, he
explained that his sole intention had been to describe his general
experience and that he had had no intention of disclosing any
particulars of statements made, opinions expressed or votes cast by
members of the jury in the course of their deliberations, nor did he
consider that he had done so.
- The
journalist who had written the articles was interviewed by the police
on 16 July 2008. She also indicated that she did not believe that
anything in the articles rendered her liable for contempt of court.
She confirmed that the article had been reviewed by the legal team of
The Times prior to publication to ensure that it complied with
the law.
- The Attorney General subsequently applied to the
Divisional Court for permission to make a committal application
against the applicants for their contempt of court on the ground that
they had breached section 8 of the 1981 Act. It was alleged that the
first applicant had disclosed to the journalist at The Times
particulars of votes cast, arguments advanced and opinions expressed
by members of the jury in the course of their deliberations as to the
verdict and that the second applicant had published that information,
or some of it, in an article in The Times on 19 December 2007.
On 20 January 2009 permission was granted and the proceedings were
issued on 3 February 2009.
- At the subsequent hearing, counsel for the Attorney
General accepted that for a juror after a trial to express his own
views in a general way about the merits or demerits of the jury
system would not be a breach of section 8. Similarly, the juror would
not breach section 8 by expressing general views about jurors relying
on expert evidence. He identified the disclosures in the articles
which he alleged infringed section 8 as:
“... the consensus was taken three minutes after
the foreman was voted in. It was
10-2 against, all based on the
evidence. After that there was no going back.”
“The jury majority voted guilty because it could
do no other.”
“The medical evidence was overwhelming.”
“Ultimately the case was decided by laymen and
laywomen using that despicable enemy of correct and logical thinking,
that wonderfully persuasive device, commonsense.”
- Counsel for the second applicant, supported by counsel
for the first applicant, referred to Article 10 of the Convention and
to the right and duty of the press, in the interests of the
administration of justice, to tell the public what had happened in
court proceedings. He argued that a purposive construction of section
8 was required and that involved limiting breaches to disclosures
which interfered with the proper administration of justice.
Considered in the context of the article as a whole, the first
applicant was using his experience of the K.H. trial to criticise the
way in which cases based on medical opinion evidence were tried. It
was not a disclosure of confidential information but of information
about how the system worked, much of it favourable to the system.
Fears were expressed about reliance on expert medical evidence and
the expression of such concerns was legitimate. The applicants’
counsel accordingly argued that the order sought by the Attorney
General would amount to a violation of the applicants’ rights
under Article 10 of the Convention. There was no ‘pressing
social need’ to curtail the disclosures made and, on the facts
of the case, the balance between the Article 10 right and the general
community interest came down on the side of freedom of expression.
- Lord
Justice Pill, delivering the judgment of the court on 22 May 2009, [2009] EWHC 1023 (Admin),
found the applicants guilty of contempt of court. He observed that it
was not suggested that section 8 was incompatible with Article 10 of
the Convention, and observed that this Court had acknowledged the
legitimacy of the rule governing the secrecy of jury deliberations in
England. He therefore declined to read down the words in section 8 of
the 1981 Act, pursuant to the Human Rights Act 1998, in order to
interpret restrictively the relevant words contained in that section.
- The judge accepted that the articles were published in
a reputable newspaper, following legal advice given in good faith,
and that the first applicant was not harassed to provide his views
but had approached the newspaper unprompted. He further accepted that
the first applicant was genuinely concerned about the use made of
medical evidence in criminal trials, which was an issue of public
interest. However, he noted:
“49. The words used in section 8 in relation to
the ‘deliberations’; ‘statements made’,
‘opinions expressed’, ‘arguments advanced’,
and ‘votes cast’ appear to me to cover the entire range
of a jury’s deliberations when considering their verdict or
verdicts in the case. Provided the disclosure is in relation to their
deliberations in the case, and not about an extraneous matter, it
comes within the section.”
- Reiterating the rationale for the need to keep secret
the deliberations of the jury as stated in previous cases, he
continued:
“51. ... The jury system has shown itself to be
robust in operation and is valued highly in this jurisdiction. 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 the 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.
52. It is the principle of the secrecy of the jury room
which is at stake and which is central to the proper administration
of justice in this jurisdiction, as stated in the authorities. It is
not necessary to establish that the disclosure has led to injustice
in the case concerned. Disclosures must be examined individually if
the principle is to be maintained. Disclosures found to be in breach
of the section do not obtain cover by being interwoven, whether
intentionally or unintentionally interwoven, with expressions of
general concern, which may legitimately be made by a juror. They do
not obtain cover by the addition of favourable comments about how the
jury functioned, as some of the disclosures in this case may have
done. Indeed, disclosures incorporating favourable comment about
other jurors could constitute a breach.”
- Accordingly,
he concluded:
“53. In my judgment, the disclosure of the 10-2
vote was a clear breach of section 8(1). It was a breach as
disclosing a vote. Moreover, it revealed the opinions expressed by 10
members of the jury, at an early stage of a long deliberation. The
reference to ‘no going back’ also revealed a firm
intention on the part of those 10 members not to change their
minds, a revelation of the opinions they held.
54. The paragraph dealing with common sense also
constituted a breach. It was disclosed that the majority who
convicted used a ‘despicable enemy of correct and logical
thinking’. That was the foreman’s assessment of the
opinions of and statements expressed by the majority members and he
disclosed them by making those comments. The majority members were,
in the opinion of the foreman, guilty of incorrect and illogical
thinking, an accusation against them, combined with a disclosure of,
their opinions.
55. It is disclosed that the majority members used that
‘wonderfully persuasive device, common sense’. That is a
disclosure of their approach to the evidence, which necessarily was
based on statements they had made or opinions they had expressed
during the deliberations. If the foreman’s assessment of their
opinions was incorrect, it may add to the wrong done to them, but
that is not material; the mischief is in the disclosure of the
deliberations. It is not necessary to prove that the accusations made
against fellow jurors were true.
56. The assumption is made in the foreman’s
disclosure that common sense is the enemy of correct thinking, and
therefore of justice. That assumption can of course be questioned;
common sense is generally perceived to be valuable and does not
inevitably lead to the acceptance of expert medical evidence. Debate
of the merits of common sense is not, however, in point for present
purposes. What is relevant is that the disclosures reveal the
approach of this jury to the evidence in this case; reliance on
common sense and not correct and logical thinking. Whether or not
that is a disclosure offensive to the majority members need not be
decided; it was a disclosure of their approach, as assessed by the
foreman, thereby revealing their opinions. It offended against the
secrecy of the jury room, as that concept is viewed in the
authorities. The foreman should not have disclosed the approach to
the evidence of other jurors. What may be legitimate debate in the
course of deliberations should not be revealed outside.”
- As regards the remaining two disclosures about which
the Attorney General had complained (see above), the judge found that
they were general comments on the strength of the evidence for the
prosecution and did not breach the 1981 Act.
- The
first applicant was fined GBP 500. The second applicant was fined GBP
15,000 and ordered to pay costs of GBP 27,436.41.
- On
18 June 2009 the second applicant sought leave to appeal to the House
of Lords. Leave was refused by the newly instituted Supreme Court on
9 December 2009.
3. The debate on the use of expert medical evidence in criminal
trials
- Between
1999 and 2003 three high-profile trials took place concerning the
death of children in which expert medical evidence had been critical
to the prosecution case. In two of the cases, convictions were handed
down at first instance. However, the convictions were subsequently
overturned and the medical evidence called into question. These cases
were referred to in the front page article published in The Times.
- In
January 2005, the Department of Constitutional Affairs published a
consultation paper on Jury Research and Impropriety, seeking views on
whether there should continue to be a ban on all research into a
jury’s deliberations. The summary of responses received,
published in November 2005, indicated that the majority of
respondents were in favour of allowing some degree of research into
the jury decision-making process. However, no amendment was made to
the 1981 Act.
- In
March 2005 a House of Commons Select Committee published a report on
forensic evidence used in criminal trials (Forensic Science on
Trial, 7th Report of Session 2004–05, HC Paper 96) which
recommended an amendment to section 8 of the 1981 Act to permit
research into jurors’ deliberations.
- The
matter of the death of babies in which the triad of intracranial
injuries, considered by most experts to be indicative of
non-accidental head injury, or “shaken baby syndrome”,
was present was also of topical importance, following the review of
four convictions by the Court of Appeal in June 2005 which resulted
in two convictions being overturned. The Court of Appeal explained in
its judgment that while the triad pointed strongly to non-accidental
head injury it did not automatically and necessarily lead to such a
diagnosis.
- The
criminal case at issue in the present applications had itself
received considerable publicity. It had been suggested in the press,
prior to the publication of the two articles by The Times,
that the jury had not been given adequate time to deliberate and that
a miscarriage of justice had occurred.
- In
2009 the Law Commission issued a consultation paper on the
Admissibility of Expert Evidence in Criminal Proceedings in England
and Wales. The paper noted:
“2.6 However, the possibility or likelihood of
jury deference in relation to complex fields of knowledge gives rise
to a danger if there are legitimate questions about the reliability
of the expert’s evidence. This may be because the expert’s
field of knowledge is a novel or developing science with little in
the way of peer review, or because there are doubts as to the
validity of the expert’s methodology, hypothesis or
assumptions, or for some other reason.
2.7 The problem is particularly worrying if there is no
available expert in the same field who can be called by the opposing
party to provide an effective criticism of the expert evidence in
question, particularly if the forensic tool of cross-examination (by
a non-specialist advocate) would provide only an ineffectual
substitute. The jury in such cases may have no real option but to
defer to the view of the expert even though his or her testimony may
be insufficiently reliable to warrant such deference or, indeed, any
consideration at all.
2.8 A related problem, touched upon in the preceding
paragraph, is that the non-specialist individuals involved in the
criminal trial process may have an insufficient understanding of the
limitations of expert evidence, scientific evidence in particular.
They may assume that just because an expert’s evidence is
presented as ‘scientific’ it may be taken to be reliable.
Certainly there is evidence to suggest that juries may find it
difficult to understand or follow cross-examination aimed at
revealing flaws in scientific methodology, a problem which is likely
to be more acute if the evidence is complex.”
B. Relevant domestic law and practice
1. General
- A
jury in England is composed of twelve members, although its number
may be reduced to a minimum of nine in the case of the discharge of a
member or members because of illness or for some other reason.
- The
jury’s verdict is given in open court in the presence of all
the jurors and the parties to the proceedings. Majority verdicts are
possible. Where a majority verdict is handed down the foreman of the
jury must state in open court the number of jurors who agreed to and
dissented from the verdict. The minimum majorities possible are 11-1
or 10-2. In the case of a jury which has been reduced in number to
ten or eleven members, the minimum permissible majorities are 9-1 or
10-1 respectively. A jury of nine members must be unanimous.
2. Secrecy of jury deliberations
29. Section
8 of the Contempt of Court Act 1981 provides, in so far as relevant:
“Confidentiality of jury’s
deliberations.
(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.
(2) This section does not apply to any
disclosure of any particulars–
(a) in the proceedings in question for the purpose of
enabling the jury to arrive at their verdict, or in connection with
the delivery of that verdict, or
(b) in evidence in any subsequent
proceedings for an offence alleged to have been committed in relation
to the jury in the first mentioned proceedings, or to the publication
of any particulars so disclosed.
...”
3. Relevant case-law
- In
Attorney-General v. Associated Newspapers Limited and Others
[1994] UKHL 1, the House of Lords held that the word “disclose”
in section 8 of the 1981 Act was apt to describe both offending
revelations by a juror to a newspaper and the further disclosure of
those revelations by their publication in the newspaper, provided
that this amounted to a disclosure rather than re-publication of
facts already known.
- In
R. v. Mirza [2004] UKHL 2, Lord Steyn cited with approval a
passage in a judgment of the Canadian Supreme Court in R v. Pan
2001 SCC 42 in which Arbour J identified the principal reasons for
the common law rule of jury secrecy in the following terms:
“The first reason supporting the need for secrecy
is that confidentiality promotes candour and the kind of full and
frank debate that is essential to this type of collegial decision
making. While searching for unanimity, jurors should be free to
explore out loud all avenues of reasoning without fear of exposure to
public ridicule, contempt or hatred. This rationale is of vital
importance to the potential acquittal of an unpopular accused, or one
charged with a particularly repulsive crime. In my view, this
rationale is sound, and does not require empirical confirmation.
The Court of Appeal also placed considerable weight on
the second rationale for the secrecy rule: the need to ensure
finality of the verdict. Describing the verdict as the product of a
dynamic process, the court emphasized the need to protect the
solemnity of the verdict, as the product of the unanimous consensus
which, when formally announced, carries the finality and authority of
a legal pronouncement. That rationale is more abstract, and
inevitably invites the question of why the finality of the verdict
should prevail over its integrity in cases where that integrity is
seriously put in issue. In a legal environment such as ours, which
provides for generous review of judicial decisions on appeal, and
which does not perceive the voicing of dissenting opinions on appeal
as a threat to the authority of the law, I do not consider that
finality, standing alone, is a convincing rationale for requiring
secrecy.
The respondent, as well as the interveners supporting
its position and, in particular, the Attorney General of Quebec,
place great emphasis on the third main rationale for the jury secrecy
rule – the need to protect jurors from harassment, censure and
reprisals. Our system of jury selection is sensitive to the privacy
interests of prospective jurors ..., and the proper functioning of
the jury system, a constitutionally protected right in serious
criminal charges, depends upon the willingness of jurors to discharge
their functions honestly and honourably. This in turn is dependent,
at the very minimum, on a system that ensures the safety of jurors,
their sense of security, as well as their privacy.”
COMPLAINT
- The
applicants complained under Article 10 of the Convention that the
finding of contempt of court, the fines imposed and the costs ordered
were incompatible with their right to freedom of expression.
THE LAW
- Given their similar factual and legal background,
the Court decides that the two applications should be joined pursuant
to Rule 42 § 1 of the Rules of Court.
- Article
10 provides:
“1. Everyone has the right to freedom
of expression. This right shall include freedom to hold opinions and
to receive and impart information and ideas without interference by
public authority and regardless of frontiers. This Article shall not
prevent states from requiring the licensing of broadcasting,
television or cinema enterprises.
2. The exercise of these freedoms, since it
carries with it duties and responsibilities, may be subject to such
formalities, conditions, restrictions or penalties as are prescribed
by law and are necessary in a democratic society, in the interests of
national security, territorial integrity or public safety, for the
prevention of disorder or crime, for the protection of health or
morals, for the protection of the reputation or rights of others, for
preventing the disclosure of information received in confidence, or
for maintaining the authority and impartiality of the judiciary.”
- The applicants submitted that they should not have
been found to be in contempt of court and fined as a result of the
comments made by the first applicant and published by the second
applicant on the important and legitimate issue of the use of expert
medical evidence in criminal jury trials and the way in which jurors
reacted to such evidence. They accepted that the interferences were
prescribed by law and that they pursued a legitimate aim, namely
maintaining the authority and impartiality of the judiciary. However,
they contended that they were not necessary in a democratic society,
were disproportionate, and were likely to have a profound chilling
effect on the ability of the media and jurors to discuss such
important issues. Relying on the Court’s judgment in The Sunday
Times v. the United Kingdom (no. 1), 26 April 1979, BAILII: [1979] ECHR 1, § 65,
Series A no. 30, they argued that it was not sufficient that the
interference arose because its subject-matter fell within a
particular category or was caught by a legal rule formulated in
general or absolute terms. The Court had to be satisfied that the
interference was necessary having regard to the facts and
circumstances prevailing in the specific case before it.
- The
applicants considered that by the time the articles were published in
The Times, prosecution reliance on expert medical evidence had
become a matter of the highest public interest and controversy. They
submitted that the two quotes were part of serious reporting which
made a significant contribution to a debate of general interest to
society, particularly in light of the previous trials concerning
medical evidence, the consultation paper published by the Department
of Constitutional Affairs in January 2005 and the recommendation of
the House of Commons Select Committee in March 2005. The articles
were not an account of the deliberations of the jury in the K.H.
case; instead, they questioned the functioning of the justice system
in this area by reference to the then recently-decided K.H. case.
They were published in pursuit of the applicants’ duty to
purvey ideas and information to the public on matters of public
interest, and the publication of the two impugned quotes was
justified as part of this public interest reporting.
- The
applicants were further of the view that the comments were wholly
innocuous and they considered it inconceivable that their publication
could have undermined the administration of justice. In support of
their view they explained that over the preceding ten years jurors
had begun to comment on and express their serious concerns about high
profile trials and verdicts in which they had been involved without
the administration of justice being undermined. They pointed to
specific examples of well-known instances where such comments had
been made and publicised, with no subsequent contempt proceedings
being instituted by the Attorney General.
- The Court reiterates that freedom of expression
constitutes one of the essential foundations of a democratic society
and in that context the safeguards guaranteed to the press are
particularly important (see Observer and Guardian v.
the United Kingdom, 26 November 1991, BAILII: [1991] ECHR 49, § 59,
Series A no. 216; Times Newspapers Ltd v. United Kingdom
(nos. 1 and 2),
nos. 3002/03 and 23676/03, § 40, 10 March 2009, BAILII: [2009] ECHR 451 ).
The press has a pre-eminent role in informing the public and
imparting information and ideas on matters of public interest in a
State governed by the rule of law (see Financial Times Ltd and
Others v. the United Kingdom, no. 821/03, § 59, 15 December
2009, BAILII: [2009] ECHR 2065 ; MGN Limited v. the United Kingdom, no. 39401/04,
§ 141, 18 January 2011, BAILII: [2011] ECHR 66 ; and Mosley v. the
United Kingdom, no. 48009/08, § 112, 10
May 2011, BAILII: [2011] ECHR 774 ). Not only does the press have the task of imparting
such information and ideas but the public also has a right to receive
them. Were it otherwise, the press would be unable to play its vital
role of “public watchdog” (Observer and Guardian,
cited above, § 59; Bladet Tromsø and Stensaas v.
Norway [GC], no. 21980/93, BAILII: [1999] ECHR 29, § 62, ECHR 1999-III;
Gutiérrez Suárez v. Spain, no. 16023/07, BAILII: [2010] ECHR 2225, §
25, 1 June 2010; MGN Limited, cited above, § 141; and
Mosley, cited above, § 112). It follows that the
most careful of scrutiny under Article 10 is required where measures
or sanctions imposed on the press are capable of discouraging the
participation of the press in debates on matters of legitimate public
concern (Bladet Tromsø and Stensaas, cited above, § 64;
and Times Newspapers Ltd, cited above, § 41) and that
particularly strong reasons must be provided for any measure limiting
access to information which the public has the right to receive (see
Timpul Info-Magazin and Anghel
v. Moldova,
no. 42864/05, BAILII: [2007] ECHR 976, § 31, 27 November 2007; and Times
Newspapers Ltd, cited above, § 41).
- The
Court reiterates, however, that Article 10 does not guarantee a
wholly unrestricted freedom of expression to the press, even with
respect to press coverage of matters of serious public concern (see
Times Newspapers Ltd, cited above, § 42). Article 10 §
2 permits restrictions or penalties which are prescribed by law and
are necessary in a democratic society, inter alia, for
maintaining the authority and impartiality of the judiciary. In
particular, the media must not overstep the limits imposed in the
interests of the proper administration of justice (Sunday Times,
cited above, § 65).
- It
is for the national authorities to assess in the first place whether
there is a “pressing social need” for any restriction
and, in making their assessment, they enjoy a certain margin of
appreciation (see Financial Times Ltd and Others, cited above,
§ 60; and Sunday Times, cited above, § 59). It
follows that in examining whether the interference was justified, it
is not the role of this Court to substitute its views for those of
the national authorities but to review the case as a whole, in the
light of Article 10, and consider whether the decision taken by
national authorities fell within the margin of appreciation allowed
to the member States in this area (Handyside v. the United
Kingdom, 7 December 1976, BAILII: [1976] ECHR 5, § 50, Series A no. 24;
Times Newspapers Ltd, cited above, § 43; and Financial
Times Ltd and Others, cited above, § 61 ).
- The
Court, like the applicants, is satisfied that the interferences were
prescribed by law and that they pursued a legitimate aim, namely
maintaining the authority and impartiality of the judiciary. It must
therefore examine whether the interferences were “necessary in
a democratic society” within the meaning of Article 10 § 2
of the Convention.
- The Commission has previously considered the
compatibility of a finding of contempt under section 8 of the 1981
Act with Article 10 of the Convention (see Associated Newspapers
Limited, Steven and Wolman v. the United Kingdom, no. 24770/94,
Commission decision of 30 November 1994, unreported, BAILII: [1994] ECHR 58 ). In its
decision, it noted that the “absolute” nature of the
offence established by section 8 had to be considered in the context
of the State’s margin of appreciation in setting up its
legislation and its reasons for enacting the legislative provisions
at issue. It observed that the jury system in the United Kingdom was
founded on the premise that jurors would express themselves freely in
the jury room in the knowledge that what they said would not be used
outside, and accepted that the knowledge that their comments might
later be made public could influence the manner in which members of
the jury chose to express themselves. It therefore concluded that the
unlimited prohibition on disclosure was an inevitable protection for
jurors and could be regarded as “necessary” in a
democratic society which had decided to retain this particular form
of jury trial.
- For the Court, rules imposing requirements of
confidentiality as regards judicial deliberations play an important
role in maintaining the authority and impartiality of the judiciary,
by promoting free and frank discussion by those who are required to
decide the issues which arise. In the case of judges, such rules also
contribute to the guarantee of judicial independence, a core
requirement of all Contracting States’ legal systems, by
ensuring that each member of the bench may decide a case in full
confidence that his or her vote will not be made public, except in so
far as dissenting opinions are possible in the legal system
concerned.
- As
to lay jurors, who are often obliged by law to undertake jury service
as part of their civic duties, it is essential that they be free to
air their views and opinions on all aspects of the case and the
evidence before them, without censoring themselves for fear of their
general views or specific comments being disclosed to, and criticised
in, the press. In this regard the Court recalls that in its
judgment in the case of Gregory v. the United Kingdom, 25
February 1997, BAILII: [1998] 25 EHRR 577, § 44 Reports of Judgments and Decisions
1997 I, it acknowledged that the rule governing the secrecy of
jury deliberations was a crucial and legitimate feature of English
trial law which served to reinforce the jury’s role as the
ultimate arbiter of fact and to guarantee open and frank
deliberations among jurors on the evidence which they had heard. It
considers that the nature of this imperative is such that an absolute
rule cannot be viewed as being unreasonable or disproportionate,
given that any qualification or exception would necessarily lead to
an element of doubt which could undermine the very objective which
the legislation seeks to secure.
- As
to the application of the rule to the specific facts of the case, the
Court observes that it is not called upon in the present case to
assess the compatibility with Article 10 of section 8 in
circumstances involving a conviction for research into jury methods.
Nor is the Court concerned with a case where the interests of justice
could be said to require the disclosure of the jury’s
deliberations: the applicants themselves argued that the disclosures
did not seek to challenge or undermine the verdict in the particular
case in question but to contribute to the serious debate concerning
the use of expert medical evidence in criminal trials. The question
in the present case is whether the disclosures offended against the
secrecy of the jury deliberations such that the penalties imposed
were justified under Article 10 § 2 of the Convention. In this
regard, the Court observes, as noted by Pill LJ, that the disclosure
of the 10-2 vote revealed the opinions expressed by ten members of
the jury at an early stage of a long deliberation, and the reference
to “no going back” indicated their firm intention not to
change their minds. The reference to “despicable enemy of
correct and logical thinking” revealed the first applicant’s
assessment of the opinions of and statements expressed by the
majority members, and constituted an accusation of incorrect and
illogical thinking against them. The phrase “wonderfully
persuasive device, common sense” disclosed their approach to
the evidence, and in particular that they relied on common sense and
not correct and logical thinking. The Court is accordingly satisfied
that all of these disclosures offended against the secrecy of the
deliberations of the jury.
- The
Court further notes that only two phrases in the published articles
were found to be in breach of section 8 of the 1981 Act. Most of the
content of the articles was not challenged by the Attorney General.
Indeed, in the proceedings before the Divisional Court, counsel for
the Attorney General accepted that there would be no breach of
section 8 where a juror expressed general views about the merits or
demerits of the jury system or about jurors relying on expert
evidence. As regards two of the four phrases challenged, the
Divisional Court found that they were compatible with the provisions
of the 1981 Act. The Court is therefore satisfied that the applicants
were not precluded from contributing to the debate on the use of
expert medical evidence in trials at the relevant time.
- The
Court acknowledges that the fines imposed and the costs awarded as
regards the second applicant were not insignificant. However, it does
not consider them to be disproportionate in all the circumstances of
the case, having regard to the revenues of the second applicant and
the need to ensure that the sanctions imposed for a breach of section
8 have a deterrent effect.
- The Court accepts that the applicants did not intend
to violate section 8 of the 1981 Act and believed that they had not
done so. However, the fact remains that the disclosures made by the
first applicant and published by the second applicant were found by
the domestic courts to have revealed the jury’s opinions and
views and details of votes cast by them during the early stages of
the deliberations. That finding and the sanctions imposed as a
consequence were neither arbitrary nor unreasonable. In the
circumstances, the finding of contempt of court, the imposition of
the fines on the applicants and the award of costs against the second
applicant were proportionate to the legitimate aim of maintaining the
authority and impartiality of the judiciary. The Divisional Court
judgment was therefore necessary within the meaning of Article 10 §
2 of the Convention.
For these reasons, the Court unanimously
Decides to join the applications;
Declares the applications inadmissible.
Lawrence Early Lech Garlicki
Registrar President
