Incorrect procedure in contempt hearing

LAW REPORT v 16 May 1997
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The Independent Online
Regina v Schot; Regina v Barclay; Court of Appeal (Criminal Division) (Lord Justice Rose, Mr Justice Forbes and Mr Justice Keene) 12 May 1997

A judge who found two members of a jury to have been in contempt of court did not follow the correct procedure.

The Court of Appeal allowed the appeals of Bonnie Schot and Carol Barclay against findings by Judge Cooray at Knightsbridge Crown Court on 24 March 1997 that they were in contempt of court.

The appellants were members of a jury hearing a trial which had started on 18 February 1997 at Knightsbridge Crown Court. Miss Schot was the foreman of the jury.

On 12 March 1997, after retiring to consider its verdict, the jury sent the judge a note which said: "Your Honour, we are unable to come to any decisions owing to some jurors' conscious beliefs. Please advise."

The foreman was asked to explain in writing what "conscious beliefs" meant. A second note read: "Some members of the jury cannot bring themselves to make a true judgment due to our beliefs, not religious but personal. At the beginning of the trial before we took the oath we felt that we could not stand up in court and stress this fact. We thought that our feelings may change over time. After retiring we have found that we still feel the same and cannot give a true verdict to these defendants."

The judge requested the names of the jurors involved, and was given those of the appellants. He discharged the jury and ordered the appellants to return to court on 24 March to show cause why they should not be punished for contempt of court.

John Perry QC (who did not appeal below) and Leroy Redhead (Registrar of Criminal Appeals) for Miss Schot; Stephen Solley QC (who did not appear below) and Navjot Sidhu (Registrar of Criminal Appeals) for Miss Barclay; David Pannick QC (Treasury Solicitor) as amicus curiae.

Lord Justice Rose said that the court sympathised with the judge in having to deal with a very unusual situation, but he had fallen into a sequence of errors.

It was very doubtful whether it had been proper for him to seek clarification of the phrase "conscious beliefs", and he ought not, on receipt of the second note, to have discharged the jury.

He should have sought the number of jurors who were having difficulties rather than their names. He could then have decided whether to discharge the whole jury or to give them a majority direction. Alternatively, having ascertained that only two jurors were involved, he could have discharged them under s 16(1) of the Juries Act 1974.

In any event the enquiry into the names of the jurors was in breach of the widely expressed terms of s 8(1) of the Contempt of Court Act 1981, which applied to the court as well as to everyone else, and of the long established principle that no one has the right to enquire into what has occurred in the jury room.

Although the Juries Act 1974 did not provide for exemption from jury service on the ground of personal conscientious beliefs, section 9(4) gave a wide discretionary power of excusal. In the light of the Practice Direction (Jury Service: Excusal) [1988] 1 WLR 1162, the question to be asked in considering an application for excusal was whether the beliefs of the juror prevented him or her from fulfilling properly, responsibly and honestly his or her duties as a member of the jury.

Consideration should be given to amending the jury summons or other information given to jurors so as to incorporate some reference to the possibility referred to in the Practice Direction.

Contumacious refusal to judge another person might in appropriate circumstances establish the actus reus of contempt but it was also necessary to prove the mens rea, namely an intention to impede or create a real risk of prejudicing the administration of justice.

There had been no "urgent and imperative need" for the judge to deal with the question of contempt himself, and there had been a real danger of bias on his part. He should either have referred the matter to another senior Crown Court judge, or to the Attorney General.

In his conclusions the judge had drawn no distinction between the two appellants, although their cases were very different. The findings of contempt against both appellants would be quashed. The court also indicated that the imprisonment of the appellants had not been appropriate.