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Times held in contempt for interviewing jurors

By Steven | May 20, 2009

The Times of London has been convicted of contempt for quoting the foreman of a jury criticising the result of a baby death case. (It was a 10-2 majority verdict; he was in the minority). His point: the jury was overwhelmed by expert evidence, which at the end of the day could only be speculative. He said:

Ultimately the case was decided by layment and laywomen using that despicable enemy of correct and logical thinking, that wonderfully persuasive device, common sense.

He also revealed that the initial vote of the jury was 10-2 and “after that there was no going back”.

There’s more, but these were the passages upon which the contempt was found.

Here’s the rule from the Contempt of Court Act (contempt is codified in Britain, but this probably reflects the position at common law in New Zealand):

…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.

Is that really a clear breach? Yes, they revealed the initial vote, and it’s hard to get around that, though given that it reflected the final vote it’s not a huge breach.

But what about the “common sense” statement? Did it really contain particulars of juror statements, opinions or arguments? Remember that the court is supposed to strive to interpret this law consistently with the right to freedom of expression under the Human Rights Act. Shouldn’t the fact that this is raising a legitimate question on a very significant issue in a way that doesn’t specifically name or quote other jurors be relevant?

Apparently not. The High Court found that the foreman and the paper were disclosing the jury’s “approach to the evidence, which was necessarily based on statement they had made or opinions they had expressed during the deliberations.”

This strikes me as an expansive reading of the Contempt of Court Act. The Court accepted that this restricted freedom of expression. But it cited a range of cases in which the UK courts and the European Court of Human Rights had, in other circumstances, found restrictions on juror interviews to be justified in order to safeguard the frankness, privacy and finality of jury deliberations.

Fair enough. But just because the provision as a general rule is justified doesn’t mean that every application of it, no matter how tenuous, will be. Yet that’s the way the judges proceeded: the rule is justified, so it will never require a rights-consistent meaning. That seems wrong to me. It’s a clear principle of EHCR jurisprudence that the application of the rules in each case must also pass the justification test. Where the rationale for the restrictive rule (ie the reasoning that forms the foundation of the justification) does not apply in a powerful way, there is room for the argument that freedom of expression (especially where the speech is in a category that the courts usually regard as important, such as serious and moderately expressed criticisms of the operation of the justice system) should trump it.

I would have thought that there’s a solid case that this particular restriction on free speech is not justified, even if the general rule is. So the courts should have strived to find an interpretation of the statute that avoided this result. And it’s pretty easy to find that interpretation. A slightly more literal reading of the statute would have meant that there was no contempt (at least, on the second point).

So we’re not the only country that doesn’t take rights seriously, it seems.

Topics: Contempt of Court, NZ Bill of Rights Act | 3 Comments »

3 Responses to “Times held in contempt for interviewing jurors”

  1. ross Says:
    May 20th, 2009 at 11:30 pm

    I would’ve thought that the bigger issue was whether a miscarriage of justice may have occurred in the conviction of the alleged baby killer.

    Incidentally, Sally Clark was convicted of killing her two children in 1999. That verdict was also 10-2, a verdict which became public knowledge. Clark’s conviction was later quashed. I understand that in the more recent case, the 10-2 verdict was already public knowledge at the time the article in question was published, so it’s difficult to understand how the Times were in contempt on this matter.

  2. Steven Says:
    May 21st, 2009 at 12:49 pm

    Yes, the 10-2 verdict here was public knowledge, but as the post notes, the Times explained that a 10-2 vote was taken at the beginning of deliberations, and nobody changed their positions in subsequent votes. That wasn’t public knowledge.

    The miscarriage of justice may have been a bigger issue (and in fact, that suggestion is what gives the story its great importance, as I said) but this is a blog about media law.

  3. Contempt: Testing the Boundaries in Relation to Juries Says:
    November 22nd, 2012 at 11:14 am

    […] of deliberations should not be revealed outside. That decision has been criticised by blogger Steven Price in his blog ‘Media Law Journal’, on the basis that the juror was trying to make the important point that the jury had been […]


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