It seems trite law that the secrets of the jury room, however compelling, must never be revealed. The British have a penchant for locking away in the closet distasteful truths about much loved institutions — whether jury deliberations or Liberal politicians.

After the acquittal of Jeremy Thorpe, the former leader of the Liberal Party, on a charge of conspiracy to murder in the Old Bailey in 1979, Parliament reacted swiftly to protect its own, passing the modern strict liability offence as an absolute bar against revelation of almost anything from inside the jury room.

Unsurprisingly, this step backwards into secrecy caused disquiet. With others, Lord Steyn, the law lord, was demonstrably concerned (in a case before the law lords in 2004) that evidence that could reveal a lack of impartiality in a jury’s deliberations would no longer become public. This meant that the law had no jurisdiction to examine possible miscarriages of justice emanating from the jury room.

He cited two examples. A juror reveals that during deliberations some of the jury who were affiliated with a neo-Nazi group had urged the conviction of the accused, a black immigrant. In the second example, a juror reveals that a majority of the jury refused to deliberate and that the guilty verdict was decided by spinning a coin. “Neither example is either fanciful or extreme: both were suggested to me by decided cases,” he said.

No one would seriously contest that such verdicts would be unsafe and procedurally perverse.

Many will also remember the notorious 1994 case when Stephen Young, an insurance broker, was convicted of murdering Harry and Nicola Fuller. It transpired that the jury at Hove Crown Court had used a Ouija board in deliberations.

Jurors have exposed yet another flaw in the system recently, expressing concern about the safety of criminal convictions in a shaken-baby syndrome case. Some doctors hold the belief that if three indicia towards the syndrome exist when a child presents, then a “deductive diagnosis” may be made safely. Medical opinion is divided strongly. Two jurors concerned about this conflict and consequent reliability of a criminal conviction spoke out after Keran Henderson, a childminder, was found guilty by 10-2 of a child in her care.

There is no officially publicised method of bringing injustice to light. So what is the responsible juror, pricked by conscience, to do? In the cases above, jurors sought out responsible media and gave interviews airing their concerns in very measured tones. Not sufficiently measured for the Attorney-General, it transpired, who instituted criminal proceedings for contempt.

To date, jurors have been interviewed in a number of cases, including that of Barry George, the alleged killer of Jill Dando. These interviews occurred because, until recently, it was believed that the legal matrix had been relaxed so as to permit general disquiet to be expressed by a responsible juror, who would nonetheless be under a continuing obligation to keep the detail of deliberations secret to ensure the proper and effective functioning of a jury. This loosened position was set out in guidance issued in 1982 by Sir Michael Havers, QC, when his was Attorney-General, and reinforced with the adoption into UK law of the European Convention on Human Rights.

A stake was driven through the heart of that guidance in the recent prosecution by the present Attorney-General. In a twist of irony, she instructed Sir Michael’s son, the eminent QC Philip Havers, to prosecute. It was with a certain lightness of touch that Mr Havers said of his father’s guidance: “However eminent the Attorney-General may have been, he may also have been incorrect.”

The decision to prosecute in a genuine case of conscience is surely a retrograde step and the conviction by the Divisional Court is more disquieting, if only for its failure to address the balance necessary between Article 10 (the jurors right to speak) and Article 6 (the right to a fair trial).

One hopes that the House of Lords will accept the petition in this case and give clear guidance as to how a juror may properly express concern at unsafe verdicts and practices, while safeguarding the real noesis: the necessary secrets of the jury room.

The author is head of media law at Finers Stephens Innocent LLP

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