The decision of the Divisional Court (Lord Justice Pill and Mr Justice Sweeney) last Friday to fine Times Newspapers £15,000 for a report in this newspaper about a jury’s verdict in a manslaughter case strengthens the campaign for reform of an indefensible law of contempt of court.

The article, published in December 2007, reported the concern of the foreman of a jury about how the decision was reached to convict a childminder for shaking a baby to death. The court found that there was a breach of Section 8 of the Contempt of Court Act 1981 that makes it a criminal offence “to obtain, disclose or solicit any particulars of statements made, opinions expressed, arguments or votes cast by members of a jury in the course of their deliberations in any legal proceedings”.

The Divisional Court concluded that the article breached Section 8 for two reasons. First because it disclosed that the jury had split 10-2 immediately after they began their deliberations and that there was “no going back”. The court said that this was a breach of Section 8 because it revealed that the jury had formed their views early on, with a determination not to change their minds. The court so found even though it was, of course, announced at the end of the criminal trial that the jury had reached a 10-2 majority verdict.

The second basis for the finding of contempt was that the article reported the foreman’s concern that “the case was decided by laymen and laywomen using that despicable enemy of correct and logical thinking, that wonderfully persuasive device, common sense”, when there was a need carefully to consider expert evidence. According to the Divisional Court, this was to “reveal the approach of this jury to the evidence in this case”.

Section 8 was enacted after the New Statesman was acquitted by Lord Chief Justice Widgery in 1980 of contempt of court for publishing an interview with one of the witnesses in the sensational 1979 Old Bailey trial in which Jeremy Thorpe, the Liberal politician, and other defendants were acquitted of conspiracy to murder.

The terms of Section 8 are absurdly wide in their scope and application. The prosecution in the Times Newspaper case did not need to prove, nor could it have done, that the information published was damaging to the administration of justice. Such an absolute offence is rare. Even in the context of the Official Secrets Act 1989, most of the offences depend on proof that the disclosure is “damaging” to the public interest.

Nor does Section 8 allow for a public interest defence. Were it legally relevant, The Times would have had a strong basis for arguing that any damage to the administration of justice was outweighed by the contribution made by the article to a debate on a matter of public concern, that is how juries assess expert medical evidence in cases of alleged child cruelty.

The absolute nature of Section 8 of the Contempt of Court Act 1981 is indefensible, especially when Section 5 of the same statute says that if a person is charged with another category of contempt by publishing an article that creates a substantial risk of impeding or prejudicing court proceedings, it is a defence to show that the publication is part of a discussion in good faith of a matter of public interest and the risk of impediment or prejudice is merely incidental to that discussion.

The offence created by Section 8 is absolute in another important respect. When Section 8 was first debated in Parliament in 1981, it prohibited a publication only that identified a juror or the trial. Against the wishes of the Government, legal peers persuaded the House of Lords to introduce an amendment that removed that restriction. Section 8, as enacted, therefore prohibits any form of research into the deliberations of juries. Lord Mackay of Clashfern, then the Lord Advocate and later Lord Chancellor, argued in vain that “the jury system, great institution that it is, surely can stand up to properly conducted research”. Lord Chancellor Hailsham added that he would not vote for “a new criminal offence which is to my mind thoroughly bad because it is too draconian”.

Section 8, as applied by the Divisional Court in the Times Newspapers case, is an embarrassment to the legal system. Even though there is no conceivable damage to the administration of justice, and no naming of any individual juror, the court has punished the publication of information that contributes to a debate on an important matter of public interest. Any sensible jury would unanimously conclude that Section 8 is guilty as charged and is badly in need of amendment.

The author is a practising barrister at Blackstone Chambersin the Temple, a Fellow of All Souls College, Oxford and a crossbench peer in the House of Lords

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