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Juror Misconduct Offences

Introduction

Sections 69 - 77 of the Criminal Justice and Courts Act 2015 ("the Act") amend the Juries Act 1974 making certain misconduct by jurors a criminal offence, as opposed to a contempt of court.

Section 77 of the Act makes clear that the creation of the new offences does not affect what constitutes contempt of court at common law.

As such, it is envisaged that the new offences will be used to prosecute jurors where their misconduct falls within the proscribed behaviour (see Indictable Offences). Other examples of juror misconduct will continue to be dealt with as contempt of court, or as an offence under s.20 of the Juries Act 1974 (see Summary Offences), and existing legal guidance in this regard will continue to apply.

Section 77 of the Act also amends Schedule 1 to the Juries Act 1974 and adds the fact of a conviction for a juror misconduct offence to the list of criteria for disqualification of a person from jury service. The period of disqualification would be ten years.

Section 75 and Schedule 13 of the Act amend the Coroners and Justice Act 2015 to make similar provision for jurors at inquests during their deliberations, including provision for surrender of electronic devices by jurors and provision creating offences of juror misconduct.

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Indictable Offences

Where a jury was sworn on or after 13 April 2015, it is an offence for a member of the jury to:

  • research the case he or she is trying during the trial period for reasons connected to that case (s.20A Juries Act 1974);
  • intentionally disclose information to another member of the jury that had been obtained by research in contravention of the previous section (s.20A) and the information has not been provided by the court (s.20B Juries Act 1974);
  • intentionally engage in conduct, during the trial period, from which it may reasonably be concluded that the person intends to try the issue otherwise than on the basis of the evidence presented in the proceedings on the issue (s.20C Juries Act 1974). This is 'prohibited conduct';
  • intentionally disclose information about statements made, opinions expressed, arguments advanced, or votes cast by members of a jury in the course of their deliberations in proceedings before a court, or to solicit or obtain such information (sections 20D, 20E, 20F and 20G Juries Act 1974).

This covers the same conduct as s.8 of the Contempt of Court Act 1981, which is no longer to have effect in England and Wales.

Sentencing

The above offences are indictable only and the maximum penalty is 2 (two) years' imprisonment and/or a fine.

Investigation

In on-going proceedings, where a trial judge is notified of alleged juror misconduct, he or she will be required to make initial enquiries of the juror making the allegation and the juror who is alleged to have misconducted himself. For guidance as to the procedure to be followed, prosecutors are referred to the Criminal Practice Directions, specifically: CPD VI Trial 26M: Juries: Jury Irregularities, which replaces the protocol regarding jury irregularities issued by the President of the Queen's Bench Division in November 2012.

It will be noted from this guidance that a police investigation and prosecution will not necessarily follow this preliminary enquiry by the judge, depending on the nature and seriousness of the misconduct alleged and whether it is an unfounded allegation or not.

In the event that a prosecution for juror misconduct does follow such an enquiry, it is vital that the 'DARTS' records of these proceedings, as well as any notes from jurors, are retained by the police for the purposes of Disclosure in accordance with the provisions of CPIA.

If, at the conclusion of his enquiries, the judge decides that one of the above offences has been committed, he should contact the Attorney General's Office to consider a police investigation. The police investigator must not be the officer in the case for the trial in which the misconduct is alleged, although it may be an officer from the same force. If the court becomes aware of jury misconduct after the jury is discharged, it should contact the Registrar of Criminal Appeals who, if it appears that a criminal offence has occurred, will contact the Director's Legal Advisor in the CPS, to consider a police investigation.

If the police receive a report of jury misconduct during the course of the trial, then they must draw that alleged misconduct to the attention of the trial judge at once so that he or she can investigate this in accordance with the Practice Direction.

If the police receive a report of jury misconduct after the jury has been discharged (in cases where the jury was sworn after 13 April 2015), this should be reported (directly or via the CPS Area) to the Director's Legal Advisor, to consider a police investigation and appropriate disclosure to the Defence.

Permission to Interview Jurors

Where police wish to interview current or past jurors in the course of an investigation into juror misconduct or any contempt of court, they must seek the juror's details from the Crown Court where the trial was heard prior to doing so. This is a change to earlier provisions requiring the approval of a senior judge of the Court of Appeal to the release of such information. From 16 July 2015, such approval is no longer required.

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Consents and Referrals

Proceedings for any of the new offences referred to above can only be commenced with the consent of the Attorney General, which must be obtained prior to the accused being charged, in those cases where the suspect does not need to be remanded in custody. Different provisions may apply in those cases charged in accordance with the Threshold Test. For further information, please see the section on Consents to Prosecute elsewhere in the Legal Guidance.

It has been decided that once a decision is made in Area that the defendant should be charged, and prior to the consent of the Attorney General being sought, the charging decision (MG3) should be referred to the Director's Legal Advisor for approval.

Evidential Considerations

It is only an offence to research the case or engage in prohibited conduct during the 'trial period', that being the period between when the juror was sworn and when he, or the jury, on which he sits, is discharged. No offence is committed where the person conducting the research needs the information for a reason unconnected to the case - s.20A Juries Act.

In relation to disclosure of jury deliberations, there are exceptions created by statute, the purpose of which is to ensure that the prohibition on disclosure of deliberations does not hinder any investigation into juror misconduct or contempt of court. The availability of these exceptions depends on whether the proceedings in relation to which the misconduct relates are on-going, or completed.

On-going proceedings

Under s.20 E of the Juries Act, it is not an offence for a person to disclose jury deliberations for the purposes of enabling a jury verdict to be reached, or in connection with that verdict. This would appear to cover a juror who discloses misconduct that comes to his attention during deliberation.

Further, it is not an offence for the judge to disclose those deliberations for the purposes of dealing with the case, or for the purposes of investigating whether jury misconduct or a contempt of court has occurred.

This enables jurors to report any misconduct to the judge and for the judge in turn to report that to the police.

Completed proceedings

Under sections 20F(1) - (2), after the jury has been discharged, it is not an offence for a person to disclose jury deliberations to the police or to designated court officers, if he reasonably believes that jury misconduct or a contempt of court has occurred, or where he reasonably believes that conduct of a juror in those proceedings may provide grounds for an appeal against conviction or sentence.

Under sections 20F(3) - (9), disclosures made in the course of obtaining any information in the course of an investigation or in any subsequent proceedings for jury misconduct or contempt are also exempt from prosecution.

Public Interest Considerations

Given the potential damage to the administration of justice that arises from the commission of these offences, there is an expectation that these offences will be prosecuted.

However, there may be circumstances in which disclosures are made and which, whilst not covered by the exemptions in the statute, are such that a prosecution would not be in the public interest. Examples might include:

  • Disclosures relating to jury misconduct made to and by law enforcement officers during on-going proceedings. These should be made to the trial judge, in accordance with s. 20 E. However, there may be circumstances where a juror reports misconduct to the officer in the case outside of court, or a member of the public sees evidence of juror misconduct on line and reports it to the police. In these circumstances it would not be appropriate to prosecute the person reporting the misconduct or the officer who then discloses that information to the court trying the case, as long as the allegations are brought immediately to the attention of the trial judge.
  • Where a juror has second thoughts about the verdict reached and contacts the police, the CPS, the court, the defence solicitor or a campaign group expressing those concerns and referring to deliberations in the jury room. If the juror does not disseminate the deliberations more widely, then it may not be appropriate to prosecute. Similarly, as long as the recipient uses the information sensitively and appropriately, such as for the purposes of any appeal, or to report misconduct, and does not disseminate this material in any publication or on social media, then a prosecution ought not necessarily to follow.

In these examples, the level of harm caused and the culpability of the offender will be sufficiently low, so that a prosecution may not be in the public interest.

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Summary Offences

Section 20 of the Juries Act 1974 creates a range of summary offences that may be committed by persons summoned for jury service. Examples include making false representations for the purposes of evading jury service or enabling another to do so; failing without reasonable excuse, to answer questions under s.2(5) or deliberately or recklessly giving false answers to an appropriate officer of the court; and of serving on a jury when ineligible, disqualified or not qualified.

Sentencing

The offence under s.20(5)(a) of serving when disqualified (for instance because of a previous conviction) carries a fine not exceeding level 5 on the standard scale. All of the other offences carry a fine not exceeding level 3 on the standard scale.

Public Interest Considerations

A prosecution should follow (unless there are exceptional circumstances) where there is clear evidence that:

  • a defendant has knowingly made a false declaration as to disqualification by virtue of a previous conviction; and
  • the making of the declaration is part of a deliberate attempt to serve on a jury.

Where the false declaration is made knowingly, but with a genuine belief that the disqualifying period has elapsed, then the following factors may be taken into account in deciding whether a prosecution is in the public interest:

  • what steps the defendant took to clarify the position.
  • whether the defendant's belief was sincere.
  • how long was the disqualifying period.
  • how much of it was still to run.

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Surrender of electronic communications devices

Section 69 of the Criminal Justice and Courts Act 2015 inserts a new s.15A into the Juries Act 1974 and gives judges the discretionary power to order jurors to surrender their electronic communications devices for a period of time while on jury service. It will be a contempt of court to fail to surrender their devices in accordance with a direction to do so. Section 70 inserts a new s.54A into the Courts Act 2003 and gives a court security officer the power to search a juror (if ordered to do so by a judge) and seize such a device.

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