Juror Misconduct Offences
- Introduction
- Indictable Offences
- Attorney General Consent
- British Sign Language Interpreters
- Jury irregularities – procedure and handling
- Summary Offences
- Surrender of electronic communications devices
Introduction
‘Juror misconduct’ refers to a wide range of proscribed behaviours, incorporating both summary and indictable only offences.
Sections 20A – 20D of the Juries Act 1974 (JA 1974) came into force on 13 April 2015 and created four statutory indictable only offences. However, s.22 of the JA 1974 makes clear that the creation of these offences does not affect what constitutes contempt of court at common law. As such, the offences in sections 20A-20D should be used to prosecute jurors where their misconduct falls within the proscribed behaviour (see Indictable Offences below).
Other examples of juror misconduct will continue to be dealt with either as contempt of court, or as an offence under s.20 of the Juries Act 1974 (see Summary Offences below). Prosecutors should refer to Contempt of Court, Reporting Restrictions and Restrictions on Public Access to Hearings | The Crown Prosecution Service (cps.gov.uk) for further guidance on contempt of court.
Schedule 1 to the JA 1974 was also amended as of 13 April 2015 so that the fact of a conviction for a juror misconduct offence under sections 20A-20D was added to the list of criteria for disqualification of a person from jury service. The period of disqualification is ten years from the date of conviction.
Schedule 6 to the Coroners and Justice Act 2009 (CJA 2009) makes similar provision for jurors at inquests. Schedule 6, Part 1, paragraphs 5A-5C mirror the offences in sections 20A-20C in the JA 1974 relating to juror research and other prohibited conduct. Schedule 6, Part 1A, mirrors the provisions of sections 20D – 20G in respect of juror deliberations.
Indictable Offences
Where a jury was sworn on or after 13 April 2015, sections 20A – 20D JA 1974 set out four indictable offences relating to juror conduct.
Research (s.20A)
Under s. 20A JA 1974 it is an offence for a juror to research the case during the trial period.
The “trial period” begins when the person is sworn to try the issue and ends when the judge discharges the jury or, if earlier, when the judge discharges the person (s.20A(5)).
“Research” is defined in s. 20(A)(2) as if (and only if) the person (a) intentionally seeks information and (b) when doing so, knows or ought reasonably to know that the information is or may be relevant to the case. Section 20A(3) sets out a non-exhaustive list of the ways in which research may be carried out. It includes asking a question, internet research and asking another person to seek out information.
Information relevant to the case is defined in s20A(4) and includes information about: a person involved in events relevant to the case, the judge dealing with the issue, any other person involved in the trial (whether as a lawyer, a witness or otherwise), the law relating to the case, the law of evidence and court procedure.
Sharing research (s.20B)
Under s. 20B JA 1974 it is an offence to intentionally disclose information to another member of the jury during the trial period that has been obtained by research in contravention of section 20A and the information has not been provided by the court (s.20B JA 1974).
A s.20B offence will inevitably require an offence under s.20A to have been committed and therefore prosecutors should carefully consider the case strategy when deciding whether to charge one or both offences. Factors that should be considered include whether the suspect has raised separate defences to the allegations and whether a single charge of the more serious allegation will reflect the seriousness and extent of the offending. See the Code for Crown Prosecutors for further guidance on selection of charges.
Prohibited conduct (s.20C)
Under s.20C JA 1974 it is an offence to intentionally engage in “prohibited conduct” during the trial period. “Prohibited conduct” means conduct (otherwise than that in sections 20A and 20B) 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. A juror does not need to know that the conduct is prohibited to commit the offence.
In Attorney General v Davey and Attorney General v Beard [2013] EWHC 2317 (Admin) a juror was found in contempt for posting a message on Facebook suggesting a strong prejudice against the defendant based simply on the nature of the charge. The court held that in doing so, the juror had committed an act calculated to interfere with or prejudice the due administration of justice and which posed a real risk of doing so. Although this case predates s.20C JA 2974 it is a useful guide on the type of conduct that might now be considered prohibited under the statutory offence.
Disclosing jury deliberations (s.20D)
Section 20D makes it an offence to 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.
Unlike the offences under ss 20A – 20C, the offence under s.20D extends beyond the trial period.
Offence under section 20D - exceptions
The scope of the s.20D offence is limited through a series of exceptions set out in sections 20E – 20G JA 1974.
The exemptions limit the scope of the offence under s.20D as opposed to giving rise to any defence/s in which a defendant may bear any legal or evidential burden. They are designed to ensure that disclosures properly made for the purposes of (or in connection with) assisting the jury to arrive at their verdicts are not caught within the offence. The exceptions also operate to exclude the proper reporting or investigation of alleged juror offences or irregularities, including by other jurors.
Under s.20E(1) JA 1974, 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 could be applicable to a juror who discloses misconduct that comes to their attention during deliberations.
Further, under s20E(2) 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 an investigation into an offence or a contempt of court has been committed by or in relation to a juror.
Under s20E(3) it is also not an offence for another person to disclose information for the purposes of an investigation if they reasonably believe that a judge has made a disclosure for the purposes of an investigation into whether an offence or a contempt of court has been committed by or in relation to a juror.
Together, these provisions enable jurors to report any misconduct to the judge, for the judge in turn to report that to the police, and for jurors thereafter to provide an account of what occurred to the police.
The exceptions under section 20F JA 1974 only apply after the jury has been discharged. Under section 20F(1) and (2) it is not an offence for a person to disclose jury deliberations to the police or to designated court officers if they reasonably believe that an offence or a contempt of court has been committed by or in relation to a juror, or where they reasonably believe that conduct of a juror in those proceedings may provide grounds for an appeal against conviction or sentence.
Under section 20F(3) - (9) JA 1974, certain people may disclose information for certain purposes relating to: an investigation into whether an offence or a contempt of court has been committed by or in relation to a juror or whether a juror’s conduct may provide grounds for an appeal; enabling a defendant or their legal representative to consider whether a juror’s misconduct may provide grounds for an appeal; or, proceedings for an offence or contempt by or in relation to a juror, an appeal where an allegation relating to conduct of or in relation to a juror forms part of the grounds of appeal, or any subsequent appeals from such proceedings.
Under section 20G JA 1974 it is not an offence to solicit a disclosure described in sections 20E or 20F. Nor is it an offence to obtain information from any such disclosure or from a public document.
Sentencing
The above offences are indictable only and the maximum penalty is two years' imprisonment and/or a fine.
AG Consent
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. Further information is provided below and in the Legal Guidance on Consents to Prosecute.
British Sign Language Interpreters
As of 28 June 2022, a judge may appoint a British Sign Language interpreter if they consider it would enable a deaf person to act effectively as a juror (section 9C JA 1974).
An interpreter, once appointed, may remain with the jury during its deliberations.
Section 20I JA 1974 makes it an offence for an appointed interpreter to interfere with or influence jury deliberations in proceedings before a court. The maximum sentence on conviction on indictment is 2 years imprisonment or a fine (or both). As with other juror misconduct offences, proceedings for this offence may only be instituted by or with the consent of the Attorney General.
As with offences under ss.20A, 20B and 20C, the offence under 20I does not affect contempt of court at common law.
In addition to the 20I offence, section 20H JA 1974 extends the application of offences under sections 20A (research) and 20B (sharing research) to interpreters with the modification that the “trial period” is the period beginning with their appointment under s.9C JA 1974 and ending when the judge discharges the jury or, if earlier, when the judge discharges the interpreter.
References to the conduct of a juror in s.20F JA 1974 include references to an appointed interpreter.
Jury irregularities – procedure and handling
For detailed guidance as to the procedure to be followed where a potential jury irregularity comes to light (both during a trial and after a jury has been discharged) prosecutors are referred to the relevant Criminal Practice Direction.
Irregularities that arise before the discharge of the jury
If a jury irregularity arises during ongoing proceedings, it should be drawn to the attention of the judge in the absence of the jury as soon as it becomes known. 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.
The judge is required to seek to establish the basic facts of the jury irregularity for the purpose of determining how to proceed in relation to the conduct of the trial. If, at the conclusion of these enquiries, the judge decides that one of the above offences may have been committed, he should contact the Attorney General's Office to consider a police investigation.
The AGO will then refer the matter to the CPS Directors of Legal Services Team (DLS Team) who will contact the relevant police force and invite it to consider instigating an investigation. Whether or not to carry out an investigation is a matter for the relevant police force. If an investigation is carried out, the 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 a police investigation is carried out and a decision is made that the charging test within the Code is met, a file should be provided to the relevant CPS Area in the usual way. If the reviewing lawyer decides that the Full Code Test is met, the CPS Area must submit its application for Attorney General’s consent on the appropriate template (see the Legal Guidance on Consents to Prosecute) to the DLS Team inbox for approval by the relevant Director before it is submitted to the Attorney General’s office.
In the event that there is a prosecution for juror misconduct, it is vital that any relevant transcript of the proceedings, as well as any notes from jurors, are retained by the police for the purposes of disclosure in accordance with the provisions of the Criminal Procedure and Investigations Act 1996.
Irregularities that arise after the discharge of the jury
The Criminal Practice Direction (CPD) does not cover all potential scenarios by which an irregularity might come to light following discharge of the jury. Where the process is not set out in the CPD, the guidance below sets out some practical steps to assist prosecutors that reflect the general principles and overall approach in the CPD.
If a jury irregularity comes to light after the jury is discharged the judge no longer has any jurisdiction. This includes the period between verdict and sentence as the jury are discharged once the verdict has been delivered. The judge should proceed to sentence unless there is good reason not to do so. Ordinarily the court should not wait for the outcome of a jury irregularity investigation before proceeding to sentence. If the court becomes aware of any irregularity it should instead be reported to the Registrar of Criminal Appeals who, if it appears that a criminal offence has occurred, will contact the CPS DLS Team who will refer the matter to the relevant police force and invite it to consider instigating an investigation. The Registrar will also consider whether the irregularity may give rise to a ground of appeal.
If a prosecutor is informed by the police of an alleged irregularity after the jury has been discharged the prosecutor should obtain confirmation in writing from the police whether or not the Chief Constable has been notified. If the Chief Constable has not been notified the prosecutor should notify the Chief Constable of the relevant force and invite them to consider the investigation of any potential offences. If appropriate, the police should consider obtaining Early Advice from the CPS to discuss reasonable lines of enquiry, including seizure and analysis of digital devices. See the Directors Guidance on Charging Sixth Edition for further guidance on Early Advice.
The officer investigating the alleged juror misconduct should not be the officer in the case responsible for the main investigation. This will ensure consistency with the CPD.
The prosecutor should also obtain confirmation in writing from the police whether or not the relevant Crown Court has been notified. If not, the prosecutor should notify the relevant Crown Court.
The reviewing lawyer for the case that was being tried when the alleged juror misconduct occurred should ensure that they are provided with any material which may undermine the safety of the conviction and meet the ongoing duties of disclosure to the defence. Any such material should be reviewed and provided to the defence according to the principles of post-conviction disclosure. Prosecutors should consider whether the material is sensitive and should consult with the police about whether the timing of any disclosure could prejudice the ongoing investigation (or any other investigation).
Jurors’ details
The Criminal Practice Direction confirms that where police wish to obtain a juror’s details for the purpose of an investigation, provisions of those details is a matter for the Crown Court.
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 exceptions in the statute, are such that a prosecution would not be in the public interest. Examples might include:
- Where a juror has second thoughts about the verdict reached and contacts the police, the CPS, the court or the defence solicitor 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 does not necessarily follow.
In these examples, the level of harm caused and the culpability of the offender may be sufficiently low that a prosecution is not in the public interest.
Summary Offences
Section 20 JA 1974 creates a range of summary offences that may be committed by persons summoned for jury service. Examples include: failing to attend; 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) (questions from an appropriate officer to establish whether or not the person is qualified for jury service) or deliberately or recklessly giving false answers in response to such questions; and serving on a jury when disqualified.
Part 1 of Schedule 6, CJA 2009 creates similar summary offences for inquest jurors.
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 the other offences carry a fine not exceeding level 3 on the standard scale.
Offences under Part 1 of Schedule 6, CJA 2009 carry the same penalties.
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; and
- how much of it was still to run.
Surrender of electronic communications devices
Section 15A JA 1974 gives judges the discretionary power to order jurors to surrender their electronic communications devices for a period of time while on jury service. An order may be made only if the judge considers that it is necessary or expedient in the interests of justice and the terms of the order are a proportionate means of safeguarding those interests. A similar provision can be found in s.9 CJA 2009 in respect of inquest jurors.
Section 15A JA 1974 also applies to appointed British Sign Language interpreters.
It will be a contempt of court to fail to surrender devices in accordance with a direction to do so. Section 54A of the Courts Act 2003 gives a court security officer the power to search a juror (if ordered to do so by a judge or senior coroner) and seize such a device.
These provisions do not provide any power enabling a judge, senior coroner or court security officer to access the data held on any seized device.