The Commission’s provisional conclusion is that s8 may increase the risk that miscarriages of justices based on juror wrongdoing go undetected, and that it may unnecessarily inhibit academic research into juries. However, s8 serves a vital function in preserving the sanctity of the jury room.

The Commission began the ‘Contempt project’ in 2011 at the suggestion of the Criminal Procedure Rule Committee, and its consultation paper was published on 28 November 2012. The project was expedited following a request from the Attorney General, after several high-profile contempts.

Contempt of court in s8
Section 8 provides that 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”.

The only exceptions are where disclosure is made in the proceedings in question in order to enable the jury to arrive at its verdict, or in subsequent proceedings for an offence such as jury tampering alleged to have been committed in relation to the jury in the first proceedings.

Breaches of this ban by jurors are not new, but the widespread use of the new methods of communication such as Facebook, Twitter and other online media to discuss peoples’ daily business means it is more likely that jurors will reveal material about their deliberations to a wide audience. In the recent case of A-G v Fraill [2011] EWCA Crim 1570 a juror (Fraill) and one of the defendants in the trial (Sewart) had discussed the jury’s deliberations on Facebook. Fraill was sentenced to eight months’ imprisonment, whilst Sewart received a sentence of two months’ imprisonment, suspended for two years, for breaching s8.

Balancing rights
In the paper we reviewed s8, its history and effectiveness and concluded that s8 may pose problems for the public interest in an effective jury system in two important ways.

First, it may restrict jurors’ ability to disclose details of their deliberations when they believe this is necessary in order to uncover a miscarriage of justice. It is true that jurors have the option of disclosing such information to a court or judge, and the ECtHR in Seckerson v UK and Times Newspapers Ltd v UK (2012) 54 EHRR SE19 held that the prohibition in s8 as an “absolute rule cannot be viewed as being unreasonable or disproportionate” given the importance of promoting “free and frank discussion” through the confidentiality of deliberations. However, the court observed that it was not, in that case, required to examine the compatibility of s8 with article 10 in cases involving research into juries, or in cases where “the interests of justice could be said to require the disclosure of the jury’s deliberations”.

We acknowledge both the importance of the need for jurors to feel uninhibited in expressing their views in the jury room, and the weight of the argument that the risk of miscarriages of justice is too high a price to pay. It is possible, for example, that a defendant could be convicted or acquitted of a serious crime because of jurors’ sexist or racist attitudes. In such cases it is arguable that the defendant’s right to a fair trial, and the victim’s right to redress, should outweigh the jury’s interest in secrecy.

Consideration must also be given to the impact of the internet and social media, and the associated risk of jurors researching elements of the trial. If, as we contend in the paper, the internet has made it easier for jurors to undertake prohibited research, it may be all the more important that the justice system has the capacity to expose that misconduct.

For these reasons we ask consultees whether a new defence to s8 should be introduced where a juror discloses deliberations to a court official, the police or the Criminal Cases Review Commission in the genuine belief that such disclosure is necessary to uncover a miscarriage of justice. This would ensure that defendants’ article 6 rights were protected even in cases where jurors, for whatever reason, did not approach the trial judge.

Jury research
The second way in which s8 causes problems is by creating confusion about the possibility of academic research into juries. A number of academics over the years have conducted research into jury attitudes, but they have often had to use volunteers in a more or less scripted situation. Resources have limited the number of ‘trials’ which can be studied. It would be better if they could speak to real jurors over the widest possible range of courts and trials as Professor Cheryl Thomas of the Judicial Institute at UCL has done. Her well-regarded project, ‘Are Juries Fair?’ was published in February 2010. She and others are currently looking into the effect on juries of witnesses who take advantage of the range of special measures. As Professor Thomas puts it, the present situation has “contributed to an information vacuum about juries in this country”. It has been argued that there is a clear public interest in allowing such research. Without detailed, objective research it could be difficult to determine conclusively whether juries are unduly influenced by (their own, or the defendant’s, or the victim’s) socio-economic status, gender, age or any number of other factors, and judges and lawyers cannot be sure that their efforts to assist the jury are as effective as they might be.

We therefore ask consultees whether s8 unnecessarily inhibits academic research into juries and if so whether it should be amended to allow such research (and whether measures should be put in place to regulate it).

Other issues of contempt
Given the breadth of the law of contempt, the rest of our consultation focuses on four specific areas in which there was an identified need for reform, and which we summarise briefly here.

The paper examines the law and procedure relating to contempt by publication, focusing on s2 of the 1981 Act. Section 2 provides that a publication which occurs when civil or criminal proceedings are active and which creates the substantial risk of seriously prejudicing or impeding the proceedings is an offence irrespective of whether the publisher was aware of the risk. We suggest that parts of the law may be unclear, impractical or at risk of breaching the ECHR. We seek consultees’ views on several matters including whether contempt by publication should be tried on indictment by a jury or by a judge alone, and whether sanctions should include community penalties and fines set as a percentage of the publisher’s turnover.

We also examine the operation of the 1981 Act in light of the ubiquity of the internet and growth of digital media. We conclude that the Act is sufficiently broad to encompass “publications” on new media such as Twitter and Facebook. In order to deal effectively with the problem of timing of online publications, we propose a new statutory power for the courts to order the temporary removal, while proceedings are active, of online publications which were first published before proceedings became active.

As explained, the paper examines two areas of contempt which involve jurors: s8 as discussed above, and jurors who seek information about the case they are trying in breach of the judge’s directions (which is a contempt at common law). We provisionally propose the introduction of a specific criminal offence of intentionally seeking information related to the case that the juror is trying.

We also examine contempt in the face of the court committed in the Crown Court or the magistrates’ court. “Contempt in the face of the court” is disruptive conduct in the course of court proceedings. Our main aim is to reveal areas of the law which remain uncertain or unfair and to find ways to make the law clear, fair and practical. Our proposals include a statutory power to deal with intentional threats or insults to people or misconduct in the court or its immediate precincts committed with the intention that proceedings will or might be disrupted.

Respond to our consultation
The consultation ends on 28 February 2013. We welcome responses on this, and the other issues covered in the consultation paper, which is available at Responses can be provided by post or online at as well as by email (

Peter Yates, Research Assistant, the Law Commission