Explaining the jury's verdict
J. A. G. Griffith
The prosecution pending against the New Statesman for contempt of court is clearly the wrong issue before the wrong tribunal, The issue is whether an article reporting an interview with one of the jurors at the Thorpe trial, conducted after the conclusion of the trial, was in contempt. The report included the juror's account of significant parts of the jury's deliberations while they were arriving at their verdict. In the Attorney-General's view such publication involved an interference with the due administration of justice as a continuing process.
It appears that the Attorney-General himself, being wise in such matters, regards the contempt as serious. But he recognises that 'the position in law has hitherto been considered by some to be unclear' and his 'essential object' (that's an ill phrase, a vile phrase) in bringing these proceedings is 'to seek to clarify the law'.
Who can deny that clarification is a good thing, like justice, bills of rights, and getting our own money back from the EEC? It is finding out what the law is. 'Law, say the gardeners, is the sun', according to Auden but alternatively (he continued) 'Law, says the judge as he looks down his nose,, Speaking clearly and most severely, Law is as I've told you before, Law is as you know I suppose, Law is but let me explain it once more, Law is The Law'.
Or, as another great man said, on this view, the law is 'a brooding omnipresence in the sky'. Those of us who are not as wise as Attorneys-General may find difficulty in penetrating the atmospheric mists. Let us not believe, or the heavens may fall, that bits of law are altogether non-existent and have to be invented by officers of the Crown and judges. For if we should, Oh, what would come of it. So long as the law is, only clarification is required. And necessity need not give birth.
It is the wrong issue because for many years the law of contempt has been a thing of shreds and patches, as the Phillimore Committee found in 1974. The right issue is the rationalisation of that law so as to free the press from at least one part of the restrictions which, more than in any other western country, limit its criticisms of those in authority. It is the wrong tribunal because the only way to achieve that rationalisation is for a Bill to be presented to Parliament and debated there. To seek to make new law by examining this particular disclosure in these particular circumstances before a particular judge in the adversary setting of a court of law is an absurdity capable of being entertained only by official lawyers who prefer to entrust this matter to the judgment of persons who are professionally self-interested.
Undoubtedly there would be dangers in a law which permitted all jurors in all circumstances individually to give independent and separate versions of what was said in the jury room. The greatest danger is that jurors might be influenced in their thinking and their actions if they knew that large sums of money might come their way on the subsequent disclosure of their private proceedings. Another danger is that jurors might be fearful of reprisals in certain kinds of case if the arguments they used in the jury room were disclosed.
I suggest a radically different solution. A jury is a group of people who are required to listen to evidence, to assess it, and then to conic to certain factual findings on the basis of which they return verdicts. Exceptionally, they may decide that the law is so unjust in its application to the case before them that an acquittal is proper even though the facts do not support it.
Why should not such a group give reasons for their findings and their verdicts? Why should it not be required of them that they should draw up a statement to which all, or the statutory majority, would agree? If one or two jurors were in the minority, they could, if they chose, say why they dissented without their identity being disclosed. In no event should it be possible for an appeal or a review of the findings or of the verdict to be lodged on the basis of this statement.
These are the kinds of questions which the New Statesman affair should give rise to. And the proper place for them to be discussed is the representative and legislative assembly of the nation.
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