What can you tell jurors?

Is it lawful to hold up a sign as they arrive at court?

At the High Court today, one of the government’s law officers will seek a judge’s permission to bring contempt of court proceedings against a woman who held up a sign at the entrance to Inner London Crown Court almost a year ago.

Robert Courts KC MP, who as solicitor general is the attorney general’s deputy, alleges that Trudi Warner confronted potential jurors as they approached the court building.

Acting as guardian of the public interest rather than on behalf of the government, Courts argues that Warner’s sign was intended to encourage jurors to perform their role in a particular way. That, he says, was direct interference with the administration of justice and amounted to a criminal contempt of court at common law.

Trudi Warner

In response, Warner’s lawyers argue that her conduct does not amount to contempt of court under laws developed by the judges. They say there was no interference with the administration of justice and she should be entitled to rely on the safeguards in the Contempt of Court Act 1981. They will tell the court that she has a right to free speech and that permission to bring proceedings should be refused.

The maximum penalty for contempt of court is two years’ imprisonment.

Today’s hearing

The defended application will be heard by Mr Justice Saini, starting at 10.30am. It is scheduled to last for half a day.

Aidan Eardley KC, for the solicitor general, is expected to argue that it is in the public interest for the case to be heard in full on a future date by a court of two or three judges. He says that unless conduct of this kind is dealt with as a contempt it will be repeated at other trials. There is no problem with public protests outside courts but jurors and potential jurors must not be interfered with while performing their public duties.

Clare Montgomery KC, for Warner, is expected to argue that it is not in the public interest for the case to go any further because there is no evidence of any harm to the administration of justice. She says any risk of prejudice at future trials can be dealt with by directions from the judge. Jurors were not impeded in this case and Warner was entitled to inform them of their legal powers.

Although court rules say that contempt proceedings of this kind cannot be brought by a law officer without the judge’s permission, they do not specify the precise test to be met. Case-law suggests that permission will be granted only if it is in the public interest for the proceedings to go ahead.

At the end of today’s hearing, Saini may:

• give a ruling on permission with full reasons; or

• give a ruling on permission with reasons to follow; or

• reserve judgment to a future date.

The allegations

On 27 April 2023, a number of climate change protesters from the group Insulate Britain were due to stand trial on charges of causing a public nuisance. As it was the first day of the hearing, a jury had not yet been empanelled.

Warner, a former child mental health social worker, is said to have stood at the entrance to Inner London Crown Court that was used by judges and jurors. She arrived at about 8.30am and stayed for around half an hour. She displayed a placard to people walking towards her.

This is what it said:

The solicitor general argues that Warner was deliberately targeting jurors, particularly those who might be chosen to serve on the Insulate Britain trial. He claims that her sign was meant to encourage jurors to disregard the legal directions of the judge if observing them would result in a conviction that was against their subjective beliefs.

Before any trial begins, jurors must promise to give a true verdict according to the evidence. According to the solicitor general, Warner was inviting jurors to break that promise.

Judge Reid, who presided over the Insulate Britain trial later that morning, had to give a direction to the jury about Warner and her placard. Rather than deal with the question of contempt himself, he sent it to a High Court judge who in turn referred it to the government’s law officers. Within the attorney general’s office, contempt cases are normally handled by the solicitor general.

The solicitor general’s arguments

His position is that it doesn’t matter whether a message given to jurors as they arrive at court is a correct summary of the law or not. Inviting or encouraging jurors to go about their duties in a particular way is a serious interference with the administration of justice, even if the person communicating with jurors wants them to take an approach that the law permits.

In the solicitor general’s view, Warner’s statement of the law was, in fact, wrong. But he regards that as an aggravating feature rather than an element of the contempt.

He says jurors have a power to acquit a defendant regardless of a judge’s directions — but they have no such right. They cannot be ordered to convict and they cannot be punished for acquitting on conscientious grounds. But they have a legal duty to apply the law as defined by the judge to the facts as they find them and to deliver a true verdict according to the evidence.

Warner has not been accused of contempt under the “strict liability” rule, which applies, under the Contempt of Court Act, to “a publication which creates a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced”. So the solicitor general says there is no need to prove that the fairness of any particular trial was compromised by her actions.

In summary, says the solicitor general,

• Warner deliberately targeted jurors.

• Her sign instructed or encouraged jurors to disobey their oaths and ignore judicial directions.

• She succeeded in presenting her message to some jurors and thereby interfered with the administration of justice.

• She confronted jurors shortly before they began their jury service.

• She was trying to secure the acquittal of defendants in the Insulate Britain trials.

• Her conduct was not statutory contempt of court by publication but direct interference with the administration of justice and therefore contempt of court at common law.

The defendant’s case

Warner argues that her placard carried an accurate statement of what is called the principle of jury equity. Although that’s not something jurors are told about in court, she says it cannot be unlawful to refer to the legal principle outside the courtroom.

Its origins lie in Bushel’s Case, decided in 1670. That involved two Quaker preachers accused of holding an unlawful assembly. The jury refused to convict them and jury members were imprisoned when they refused to pay a fine. They successfully challenged their imprisonment.

Bushel’s Case and the principle it established are commemorated in a public plaque which is prominently displayed at the Old Bailey:

Subsequent cases have confirmed that jurors have the power to acquit according to their consciences, Warner says.

Her argument rests on five points:

• There is no evidence that she molested jurors or prevented them from entering the court.

• It is not unlawful to explain the principles of jury equity to anybody, even outside a court.

• Warner did not interfere with the administration of justice. If an antidote to her sign was necessary, a short set of jury directions from the judge would be sufficient.

• The allegation of contempt at common law must be subject to the same restrictions as the statutory scheme under the Contempt of Court Act.

• There is no evidence of serious interference with the administration of justice and no risk of that either.

Warner argues that common law contempt of court should be interpreted compatibly with article 10 of the human rights convention, the right to freedom of expression. That requires protections at least equivalent to those in the Contempt of Court Act 1981. For contempt to be established, the solicitor general would need to show that Warner’s conduct created a “substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced”.

Warner’s lawyers will tell the judge that her conduct does not amount to contempt of court:

• They say the principle that jurors must be free to attend court without “let or hindrance” was not breached by her actions.

• They say that, far from giving jurors instruction or encouragement, she was simply giving them information.

• They say she accurately informed prospective jurors about their powers. The solicitor general’s claim that jurors have a power to acquit but not a right is a distinction without a difference.

• They say there was no risk of serious prejudice to the trial.

• They say that any prejudice to a jury can be addressed by a judicial direction.

Comments

The attorney general’s office said:

Contempt of court is a serious matter and the power to issue proceedings is used sparingly.

When considering an application for contempt, successive solicitors general considered whether Trudi Warner’s actions constituted an act calculated to interfere with or prejudice the due administration of justice.

The solicitor general concluded that proceedings are in the public interest and lodged an application with the court.

The Defend our Juries campaign said the stakes were high:

If the High Court grants the solicitor general’s application, the prospect opens up of hundreds of people being locked up in Britain’s overcrowded and underfunded prisons, simply for holding up signs that accurately state a vital principle of law and democracy.

According to the campaigners, today’s hearing will have major implications for jury trial, free speech and democracy.

Update 22 April: permission has been refused.

Saini said:

Contempt proceedings pursue the legitimate aim of maintaining the integrity of the trial process (including protecting jurors) and the authority and impartiality of the judiciary within article 10(2) of the European Convention on Human Rights. However, in my judgment, it has not been shown by the solicitor general, even on an arguable basis, that the interference with Ms Warner’s article 10(1) rights is necessary for, and proportionate to, achievement of those aims.

The words on Ms Warner’s placard reflected in substance what is recognised as a principle of our constitution. However, even if her words had been wrong in law and her conduct inappropriate, the succinct direction given by the judge was sufficient to deal with any prejudice to the trial.

A criminal prosecution is a disproportionate approach to this situation in a democratic society.

Update 16 August: Warner’s representatives said yesterday that the solicitor general Sarah Sackman had withdrawn her predecessor’s application for permission to appeal against Saini’s ruling.