1. A-G v Fraill and Sewart [2011] EWHC 1629 (Admin), [2011] 2 Cr App R 21.

2. A-G v Dallas [2012] EWHC 156 (Admin), [2012] 1 WLR 991.

3. A-G v Davey; A-G v Beard [2013] EWHC 2317 (Admin), [2014] 1 Cr App R 1.

4. Law Commission Contempt of Court: A Consultation Paper (Law Com No 209, 2012) para 4.38.

5. See http://www.britishnewspaperarchive.co.uk (accessed •• May 2015).

6. Criminal Justice and Courts Act 2015, s 68.

7. Ibid, ss 69, 70.

8. Ibid, s 71.

9. Ibid, s 72.

10. Ibid, s 73.

11. Ibid, s 74.

12. Criminal Justice and Courts Bill Deb 13 Mar 2014, col 128.

13. See in particular Thomas, C ‘Avoiding the perfect storm of juror contempt’ [2013] Crim L Rev 483.Google Scholar

14. Bushell's Case (1670) Vaughan 135, 124 ER 1006. In Bushell's Case, the eponymous juror is consistently referred to as ‘Bushel’. For this reason, references to the juror in what follows have a slightly different spelling from references to the case.Google Scholar

15. The Trial of William Penn and William Mead, at the Old Bailey, for a Tumultuous Assembly (1670) 6 Cobbett's Complete Collection of State Trials 951.

16. On the debate generally, see Green, Ta Verdict According to Conscience: Perspectives on the Criminal Trial Jury, 1200–1800 (Chicago: Chicago University Press, 1985) pp 200–264 CrossRefGoogle Scholar; and Stern, S ‘Between local knowledge and national politics: debating rationales for jury nullification after Bushell's Case ’ (2002) 111 Yale L J 1815CrossRefGoogle Scholar.

17. Hawles, J The English-Mans Right, a Dialogue between a Barrister at Law and a Jury-Man (London, 1680).Google Scholar

18. Crosby, K ‘ Bushell's Case and the juror's soul’ (2012) 33 J Legal Hist 251, at 286.CrossRefGoogle Scholar

19. Stern, above n 16.

20. Law Commission, above n 4, paras 4.36, 4.37.

21. On the recent debate generally, see ibid, paras 4.36, 4.37. Questions of juror misconduct have, in their most dramatic forms, been long associated with practices of ‘jury nullification’ or of ‘jury equity’, and this political dimension in jury trial has not only been an English story. Nineteenth-century French juries, for example, were notorious for acquitting against the evidence, as were Irish juries throughout the nineteenth century and, during the second half of the twentieth century in particular, there were similar concerns regarding juries in Northern Ireland. But while a comparative discussion exploring the relationship between nullification and punishment in these jurisdictions would doubtless be a fruitful way of furthering the current debate regarding juror misconduct and punishment, such a discussion would be well beyond the scope of this paper. On jury ‘equity’ and ‘nullification’, see generally Green, above n 16, and P Butler Let's Get Free: A Hip-Hop Theory of Justice (New York: The New Press, 2009) pp 57–78. On nineteenth-century French juries, see W Savitt ‘Villainous verdicts? Rethinking the nineteenth-century French jury’ (1996) 96 Colum L Rev 1019; and JM Donovan ‘Magistrates and juries in France, 1791–1952’ (1999) 22 French Hist Stud 379. On Irish juries, see N Howlin ‘The terror of their lives: Irish jurors' experiences’ (2011) 29 Law & Hist Rev 703; D Johnson ‘Trial by iury in Ireland 1860–1914’ (1996) 17 J Legal Hist 270; and J Jackson and S Doran Judge without Jury: Diplock Trials in the Adversary System (Oxford: Oxford University Press, 1995). On the attaint, see below at nn 30–41.

22. Langbein, Jh The Origins of Adversary Criminal Trial (Oxford: Oxford University Press, 2003) p 324 n 346.Google Scholar

23. Unnamed defendant, 26 May 1680, OBP, t16800526-1.

24. See generally Eady, D and Smith, Ath Arlidge, Eady and Smith on Contempt (London: Sweet & Maxwell, 44th edn, 2011) pp 849–854.Google Scholar

25. Law Commission Contempt of Court (1): Juror Misconduct and Internet Publications (Law Com No 340, 2013) particularly para 3.46.

26. Juries Act 1825, s 1.

27. See eg Cornish, Wr The Jury (Harmondsworth: Penguin, 1968) pp 117–119.Google Scholar

28. There are two large bundles on women and jury service held at the National Archives: National Archives HO 45/13321 (covering the period 1913–1929; originally contained 100 subfiles, of which 33 are still extant); and National Archives HO 45/24917 (covering the period 1929–1953; originally contained 34 subfiles, of which 23 are still extant). Even here not much has been written: the most substantial account is a Logan ‘“Building a new and better order”? Women and jury service in England and Wales, c.1920–1970’ (2013) 22 Women's Hist Rev 701.

29. In 1963, the Home Office bundled together several files on juror misconduct into a file internally labelled P.130345. This file – referenced in Home Office precedent book Witnesses, Evidence and Juries, 1890–1966 (National Archives: HO 384/16) p 385 – appears to have been subsequently destroyed. It is in response to such gaps in the central archives that I have turned to the British Newspaper Archives for supporting information.

30. (1531–2) 23 Hen Viii c 3.

31. This, at any rate, is how Blackstone described the original system: Blackstone, W Commentaries on the Laws of England, vol 3 (Oxford: Clarendon Press, 1768) p 403.Google Scholar

32. Zane, Jm ‘The attaint: I’ (1916) 15 Mich L Rev 1, at 9–10. Zane does acknowledge that Bracton held this to be an important distinction, but concludes that ‘generally speaking, to the men of that age there was in fact little difference in incorrect verdicts’Google Scholar. On Bracton's view, see Bracton on the Laws and Customs of England, vol 3, GE Woodbine and SE Thorne (trans) (Cambridge, MA: Harvard University Press, 1977) pp 336–337 Google Scholar.

33. For a discussion on the authorship of Tryals per Pais, see Oldham, Jc ‘The origins of the special jury’ (1983) 50 U Chi L Rev 137, at 144 n 50.CrossRefGoogle Scholar

34. [Duncombe, G] Tryals per Pais; Or, the Law Concerning Juries by Nisi-Prius , &c. (London, 1665) p 235 (EEBO image 109502:130). On the tension between attaint as punishment for an inaccurate verdict and attaint as punishment for a wilfully false verdict, see W Holdsworth A History of English Law, vol 1 (London: Methuen, 7th edn, 1956) pp 337–340.Google Scholar

35. (1495) 11 Hen Vii c 24; (1531–2) 23 Hen Viii c 3; (1571) 13 Eliz I c 25.

36. Holdsworth, above n 34, p 342.

37. Bright v Enyon (1757) 1 Burr 390, 393.

38. HC Hansard Deb 9 Mar 1825, vol 12, col 967; Juries Act 1825, s 60.

39. See generally Langbein, above n 22, pp 318–331, on judicial attempts at controlling jurors after Bushell's Case.

40. Bushell's Case, above n 14, at 1011.

41. See Whitman, Jq The Origins of Reasonable Doubt: Theological Roots of the Criminal Trial (New Haven, CT: Yale University Press, 2008) pp 154–156, and the sources referred to therein.Google Scholar

42. On embracery generally, see Thompson, Sd ‘Tampering with the jury’ (1881) 13 Cent L J 242.Google Scholar

43. (1363–4) 38 Edw Iii c 12.

44. R v Opie, Dodge and Others (1669) 1 Wms Saunders 301, 85 ER 419, p 419. The fact the men were sworn ‘de circumstandibus’ refers to the practice of swearing ‘talesmen’ – other qualified people found in the vicinity of the court – when an insufficient number of the jurors originally summoned have actually attended court. This power is currently contained in Juries Act 1974, s 6.

45. A 1652 practice book reports the standard fee for a civil juror to be 8s, with the fee for a talesman set at 4s: Anon The Practick Part of the Law: Shewing the Office of a Compleat Attorney (London, 1652) p 33 (EEBO image 172378:19). On juror payment prior to the formal establishment of special juries (who were paid a higher rate) in 1730, see Oldham, above n 33, at 144–148 and Howlin, above n 21, at 748–752. Payment of jurors in civil cases was the responsibility of the parties, and criminal jurors were not entitled to payment, until the Juries Act 1949 made payment for all jurors the responsibility of the state: see Hansard HC Deb 8 April 1875, vol 223, col 494. The issue in Opie, Dodge and Others was not that the jurors were paid by the parties, but rather that they were bribed to attend court, in order that they might be summoned as talesmen and therefore be in a position to deliver a verdict favourable to the defendant.Google Scholar

46. Opie, Dodge and Others, above n 44, at 420.

47. Juries Act 1825, s 61.

48. James Baker, 9 March 1891, OBP, t18910309-302. See also ‘Alleged attempt to influence a jury’ Bury and Norwich Post 20 January 1891, where Baker is erroneously referred to as James Parker.

49. R v Owen [1976] 1 WLR 840, at 841 (per Lawton LJ).

50. Bribery Act 2010, s 17(1).

51. Quoted from in Eady and Smith, above n 24, p 1.

52. Ibid, p 7.

53. Ibid, pp 17–19. For a discussion of the desuetude of contempt as an indictable offence, see Dallas, above n 2, at 992–994.

54. Eady and Smith, above n 24, pp 850–854.

55. Bushell's Case, above n 14, at 1014. It should be noted that Vaughan's list here is very similar to Duncombe's penultimate chapter on juror misconduct: Duncombe, above n 34, pp 210–223.

56. Bushell's Case, above n 14, at1014.

57. See below, nn 59–66.

58. See eg Thompson, R ‘Somewhere in between: the classification and standard of review of mixed ministerial–discretionary land use decisions’ (2009) 15 Hastings W-Nw J Envt'l L & Pol'y 325 Google Scholar; and for an overview of the early twentieth-century jurisprudence, see Petterson, EW ‘Ministerial and discretionary official acts’ (1921–1922) 20 Mich L Rev 848 CrossRefGoogle Scholar.

59. Mackalley's Case (1611) 9 Co Rep 65b, 77 ER 828, 831.

60. Day v Savadge (1614) Hobart 85, 80 ER 235, 237.

61. Auditor Curle's Case (1609) 11 Co Rep 2b, 77 ER 1147, 1147. Coke's report of this case repeatedly makes the distinction between a ministerial ‘office’ and a judicial ‘voice’ (although Coke does also refer to a ‘judicial office’ on several occasions). In Day v Savadge, the court noted that the certification procedure would make ‘the recorder … but their [ie the mayor and aldermen's] mouth to speak for them, as they command him’. Day v Savadge, above n 60, at 237.

62. Bryan Chamberlain's v Goldsmith (1609) 2 Brownl 280, 123 ER 942, 943.

63. Ibid, at 943. See also Phelps v Winchcombe (1615) 3 Bulst 77, 81 ER 66; Norton v Sims (1623) 1 Brownl 63, 123 ER 667; and Leonard's Case (1623) Godb 355, 78 ER 209.

64. Bushel v Starling (1673) 3 Kebl 322, 84 ER 774; Bushel v Howel (1673) 3 Kebl 359, 84 ER 765; Bushell's Case (1674) 1 Mod 119, 86 ER 777; Hamond v Howell (1674) 1 Mod 184, 86 ER 816; Hamond v Howell, Recorder of London (1677) 2 Mod 218, 86 ER 1035.

65. Hamond v Howell, Recorder of London (1677) 2 Mod 218, 86 ER 1035, 1037

66. Unnamed defendant, above n 24.

67. We, Nelson The Common Law in Colonial America, vol 2: The Middle Colonies and the Carolinas, 1660–1730 (Oxford: Oxford University Press, 2013) p 109 Google Scholar. While Nelson made the point in the first volume of his projected four-volume study of colonial American law that the common law of England was never simply transplanted into North America – WE Nelson The Common Law in Colonial America, vol 1: The Chesapeake and New England, 1607–1660 (Oxford: Oxford University Press, 2008) – volume two explores those colonies founded after the Restoration, which were generally expected to stick reasonably close to the common laws of England. This, combined with Penn's personal involvement in Bushell's Case, makes a brief consideration of Pennsylvanian jury practice justifiable.

68. Nelson (2013), above n 67, p 109.

69. Ibid, p 109. See also the French moves towards ‘correctionalization’ and ‘échevinage’ in France a century later, discussed in Donovan, above n 21.

70. Bushell's Case, above n 14, at 1014.

71. Examination of Frederick Charles Parker and Sidney Thompson, Court House Tottenham and Court House Wood Green, 26 July and 3 August 1917 (National Archives: HO 45/10886/348754/3) at 4–6. It should be noted that their confessions relate to a fire that they admitted causing accidentally. A Home Office minute suggested that this may help to explain the jury's verdict: ‘It is possible that the jury not being properly versed in the common law doctrine of “malice” may have come to the conclusion that though the lads set fire to the pavilion, they did not do so “maliciously”, or they may have thought that apparently it is still law that “malice” cannot be presumed but must be proved affirmatively in the case of offender under 14, that benefit may be extended to youthful offenders over 14.’ Note signed ‘HBS’ [I assume that this is HB Simpson: J Pellew The Home Office 1848–1914: From Clerks to Bureaucrats (London: Heinemann, 1982) p 211], 3 October 1917 (National Archives: HO 45/10886/348754/3).

72. Transcript of the trial of R v Parker and Thompson, Westminster Guildhall, 22 September 1917 (National Archives: HO 45/10886/348754/3) at 18.

73. Ibid, at 18.

74. Ibid, at 19.

75. Ibid, at 19.

76. Lathan was Chief Assistant Secretary of the Railway Clerks Association.

77. Letter from George Lathan to Montagu Sharpe, 25 September 1917 (National Archives: HO 45/10886/348754).

78. For press coverage of the Sharpe–Lathan dispute, see ‘Jury “kept in”: punished because they found two youths “not guilty”’ Sunday Mirror 23 September 1917; ‘Angry court scene: magistrate to report jury to Home Secretary’ Evening Despatch 24 September 1917; ‘Court scene: jurors to be reported to Home Secretary’ Liverpool Daily Post 24 September 1917; ‘Magistrate and jury: a shameful miscarriage of justice’ Birmingham Daily Post 24 September 1917; ‘A jury rebuked: “most shameful miscarriage of justice”’ Western Daily Times 25 September 1917; ‘“Miscarriage of justice”: sessions chairman and a jury's verdict’ Western Mail 25 September 1917; ‘The obdurate jury: chairman refuses to hear explanation’ Aberdeen Evening Express 25 September 1917; ‘“The obdurate jury”: Mr Sharpe's reply to foreman's letter’ Aberdeen Evening Press 26 September 1917; ‘Obdurate jury: sessions chairman climbs down’ Evening Despatch 26 September 1917; ‘“In the public interest”: sessions chairman and jury’ Sunderland Daily Echo and Shipping Gazette 26 September 1917; ‘Obdurate jury: sessions chairman climbs down’ Birmingham Gazette 26 September 1917; ‘Censured jury: all but four allowed to go’ Liverpool Daily Post 27 September 1917; ‘Jury rebuked at sessions’ Middlesex Chronicle 29 September 1917; ‘A jury's grievance’ Manchester Evening News 8 October 1917; ‘The aggrieved jury: discharged, but talk of taking fresh action’ Aberdeen Evening News 9 October 1917; ‘“Penalised jury” discharged’ Birmingham Daily Mail 9 October 1917. While none of these reports adds anything beyond the information gathered together in the exhaustive Home Office file, the extent of press reporting of Sharpe's jury suggests this was widely understood to be a serious – and unusual – matter.

79. ‘Attempted intimidation of a jury, Middlesex Sessions, September, 1917’, 2 October 1917 (National Archives: HO 45/10886/348754/4) at 6.

80. Letter from Claud Schuster to Edward Troup, 17 October 1917 (National Archives: HO 45/10886/348754) at 1.

81. Letter to Montagu Sharpe, 6 October 1917 (National Archives: HO 45/10886/348754). See also Sir Edward Troup's general comments on the limited role of the Home Office with regard to ongoing court proceedings: E Troup The Home Office (London: Putnam, 22nd edn, 1926) p 73 Google Scholar.

82. Note signed ‘Hbs’, 4 October 1917 (National Archives: HO 45/10886/348754/3).

83. Ibid.

84. See eg note signed ‘Hbs’, 1 October 1917 (National Archives: HO 45/10886/348754/2).

85. ‘Women jurors: reproved for late return from lunch’ Yorkshire Post and Leeds Intelligencer 5 June 1929.

86. ‘A jury rebuked’ Gloucester Citizen 30 July 1878; ‘An intelligent jury and their verdict’ Lancaster Gazette 14 January 1880; ‘Independent jurors and petulant judges’ Reynold's Newspaper 19 February 1882; ‘A judicial rebuke’ Nottingham Evening Post 21 October 1892; and ‘Judge's sharp words to Somerset jury’ Western Daily Press 22 October 1932.

87. ‘Assize intelligence: Welsh juries’ Oxford Journal 13 August 1864; ‘ Town and county news: Chief Justice Erle's rebuke to a stupid jury’ Cambridge Independent Press 13 August 1864.

88. ‘Jury rebuked’ Western Daily Press 10 January 1928 at 12.

89. Contempt of Court Act 1981, s 8.

90. ‘A jury on their defence’ Worcestershire Chronicle 21 May 1862.

91. ‘Miscellaneous: insulting treatment of a jury’ Worcestershire Chronicle 17 January 1849; ‘A sessions chairman and a sessions jury’ Bell's Life in London and Sporting Chronicle 7 January 1849.

92. HC Hansard Deb 8 April 1875, vol 223, col 494.

93. Unititled editorial Staffordshire Sentinel 24 March 1875 at 2. For a similar argument, see Atkin LJ in Ellis v Deheer [1922] 2 KB 113, 121.

94. ‘Judges and juries’ Western Daily Press 17 April 1875 at 7. But see ‘Working men on juries’ Reynold's Newspaper 3 November 1878 for an argument that censure from the Bench undermines the jury's judicial function. Donovan has argued that the high acquittal rates of nineteenth-century French juries can, conversely, be partially attributed to the perceived partiality of judicial interrogatoires: Donovan, above n 21, at 386.

95. Such rebukes also served to make clear that the problem was this particular juror or jury, rather than the jury system as a whole. There were also at this time, however, attacks on the civil jury system as a whole: Hanly, C ‘The decline of civil jury trial in nineteenth-century England’ (2005) 26 J Legal Hist 253. See also the nineteenth-century French judicial attacks on the jury system: Savitt, above n 21, at 1029–1030. Although Savitt also notes that, despite judicial attacks on the lenience of French juries, it seems that the judiciary was no less lenient in practice: ibid, at 1056–1060.CrossRefGoogle Scholar

96. The sheer volume of such records on file at the National Archives suggest that such petitions were still a reasonably common part of the criminal process. Sir Edward Troup, Permanent under-Secretary of State in the Home Office during the second decade of the twentieth century, wrote shortly after his retirement in 1922 that ‘Great weight is always given by the Home Secretary to a recommendation by a jury if some sufficient reason be given for it.’ Troup, above n 81, p 68.

97. This was not, of course, simply an English phenomenon: see eg Donovan, above n 21, at 380–381.

98. Opinion of Wetherell, Charles and Conyngham Tindal, Nicholas, Lincoln's Inn, 12 April 1827, in ‘Opinion Book’ (National Archives: TS 25/2040/48) at 302.Google Scholar

99. See also Howlin, above n 21, at 752–754.

100. Ellis v Deheer [1922] 2 KB 113. See also R v Wooler (1817) 2 Starkie 111, (1817) 171 ER 589. This kind of disclosure still occasionally occurs: R v Vanegas [2014] EWCA Crim 2911.Google Scholar

101. R v Young [1995] Qb 324 (Ca).

102. R v Mirza [2004] UKHL 2, [2004] 1 AC 1118. See eg R v OKZ [2010] EWCA Crim 2272.Google Scholar

103. ‘Dr Lightfoot found guilty’ Watford Leader – West Herts News 14 February 1911 (National Archives: HO 144/1122/204340/3).

104. Ibid.

105. See generally divider 29 of the Lightfoot file (National Archives: Ho 144/1122/204340/29). The petition was signed by over 36,000 people (National Archives: HO 144/1122/204340/14).

106. ‘Mrs Lightfoot's report on her first visit to Mr Harry Cox’, received 21 November 1911 (National Archives: HO 144/1122/204340/29); ‘Questions sent to Mr Harry Cox by Mrs Lightfoot and his replies thereto’, received 21 November 1911 (National Archives: HO 144/1122/204340/29); Declaration of Harry Cox, received 21 November 1911 (National Archives: HO 144/1122/204340/29); Declaration of Alfred Simmons, received 21 November 1911 (National Archives: HO 144/1122/204340/29) – although a later investigation showed that most of the other jurors either disagreed with this assessment or were simply unwilling to divulge what had happened during their deliberations (National Archives: HO 144/1122/204340/37).

107. Letter from Edward Troup to the Registrar of the Court of Criminal Appeal, 27 November 1911 (National Archives: HO 144/1122/204340/31).

108. Letter from Lord Alverstone, 5 December 1911 (National Archives: HO 144/1122/204340/31).

109. A Home Office minute dated 20 December 1911 states ‘I have seen the LCJ. He is firmly convinced of Lightfoot's guilt’ (National Archives: HO 144/1122/204340/31).

110. Home Office, above n 29, at 408 (original file destroyed).

111. Ibid, at 408.

112. Ibid, at 408; original file (National Archives: HO 45/23964) closed until 2025.

113. Ibid, at 386 (original file destroyed).

114. Ibid, at 386.

115. Lord Parker was specifically concerned about a recent case in which The Daily Mail had attempted to secure an interview with a person who had recently served as a juror at the Old Bailey, and he wondered whether ‘it might be better to make it an offence for anyone to approach a juror not only during a trial but after a trial with a view to obtaining information’. Letter from Lord Parker of Waddington to Philip Allen, 1 November 1966 (National Archives: HO 291/1482).

116. HL Hansard Deb 6 June 1967, vol 283, cols 365, 366.

117. ‘Note on the Lord Chief Justice's letter of 1st November 1966’ (National Archives: HO 291/1482) at 3.

118. This ‘delighted’ the Lord Chief Justice: letter from Lord Parker of Waddington to Philip Allen, 31 July 1967 (National Archives: HO 291/1482). The Committee, in a report that closely mirrored the earlier discussion within the Home Office, recommended no changes to the law: Criminal Law Revision Committee Secrecy of Jury Room (CLRC No 10, 1968) para 4.

119. A-G v New Statesman and Nation Publishing [1981] Qb 1; Contempt of Court Act 1981, s 8.

120. This is listed as a specific meaning under definition 1b. When, in 1879, the Criminal Code Bill Commission published its Draft Code – ‘Draft Code’ in Criminal Code Bill Commission Report (C (2nd Series) 2345, 1879) – jury offences were contained neither within the category of judicial corruption (s 111) nor within the category of ministerial corruption (s 112); rather, s 129 provided for an offence of ‘corruptly influencing juries and witnesses’, and thereby put the juror in a special category, being neither judicial nor ministerial in nature.

121. See in particular Langbein, above n 22, p 324 n 346 and Stern, above n 16, at 1816; although see Whitman, above n 47, pp 177–178, arguing that if the argument was truly anachronistic, it could not possibly have been as well received as it was at the time.

122. James Baker, above n 48.

123. This argument was based on 32 Hen Viii c 9, s 3; unspecified parts of Blackstone's Commentaries, Stephen's Digest and Hawkins’ Pleas of the Crown; and ‘Draft Code’ in Criminal Code Bill Commission Report (C (2nd Series) 2345, 1879) s 129. Although the prosecution argued unsuccessfully that R v Fuller (1797) 168 ER 495 established that these details were not necessary.

124. James Baker, above n 48.

125. Baker had taken several jurors out for drinks. It should, however, be noted that one of the jurors expressed regret at having met with the defendant: ‘I had never heard of embracery before; I did not know I was embraced, and I am very sorry I was.’ Ibid.

126. ‘The Assizes: Midland circuit, the Althorp murder’ The Times 19 November 1892; see generally the Home Office file on McRae's trial (National Archives: HO 144/246/A54448B).

127. Ibid; see generally the Home Office file on McRae's trial (National Archives: HO 144/246/A54448B). Jurors, prior to 1897, were not usually permitted to separate during a trial. As Howlin has demonstrated, however, from the late eighteenth century this rule started, in practice, to be interpreted liberally by the judiciaries both of England and of Ireland: Howlin, above n 21, at 733–735.

128. Eady and Smith, discussing two similar cases where jurors were not punished (R v Ward (1867) 17 (Ns) Lt 220 and R v Ketteridge [1915] 1 Kb 467 (Ca), concluded ‘there can be little doubt that such conduct would at least be capable of constituting the actus reus of contempt’: Eady and Smith, above n 24, p 852. See also (National Archives: HO 45/13321/93), where in 1926 two female jurors were discharged after admitting to having spoken to the plaintiff. As Howlin has observed, from the eighteenth century onwards the general rule against jurors separating tended to be relaxed, and on both sides of the Irish Sea there was developed ‘a more humane approach toward the confinement of jurors, evident from the early nineteenth century’. Howlin, above n 21, at 735.

129. Howlin has explored the problem of embracery in nineteenth-century Ireland, and has concluded that ‘[m]ore often, the juror would be fined’. Ibid, at 723. This is quite different to the apparent practice in England, and could be explained by the widespread nature of the threats and intimidation often faced by nineteenth-century Irish jurors.

130. Letter from Ar Ellerington to Thomas W Byrne, 28 July 1910 (National Archives: HO 45/10622/196419).

131. Ibid. Ellerington suggested that this was quite a common occurrence.

132. Letter from George Sinclair to Thomas W Byrne, 2 August 1910 (National Archives: HO 45/10622/196419).

133. Ibid.

134. Ibid.

135. ‘Hooley trial: judge's rebuke at the Old Bailey’ Western Times 10 February 1912.

136. ‘Rebuke for juryman: new trial ordered’ Derby Daily Telegraph 28 November 1947. See also ‘Juror rebuked: told to go away from Old Bailey’ Hull Daily Mail 6 May 1932.

137. R v Bowen [1996] 1 Cr App R (S) 63; R v Mitchell-Crinkley [1998] 1 Cr App R (S) 368 (jury discharged); R v Hardy [2004] Ewca Crim 3397, [2005] 2 Cr App R (S) 48 (jury discharged); R v Cameron [2008] EWCA Crim 2493.

138. Letter from Lord Alverstone to Winston Churchill, 17 October 1910 (National Archives: HO 45/10622/196419/2). The power to permit jurors to separate at all can be contrasted to the famous image of the medieval jury being carried about on the back of a cart, unable to separate until they had reached a verdict: discussed in, for example, Duncombe, above n 34, p 218 (EEBO image 109502:122).

139. Home Office, above n 29, at 385 (original file destroyed).

140. Criminal Justice Act 1948, s 35(4). See also Criminal Justice and Public Order Act 1994, s 43.

141. Home Office, above n 29, at 385.

142. ‘Jury foreman in dock: side by side with man he tried’ Western Daily Press 25 July 1933.

143. ‘Foreman of jury who took bribe: first case for many years’ Gloucester Citizen 25 July 1933.

144. ‘Jury foreman in dock’, above n 142.

145. Ibid.

146. The internal reference given in the precedent book shows it was bundled together with the 1963 file referred to below.

147. Home Office, above n 29, at 385.

148. Ibid, at 385.

149. Enright, S and Morton, J Taking Liberties: The Criminal Jury in the 1990s (London: Weidenfeld and Nicholson, 1990) pp 69–76. Although as late as 1954, the Metropolitan Police described its own decision to have 12 police officers ‘engaged on observation of jurymen’ in a retrial, after the first trial collapsed due to jury tampering, as ‘extreme measures’ (National Archives: MEPO 2/9632).Google Scholar

150. A Sanders, R Young and M Burton Criminal Justice (Oxford: Oxford University Press, 4th edn, 2010) p 570.

151. Note on Letter from Aje Brennan to Ja Chilcot, 20 December 1966 (National Archives: HO 291/1480). Questions to this effect were also being asked by the press and in Parliament at this time: discussed in Letter from DEJ Dowler to AJE Brennan, 28 Dec 1966 (National Archives: HO 291/1480).

152. Letter from Aje Brennan to Dej Dowler, 10 January 1967 (National Archives: HO 291/1480). The Home Office's request for information had also acknowledged it was usually ‘impossible to get the evidence to support prosecutions’: Letter from AJE Brennan to PE Brodie, 29 December 1966 (National Archives: HO 291/1480).

153. Letter from Pe Brodie to Aje Brennan, 2 January 1967 (National Archives: HO 291/1480).

154. Criminal Justice Act 2003, s 46.

155. Ibid, s 44.

156. In other words, where the requirements of ibid, ss 76–80 are met; and if the acquitted person had been originally tried for one of the offences listed in ibid, Sch 5.

157. For a discussion of the limited circumstances in which the power has actually been used, see Starmer, K ‘Finality in criminal justice: when should the Cps reopen a case?’ [2012] Crim L Rev 526 Google Scholar; and Dennis, I ‘Quashing acquittals: applying the “new and compelling evidence” exception to double jeopardy’ [2014] Crim L Rev 247 Google Scholar.

158. Letter from Ja Chilcot to Aje Brennan, 15 December 1966 (National Archives: HO 291/484).

159. Letter from Aje Brennan to Ja Chilcot, 20 December 1966 (National Archives: HO 291/484).

160. Owen, above n 49.

161. Bribery Act 2010, s 17(1).

162. Duncombe, unlike Vaughan in Bushell's Case, does not use this language.

163. Duncombe, above n 34, p 212 (EEBO image 109502:119).

164. Howlin, above n 21, at 735–739.

165. Juries Act 1870, s 23.

166. Case as to the Remission of Jury Fines, 23 March 1866 (National Archives: Ts 25/1468). It is, of course, perfectly possible that even those who were fined would not necessarily be made to actually pay. All the Treasury Solicitor was competent to comment on was his own willingness to officially remit such fines, not the willingness of local officials to enforce them.

167. R v Humphreys; R v Burton, September–October 1952 (National Archives: T 221/145). See also Letter from Rs Meiklejohn to Messrs Hand & Company, 10 July 1926 (National Archives: T 161/267).

168. Case: Jury Act – 6 Geo Iv c 50, 4 December 1861 (National Archives: Ts 25/1162). But for a more lenient judicial approach, see ‘The judge and the juryman’ Derby Daily Telegraph 6 August 1887 at 3; and ‘A pause’ Gloucester Journal 23 December 1871.

169. ‘General miscellanies: a dear snack’ Carlisle Patriot 10 April 1830.

170. ‘A hint to Assize jurors’ Liverpool Daily Post 12 August 1869.

171. ‘News notes’ Tamworth Herald 26 June 1880.

172. ‘Coventry: absent jurors’ Coventry Herald 18 October 1889.

173. See eg ‘Grand jurors rebuked: late at the Notts Quarter Sessions’ Nottingham Evening Post 3 January 1916; ‘Grand juryman rebuked’ Burnley Express 27 October 1928; ‘Grand jurors rebuked’ Lancashire Evening Post 3 January 1931; ‘Court waits for absent woman juror’ Gloucester Citizen 15 April 1931; and ‘Jurors rebuked at Derby: Recorder's comments on late-comers' excuses’ Derby Daily Telegraph 16 April 1931.

174. ‘Late jurors: rebuked by Recorder at Devon Quarter Sessions’ Western Morning News 6 April 1934.

175. As Howlin has demonstrated, nineteenth-century Irish jurors were very frequently fined large sums for non-attendance: Howlin, above n 21, at 723–728. This, however, must be understood as part of the very different pressures facing jurors in this context.

176. While the Treasury ultimately concluded that he could lawfully be imprisoned for non-payment of his fine, it is worth noting that the Auditor of Sheriff's Accounts described the juror's punishment as ‘the first case of a fine of a Bankrupt within our recollection’. Note written by T Chadwick, 5 February 1930 (National Archives: T 162/148). Presumably the case reached the Treasury Solicitor's office in part because of a lack of understanding about how juror punishment in such circumstances should properly be conducted.

177. Letter from Baron Bentick to the Earl of Clarendon, 5 January 1854 (National Archives: Ho 45/5732).

178. Letter from Lord Wodehouse to H Waddington, 12 January 1854 (National Archives: Ho 45/5732), citing 7 Ann c 12, s 4.

179. Letter from John W Foster to William Vernon Harcourt, 29 April 1885 (National Archives: Ho 45/9653/A39468).

180. Note, 30 April 1885 (National Archives: Ho 45/9653/A39468), citing 33 & 34 Vic c 77.

181. Aliens of 10 years' residence were qualified (and therefore liable) to serve under Juries Act 1870, s 8, which stated that in this respect they should be treated ‘as if they had been natural-born subjects of the Queen’. The qualification of resident aliens was eliminated by the Juries Act 1922, s 1(2), which required juror lists to be constructed on the basis of electors lists. I am currently undertaking archival research into the role of the 1920s legislation in ensuring that a jury was composed predominantly of Englishmen. The Belgian official (John Foster) may have been English, although the tenor of his letter suggested he considered himself to be Belgian. Either way, Foster noted that ‘still the question of consular exemptions has never been settled’ (although the Home Office's response suggests they disagreed); and between 1870 and 1922 propertied aliens resident in England for at least 10 years were generally liable for jury service.

182. Marshall, Th ‘Citizenship and social class’ in Citizenship and Social Class and Other Essays (Cambridge, UK: Cambridge University Press, 1950) p 18.Google Scholar

183. The Sex Disqualification (Removal) Act 1919 was passed in December 1919, and so no summonses were able to be sent out to women until the following year.

184. Logan, above n 28. The legal techniques adopted in England were more convolutedly legalistic than those used in New Zealand, for example, where women only became eligible for jury service if they took the positive step of registering their interest. See National Archives: HO 45/24917/31.

185. ‘Women Jurors’ The Times 1 February 1921. See also ‘Women and jury service’ The Times 5 March 1921, where two women applied ‘to have their names removed from the voting register in order that they might not be included in the jury list’. They were advised that this was not possible.

186. J Parry ‘The new juror’ Morning Post 10 February 1921.

187. ‘Women on Old Bailey jury’ The Times 24 March 1928. See also ‘Women jurors in unpleasant cases’ The Times London, 4 November 1922, where McCardie J wondered aloud ‘how far it is wise to maintain the ideal of many men that women are purer and more dignified in the eyes of men if they are ignorant of … grim facts’; and when two out of three female jurors declined his offer to allow them to leave the jury, he expressed his ‘very high respect for the courage of these two ladies’.

188. ‘Women jurors’ The Times 1 February 1921.

189. ‘Not guilty to everyone’ The Times 6 September 1922.

190. ‘Non-resistance’ Evening Standard 10 June 1923. The barrister in Hawles' influential 1680 dialogue on jury service dismissed similar arguments as ‘but general and weak excuses’: Hawles, above n 17, p 1 (EEBO image 99141: 2).

191. Home Office, above n 29, at 410. The original file has been destroyed. See also R v Schot; R v Barclay [1997] 2 Cr App R 383, where the Court of Appeal held that jurors should not have been proceeded against for contempt where they had expressed a desire not to serve for conscientious reasons.

192. ‘Juryman will judge not: remarkable letter read in court’ Nottingham Evening Post 6 June 1928.