The frontier between open and secret justice remains as controversial and hazardous as ever.

The Times newspaper finds itself accused of over-stepping the mark by revealing jurors’ opinions and reporting a partly-secret murder trial in a way that breached reporting restrictions.

Lord Justice Maurice Kay recently gave the Attorney-General permission to prosecute the newspaper and a jury foreman for contempt over an article, published on 19 December 2007, in which the foreman and another juror criticised the 10-2 conviction of childminder Keran Henderson for the manslaughter of 11-month-old Maeve Sheppard.

It is an offence under Section 8 of the Contempt of Court Act 1981 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 media’s scope to report jurors’ concerns about an issue as important as a potential miscarriage of justice remains a grey area. The ambit of Section 8 is wide, but not all probing media interviews of jurors have resulted in prosecution.

Nevertheless, any report that reveals the voting or deliberations of jurors runs a particular risk of provoking official sanction.

Approving the contempt prosecution, Maurice Kay LJ said: “We don’t think this is the gravest case of jury indiscretion – nevertheless we grant permission.”

The Times has also been referred to the Attorney General for a possible contempt prosecution over a report it published last month about a case in which Chinese dissident Wang Yam was convicted of the murder of author Allan Chappelow.

The trial judge said “speculation” or “assertions” about matters considered by the court while it was sitting in private may amount to contempt, having regard to reporting restrictions he had imposed under the Contempt of Court Act 1981.

He said: “Repetition of previously published material, whether accurate or inaccurate, which speculates about or asserts what was considered in camera is arguably a contempt of court.”

He added that a report could constitute contempt either by “breaching” a reporting restriction or by “undermining the purposes and effect of the order”.

The newspaper reportedly believes it merely published information that was already in the public domain and that that cannot constitute contempt in the circumstances.

Its predicament highlights the tight-rope that the media must walk in trying to deliver open justice within the confines of contempt.

Meanwhile, the controversial Coroners and Justice Bill 2009 threatens to lob another obstacle into the path of open justice.

If passed into law, the proposed Section 11 would give the Secretary of State power to order that an inquest be heard in secret by a nominated High Court judge alone – without a jury, and without the public and press being allowed in.

As drafted, the power would arise whenever “no other measures would be adequate to prevent the matter being made public” and the investigation will involve a matter that “should not be made public” in order to protect the interests of:

national security,
the relationship between the United Kingdom and another country,
preventing or detecting crime,
to protect the safety of a witness or other person, or
to prevent real harm to the public interest.

Defending the secrecy provisions earlier this month, Justice Secretary Jack Straw said he was aware of two problematic inquests that could not go ahead at present, and a question remained as to whether to hold parts of the hearings in private or not conduct inquests at all.

He denied that a politically-charged inquest such as that into the death of Jean Charles de Menezes, the Brazilian shot dead by police after being mistaken for a suicide bomber, would have been held in secret under the proposed law. There had been no difficulty in holding his inquest under existing law.

The Bill, which also contains controversial provisions to give anonymity to certain witnesses in criminal cases, has now been sent to a Public Bill Committee for scrutiny. Amid concerns over creeping secrecy in the administration of justice, it is to be hoped that the scrutiny will be exacting.