England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF CRIMINAL APPEAL

		Royal Courts of Justice,
		5th February 1964.

(Revised)

THE LORD CHIEF JUSTICE: This Appellant was convicted in December last at the Central Criminal Court of one count of inciting others to cause a public nuisance by obstructing the highway and two counts of himself causing a public nuisance in the same way. He was sentenced to nine months', three months' and three months' imprisonment concurrent.

The matter now comes before this Court on an appeal on points of law and on an application for leave to appeal on other grounds. The facts, so far as they need to be stated, are as follows: this Appellant was indicted with one Moule, who in fact was tried separately. Both cases arose out of demonstrations organised by the Committee of 100 (and possibly the Save Greece Now Movement) on the occasion of the Greek Royal Visit. The first count related to the 9th July and was that the Appellant himself caused a public nuisance, apparently then a large body of people assembled in Trafalgar Square, and some of them succeeded in forcing their way through police cordons along Whitehall. It was said that pedestrian and other vehicular traffic was obstructed. The Appellant, while agreeing that he was there, said that he had caused no obstruction, and indeed that he did not take a leading part in the demonstration.

The other two charges arose out of another demonstration and march organised on the 11th July. These two charges were first that he himself caused a public nuisance by obstruction, and also that he incited others to do so. Once again the demonstration had been called for in Trafalgar Square, and the object of the demonstration was to proceed to Claridge's Hotel. The police tried to prevent this, and the evidence against the Appellant was that a Police Constable Brown had seen the Appellant moving between groups of people saying:

"We are ready to go to Claridge's. Form into a queue and follow me. We can expect some opposition from the police but we will get there eventually if we all stick together".

They then apparently formed a queue, or at least it was said they formed a queue five abreast, and attempted to circumvent the police cordons, following the Appellant's directions. At one point he was said to have said:

"Follow me. We will beat them yet",

and

"We must get into Piccadilly. That's my route for getting to Claridge's",

and again during this time it was said that the traffic was obstructed.

The first grounds put forward by this Appellant concerned his right of challenge of Jurors. Before going into the details of his grounds, it is convenient to state shortly what happened. In fact, of the first nine Jurors that were called into the box, two were sworn and seven were challenged peremptorily by the Appellant. He then claimed the right of asking Jurors as they came forward, to stand by, in other words not to challenge them for cause as they came to the book to be sworn, but of asking them to stand by until he had gone through all the panel, whatever "the panel" may mean.

This clearly somewhat novel procedure surprised, very naturally, the Judge, but the prisoner then referred to a categorical statement in Volume 10 of Halsbury at page 412 which says this:

"The Crown has no peremptory challenge in any case, but may challenge by asking that the Juror 'stand by for the Crown' as the names are called over, and is not bound to show the cause of challenge until the panel is gone through",

and then follow these words:

"A defendant whose peremptory challenges have been exhausted, may follow the same course".

That having been quoted to the learned Judge, he allowed the matter to proceed on that basis. A further 18, I think it was, were then stood by, and a point of time came when the Clerk of the Court got up and announced:

"My Lord, that exhausts the panel I have available".

The Appellant disputed that; how far he went is not clear, but he claimed that others ought to be brought, that others were available. Whether he was referring to the rest of the 400 or 500 who were on the panel for the Central Criminal Court for that session is not clear, but it is clear that he was saying the panel had not been exhausted. Thereupon one of the prospective Jurors called Ward who had been stood by was brought back to be challenged if need be for cause, and at that stage an adjournment was asked for, because the prisoner said that he wanted to call evidence in order to challenge Ward and others. That adjournment was granted, and in order that no conceivable injustice should be done to the Appellant, he was told the ten names of the Jurors who would be called the next morning and whom he had a right to challenge for cause. The next day, after the adjournment, however, the prisoner again sought to claim that the panel had not been exhausted, and to have other prospective Jurors called to stand by, and he said categorically that he was not prepared to challenge anybody for cause; he took up his stand on this:

"I think my position is that the whole of the panel have not been gone through, I am not prepared even to consider him for a Juror; and if he is sworn now I would like it to go on the record that this is with my objection and without my co-operation".

Thereupon the ten members of the panel were brought back and the prisoner taking up his stand in that way and not challenging for cause, they were duly sworn and a Jury of twelve wore thus constituted.

Arising out of what took place then, the Appellant takes a number of points. His first and his fundamental point is that he had as a matter of law a right, after exercising his seven peremptory challenges, to stand by Jurors -that is really a provisional challenge - until the whole panel was exhausted before having to show cause against anyone. A second point raised is that the panel on its true construction is not merely those members of the Jury who are at present in Court, but all others - as I have said it is not clear whether he means the big panel summoned for the Central Criminal Court for the Session or not - but at any rate it includes all who are readily available and that it was not shown in fact that others were not available. He makes a third point that when those that had been stood by were in fact recalled they were not recalled in the same order.

As it seems to the Court, the fundamental question here is whether after the exercise of the undoubted right to seven peremptory challenges a prisoner has the right of going through the panel asking prospective Jurors to stand by before having to show cause.

Luckily this sort of thing does not happen very often in this country, but it is quite good for us to look into the history of the matter and have it in mind. The history of the matter so far as the Crown itself is concerned is that prior to 1305 the Crown had an unlimited right of peremptory challenge. It is interesting that as early as 1305 it was felt that this was unfair to the subject, and that it might be abused by the Crown of the day, who might instruct his Attorney to challenge everybody, thus in effect keeping a prisoner in prison without trial.

Accordingly, by the statute of 33 Edward I Chapter 2 peremptory challenges by the Crown were abolished, and the Crown could thereafter only challenge for cause. But then, whether as a matter of construction of that statute or as a matter of practice, it was found convenient that before the Crown should show cause, they should be entitled to go through the panel, stand by, as it was called, the Jurors in order to see whether an acceptable Jury could be sworn without having to challenge for cause. If the panel having been gone through, the Crown had not allowed twelve Jurors to be sworn but had stood them by, then it became necessary to recall the prospective jurors and challenge them for cause. That, as it is quite clear from the old cases, became not merely a rule of practice but a right in law.

One need only refer in this connection to two or three of the old cases. In 25 State Trials at page 1 there is the report of the trial of John_Horne Tooke for high treason, and in that case at page 26 Lord Justice Eyre said:

"Your Counsel advised you very properly not to resist the challenges for the Crown, in the course in which these challenges have been taken. As far as our legal history affords us any information upon the subject, the course is a clear one; the Crown has no peremptory challenge, but the course is, that the Crown may challenge as the names are called over, and is not bound to show the cause of the challenge until the panel is gone through; that is the course of proceeding, which is now so established that we must take it to be the law of the land".

In the case of Frost in 4 State Trials New Series at page 86, Baron Parke said at page 124:

"Mr. Kelly says that it is a matter of practice only; but this is not strictly speaking a matter of practice. It is a matter which has been regularly adopted, and could not be adopted by the Judges except upon their view of the construction of the statute of Edward I".

Again in the case of Mansell, reported in State Trials New Series Volume 8, this right of the Crown is looked upon as a matter of law.

That is the position in regard to the Crown. So far as the subject is concerned, originally at common law he had 35 peremptory challenges for treason and for felony. The number of peremptory challenges was altered from time to time, but at any rate by the Juries Act of 1825, Section 29, the subject had 35 peremptory challenges for treason and 20 for murder and felony.

Finally so far as the statutes are concerned, his peremptory challenges were reduced to seven by Section 35 of the Criminal Justice Act, 1948. It is worth recalling that that Act was passed at a time when the prisoner had been deprived of all peremptory challenges by reason of Defence Regulations in 1940, which had been continued until December 1948. That is the position so far as peremptory challenges are concerned in the case of the subject.

There is no case as this Court sees it which lays down that in addition to the right of peremptory challenge there is a legal right in an accused to stand by the prospective Jurors before assigning cause, though it has been done in some cases as a matter of convenience. In particular it has been done in the case of misdemeanours. In the case of misdemeanours, until Section 35 of the Act of 1948 a prisoner had no peremptory challenges at all. He was given by that section seven challenges in the case of misdemeanour and his previous right of challenge in the case of felony reduced to seven also.

The Court has been referred to two cases of misdemeanour where the subject was allowed the same right as the Crown. In the case of Blakeman reported in 3 Carrington and Kirwan's Reports at page 97 the defendants had been indicted for a riot and assaults, which were misdemeanours. In that case Mr. Justice Vaughan Williams said: "I think that it is a fair node of practice to allow defendants in misdemeanour to object to the Jurors as they are called, without showing any cause, till the panel is exhausted and then to recall the Jurors in the same order in which they were called at first, and then not to allow any challenge except for cause. This was the constant practice on the Welsh Circuit, where challenges of Jurors very frequently occur". It is to be observed that Mr. Justice Vaughan Williams in that case allowed it to be done, there being no right of peremptory challenge, and he thinking it, as others had, "a fair node of practice" in misdemeanours.

To the same effect is Creed v. Fisher which is to be found in 9 Exchequer Reports page 472. In that case Baron Parke as an interjection said this:

"In a case of misdemeanour, tried before me at York, the whole of the jury was objected to without opposition. I then required the names of the jurymen to be called over again, and causes to be shewn, and by that means we obtained a jury. In practice it has been usual, as a matter of courtesy, to allow peremptory challenges in civil cases and misdemeanours, but it is not a matter of right".

There are two observations on that. It is clear that what was being done was being done as a matter of courtesy, and secondly that the reference there to allowing peremptory challenges in misdemeanours is of course referring perhaps not quite aptly to the objection by way of stand by.

So far as misdemeanour is concerned, since 1948 there clearly is no need to grant this right of stand by as "a fair mode of practice", to use Mr. Justice Vaughan Williams' words, or "as a matter of courtesy", to use Baron Parke's words, because the prisoner now has what he did not have in the case of misdemeanour before, a right of peremptory challenge.

So far as felonies are concerned, as I have said there is no case where it has been established that there ever was such a right in the prisoner. In Mansell's case, to which I have referred, the Court was not concerned with the procedure of challenge by the subject, but in the course of his judgment Chief Justice Cockburn in the Court of Exchequer Chamber said:

"In one of the early state trials, Fitzharris' case, the Chief Justice used language as if, in practice at that time, this privilege was not confined to the Crown, but that either side might set aside the juror and afterwards take their exceptions".

Then he goes on:

"But he that as it may, it must be admitted",

and so on, the point not being decided, or necessary for decision.

It has been brought to the attention of the Court that although the Chief Justice, who was Sir Francis Pemberton, in Fitzharris' case, does use words in a passage which intimate that there is a similar right in the subject, yet the same Chief Justice in the trial of Grey in 9 State Trials at page 127 says:

"If they challenge any person for the King, they must show cause in due time. For I take the course to be, that the King cannot challenge without cause, but he is not bound to show his cause presently; it is otherwise in the case of another person".

Lastly Mr. Chandler with great industry has found and referred us to a case tried at Assizes in the year 1839 by Mr. Justice Vaughan, the case of Regina v. Dagnes, reported in 3 Justice of Peace at page 293. It does appear in that case, which incidentally again as in Mansell was dealing with the right of the Crown, that in his judgment or ruling Mr. Justice Vaughan said:

"The Counsel for the prosecution had only followed the course of practice usual on such occasions, and had challenged a juror as he cane to the book to be sworn. This might he done by both parties, till the whole panel had been gone through".

It is not in fact clear whether Mr. Justice Vaughan was referring to this right to stand by, but at any rate that passage, in so far as it purports to say that it might be done by both parties, was clearly obiter since only the Crown's right was being considered.

Accordingly, as this Court sees it, the position today is that there never has been a right in the subject to adopt what is the right of the Crown, and that the real ground for granting the privilege of standing by jurors was when there was no peremptory challenge, as in the case of misdemeanour. That of course is not to say that in an exceptional case, whether felony or misdemeanour, a Judge cannot in his discretion, himself stand by a juror or allow a prisoner to do so. But it certainly in the judgment of this Court is not a legal right that the prisoner has.

Accordingly, not having that right, it is difficult to see how this Appellant can complain if he was not fully dealt with in accordance with what he claims to be that right. Being purely a matter of discretion, it would be open to the Judge at any time to compel a prisoner to act according to what were his strict rights and force him to challenge a juror for cause and not let him stand by. Accordingly, as it seems to this Court, it is unnecessary to consider the further two questions under this head, namely as to what exactly the panel consists of, and secondly as to the order in which jurors who have stood by should be recalled and opportunity given for challenge.

Before however leaving that point, it should be borne in mind, and the Court has borne in mind, that this Appellant claims that in fact he was in some way prejudiced, that if he had known that he was not going to be able to stand by more than "X" number of jurors, he would have adopted a different course, he would have allowed some of the jurors that he had stood by to be in fact sworn. The Court has listened to all that Mr. Chandler has to say on that point, but they remain quite unconvinced that he was in any way prejudiced. The truth of the matter is that the Judge afforded him a privilege to which he was not entitled, and that when it appeared that the panel was exhausted he was called upon to challenge. Having said that, this Court is far from saying that the panel was not exhausted in this case, or far from saying that there was any improper manner in which the Jurors were recalled; all the Court holds is that it is unnecessary for then to go into those points.

One further point was taken by the Appellant arising out of what took place at that early stage. That concerns a ruling by the learned Judge that he, the Appellant, could not cross-examine one of the Jurors if the Juror was challenged for cause. What had happened was this, that a Mr. Ward was called as a prospective Juror and the Appellant said

"I object to this man by cause",

then he goes on

"and I think as far as the procedure is concerned here I am entitled to put him in the witness box at some stage and cross-question him. (Judge Roberts) No, you are not entitled to do that. The law is quite clear on the subject. (The Prisoner) Halsbury says if I establish a prima facie case I am allowed to cross-examine him in the box. (Judge Rogers) You are not allowed to question a juror about a challenge. That is clear from the case of Dunn. You have exhausted your preliminary challenges. Do you want to challenge him on the ground of cause? (The Prisoner) Yes. (Judge Rogers) And the cause is ... ? (The Prisoner) That he is antagonistic towards the Committee of 100. (Judge Rogers) Have you any evidence on that? (The Prisoner) I can produce witnesses if you like: but I would have to ask for an adjournment until tomorrow to put this case".

Accordingly and as I have already said, the prisoner was granted an adjournment and given the names of those whom be would have to challenge if he so desired for cause.

The Appellant now takes the point that while it nay have been right for the Judge to rule that at that stage without more ado he was not entitled to cross-examine Mr. Ward, yet that if he did establish a prima facie case that Mr. Ward was not impartial, a tine might come when he did have a right of cross-examining. It is quite clear from the transcript that, as worded, there is a ruling that at no time will there be a right to cross-examine the Juror, but the Court thinks it is very doubtful whether it was taken in that way by the prisoner, or intended by the Judge. Be that as it may, the fact of the matter is that before any right to cross-examine the Juror arose the Appellant would have to lay a foundation of fact in support of his ground of challenge. It is no good his saying:

"I think this man is antagonistic",

or calling somebody to say:

"I do not think he likes processions, he thinks they are unreasonable There oust be a foundation of fact creating a prima facie case before the man can be cross-examined."

This prisoner was allowed the adjournment; he was given the names of those who would be brought back to be sworn and when the next day came the prisoner categorically took up the stand:

"I am not going to call any evidence to challenge for cause, I am not going to challenge for cause at all. I am taking up the attitude that I have been deprived of my right of going through the whole panel".

In those circumstances, this Court cannot possibly see how this Appellant can make any use of this point. I would only add that he himself thought so little about it that it did not appear in his grounds of appeal to this Court at all, but was allowed to be added to the grounds by the Court.

That is almost enough to dispose of this case, but there are two other natters which form the ground of an application as opposed to an appeal. The first is that the Judge wrongly ruled that Chief Detective Inspector Dickinson, a witness for the prosecution, need not answer a certain question. What happened was this, that Chief Inspector Dickinson was called to say that he had seen the Appellant on these two days, and in cross-examination he was asked: "Were any of the Officers under your instructions directed to keep an eye on me during this State Visit? (A) May I discuss this, my Lord.

(Judge Rogers) Were any Officers under your control given any instructions about this man? (A) I believe they were, in fact, my Lord. (The Prisoner) I will be presenting a letter I have already written to Inspector Dickinson asking for this information in advance: but I would like to know the names of any Officers given special duties in connection with me, because I want to call those officers as witnesses". The Judge ruled that the witness need not answer that question.

In the opinion of this Court he was perfectly justified in so ruling. The prisoner had not brought the question and answer to the stage where he was entitled to have the names. He tells us now that there were one or two officers he knows whose special duty was to keep an eye on him and who were in effect at his elbow metaphorically on these two days, and that he would have liked to have known their names in order to call them as his witnesses. What he would have got out of them no one can tell, but the Judge had a perfect right to prevent the witness from answering a general question of that sort as to the names of any Officers given special duties in connection with him. If he had got to the stage of one or two, then it may be he could ask the names, though in the opinion of this Court the better course would have been to say to the Judge

"Will you please ask the prosecution to tender these two men as witnesses then I can cross-examine because I have now shown they were present at the time and must be able to give relevant evidence".

However, as the Court sees it, that point was never reached in this case and the learned Judge was perfectly entitled to rule as he did, and to indicate as he did that the prisoner had a strong point to make to the Jury, namely

"There were a lot of people detailed to follow me and not one of them was called; that can only mean that not one of them saw me commit any offence at all",

and no doubt that point was made to the Jury.

Finally a point was raised which again was not in the grounds of appeal, but as I understand it was directed to this, that the conviction ought to be quashed because such obstruction as occurred did not have a degree of permanency which was suggested was necessary in such a case. Mr. Chandler referred us to a case or cases concerning the granting of injunctions when an injunction is not granted unless there is some continuity of the activity which it is sought to restrain. Those cases, as it seems to this Court, are miles away from this case. On the facts here there was ample evidence upon which the Jury were entitled to arrive at their verdict, which was that there had been in two cases an obstruction amounting to a public nuisance, and in the other that he had incited others to commit such a public nuisance.

Accordingly, so far as these proceedings raise points of law alone, the appeal is dismissed; and in so far as they are matters of application for leave to appeal, they are refused.

THE APPELLANT: Is it permissible for me to apply for leave to take to the House of Lords the points of public importance which I submit have been raised in connection with the Juror in particular during these proceedings?

THE LORD CHIEF JUSTICE: Mr. Leonard, do you want to say anything on that?

MR. LEONARD: No, my Lord, I do not think so; your Lordship has heard from the Solicitor General -

(Their Lordships conferred)

THE LORD CHIEF JUSTICE: What we will do, Mr, Chandler, is that we will certify that a point of law of general public importance is involved in the decision, namely: whether there is a legal right today in an accused to follow what is the right of the Crown in regard to standing Jurors by and not challenging for cause until the panel is exhausted. That is the only point upon which we certify, and on that we refuse you leave. That means that you can go to the Appeals Committee of the House of Lords and ask them to give you leave on that point.

THE APPELLANT: Yes, I see; is it not possible at this stage for me to ask for bail so that I can work on the points involved? The point is that he raised a number of new issues which last night I did not have any access at all to any reference in order to do this, and in order to be able to adequately put this, I would very much like to be able to go into the points which he raised, most of which were completely new to me.

(Their Lordships conferred)

THE LORD CHIEF JUSTICE: The point, Mr. Chandler, is that if we had given you leave to appeal then we would have full power to make such an order, but you not being an Appellant since we having refused you leave, we have no power to grant you bail. You would have to go to the House of Lords.

THE APPELLANT: I see, right, thank you.

14.