England and Wales Court of Appeal (Criminal Division) Decisions

Royal Courts of Justice

The Strand

London WC2

Tuesday 28 October 1997

B e f o r e:

THE LORD CHIEF JUSTICE OF ENGLAND

(Lord Bingham of Cornhill )

MR JUSTICE POTTS

and

MR JUSTICE BUTTERFIELD

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R E G I N A

- v -

THOMAS ANTHONY COMERFORD

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Computer Aided Transcription by

Smith Bernal, 180 Fleet Street, London EC4

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(Official Shorthand Writers to the Court)

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MR JONATHAN GOLDBERG QC and MR PETER LODDER appeared on behalf of

THE APPELLANT

MR SIMON DRAYCOTT appeared on behalf of THE CROWN

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J U D G M E N T

(As Approved by the Court )

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THE LORD CHIEF JUSTICE: On 26 November 1996 the appellant was convicted following a trial in the Crown Court at Middlesex Guildhall of attempting to possess cocaine with intent to supply. The quantity of the cocaine was large and the value high. He was sentenced to ten years' imprisonment. He appeals against conviction by leave of the single judge.

The grounds of appeal relate to an order made and a procedure adopted in relation to the jury at the outset of the trial. This makes it unnecessary to rehearse the underlying facts in detail. The charge related to a large-scale operation to import cocaine into the United Kingdom from Ecuador. The operation was monitored by under-cover officers of the Ecuador police and HM Customs & Excise. The appellant's participation took place at a late stage of the importation process. The main issue at the trial was whether he knew what was being imported. By their verdict the jury resolved this issue against him.

The trial of the appellant first began on 12 November 1996. The prosecution made a public interest immunity application to the judge ex parte, but that was unrelated to the matters now in issue. A jury was sworn, and the prosecution case was opened. On the following day, before the hearing began, the Crown made a further public interest immunity application to the judge. The defence were given no indication of the subject matter of this application, which was heard in chambers. Present when the application was made were the trial judge, prosecuting counsel and two senior officers of HM Customs & Excise. Neither the defendant nor anyone on his behalf was present. There was no court clerk or shorthand writer. But a tape was running. We have this tape. We also have, and have read, a transcript of the exchanges recorded on the tape. The judge heard sworn evidence from one Customs official. There was discussion between him and prosecuting counsel. The application occupied the morning, and the court did not sit until after the short adjournment. Defence counsel asked counsel for the Crown to tell him what was to happen, but prosecuting counsel felt unable to say. The judge was asked the same question in the absence of the jury, but also felt unable to say. The jury were, however, asked to return into court, and when they did so the judge at once told them that they were discharged from returning a verdict in the case. He declined to give any reasons to the defence for this decision.

It was arranged that a fresh trial of the appellant would begin on Monday 18 November in front of the same judge but with a new jury. It was also arranged that on 14 and 15 November there should be legal argument on the agreed basis that rulings given would be binding even before the swearing of the fresh jury. On 14 November the Crown applied for police protection of the second jury, giving no reasons to support this application and calling no evidence in support of it. The defence opposed this application, submitting

1. that to order jury protection was a drastic step, not to be taken lightly;

2. that the consequences for the appellant were serious because the jury might infer that the court considered the defendant or his associates to be likely to interfere with them;

3. that following the case of R v Ling [1987] Crim LR 495 reasons for the application should be given, and evidence called to support it;

4. that the case was not of a type which showed an increased risk of jury interference by its very nature (such as a case involving terrorism or Mafia-type organised crime); and

5. that, if necessary, reasons could be given and/or evidence called in chambers or even in the absence of the appellant, so that cross-examination might take place and reasoned objections advanced by the defence.

The judge did not accede to these arguments. The Crown declined to give reasons, and no evidence was called. The judge, however, agreed that this was not a case of a kind which showed an increased risk of jury interference by its very nature. On 15 November the judge ruled that the jury should be protected. His decision was that protection should be given at level 3, the highest level. He was invited by the defence to deliver a private reasoned judgment, which he did and which was made available to the Registrar of Criminal Appeals but to no other party.

We have seen and read a written judgment dated 18 November 1996 signed by the judge referring to the application made to him on 13 November 1996. We have also seen and read a written judgment dated 19 November 1996 confirming the judge's decision that protection should be at the highest of the three conventional levels, based on the advice given by the police.

Before the fresh jury were sworn on 18 November, the judge ruled that the names of the jurors should not be read in open court in the ordinary way but that the jurors should be called by numbers allocated to each one of them individually. He said:

"Now the next matter is that the logistics of jury protection, it having been determined it's appropriate in this case, are as follows; I would say it to you and defence counsel that a panel has been obviously acquired properly in the normal way. They are, at the moment, being held in the library as I have been informed and there are 23 and each one has been allocated a number -1-23 - and the Clerk of the Court will summon from that panel a number at random from the list that he has or holds and when they come into the jury box, there having been selected, obviously they are available to you, for the defendant and anybody else. And if [sic] a proper challenge can then be made. If not, they will then be sworn by a new number that will be placed in front of them in the jury box. When they come into this room, having been selected at random, they acquire the number in front of them and it's by that number that the individual juror will be known. The Clerk of the Court in this case, who will be of assistance throughout, is the only person who will have the details of identification".

Defending counsel, who had had no time to consider this procedure, raised no objection. From a later observation of the judge, it appears that the appellant may have been specifically asked whether he proposed to challenge any jurors and have indicated that he did not. Following the judge's ruling, jurors were called into court and took their places in the jury box. Their names were not announced in open court. No challenges were made and the jury were sworn.

With the benefit of a short opportunity to consider the matter, during the opening of the case by the Crown, defending counsel submitted to the judge that the procedure adopted for the swearing of the jury was unlawful. He described the objection as a technicality (a description which he now withdraws), but submitted that the traditional procedure for swearing the jury was a matter to be followed to the letter, and that the failure to name the jurors in open court was a departure from that procedure. He accepted that there would not necessarily have been any challenge for cause had the names been announced publicly, but suggested that a name may ring a bell when a face does not. The judge gave a short ruling in which he expressed satisfaction that the requirements of the Juries Act 1974 had been fulfilled, and that the jury had been properly sworn.

Counsel for the appellant now submits that the judge was wrong to make an order for the protection of the jury, and wrong in particular to do so without requiring the Crown to give reasons which would enable the defence to present reasoned argument and without calling evidence which the defence could test in cross-examination. Counsel also submits that the judge was wrong to permit the jury to be called and sworn by numbers rather than by name.

It is a truism that the jury is the lynch-pin of trial on indictment. The proper functioning of the jury is crucial to the fair and effective conduct of the trial. To that end statute regulates the composition of juries, the selection of jurors and the challenging of jurors. To that end also, almost infinite care is taken in directing the jury on the proper approach to their task, on the relevant law and on the facts. But all these rules and procedures are rendered of little effect if the integrity of an individual juror, and thus of the jury as a whole, is compromised. Such a compromise occurs when any juror, whether because of intimidation, bribery or any other reason, dishonours or becomes liable to dishonour his or her oath as a juror by allowing anything to undermine or qualify the juror's duty to give a true verdict according to the evidence.

Intimidation or bribery of jurors is fortunately unusual. But cases do arise in which a defendant, or friends or associates of a defendant, or others with an interest in the outcome of a defendant's trial, seek to influence the jury's verdict by unlawful means. Indeed, such activities have become sufficiently familiar to earn the colloquial description of "jury nobbling" by which they are generally known. Where an attempt to nobble a jury is apprehended, one possible response would be to dispense with a jury altogether in such a case, on the ground that any attempt to nobble a judge sitting alone would be bound to fail. But that is not the response which we have adopted. Instead, where an attempt to nobble a trial jury is apprehended, the response has been to afford the individual jurors such level of protection as is judged necessary to protect them against any unlawful approach or communication, whether intimidatory or corrupt. The affording of such protection, however, when it comes to the knowledge of the jurors concerned (as with other than minimal protection it will), carries its own dangers. Despite judicial warnings that the affording of protection must not cause jurors to draw any inference adverse to the defendant, the defendant may fear that some jurors may be tempted to view with disfavour an accused person whose friends or associates are themselves thought likely to act in a criminal way. Alternatively, a juror who appreciates that protection has been given for his own safety may be inclined to acquit to reduce any risk of personal mischief to himself. These dangers will deter a judge from ordering high level protection of a jury unless the judge is convinced that there is a real and present danger of nobbling if protection is not given. But where such a real and present danger is perceived to exist, the judge is likely, in pursuance of his duty to ensure a just and effective trial, and in the exercise of his discretion, to order such protection. He will not knowingly accept a significant risk that the interests of justice may be defeated by a nobbling of the jury.

Some, but not very much, guidance on this problem is to be found in the authorities. In R v Dodd and Others (1982) 74 Cr App R 50 at pages 53-54 the Court of Appeal said:

"At the start of the trial, on the application of the prosecution, the learned judge ordered jury protection; that is, that while away from the court each member of the jury should have police protection. All three applicants submit that the learned judge ought not to have made the order. They submit, rightly, that it is exceptional to order jury protection. They submit that it is prejudicial to the defendants and particularly so in a case where the real contest to be raised by the defendants is the honesty of the police officers giving evidence at the trial. They submit that jury protection ought not to be ordered unless there is evidence that the defendants or one of them has, in a previous trial, sought to interfere with the jury, or alternatively that there is evidence that in the present trial there is some proper evidence that such an attempt is to be made.

In the present case the information which the police placed before the learned trial judge was that there was a sum of £30,000 on offer to try and deter Young and/or Simpson from giving evidence. In our judgment this question is one for the judge to decide, and it is his discretion which matters. A suitable formula was worked out for what the jury were to be told and again we can find no grounds for saying that the judge was wrong to exercise his discretion as he did".

We have read the transcript of the judgment of the court given by O'Connor LJ on 9 December 1986 in R v Ling . At page 2 he said:

"Two matters arise on this appeal. First, before the trial started counsel for the prosecution made a submission to the learned judge that he should authorise that the jury should be protected. Argument and evidence on that topic was heard and the judge ruled that the jury should be protected. The first ground of appeal is that he was wrong so to do; that it was prejudicial to the appellants and that that in itself is a ground for allowing this appeal......".

The court then made reference to R v Dodd and others , and continued (at page 4):

"Before we look at the short facts in this case we think it necessary to state how this matter should be approached. Trial by jury inevitably carries with it the risk that an attempt may be made to pervert the course of justice by trying to influence jurors, be it by bribery, intimidation or otherwise. There are some cases where this risk is increased to such an extent that the proper administration of justice requires that the jury be protected from possible interference. In these cases two questions arise:

(1) on what material is the judge to make the decision to authorise protection?

(2) what are the jurors to be told?

The first question raises a number of problems. When the application is made counsel for the prosecution will state his reasons for making the request. Sometimes the nature of the case may be enough to show that the necessary increase of risk is present. For example, where the offences charged arise out of terrorist bomb attacks or protection racketeering. In contrast, we have cases like the present where the three appellants were charged with theft of valuable goods from a vehicle or vehicles in the loser's vehicle compound. The grounds for the application were that the prosecution believed that the appellants were associated with a much larger body of men engaged in similar thefts in the same part of London and that when any group were brought to trial, associates came to court to interfere with witnesses and the jury. Are the defendants entitled to require the prosecution to establish their contention by calling evidence or does the judge have a discretion to act on counsel's submissions?

In our judgment the judge has a discretion as to whether the prosecution should be required to call evidence in support of the application. It is of course open to the defence to submit that the judge should not authorise protection without hearing evidence. If the judge does require evidence it is open to the defence to cross-examine the witnesses. If the judge concludes that the risk of interference has been substantially increased he may authorise protection. We do not think that burden of proof or standard of proof have any bearing on this exercise. It is enough to say that if there is material from which the judge can fairly infer that the risk of interference is substantially increased then he can authorise protection.

As to the second question, we do not think that there is any need for the jury to be told the reasons for authorising protection. It might be very prejudicial to the defendants. See the reasons referred to in Dodd. The practice has been for counsel to agree a formula with the judge and we see nothing wrong with this procedure. If counsel choose not to co-operate the judge must decide. In this case the judge did decide what to tell the jury and he said:

'What I was proposing to say was this: during the course of this trial you will be under the surveillance of police officers when you are not in court. These officers have no connection with this trial. This is just a precaution. You should not be alarmed. It is a precaution that is taken from time to time and by no means does it follow that anything untoward will happen to any of you. Most importantly, you must not allow this fact in any way to influence your decision in the trial, which decision you will take upon the evidence and upon nothing else. In particular, do not allow yourselves to be prejudiced in any way against any of these three defendants by reason of the precautions that are being taken. And then I was proposing to tell the jury that further details of procedure would be given to them in due course.'

So long as the jury are told that the fact of protection is not to be used by them in any way adverse to the defendants, just how it is put is not important. What the judge said in this case was short, simple and sufficient, and not open to any possible objection."

The court outlined the basis upon which the Crown had made its application in that case, and summarised the evidence. It reached the conclusion that the trial judge had had material to justify making the order he did, that it was a matter for his discretion and that there were no grounds for interfering with his decision.

This last decision touches on the procedural problems which are likely to arise when an application is made for an order that the jury be protected. Such application will be made by the prosecutor. Since the granting of the application may potentially have an adverse effect on the defence, it is obviously necessary that the prosecutor should, whenever possible, make his application in the presence of the defence and give reasons for making it and call evidence (open to cross-examination by the defence) in support of the application. That represents the ideal. It is an ideal which cannot always be achieved in practice. But it is necessary that any departure from the ideal should be fully considered and that no departure should be sanctioned unless the trial judge is satisfied that the departure is necessary, and that the departure will not render the trial process itself other than completely fair to the defendant. It is axiomatic that no matter what the exigencies of any case, no procedural application should be granted which might in any way jeopardise the fairness of the outcome of the trial. That consideration is paramount. If a defendant cannot be fairly tried he must not be tried at all.

Our practice has, however, sanctioned measures for the protection of juries in appropriate cases. The practice is to warn the jury in very clear terms that they must not in any way hold it against the defendant that such measures have been taken. Such a warning was given in this case, and no complaint is made that it was in any way inadequate. As in any other case the jury must decide the case on the evidence they hear in court and nothing else. We have no reason to doubt that the jury paid proper attention to the warning given.

The question we must answer is whether we consider this conviction unsafe because the trial judge made an order for the protection of the jury without requiring the Crown to give reasons to the defence and without requiring it to call evidence in the presence of the appellant or his counsel. The defence have now been informed, which they were not informed at the trial, that there was apparently compelling evidence before the trial judge that an attempt had been made or would be made to nobble the first jury, and that a person had been observed during the swearing of the first jury, in the public gallery, making a written note of the jurors' names. There were further disclosures, made to the judge on oath, and known to us, which remain secret and unknown to the defence. Both prosecuting counsel and the judge felt constrained at the trial to withhold these disclosures from the defence, and the Crown remain concerned that no disclosure should be made, even now, beyond those which have been made.

It is plainly highly desirable that all possible information should be disclosed to the defence, and that all exchanges with the judge should so far as possible take place openly in the presence of the defendant or his representatives. Any ex parte communication between the Crown and the trial judge gives rise to a feeling of unease. Such communications should be kept to a minimum. On the facts of this case, however, we are satisfied that the trial judge was presented with apparently reliable sworn evidence which obliged him to discharge the first jury, and fully justified his discretionary decision to order a high level of protection for the fresh jury when empanelled. Even if the defence had been told a little more than they were, the judge would have been bound to make these orders, and the defence must surely have inferred that the first jury were thought likely to have been nobbled, even if they knew nothing of the grounds for such belief. While we can understand the concern of the appellant and his advisers, there is nothing in the procedure adopted in relation to jury protection which causes us to consider this conviction unsafe.

It was argued for the appellant that if and when jury protection orders are judged necessary, the practical implementation of such orders should be under the control and supervision of the court; and that the practical effect of such orders should be made clear to all parties. We do not accept the first of these points. It would seem to us inappropriate that the court should interfere with the conduct of a police operation. The only legitimate concern of the court, once the order is made, is to ensure that there is no improper communication between any police officer and a juror. We have reservations about the second point also: given that such orders will only be made where nobbling is apprehended, it may well undermine the effectiveness of the protection to communicate precise details of how the protection will be afforded. Subject to that important qualification, however, it is desirable that the defence should, so far as possible, be informed how the protection will be given.

Counsel for the appellant also makes a second and more fundamental submission: that the omission to name the jurors who were empanelled to try the appellant, in open court, rendered the trial a nullity, leaving this court no choice but to quash the conviction and (if so advised) order a venire de novo. This result, it is argued, is dictated by long-standing practice, authority and statute.

A standard procedure has for very many years been followed when empanelling a jury. The clerk of the court invites the members of the jury in waiting to answer to their names, and then calls out the name of each juror selected by ballot. He then explains the means of making a challenge to the defendant, stating that the challenge is to be made after the names of the jurors who are to try him have been called. The form of words used is set out in the 1997 edition of Archbold at paragraph 4-235, and is very familiar. Plainly the procedure adopted here was a departure from this standard practice. We do not, however, consider that the mere fact of this departure renders the trial a nullity, unless it violated the legal right of the appellant or made the proceedings unfair to him.

In R v Williams (1925) 19 Cr App R 67, a conviction was quashed and a venire de novo ordered when a lawful challenge to a juror, properly made, was ignored. The same result would probably have followed in R v Gash [1967] 1 WLR 454, where a defendant was effectively denied a right to challenge five biased jurors, had the defendant not served most of his sentence by the time of the appeal; as it was, the conviction was quashed. It is not, however, every irregularity in the empanelling of a jury which renders the trial a nullity. In R v Mellor (1858) Dears. and Bell 468, the name of juror A was called but by mistake juror B answered, entered the jury box, was sworn and was a member of the jury which returned the verdict. There was a sharp division of judicial opinion whether a mistrial had occurred, but a narrow majority considered that it had not.

Reliance was placed on an observation of Watkins LJ in R v Felixstowe Justices ex parte Leigh [1987] QB 582 at 595A where he said:

"Consider too the position of jurors, interference with whom is unhappily not unknown, especially these days. They are known persons. Their names are announced in open court before they take the oath".

The case, however, concerned the lawfulness of a practice adopted by a local bench of magistrates of withholding the names of those who sat in court to hear cases. There was no issue before the court concerning security, and no issue concerning juries. It is plain that this observation, although of course commanding respect, is not authority on the present question.

We were referred to the most relevant provisions of the Juries Act 1974.

Section 5(1) governs the preparation of panels of jurors.

Section 5(2) entitles a defendant to reasonable facilities for inspecting the panel from which the jurors who try him are or will be drawn.

Section 11(1) provides that the jury to try an issue before a court shall be selected by ballot in open court from the panel of summoned jurors.

In this case, we understand that jurors were duly selected by ballot, although it appears that numbers and not names were drawn.

Section 12 of the Act provides, so far as relevant:

"(1) In proceedings for the trial of any person for an offence on indictment --

(a) that person may challenge all or any of the jurors for cause, and

(b) any challenge for cause shall be tried by the judge before whom that person is to be tried.

(3) A challenge to a juror in any court shall be made after his name has been drawn by ballot (unless the court, pursuant to section 11(2) of this Act, has dispensed with balloting for him) and before he is sworn.

(4) The fact that a person summoned to serve on a jury is not qualified to serve shall be a ground of challenge for cause; but subject to that, and to the foregoing provisions of this section, nothing in this Act affects the law relating to challenge of jurors.

(6) Without prejudice to subsection (4) above, the right of challenge to the array, that is to say the right of challenge on the ground that the person responsible for summoning the jurors in question is biased or has acted improperly, shall continue to be unaffected by the fact that, since the coming into operation of section 31 of the Courts Act 1971 (which is replaced by this Act), the responsibility for summoning jurors for service in the Crown Court, the High Court and county courts has lain with the Lord Chancellor."

It was argued, with particular reference to subsection (3), that this section contained a mandatory requirement that names be called. We do not so read it. No doubt the draftsman assumed that the ordinary practice would be followed, and that names would be called. The purpose of subsection (3) is, however, in our judgment to define the time at which the challenge is to be made rather than to require the public announcement of jurors' names. We accept that section 12(6) preserves a defendant's right to challenge the array, but we cannot see that this right was in any way infringed. We assume that an effective challenge to the array would require exercise of the facilities guaranteed by section 5(2).

Section 18 of the Act provides:

"(1) No judgment after verdict in any trial by jury in any court shall be stayed or reversed by reason --

(a) that the provisions of this Act about the summoning or empanelling of jurors, or the selection of jurors by ballot, have not been complied with, or

(b) that a juror was not qualified in accordance with section 1 of this Act, or

(c) that any juror was misnamed or misdescribed, or

(d) that any juror was unfit to serve.

(2) Subsection (1)(a) above shall not apply to any irregularity if objection is taken at, or as soon as practicable after, the time it occurs, and the irregularity is not corrected.

(3) Nothing in subsection (1) above shall apply to any objection to a verdict on the ground of personation."

We would accept that counsel for the appellant objected to the procedure for empanelling the jury as soon as practicable after the procedure was implemented. But we are not persuaded that any irregularity was involved. If the appellant had been denied an effective opportunity to exercise his right of challenge, he would on the authorities be entitled to an order that the conviction be quashed and a venire de novo ordered. It is, however, quite clear that the trial judge intended to preserve the appellant's right of challenge. It may be that he was told that no such right would be exercised. But even if he was not so informed, it is not and never has been the appellant's contention that any right of challenge would have been exercised had the names of the jurors been called aloud in open court. Had the appellant's decision to exercise his right of challenge depended on knowing the names of the jurors, he could have exercised his right to ascertain the names of all the jurors forming the relevant panel, and we have no doubt that the judge would have been willing to hear, and if necessary rule on, any challenge made after inspecting the names of the panel, even if the challenge was (of necessity in the circumstances) made late. There is nothing whatever to suggest that the appellant had any right to challenge any of the members of the jury which convicted him, and there was in our view no violation of his common law or statutory rights.

It is highly desirable that in normal circumstances the usual procedure for empanelling a jury should be followed. But if, to thwart the nefarious designs of those suspected of seeking to nobble a jury, it is reasonably thought to be desirable to withhold jurors' names, we can see no objection to that course provided the defendant's right of challenge is preserved.

For these reasons we dismiss this appeal.

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The following question was certified as being a point of general

public importance:

"Whether a trial on indictment is necessarily rendered a nullity if the names of the jurors empanelled to serve are not called aloud in open court."

Leave to appeal to the House of Lords was refused.

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