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Tarrant, R v [1997] EWCA Crim 3364 (18th December, 1997)
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[1997] EWCA Crim 3364
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JAMES NICHOLAS TARRANT, R v. [1997] EWCA Crim 3364 (18th December, 1997)
IN
THE COURT OF APPEAL
CRIMINAL
DIVISION
Royal
Courts of Justice
Strand
London
WC2A 2LL
Thursday
18th December 1997
B
e f o r e:
LORD
JUSTICE HENRY
MR
JUSTICE GAGE
and
HIS
HONOUR JUDGE TUCKER
(Acting
as a Judge of the Court of Appeal Criminal Division)
-
- - - - - - -
R
E G I N A
-
v -
JAMES
NICHOLAS TARRANT
-
- - - - - - -
(Handed-down
judgment of Smith Bernal Reporting Limited
180
Fleet Street, London EC4A 2HD
Tel:
0171 421 4040
Official
Shorthand Writers to the Court)
-
- - - - - - -
MR
J DEIN
appeared on behalf of the Appellant
MR
JWT DOCKING
(MISS SJ VAUGHAN-BROWN)appeared on behalf of the Crown
-
- - - - - - -
J
U D G M E N T
(As
approved by the Court)
-
- - - - - - -
Crown
Copyright
LORD
JUSTICE HENRY:
This is the judgment of the Court. On the 3rd October 1996 in the Crown Court
at Snaresbrook before His Honour Judge Brooks, the appellant was convicted
(after a retrial, and in his absence, he having absconded whilst the jury was
considering its verdict, by a majority of 10:2) of conspiracy to possess a
controlled drug of Class B (cannabis resin) with intent. After being
recaptured, he was sentenced on the 14th March 1997 to six years' imprisonment,
and a Drug Trafficking Confiscation Order in the amount of £13,960 (in
default to serve 12 months' imprisonment consecutive; payment to be made
forthwith). He now appeals his conviction with the leave of the Single Judge.
The principal ground of appeal is that the trial was a nullity because the
judge ordered that the jury should not include anyone whose address contained
an "E" in their postcode.
To
understand how the judge came to make that order it is necessary to examine the
facts.
The
first trial of this man was before His Honour Judge Radford. On the third day
of the trial the judge learned that it was suspected that a juror had been or
would be approached by someone well known to the police who had been seen at
court the previous afternoon. For those reasons Judge Radford discharged the
jury.
On
14th June there was an interlocutory hearing in relation to the retrial. The
judge, after an ex parte meeting with the prosecution, in open court informed
the defence that the prosecution had asked for the trial to be transferred out
of the area, but he had decided that the case would be tried at Snaresbrook.
However, he was going to order
"a
panel, a random panel to be brought in from outside this catchment area so they
have nothing to do with the area"
and
gave notice to the Defence that application for jury protection would be made
at the trial.
On
30th July 1996 there was another ex parte meeting between the judge and the
Crown, and at a public hearing on 5th September, the judge indicated to Mr
Dein for the Defence that, from the evidence he had heard, a jury protection
order should be made. He also ordered that the jury should be brought in from "
outside
the catchment area
".
The
case was listed to commence on 30th September, it being agreed that only the
empanelment of a jury would occur that day. This was to accommodate Mr Dein's
professional commitments. Miss Piercy from his chambers attended. A jury
who had been bussed over from Southwark Crown Court were sworn in. The judge
was supplied with a list of the jurors and saw that eleven out of the twelve of
them lived in the East End, in fact close to the court. This was exactly the
situation that the judge had wished to avoid, because of his fears that the
jury might be intimidated. The reason why this happened is that apparently
Southwark jurors come from the panel of the Central Criminal Court, whose
catchment area overlaps with that of Snaresbrook. The relevant officer at
Southwark, seeing that Snaresbrook needed a jury, exercised his intelligence
and initiative by sending to Snaresbrook a batch of jurors who, being local,
would find it convenient to do their jury service there. Thus was the judge's
intention defeated. So he discharged that jury:
"it
transpires that a great majority of them come from an East London address. It
seems to me that is unsatisfactory"
He
was then told by the Chief Clerk that there were, at Court, 50 jurors who did
not have an East London address. They came from other parts of the Snaresbrook
catchment area such as "
Essex
and places like Romford
".
Miss Piercy opposed this course:
"If
you take away all the East London postal districts from this court's catchment
area then, effectively, you take away the random nature of any selection
because you take away effectively the heart [of this catchment area]".
The
judge rejected her submission, and so a jury thus constituted was sworn in, and
convicted. The principal ground of appeal is that the trial was a nullity
because the jury was not randomly selected.
Logically
Mr Dein's submissions (for the appellant) would attack both the discharge of
the predominantly East End jury, and the empanelment of a replacement jury. Mr
Dein bases his submissions on the case of
R
-v- Ford
[1989] 89 Cr App R 278, a decision of this Court presided over by Lord Lane,
Lord Chief Justice. In that case the appellant challenged the learned judge's
refusal to accede to an applicant to swear in a multi-racial jury. The Court
concluded that the judge was right in coming to the conclusion that he should
not order a multi-racial jury to be empanelled, because he had no power to do so.
The
Court's reasoning is relevant to and conclusive of this case.
First,
by way of background, Lord Lane said at 281:
"The
whole essence of the jury system is random selection as the passage from
Sheffield
Crown Court ex parte Brownlow
[1980] Cr App R 19, from Lord Denning's judgment cited in the course of
argument shows. He said at p25:
´Our
philosophy is that the jury should be selected at random - from a panel of
persons who are nominated at random. We believe that twelve persons selected
at random are likely to be a cross-section of the people as a whole - and thus
represent the views of the common man .... The parties must take them as they
come.'"
Therefore
both the nomination of the prospective jurors onto the panel and the selection
of jurors from the panel to try the case must be random.
Second,
that random process is to be carried out not by or on behalf of the judge, but
by the court's administration (We see this from the Juries Act, 1974, sections
2, 5 & 6:
"2(1) Subject
to the provisions of this Act, the Lord Chancellor shall be responsible for the
summoning of jurors to attend for service in the Crown Court, the High Court
and County Courts, and for the determining of the occasions on which they are
to attend when so summoned, and the number to be summoned. ...
5(1) The
arrangements to be made by the Lord Chancellor under this Act shall include the
preparation of lists (called panels) of persons summoned as jurors, and the
information to be included in panels, the court sittings for which they are
prepared, their divisions into parts or sets ... their enlargement or amendment
and all other matters relating to the contents and form of the panel shall be
such as the Lord Chancellor may from time to time direct.
5(2) A
party to proceedings in which jurors are or may be called on to try an issue,
and any person acting on behalf of a party to such proceedings, shall be
entitled to reasonable facilities for inspecting the panel from which the
jurors are or will be drawn. ...
6(1) If
it appears to the court that a jury to try an issue before the court will be,
or probably will be, incomplete, the court may, if the court thinks fit,
require any persons who are in, or in the vicinity of, the court, to be
summoned (without any written notice) for jury service up to the number needed
(after allowing for any who may not be qualified under section 1 of this Act
and for excusals and challenges) to make up a full jury."
As
will be apparent from section 5(1), in any multi-court Crown Court centre, the
panel will contain a large number of names. A challenge to the composition of
the panel is known as a challenge to the array, and was specifically preserved
by section 12(6) of the Juries Act, 1974:
"Without
prejudice to subsection (4) above [right to challenge individual jurors] 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 acted improperly, shall continue 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 ... has lain with the Lord Chancellor."
The
selection of individual jurors for the case they are to try is governed by
Section 11(1), which provides:
"The
jury to try an issue before a court shall be selected by ballot in open court
from the panel, or part of the panel, of jurors summoned to attend at the time
and place in question."
Individual
challenging is preserved by Section 12, which also in sub-section 6 preserves
the right of challenge to the array which is defined by Section 12(6) as being:
"the
right of challenge on the ground that the person responsible for summoning the
jurors in question is biassed or has acted improperly".
So
it will be seen that the statutory scheme makes jury selection an
administrative and not a judicial function. As we have seen, Section 2(1)makes
the Lord Chancellor responsible for the summoning of jurors, and he is
consequently responsible for the fairness of the process. The fairness of the
process is achieved by the principle of random selection culminating in the
ballot in open court for the panel (or part thereof) as summoned. So fairness
is achieved by random selection rather than by weighted selection to achieve an
"average" jury, with a representative spread of gender, race, religion etc.
In
this process, the judge's powers are limited: As Lord Lane said in
Ford:
"So
far as the mode of summoning the panel is concerned, the judge is limited, we
repeat, to considering, in a challenge for cause, whether the summoning officer
has displayed bias or other impropriety. If that cannot be established, the
judge has no power to review or take action in respect of any procedures that
are alleged to have led to the panel not being in fact ´random'. Any such
complaint would be a complaint of administrative error and has to be tackled by
means other than the judges action. If the officer is in fact not performing
his duty properly, in circumstances that fall short of his displaying bias or
impropriety, he must be corrected, in other words, by administrative means.
As
emphasised above, action could certainly not take the form of directions by the
judge as to how the task of selection should in fact be performed. That being
the case, in the present instance, although the judge was not given the
opportunity of argument on this point to any extent, he was right in the upshot
to come to the conclusion that he should not order a multi-racial jury to be
empanelled, because he had no power to do so."
Lord
Lane had earlier in his judgment shown just why the trial judge had no
discretion:
"to
discharge a competent juror or jurors in an attempt to secure a jury drawn from
particular sections of the community, or otherwise to influence the overall
composition of the jury".
The
trial judge has a residual common law discretion to discharge individual
potential jurors if they are not likely to be willing or able properly to
perform their duties. Thus he may discharge individual potential jurors if
they are incompetent (whether physically or mentally), if they know personally
any defendant, or any witness, or may have any employment loyalties favouring
one side rather than the other. He may also excuse those who are likely to be
too preoccupied by personal tragedy, or personal responsibilities unfulfilled
by reason of jury service (eg looking after the very young or the very old).
And in very long trials, the practice is to excuse those for whom taking part
in a long trial would cause hardship. But that discretion cannot be used to
interfere with the composition of the panel or of an individual jury. The
judge's powers are restricted to attempting to ensure that all twelve jurors
are competent, are not disqualified by conscientious objection, and will not
suffer personal hardship (which might be distracting) through jury service.
Indeed Lord Lane specifically dealt with the problem we here confront on page
282:
"It
is not the function of the judge to alter the composition of the panel, or give
any directions about the district from which it is to be drawn."
Yet
that is what the judge here has done - albeit from innocent motives. He had
been asked by the Crown to transfer the case out of London (by his powers under
Section 76 of the Supreme Court Act, 1981), and he no doubt saw the route he
took as an alternative to that course, and one likely to be more convenient to
the witnesses.
We
are no here concerned with the quality of that decision, but only as to the
consequences of it.
Those
consequences were:
i) that
he deliberately set out to affect (and ultimately did affect) the composition
of the trial jury, by attempting to ensure that no-one from the postal area of
East London was on the part of the panel from which the jury would be balloted;
ii) that
such an action went beyond the residual common law discretion left to a judge
to discharge individual jurors in the circumstances we have already summarised
and trespassed on the composition of the panel (or part of it) which is an
administrative matter for the Lord Chancellor, and not for the trial judge;
iii) in
so doing he deprived the appellant of the protection of a randomly selected
jury, that protection which forms the basis of our concept of fairness in jury
selection. Essentially, the choice is between the designer jury, pre-selected
to some sociological template, or random selection. We have sensibly preferred
the former as affording the better protection to the accused. And the judge's
action deprived him of that protection by effectively disqualifying what must
have been a large proportion (indeed probably the majority) of the panel. The
judge had no power to do that.
The
route by which the appellant submits that the trial was, as a result of the
judge's conduct, a nullity is that the case is one where the old form of writ
venire de novo should be awarded. The Court of Appeal Criminal Division have
powers to issue such writs - see Section 53(2)(d) of the Supreme Court Act,
1981. In
R
-v- Rose and Others
[1982] AC 822 Lord Diplock said at p 831:
"the
state of judicial authority as to the extent of the jurisdiction of the Court
of Criminal Appeal to issue writs of venire de novo at the date of its
abolition in 1966. That Court could do so if there had been an irregularity of
procedure which resulted in there having been no trial that had been validly
commenced. It could do so if the trial had come to an end without a properly
constituted jury ever having returned a valid verdict."
There
are two linked grounds for saying that this conviction was not by a properly
constituted jury. First, the jury bailiff at Southwark had bussed over to
Snaresbrook part of the jury panel. He was entitled to make the selection that
he did because of Section 2(2) of the Act:
"In
making arrangements to discharge his duty under sub-section (1) above, the Lord
Chancellor shall have regard to the convenience of the person summoned and to
their respective places of residence, and in particular to the desirability of
selecting jurors within reasonable daily travelling distance of the place where
they are to attend."
The
judge had no power to discharge that jury when he discovered that 11 out of 12
of them came from a postal district in East London. That jury was a properly
constituted jury for this case, and should not have been discharged. Secondly,
the second jury sworn in was not a properly constituted jury, because the judge
had wrongly taken it upon himself to interfere with the composition of the part
of the jury panel from which the Section 11 balloting would take place.
We
were referred to the transcript of
R
-v- Comerford
,
a decision of another Division of this Court presided over by the Lord Chief
Justice (unreported, judgment given on 28th October 1997). There one of the
points was whether, when the jury was sworn in open court they were identified
by number and not by name, that rendered the trial a nullity, leaving the Court
with no choice but to quash the conviction and (if so advised) order a venire
de novo. The Court there said:
"Plainly
the procedure adopted here was a departure from [the] 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."
The
Court concluded that the procedure was not an irregularity, such as it would
have been had, for instance, he been denied an effective opportunity to
exercise his right of challenge, and ruled:
"It
was entirely desirable that in normal circumstances the usual procedure for
empanelling a jury 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
providing the defendant's right of challenge is preserved."
We
have considered anxiously whether the procedure adopted violated the legal
right of the appellant, or made the proceedings unfair to him. We acknowledge
the common sense in the argument that this defendant had no legal right to be
tried by a jury containing some jurors from East London. Such a jury would
have tried him if the case had been transferred. There is nothing to suggest
that there was anything in fact wrong with the verdict of this jury.
But
having anxiously considered those arguments, we feel bound to reject them.
Here the first protection of the fairness of the selection procedure for juries
is that it is done by the administration, who may properly for reasons of
spreading the load equally, summons panels from different parts of the
catchment area. The selection of the actual jury from the panel or part of the
panel is again a matter for the administration and not for judge. Here the
judge did what was impermissible. First, he discharged a properly selected
jury, when he had no right to. Second, he dictated the composition of that
part of the panel from which the jury was selected by ballot. Again, he had no
right to. What he did deprived the appellant of what common law and statute
entitles him to: a genuinely randomly selected jury. We regard that as a
fundamental irregularity and so consequently feel bound to order that a venire
de novo be issued. We will hear counsel on the form of that order if
necessary, but as present advised will base ourselves on the form of the order
quoted in Archbold, paragraph 7-288:
"That
the conviction and judgment in this case be set aside and annulled and that
James Nicholas Tarrant do appear at the next session of the [ ] Crown Court
or such other court shall be suitable and plead to and answer the indictment in
this case and that in the meantime the said James Nicholas Tarrant shall be
remanded in custody."
A
subsidiary ground of appeal was raised by Mr Dein. He complained that the jury
protection orders had been made after the judge had heard submissions ex parte
from the Crown. He challenged this process. However, having read the judgment
in
R
-v- Comerford
(above) he conceded that the judge had such powers, and abandoning his original
ground of appeal based on the ex parte hearings, put forward a qualified ground
asking us to look at the transcripts of those hearings, and to entertain an
appeal if unfairness to the defence had resulted. That investigation delayed
the delivery of this judgment, as we did not originally have a transcript of
the principal ex parte hearing. However, now that we have seen all the
transcripts, we are satisfied that no unfairness to the defendant resulted from
the use of the ex parte procedure in this case.
(Question
of retrial adjourned. Defendant to remain in custody.)
© 1997 Crown Copyright