England and Wales Court of Appeal (Criminal Division) Decisions

		Neutral Citation Number: [2002] EWCA Crim 1328
		Case No: 2001/2841/W3

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT NEWCASTLE-UPON-TYNE
(The Recorder of Newcastle-upon-Tyne,
His Honour Judge David Hodson)

		Royal Courts of Justice Strand, London, WC2A 2LL
		31st May, 2002

B e f o r e :

LORD JUSTICE POTTER
MRS JUSTICE RAFFERTY
and
MR JUSTICE HEDLEY
____________________

Between:


	Raymond Dodds	Appellant
	- and -
	The Queen	Respondent

____________________

(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

____________________

Mr Christopher Knox (instructed by the Registrar) for the Appellant
Mr David Perry instructed as Advocate to the Court
____________________

HTML VERSION OF JUDGMENT
AS APPROVED BY THE COURT
____________________

Crown Copyright ©

Mr Justice Hedley:

1. If the task of the Resident Judge of a Crown Court Centre were confined to trying the heaviest cases at that centre, then that would be task enough. However to that judge also falls the task of dealing unexpectedly with incidental matters, sometimes at short notice and at inconvenient times. This was vividly illustrated when, on Monday morning 26^th March 2001, the Recorder of Newcastle-upon-Tyne had Mr Dodds ushered into his court.
2. Mr Dodds was a very reluctant juror. He disapproved of the English legal system. When in February 2001 he had received a Jury summons he had written to say so, seeking exemption from service. This is what he said: “I have no faith in a system which has more to do with pandering to the legal professionals than administering real justice. I therefore, if forced to take part, could only find not guilty”. His application for exemption was refused but he was informed of his right to appeal. Although it cannot be found, it is accepted that he wrote a letter of 17^th March 2001 by way of appeal. That would have been referred to a judge, usually the Recorder. In fact his appeal had not been determined by the date of his required attendance on 26^th March.
3. Mr Dodds attended the building but declined to co-operate with the security arrangements. As a result in due course, persuasion having failed, he was escorted to the Recorder’s court. We have a transcript of what transpired. The Recorder patiently sought to explain to Mr Dodds why the security arrangements were in place. Mr Dodds declined to co-operate unless someone could show him a law which said that he should. He further elaborated on the failings of the English Legal system. The Recorder (wisely no doubt) withdrew to his chambers to consider the position.
4. In the event he returned and made clear to Mr Dodds that it was a matter for him as to whether or not he would submit to search but that, if he were not available for jury service when required, he would be in contempt. Mr Dodds went home, and thus was not available for service when called on later that day. Instead, he wrote a letter to the court indicating that he would await arrest and indicating confirmation of his views as to the inadequacies of our legal system. In the light of his absence when required, a summons was immediately issued and served upon him, requiring him to attend court the following day to show cause why he should not be fined for his failure to make himself available to serve as a juror.
5. Mr Dodds duly attended. He had left at home all metallic objects and was thus able to pass untouched and unimpeded through the security arch which he did. He was soon present again in The Recorder’s court. We think it right to set out in full what the transcript records of that event:

“THE RECORDER: Mr Dodds, you have received this summons?

MR DODDS: Yes sir.

THE RECORDER: And you have come to answer the summons. You were warned yesterday as to what was likely to happen. Do I understand it that this morning you have been willing to go through the security screens?

MR DODDS: No, I’ve only been searched by simply leaving all personal possessions at home, no metal objects in my pockets.

THE RECORDER: So you have been through the arch, the security arch?

MR DODDS: Yes.

THE RECORDER: And are you willing to serve as a juror?

MR DODDS: As I told you yesterday, I still have very serious doubts about that. As I expressed to the Jury Central Summonsing Office, in response to the Jury Service summons, I am, in a letter, appealing the decision to compel me to be a juror.

THE RECORDER: Well, in my view, in all the circumstances, is that as you have surrendered this morning and answered this summons. I am going to fine you a modest sum for your failure to deal with the matter as you should have dealt with it yesterday. We all have views about certain organisations of the State, and we have to comply with them, and if we do not we must be prepared to take the civil consequences. I am going to fine you what I consider to be a modest sum. Are you in employment?

MR DODDS: I am not, no.

THE RECORDER: You are in receipt of benefits?

MR DODDS: Yes.

THE RECORDER: What are your benefits on a weekly or fortnightly basis?

MR DODDS: Fortnightly its £76, for myself and my daughter.

THE RECORDER: £76 for a fortnight.

MR DODDS: Yes.

THE RECORDER: Well, what I propose to do is to fine you £50. That will be payable at the rate of £5 per week, the first instalment in 28 days time.

So far as your Jury Service is concerned, I think the appropriate order for me to make is that you should be excused Jury Service.

Very well.”

6. Mr Dodds determined not to let the matter rest. He consulted solicitors. He disclosed to them for the first time pertinent personal and psychological reasons for his objections to search under the arrangements provided.
7. His solicitors instructed counsel. Counsel composed a document entitled “Representations to the Recorder of Newcastle in support of an invitation to review his decision to fine Raymond Dodds £50 for breach of his jury summons.” He signed the document and forwarded it to the Court. It came (on paper) to the Recorder’s attention. He endorsed the document “Refused. DH. 23/4.”
8. Mr Dodds appealed. It was his right to do so without leave. Mr Knox appeared on behalf of Mr Dodds. Mr David Perry appeared (appointed by the Attorney-General) as Advocate to the Court. To both we are grateful for their learning.
9. It is important before embarking on a consideration of counsel’s submissions to set in place the statutory framework which governs this appeal. The starting point is the Juries Act 1974 which regulates the procedure for summoning and empanelling jurors. For the purposes of the live issues in this appeal, Section 20 is material and provides:

1) Subject to the provisions of subsections (2) to (4) below-

a) If a person duly summoned under this Act fails to attend (on the first or on any subsequent day on which he is required to attend by the summons or by the appropriate officer) in compliance with the summons, or

b) If a person , after attending in pursuance of a summons, is not available when called on to serve as a juror, or is unfit for service by reason of drink or drugs,

he shall be liable to a fine not exceeding [level 3 on the standard scale].

2) An offence under subsection (1) above shall be punishable either on summary conviction or as if it were criminal contempt of court committed in the face of the court.

3) Subsection (1)(a) above shall not apply to a person summoned, otherwise than under section 6 of this Act, unless the summons was duly served on him on a date not later than fourteen days before the date fixed by the summons for his first attendance.

4) A person shall not be liable to be punished under the preceding provisions of this section if he can show some reasonable cause for his failure to comply with the summons, or for not being available when called on to serve, and those provisions have effect subject of the provisions of this Act about the withdrawal or alteration of a summons and about the granting of any excuse [for deferral].

10. The Summons alleged that Mr Dodds was not available to serve when called on, that his failure was to be dealt with as a contempt, that he was liable to a fine not exceeding £1,000 but that he would not be so liable …. “if he can show some reasonable cause for his failure….”
11. Section 13 of the Administration of Justice Act 1960 regulates the appeal in this case and subsection (3) gives the appellate court power to “…reverse or vary the order or decision of the court below, and make such other order as my be just.” In other words the court is given very wide powers.
12. Section 155 of the Powers of Criminal Courts (Sentencing) Act 2000 is the provision to which Mr Knox invited the Recorder’s attention. Only subsection (1) is material and that provides as follows:

“Subject to the following provisions of this section, a sentence imposed, or other order made, by the Crown Court when dealing with an offender may be varied or rescinded by the Crown Court within the period of 28 days beginning with the day on which the sentence or other order was imposed or made or, where subsection (2) below applies, within the time allowed by that subsection.”

13. There was a strand of argument in this case based on the Human Rights Act. In our judgment it adds nothing to domestic law in the context of this case. There are three reasons for that. First, the Common Law requirements of natural justice in dealing with a criminal contempt case (and this is to be treated as such) do not fall short of ECHR jurisprudence. Secondly, there is a recognition of the need under the ECHR for summary procedures – see e.g. Ravinsborg-v-Sweden [1994] 18 EHRR 38. Thirdly, there will be no breach of the Convention if matters can be rectified on appeal – Edwards-v-UK [1993] 15 EHRR 417. The wide terms of Section 13(3) of the 1960 Act give this court ample powers to do that in this case. We do not question the applicability of Article 6 ECHR, but we hold that it adds nothing in this context to English domestic law.
14. It is clear from what has been set out in this judgment that the Recorder was faced with a potential contempt which he was required to deal with. It is clear that he was right in seeking to deal with it summarily: see s.20(2) of the 1974 Act. There was no obligation to ensure that Mr Dodds was legally represented. Of course had Mr Dodds been at risk of imprisonment, or had he requested an adjournment for representation, then no doubt the Recorder would have been obliged to adjourn for that purpose unless there were powerful reasons to the contrary. He sought to deal with it courteously, fairly and expeditiously. The question is whether he succeeded in that.
15. It is quite clear that the obligations of jury service are taken seriously by the court and are expected to be taken seriously by the public. When dealing with reluctant jurors the courts must take care to deal with matters carefully and properly. That much is clear from R-v-Guildford Crown Court, ex parte Siderfin [1990] 2QB 683 and R-v-Schot & Barclay [1997] 2 Crim App R 383. A Practice Direction of 19^th September 1988 issued by The Lord Chief Justice is to similar effect. However, it is important to remember that in this case the Recorder was not dealing with Mr Dodd’s appeal against the Jury Summons but his failure to comply with it.
16. We are quite satisfied that Mr Dodds was not entitled to object on principle to the security procedures. We accept Mr Perry’s submissions in that respect. There are no statutory provisions which govern the right to control public access to the court’s premises. However, like any owner, at Common Law the Crown may (within the limits of reasonableness) insist on the search of a prospective entrant to its premises as a condition of entry. In fact, the measures in place were no more than was reasonably necessary to attain the objective of preventing the introduction and potential use of weapons or other dangerous articles. The ECHR has held that compulsory searches are justifiable when the justification put forward is the prevention of disorder or crime and the protection of the rights and freedoms of others – McVeigh & others–v-UK [1981] 5 EHRR 71. It follows that a mere refusal to be searched without advancing any substantial reason amounted to a voluntary act which made Mr Dodds unavailable as a juror to serve when required to do so, for which he alone would be responsible.
17. When therefore Mr Dodds appeared before The Recorder on Tuesday 27^th March and The Recorder decided summarily to deal with the matter, what should have happened? In our judgment the following are the minimum requirements for a fair hearing in a case of this kind:

1) The Juror must understand what he is said to have done wrong;

2) The court must be satisfied that the juror when (by act or omission) he did wrong, had the means of knowing that it was wrong;

3) The juror must understand what defences (if any) may be available to him;

4) The juror must have a reasonable opportunity to make any relevant representations he wishes;

5) If necessary the juror must have an opportunity to consider what representations he wishes to make once he has understood the issues involved.

18. There is no doubt in this case that Mr Dodds knew what it was that he had done wrong and that he had understood what his obligations were. However, it is at this point that in our view the Recorder went wrong because the implications of Section 20(4) of the Juries Act 1974 (‘the reasonable cause’ provision) were never specifically drawn to Mr Dodds’ attention.
19. That this may have been important is shown by what then happened. In his written representation to the Recorder, counsel disclosed that Mr Dodds had intensely personal reasons, born of traumatic experience, for fearing a search which involved either a metal wand or human touch. In not having Section 20(4) of the Juries Act 1974 drawn to his attention, Mr Dodds (through inhibition) may have been deprived of the opportunity of drawing those matters to the Recorder’s attention. Of course we do not know that he would have done so; nor do we know what The Recorder would have made of them if so informed. A careful perusal of the transcript of the 27^th March 2001 leaves us with the impression that Mr Dodds did not know of ‘the reasonable cause’ provision and he (and perhaps The Recorder) simply assumed that he had no legal defence to his failure to attend. In our view, what Mr Dodds advanced through his counsel was capable of being accepted as reasonable had the judge been satisfied the explanation was genuine..
20. We have come to the conclusion that in these circumstances we should allow this appeal and discharge both the finding of contempt and the fine. In the light of the lapse of time, Mr Dodds’ excusal from jury service and the comparative veniality of his conduct we do not think that any further order or enquiry is called for. We sympathise with the Recorder, who found himself suddenly confronted by an awkward and reluctant juror taking (as we find) a bad point about rights of search. Nonetheless, we find that in this case the hearing accorded to Mr Dodds fell short of the requirements of a proper hearing in respect of a Contempt of Court and the appeal is therefore allowed.