England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2A 2LL
		28 October 2004

Thursday 28 October 2004

LORD JUSTICE CLARKE:

1. This is the judgment of the court. On 29 July 2003, in the Crown Court at Isleworth, the applicant was convicted by a majority of 10:2 of six counts of rape and one count of indecent assault on a female. He was sentenced to twelve years' imprisonment on each of the counts of rape and to two years' imprisonment on the indecent assault count, all sentences to run concurrently. His application for leave to appeal against conviction has been referred to the full court by the Registrar, who also granted a representation order with the result that Mr Huston has represented the applicant this morning.
2. We say at once that this is an appropriate case in which to give leave to appeal, and we now propose to consider and determine the appeal.
3. The prosecution case alleged that the applicant had raped and indecently assaulted the complainant when she was aged between 12 and 16 years old. The defence case was a denial of all the allegations. The alleged incidents, it was said, did not happen; they were fabricated by the complainant and her sister. The Crown relied on the evidence of the claimant, her siblings SS and SZ and her mother. The appellant gave evidence, as did his sister and two nieces.
4. It is not necessary to refer to the evidence at the trial, to the summing-up, or indeed to anything else which occurred at the trial itself because there is no complaint as to anything done or omitted to be done. The sole ground of appeal is based upon the fact that one of the jurors was disqualified from jury service. He was subject to a Community Rehabilitation Order and was thus in effect on probation.
5. On 14 March 2003, at the West London Magistrates' Court, the juror pleaded guilty to three offences as follows: (1) that on 17 February 2003, at a leisure centre in London, he indecently assaulted a female contrary to section 14(1) of the Sexual Offences Act 1956; (2) that on the same date, at the same leisure centre, he "wilfully, openly lewdly and obscenely exposed his person with intent to insult a female contrary to section 4 of the Vagrancy Act 1824"; and (3) that on 6 March 2003, at the same leisure centre, he again committed the same offence contrary to section 4 of the Vagrancy Act 1824. Those convictions are confirmed by the Memorandum of Entry in the Register of the West London Magistrates' Court for 4 April 2003. On 4 April he consented to a Community Rehabilitation Order and was thus placed under the supervision of the Probation Service. He was also placed on the sex offenders register.
6. The juror, Mr Zaman, had been summoned for jury service on 16 August 2002. At that time a police national computer check was made against Mr Zaman's name and nothing was found. That was before he pleaded guilty to the three offences in March 2003. The jury service was deferred in 2002 and, unfortunately, no further check was undertaken when he was later summoned to attend.
7. Potential jurors are provided with a leaflet which contains information and warnings. It includes this warning:

"You may have to pay a fine if you serve on a jury knowing that you are not qualified for jury service."

The leaflet also states:

"You are not qualified for jury service if you are someone listed in Box A below."

Box A includes this:

"You are not qualified for Jury Service if you are currently on bail in criminal proceedings.

....

you have in the last 10 years:

....

been subject to a community order ....

you have in the last 5 years been placed on probation."

8. It is common ground that the juror was disqualified from jury service under section 1 of the Juries Act 1974, which provides:

"(1) Subject to the provisions of this Act, every person shall be qualified to serve as a juror in the Crown Court .... and be liable accordingly to attend for jury service when summoned under this Act, if --

(a) he is for the time being registered as a parliamentary or local government elector and is not less than eighteen nor more than seventy years of age; and

(b) he has been ordinarily resident in the United Kingdom .... for any period of at least five years since attaining the age of thirteen,

but not if he is for the time being ineligible or disqualified for jury service; and those who are ineligible and those who are disqualified are those respectively listed in Parts I and II of Schedule I to this Act."

Part II of Schedule I to the Act sets out the classes of persons disqualified. They include "a person who at any time in the last five years has in the UK .... had made in respect of him a probation order."

9. The juror fell within paragraphs (a) and (b) of section 1, but was disqualified by reason of Part II of Schedule 1 of the Act because he had been made the subject of a probation order within the last five years.
10. Despite the wording of the leaflet to which we have referred, the juror did not contact the Jury Summoning Bureau to advise them of his convictions. He did not raise with the Bureau or with any jury bailiff or any other staff member at the Crown Court any question as to his eligibility to sit as a juror.
11. In a letter dated 7 June 2004 the court manager reported that his probation officer had told him (the court manager) that "Mr Zaman had informed her that it was quite interesting meeting people from all walks of life and how different people decide on matters".
12. Section 18 of the Juries Act 1974 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."

It may be noted that the immediately preceding section, section 17, provides by subsection (1) that the verdict of a jury need not be unanimous in certain circumstances.

13. We have been referred to a number of cases in which problems of this kind have arisen in the past. In particular we have been referred to R v Chapman and Lauday (1976) 63 Cr App R 75; R v Bliss (1986) 84 Cr App R 1; R v Raviraj and others (1986) 85 Cr App R 93; and R v Salt (Times LR, 1 February 1996). Of these Bliss provides the fullest consideration of the decided cases. In that case the judgment of the court was given by Garland J, who considered a significant number of previously decided cases. They were Chapman and Lauday, R v Box and Box (1963) 47 Cr App R 284; R v Sawyer (1980) 71 Cr App R 283; R v Spencer (1985) 80 Cr App R 264; R v Pennington [1985} Crim LR 394 and R v Dubarry (1977) 64 Cr App R 7.
14. After considering the cases Garland J, giving the judgment of the court, expressed the principle in this way at page 6:

"It appears to us that the principle which emerges from these cases is that this Court will not interfere with the verdict of a jury unless there is either evidence pointing directly to the fact or evidence from which a proper inference may be drawn that the defendant may have been prejudiced or may not in fact have received a fair trial. The evidence available to us in this case is, in our view, quite to the contrary."

In the course of the court's analysis of the authorities it said this in relation to the case of Chapman and Lauday:

"The effect of section 18 was considered some 10 years ago in Chapman and Lauday ...., where after a verdict had been returned it was found that one of the jurors was exceedingly deaf and had only heard at best about half of the proceedings. This Court held that not only was section 18 a complete answer to that particular difficulty but that had the juror's disability been known he could have been discharged, or alternatively he could have decided to take no part in the proceedings and the jury could after deliberations have returned a majority verdict of 11:1. However, this Court did go on to relate the provision of the Juries Act 1974, to which I have referred, to the Criminal Appeal Act 1968 and pointed out for any deficiency in a member of the jury to afford grounds for quashing a conviction, it had to constitute either a material irregularity in the course of the trial or render the verdict unsafe and unsatisfactory. The Court went on to add at page 79 (a passage to which our attention has been drawn):

'One can see that there may be circumstances in which it could be argued that despite the provisions of section 18 of the Juries Act 1974 the verdict was unsafe or unsatisfactory because of some deficiency in a member of the jury or for some other reason, but on the facts of this particular case, where there is only one juror involved, where that juror could well have been discharged had the facts of his deafness become known and the trial proceeded; having regard to the fact that majority verdicts are possible in circumstances these days, and there being no evidence whatsoever of miscarriage of justice by reason of the verdicts, it is not possible to say that verdicts in the case of each of these appellants were either unsafe or unsatisfactory.'"

15. The only other statement of principle to which we should refer was also set out by the court in Bliss. It is from Spencer at page 279. It reads:

"In our judgement the effect of each of these three cases [that is a review of cases including Sawyer....] is that in this type of circumstance this court must ask itself whether it thinks there is anything in the events which ex hypothesi should not have occurred which leads it to the conclusion that an injustice may have been done, or that there is a real danger that the appellant may have been prejudiced by what has gone on. In the instant case we do not think that we should come to that conclusion."

16. The decision in Raviraj, to which we referred earlier, is entirely consistent with the principle set out in Bliss and those other cases.
17. The only other case to which we should refer is the decision of this court in Salt. In that case the son of an usher, who it appeared regularly attended as a juror, was asked to act as a juror in a particular case and did so. This court allowed the appeal on the second of the points argued. In that regard Staughton LJ, giving the judgment of the court, said this at page 9:

"When one comes to the second point he, that is counsel for the appellant, says that it is wrong to summons somebody who has been subject to some arrangement that he will attend whenever a vacancy is available. It does not appear from the facts that there was any such arrangement in this case, but it is to be noticed that in Schedule 1 of the Juries Act amongst the list of persons who are ineligible for jury service, there is the entry '.... officers and staff of any court if their work is wholly or mainly concerned with the day to day administration of the court ....' The son of an usher who regularly attends as a juror can well be said to be within the spirit of that disqualification. He has as it were become in danger of being regarded as an establishment person. Being a close relative of a member of staff of the court and attending regularly as a juror in that court puts him in our judgment within the spirit if not the letter of that disqualification. That exceeds anything which could reasonably be described as random or random so far as practicable. It goes a good deal further than that.

We were asked to say that the presence of the son on the jury had made no difference to the result on two grounds: first, that they acquitted on one of the three charges; and secondly, because they spent only forty minutes considering their verdict altogether. We cannot possibly say that, once it is shown that there was someone on the jury who should not have been there, and as we are not going to enquire into what went on in the jury room, we must inevitably regard the conviction on the other two charges as unsafe.

What of section 18 in those circumstances? Mr Longworth [counsel for the appellant] points out that section 18 deals with the case where '.... the provisions of this Act about the summoning or empanelling of jurors, or the selection of jurors by ballot have not been complied with ....' The provision which we have found not to be complied with is not one, as he points out, that is in the Act. Indeed it is in a sense not one which is laid down by law at all. But it is a requirement which, in our judgment, certainly ought to be fulfilled that the spirit of the requirements of the first Schedule should be complied with. We do not think that we should regard the convictions as any the less unsafe by reason of that provision or that it requires us to do so."

In paragraph 4-222 of Archbold 2004 the editors say:

"This decision is likely to be confined to its own unusual facts."

We agree. It appears to us that the approach in Salt, in which none of the authorities were referred to, is in some respects different from that in the cases to which we have referred. We have reached the clear conclusion that, if and to the extent there is a difference of approach between the approach in Salt and the approach in the other cases to which we have referred, the approach in the other cases is to be preferred.

18. The question is whether the verdicts were safe. Mr Holt on behalf of the Crown submits that there is no reason for the court to conclude that the verdicts might not be safe. He submits that Mr Huston on behalf of the appellant is simply relying upon the fact of the disqualification, and that the mere fact of disqualification does not by itself justify the conclusion that the verdict is unsafe by reason of the express terms of section 18 of the Juries Act 1974. The cases show that there must either be some direct evidence or some evidence from which the inference can be drawn that the verdict is unsafe.
19. Mr Huston submits that it would be abhorrent for the verdicts to stand having regard to the disqualification. We are, however, unable to accept that bald submission because it appears to us to be inconsistent with section 18 of the Act. Mr Huston can point to only two considerations which, he submits, should lead the court to conclude that the verdicts are unsafe. The first is the fact that this was a majority verdict, and the second is the nature of the offences to which the juror pleaded guilty.
20. As to the first, we are unable to accept the submission. Section 18(1) begins:

"No judgment after verdict in any trial by jury..."

It does not refer only to verdicts which are unanimous. It must have been intended to include both unanimous and majority verdicts since in section 17 of the same Act, as we have already observed, Parliament provided for majority verdicts. Moreover, we do not think that the fact that these were majority verdicts so that the disqualified juror may have been one of the majority makes the verdicts unsafe, unless it can be said that they may be unsafe because of the nature of the offences committed by the juror. They were indecent assault and two offences under the Vagrancy Act. Again we can see no reason why a juror should not be able to be true to his oath as a juror, even though he pleaded guilty to those offences, is on the Sexual Offences Register and is on probation. We do not think that right-thinking members of the community would be aghast at the idea that a conviction by a jury including such a person was unsafe.

21. In all these circumstances we have reached the clear conclusion that this case falls within section 18 of the Juries Act and that there is no basis for concluding that the verdicts were unsafe. It appears to us that much of the argument on behalf of the appellant, compellingly as it has been put, is a challenge to the underlying rationale of section 18.
22. For those reasons, although we grant leave to appeal, the appeal must be dismissed.

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