Jersey Unreported Judgments

Criminal procedure - application for a civil injunction.

[2013]JRC044A

Royal Court

(Samedi)

26 February 2013

Before     :

Sir Christopher Pitchers, Commissioner, sitting alone.

The Attorney General

-v-

Curtis Warren

H. Sharp, Esq., Solicitor General for the Crown.

Advocate S. M. Baker for the Defendant.

JUDGMENT

THE commissioner:

1.        Mr Warren wishes me to sanction the interviewing by an independent person, probably the Hampshire Police, of a man referred to throughout the case as Juror 125.  The Attorney General seeks an order that that should not be permitted.  This application is, in effect, though not in form, an attempt to re-open an argument of abuse of process litigated through all available courts and ultimately conclusively decided against Mr Warren.  

2.        Juror 125 was on the jury panel selected to try the case until removed from it by order of the Commissioner at trial.  The Commissioner had seen ex parte material and ruled upon it and the relevant part of his ruling is as follows:-

"The Prosecution have made an ex parte application in this case without notice to the defendants.  I have considered the material adduced at that hearing and reflected upon it at considerable length and with great care.  I am persuaded by the material placed before me that there had been attempts to influence the jury to adopt the colloquialism "to knobble the jury."

3.        The overall background to the case is very well rehearsed and I do not need to repeat any of it here.  The background of this particular application is a statement made by a man called Justin Michel, formerly an advocate in Jersey but at the time that he made the statement a prisoner in HMP La Moye, he having been convicted and sentenced for offences of money laundering.  He made a statement first to those representing one of the other defendants and then, in due course, to the Hampshire Police.  In that statement, dated 7^th July, 2011, he describes being at an Indian restaurant in Jersey some years before the statement was made.  He describes being with a group of friends and being joined by a man who, from what he said, was a juror, or had been a juror, in the case of Mr Warren and his co-defendants.  He says that they were talking about the legal system, he being a lawyer, and that the man then said that he had been a jury member in the Curtis Warren trial, and I quote here:-

"I believe mentioned that in the evidence he had heard it was believed that the police had been up to no good.  He did not elaborate on this though, he then stated at some point he had been at a rugby match when he had been approached by a police officer who had said to him words to the effect of "they're guilty".  The male did not acknowledge him and did not have any further conversation with him about it.  He did not say that the police officer said anything further to him.  The male clearly felt disapproval as to what had happened."

4.        It is upon the basis of that statement that it is now sought by the Defence to have Juror 125, for it is presumed to be him, interviewed by somebody, the most likely candidate being, as I say, the Hampshire Police. 

5.        Some comments need to be made about the statement of Justin Michel.  There are firstly some distinct oddities about it.  At the time of the conversation that he alleges, he was an advocate, would clearly have understood the significance of a juror, or former juror, saying that he had been spoken to in those terms by a police officer, yet not only did he do nothing, but said nothing, for example advising the man to go to the police or to speak to lawyers for the defendants.  Secondly, the chronology he sets out in that statement simply does not work.  The first indication by those representing Mr Warren of this allegation was on the 10^th May, 2011.  Two days later they communicated that to the Prosecution.  According to his submissions, Advocate Baker learnt of this allegation on the 10^th having been contacted by the advocate for one of the other defendants.  In the witness statement Justin Michel speaks of the conversation taking place several weeks after he started his sentence which was on the 5^th May.  If that is so then the indication that there had been an approach to the juror was made to those representing the other defendant before the conversation that Justin Michel is talking about.  It would of course be improbable that within a few days of starting his sentence he would have been talking about this to the co-accused of Mr Warren. 

6.        Apart from that, it is also worth commenting that this is not a case where the Prosecution ask to conceal from the Defence an allegation of irregularity during the trial; the allegation of course appears in the statement from Justin Michel.  Further, reprehensible though such a comment by a police officer would be, it did not have any effect on the verdict because the juror played no part in the deliberations of the jury, and indeed, according to Justin Michel if this be a true statement of what happened, the male felt disapproval of the police behaviour.  It is also clear that there was real reason to doubt, though it is impossible of course now to say, that any of the courts who considered this case would have come to any different conclusion as to abuse of process, even if they had decided this issue in favour of Mr Warren.  The other allegations which were proved or admitted, were of considerable gravity and yet all the courts, up to and including the Privy Council, felt this was a case which appropriately proceeded.  That is the background to the case and I now turn to the issues that arise. 

7.        First of all my looking at the ex parte material.  Mr Baker objected to my looking at it, as he did before the Court of Appeal, when they were invited to look at the ex parte material and did so.  Mr Baker does not argue that it can never be looked at, but rather says that the time to see the material, if at all, is when the court is considering the weight to be given to any statement made by Juror 125 following interview.  I disagree.  The viewing of ex parte material in the context of the criminal case is now almost routine.  In a civil context the Supreme Court in Al-Rawi and Ors-v-The Security Service and Ors [2011] UKSC 34, while vigorously asserting the principle of open justice in civil cases, said this at paragraph 33 of the judgment:-

"Different considerations may apply where the proceedings do not only concern the interests of the parties to the litigation, but they also have a significant effect on a vulnerable third party, or where a wider public interest is engaged.  Thus, where the case directly impinges on the interests of a child, it may be justifiable for the court to see a document which is not seen by the party to the proceedings."

And then the court cited two cases where that was done in the case of children.  Then at paragraph 35:-

"similarly in the Roberts case [2005] 2 AC 738, para 48 Lord Wolfe CJ referred to the Parole Board having:

"a triangulation of his interest: the board's obligations to the prisoner and its obligation to protect society and, as part of the latter obligation, its obligation to protect third parties so far as it is practical to do so..."

As a result, even without statutory rules which permitted a closed material procedure, such a procedure would, he implied, have been permissible because of the public interest to which the board had to have regard.  At para 56 Lord Wolfe CJ said to similar effect that the board should have the power to consider documents which were not seen by the relevant prisoner to enable the board to conform its statutory duty to protect the public." 

And there is indeed, I know from my own experience, a procedure in parole board hearings whereby, very similar to the public interest immunity applications in criminal cases, subject to various safeguards, the chair of the parole board panel hearing the case may see material which is not shown to the prisoner. 

8.        I have read the material in this case against the background of the history of it and I am very aware of that history and of the admitted readiness of the police in this case to deceive legal authorities in other countries and of the history of prosecutorial misconduct generally referred to in ever more scathing terms by the various courts that have considered this case.  Of course, with PII material and ex parte hearings there is inevitably circularity in the process.  It is often only after reading the material that one can judge whether it should have been the subject of ex parte proceedings in the first place and whether it should be acted upon and whether it should remain concealed from the other party.  The risk run, of course, by the party putting forward the material, is that a judge will conclude that it ought not to have been shown ex parte and therefore will order it to be disclosed to the defence. 

9.        In this case, having read the material, I have come to certain clear conclusions:-

(i)        Considering the ex parte material was necessary to protect society and third parties. 

(ii)       I form the same conclusion that Commissioner Tucker did at his stage of the proceedings and now I extend it to post-trial attempts to influence ex-jurors.

(iii)      Any interview with Juror 125, even by as independent a body as the Hampshire Police, would further that attempt to pervert the course of justice.

Of course, coming to those conclusions does not end the matter.  I must still be satisfied that I have power to make an order preventing the interview.

10.      The Attorney General invites me to say that the order of the Royal Court covers the present position and no further order is needed by me to prevent this interview.  As part of the proceedings following the examination of the ex parte material by the learned Commissioner, he made a number of orders, one of which read as follows:-

"Granted the prosecution's ex parte application seeking protection measures on behalf of the jury members, namely that:-

(i) suitable enquires are made to ensure that the jury panel has not been influenced and that any jurors that may or have been influenced should be stood down;

(ii) the jury are called by number rather than name;

(iii) the public gallery is kept clear during the trial but the press may remain;

(iv) the court orders police surveillance protection for the jury before and after court."

This order is clearly intended to govern the orderly conduct of the trial and to prevent interference with the jury at trial.  It is equally clear that parts of it, on any view, cannot subsist once the trial is over.  For example, nobody suggests that the surveillance protection for the jury should have continued from that day to this.

11.      In my judgment this order cannot still be in effect and it cannot be right to say, as the Solicitor General argues, that it should be interpreted to mean that an ex-juror cannot be interviewed several years later long after the trial and appeals have been concluded. 

12.      As an alternative the Solicitor General invites me to find an inherent power of the Court in the criminal proceedings to prevent any interview taking place.  Were this an attempt to elicit what had happened during the jury deliberations there would be no difficulty in preventing it.  Although Jersey does not have the equivalent of Section 8 of the Contempt of Court Act 1982, the courts here would follow the long line of authorities that preceded that statute.  For a comprehensive review of this principle see The House of Lords decision in R-v-Connor and Mirza [2004] UKHL 2.

13.      These authorities do not apply to investigations of matters which do not impinge on the secrecy of the jury room.  However, the problems arising potentially from that were set out clearly in the case of R-v-McCluskey [1994] 98 Cr. App. R. 216.  The court there looked first at the authority which led to the passing of Section 8(1) of the Contempt of Court Act 1981.  McCluskey was a case where there was evidence that a juror had used a mobile phone, not actually in the jury room but as part of the jury deliberations:-

"Section 8(1) of the Contempt of Court Act 1981 provides:-

"Subject to sub-section (2) below, it is contempt of court to obtain, disclose or solicit any particulars of statements made, opinions expressed, arguments advanced or votes cast by members of the jury in the course of their deliberations in any legal proceedings.""

The judgment continues:-

"Sub-section (3) provides that:-

"Proceedings for contempt of court under this section shall not be instituted except by or with the consent of the Attorney General or on the motion of a court having jurisdiction to deal with it.  Enquiries in this case [that is to say McCluskey], clearly did not offend against Section 8 and counsel for the Crown who initiated those enquiries took precautions to ensure that they did not.  Nonetheless, we are concerned by what occurred.  If it is open to the Prosecution to set in train enquiries of individual jurors, then why not the Defence, and if the parties may do this, provided they do not infringe Section 8, why not others.  To permit such enquiries seems to us to threaten the secrecy of the jury room.  The occasions when they are permissible will be rare indeed.  It is our emphatic view that such enquiries should only be embarked upon with the consent of the court.  The case of R-v-Gough [1993] 97 Cr App R 188 suggests that when dealing with enquiries relating to the jury, the trial judge is functus officio after verdict and sentence.  In such cases therefore the consent of the Court of Appeal should be sought."

14.      That approach, namely requiring the consent of the Court of Appeal before such enquiries are instituted, has been followed in subsequent cases for example R-v-Mickleburgh [1995] 1 Cr. App. R. 297 and R-v-Adams [2007] 1 Cr App R 34.  It is to be noted that that judgment, referring to the case of Gough, confirms that that trial judge is functus after the conviction and passing of sentence.  It also indicates, as do the cases that follow, that any enquiry requires the consent of the Court of Appeal.  It follows since the consent is required that it can also be withheld and any enquiry could be forbidden.  I know not whether these authorities were drawn to the Court of Appeal's attention in the present case but they have decided that they were functus at the stage at which they were consulted and so they could not intervene.  It follows from those authorities and the decision of the Court of Appeal in Jersey that neither the trial judge nor the Court of Appeal can sanction enquiries into jury matters at this stage of the proceedings. 

15.      That being so, it is difficult to see how another judge of the Royal Court could have an inherent power in criminal proceedings which the Court of Appeal does not.  The Criminal Cases Review Commission in England and Wales which looks into miscarriages of justice and can examine, and has examined, cases involving issues relating to the jury does not exist on the Island and the Lieutenant-Governor is hardly in a position to carry out this sort of investigation.  On the other hand it is clear that there is a need to regulate investigations as identified in McCluskey.  It is even more important in a small jurisdiction.  A juror in a case in a large city can fade into the anonymity of hundreds of thousands of inhabitants.  That cannot be so here where the whole population of the Island is only 90,000.  In a jurisdiction such as this, the ability to get at jurors or ex-jurors is much greater.  He or she will be readily identifiable as indeed is the case here.  Juror 125 is, I am told, often seen going about his ordinary business in St Helier.  I have already indicated that I am satisfied that a serious crime, namely perverting the course of justice, is being attempted.  The courts cannot stand idly by and allow that to happen.  If there was no other remedy then I would be prepared to consider whether it was necessary to examine whether the court must have an inherent power to act, though I think there will be difficulties in establishing such a power with the Royal Court here.  I considered the question of inherent powers in criminal cases in wholly different circumstances in my judgment in Syvret-v-AG [2012] JLR 132.  In fact I do not need to consider that issue here because I have come to the clear conclusion as to the availability of a civil injunction and I turn now to consider that.

16.      I have already expressed my opinion that it would be strange if the courts could never intervene to prevent crime but had to wait until it was committed and then act through the prosecution process.  The power of the Attorney General to seek a civil remedy of injunction in support of the criminal law was affirmed in England and Wales by the House of Lords in Gouriet-v-The Union of Postal Workers [1978] 1 AC 435, see in particular page 481.  The House stressed that this was a remedy to be used with great caution and only in exceptional cases.  In my judgment the present case is one such, it is hard to think that these sorts of facts will recur, if ever.  It is essential in the public interest in preventing crime that no approach be made to this former juror. 

17.      For that reason I am prepared to grant a civil injunction in aid of the criminal law as asked by the Attorney General.  In a moment I will discuss with counsel the terms of that injunction but as with any civil injunction, if circumstances change, application can be made to vary or discharge it. 

Authorities

Al-Rawi-v-Security Service [2011] UKSC 34.

R-v-Roberts [2005] 2 AC 738.

Contempt of Court Act 1982.

R-v-Connor and Mirza [2004] UKHL 2.

R-v-McCluskey [1994] 98 Cr. App. R. 216.

Contempt of Court Act 1981.

R-v-Gough [1993] 97 Cr App R 188.

R-v-Mickleburgh [1995] 1 Cr. App. R. 297.

R-v-Adams [2007] 1 Cr App R 34.

Syvret-v-AG [2012] JLR 132.

Gouriet-v-The Union of Postal Workers [1978] 1 AC 435.