Scottish High Court of Justiciary Decisons

RONALD McLEAN v. HER MAJESTY'S ADVOCATE [2001] ScotHC 34 (1st June, 2001)

[1] The appellant went to trial in the sheriff court at Edinburgh on an indictment containing four separate but related charges of assault, breach of the peace, contravention of section 4(1)(a) of the Police (Scotland) Act 1967 and a further breach of the peace, all occurring on 11 October 1998.

[2] At the trial diet on 3 February 1999 the appellant denied the charges. The jury were then empanelled and evidence was led. At the conclusion of the Crown case, the appellant gave evidence on his own account in support of these denials. All the evidence was led on the first day of the trial. Furthermore the jury were addressed both by the procurator fiscal depute for the Crown and by the solicitor for the appellant. On the morning of the second day of the trial, the sheriff charged the jury and thereafter the jury retired to consider their verdict.

[3] This appeal concerns events which occurred after the jury retired to consider their verdict. Nothing turns upon and no criticism is made of the terms of the charge to the jury in the course of which the sheriff reminded the jury, amongst other things, that it was for them to make up their minds as to the credibility of the witnesses, including the appellant, who had given evidence before them. He further reminded the jury that the appellant, as the accused, enjoyed the presumption of innocence until such time, if that ever came, that that presumption was displaced, the Crown being required to prove the charges to the satisfaction of the jury beyond reasonable doubt.

[4] The transcript of the trial proceedings records that the jury retired at 10.39 a.m. and returned at 12.23 p.m.. At that point the clerk of court asked the jury whether they were agreed upon their verdict. The forewoman of the jury indicated that they were so agreed. She then delivered the jury's verdict in respect of each charge in response to questions put to her by the clerk of court. She intimated that the verdict was one of guilty of the first charge under amendment by a majority, guilty of the second charge unanimously, and guilty of each of the third and fourth charges by a majority. At this point the clerk of court thanked the forewoman and invited her to take her seat. The transcript then proceeds as follows:

After the adjournment, the procurator fiscal depute moved for sentence.

[5] In his report the sheriff intimates that there are certain corrections which fall to be made to the transcript. He states that it was in fact two members of the jury who spoke more or less simultaneously, both saying in effect that what had been said to them had been said after they reached their verdicts. Again, he states that it was not the forewoman of the jury but the juror in question who answered to his question as to which juror was "the lady who said it". Further he states that the transcript is incorrect at the point where he asked the Crown what they wanted to do, in that the words "recorded, gents" should read "not recorded yet". His report then continues as follows:

[6] The grounds of appeal are as follows:

It is to be noted that the grounds of appeal are not, strictly speaking, accurate since of the four verdicts, three were majority verdicts but one was a unanimous verdict.

[7] Mr. McInnes, who appeared for the appellant both in this court and in the court below, submitted that in the whole circumstances the jury's verdict could not be said to be one which, looked at from the point of view of an objective bystander, had been reached and so pronounced by an impartial tribunal. The kernel of the individual juror's knowledge related to prior convictions for dishonesty on the appellant's part which had not been revealed in the course of the trial but which could bear upon the issue of his credibility in giving evidence at the trial so far as that juror was concerned. The juror in question had, contrary to inquiry made at the outset of the trial, failed to advise the court of her personal knowledge at any stage of the trial process up to and beyond the jury's consideration of the evidence and determination of their verdicts. All the jurors must have been aware that they were under a duty to declare whether they had any personal knowledge of the accused as soon as they became aware that this was the case. That this was so was to be inferred from the fact that two of the other jurors had seen fit to report to the clerk of court what the juror in question had said, before the jury returned to court to announce their verdict. Furthermore, the matter of potential prejudice had been drawn to the sheriff's attention even before the jury were asked in open court whether they had reached a verdict. The sheriff's inquiry had however been delayed until after the forewoman had announced the verdicts, albeit before they were formally recorded. Reference was made to Pullar v. H.M.A. 1993 SCCR 514 and to Sander v. United Kingdom ECHR unreported (9 May 2000). The latter case concerned a conviction after trial before a jury where during the course of the trial the judge had been made aware of an allegation that members of a jury had been making openly racist remarks and jokes about Asians where the accused was an Asian. The matter had been the subject of some investigation by the trial judge. Having made the investigation, he decided to allow the trial to continue upon receiving an assurance that they intended to reach a verdict solely according to the evidence and without racial bias. The European Court had said (para. 22) that it was of fundamental importance in a democratic society that the courts inspire confidence in the public and that, above all, as far as criminal proceedings are concerned, in the accused. To that end it had been constantly stressed that a tribunal. including a jury, must be impartial from both a subjective and an objective point of view. The Court had also made clear that although discharging a jury may not always be the only means of achieving a fair trial, there are certain circumstances where this was required by Article 6(1) of the Convention. In the circumstances of that case the Court considered that, in taking such action as he did, the judge had not provided sufficient guarantees to exclude any objectively justified or legitimate doubts as to the impartiality of the court, so that the court that condemned the applicant was not impartial from an objective point of view. In the present case, observing that there had been majority verdicts, it was impossible to know what part the single juror had played in the deliberations of the jury in coming to a verdict or indeed in the voting which resulted in the majority verdicts. All that was known to the sheriff was that no other juror was aware of any suggestion of prior dishonesty on the part of the appellant until after the verdicts had been determined upon. But this was not enough to prevent an objective observer from concluding that the verdict was not one which had been reached by an impartial tribunal.

[8] For the Crown, it was stressed that the jury had been given full and adequate directions as to the manner in which they were to approach their task and the law which was to be applied. Standing the terms of the sheriff's enquiry in open court, there was no available evidence of personal partiality on the part of the juror in question. It was accepted that knowledge by a juror of an accused's previous convictions could be productive of bias and prejudice. Nevertheless, the principle that a tribunal should be presumed to be free of personal prejudice or partiality was long established in the case law of the European Court (see Pullar v. United Kingdom 22 EHRR 391) The system by which jurors were informed that they should declare any personal knowledge of the accused or of any other individuals or matters concerned in the allegations against the accused, was one which strove to secure the impartiality of the tribunal trying the accused. There had been no suggestion that the sheriff should have deserted the diet pro loco et tempore. The sheriff had dealt with the matter in a manner consistent with the practice already settled in domestic law. Reference was made to Russell v. HMA 1991 JC 194 and Pike v. HMA 1986 SCCR 633. The case of Sanders could be distinguished from the earlier decision of the European Court in Gregory v. United Kingdom 25 EHRR 577. The reasoning in Gregory should be applied. In the latter case the trial judge had been advised in a note from the jury after they had retired that the jury were showing racial overtones and that one member "was to be excused". The trial judge chose to deal with the allegation by means of a firmly worded redirection to the jury, having had the benefit of submissions from both counsel in the case. The redirection was in the form an instruction to the jury to put out of their minds "any thoughts or prejudice of one form or another". The Court was satisfied that the meaning of such words must have been clear, in particular to any juror whose conduct might have given rise to the allegation of racial overtones. The Court concluded from its own assessment of the facts that, in the circumstances of that case, no more was required under Article 6 of the Convention to dispel any objectively held fears or misgivings about the impartiality of the jury than was done by the judge. The sheriff, in the present case, was alert to the fact that the juror in question had not shared her knowledge with the remaining jurors until after the verdicts had been reached by the whole fifteen jurors. In these circumstances, he had chosen to deal with the situation that then arose in an appropriate and adequate manner. As the sheriff indicated in his report, he had an assurance from the juror that whatever she knew had not affected her judgment and he did not consider it necessary to go in detail into what it was that she considered that she knew.

[9] In the very unusual circumstances of the present case, we are not persuaded that it can be said that the impartiality of the tribunal which tried the appellant can be regarded as objectively justified. In Pullar the European Court accepted that it was by no means decisive that the sheriff would probably have dismissed the particular juror from the jury had he known about the connection between the juror and one of the witnesses who gave evidence for the prosecution. In that case, the matter of the juror's personal knowledge remained unknown until after the trial. Nothing had occurred in open court in the presence of the sheriff or had been drawn to his attention at any stage during the proceedings in the case to suggest that the juror's presence on the jury might be objectionable (see Pullar v. HMA). But the European Court in Pullar went on to say this at para. 36 and following:

[10] In the present case, the sheriff was aware of the nature of the allegation before the verdict was announced. As he makes clear in his report, the two jurors, from whom the information came which gave rise to the complaint, informed the clerk of court before the jury returned to court and were invited to announce their verdict. That report was clearly the product of a genuine and spontaneous reaction on the part of those jurors to a statement which appeared to them to be a breach of the obligation to advise the court of any personal knowledge of the accused and suggested that the juror was biased against the appellant. There is no suggestion that the report was other than honest. Indeed, its import is consistent with the fact that the juror in question was prepared to identify herself when asked by the sheriff to do so. The report was of personal knowledge of dishonest conduct on the part of the accused. It was of a nature and degree which could clearly bear adversely upon his credibility. Assessment of the appellant's credibility, he having given evidence in his own defence, was an all-important issue for the jury to determine. It is not, in our opinion, sufficient to discount such personal knowledge on the part of one member of the tribunal, as the sheriff does in his report, by stating that the grounds for which the appellant was being prosecuted, were very different in gravity and quality from shoplifting. The manner in which the sheriff attempted to put matters right, namely by asking a leading question which invited an affirmative answer as to whether the juror followed his direction to reach verdicts based solely on evidence led in court, was unsatisfactory. Furthermore could an admission of bias or prejudice be expected from the juror in question, at least when that juror had already taken part in the jury's deliberations and committed herself in votes giving rise to the verdicts, more particularly when these had been announced before any attempt was made by the sheriff to investigate the matter? It also strikes us as significant that the juror only revealed the information once the verdict had been reached - thus showing that she had the information in her mind and that she was conscious that it was improper information which required to be withheld from the other jurors. In our opinion, the allegation contained in the report was capable of causing the appellant and any objective observer to hold legitimate doubts as to the impartiality of the court which doubts are objectively justified. By the time that the sheriff intervened in the proceedings, matters could not be cured by way of any further direction to the jury, as was the case in Gregory. The jury had already reached their verdict. In Sander the European Court accepted that, although discharging the jury may not always be the only means to achieve a fair trial, there are certain circumstances where this is required by Article 6(1) of the Convention. In the present case, it was not possible to determine ex post facto that the juror in question could not have been influential, first of all, in the discussions which led up to the final votes giving rise to the verdicts or, secondly, in the outcome of at least three of the four verdicts, since these were majority verdicts. As was pointed out in Pullar v. HMA, it is not the practice to invite a jury to disclose how many were in favour of a guilty verdict. In Gregory the European Court considered that it was necessary to examine whether in the circumstances there were sufficient guarantees to exclude any objectively justified or legitimate doubts as to the impartiality of the jury. In the circumstances of the present case, the action taken by the sheriff was not, in our opinion, such as could give sufficient guarantees excluding what were objectively justified and legitimate doubts as to the impartiality of the jury.

[11] It was said by the advocate depute that there had been no suggestion that the sheriff should desert the diet pro loco et tempore. But at the stage when the matter came to light and was reported to the clerk of court, that was the only course which would have been open to the sheriff in the very unusual circumstances of the present case. We appreciate, of course, that until the jury announced their verdicts, it could not have been known whether or not the appellant had been convicted of any or all of the charges.

[12] On the whole matter, we shall quash the convictions and grant authority to the Crown to bring a new prosecution in accordance with section 119 of the Criminal Procedure (Scotland) Act 1995.