Scottish High Court of Justiciary Decisons

[1] The petitioners are the Scottish Criminal Cases Review Commission ("the Commission"), a body corporate established by Section 194A(1) of the Criminal Procedure (Scotland) Act 1995. Under Sections 194B(1) and 194E, together with The Scottish Criminal Cases Review Commission (Application to Summary Proceedings) Order 1999 (1999/1181), the Commission have the power to refer a case, where someone has been convicted of an offence, to the High Court and the court must then hear and determine the case as if it were an appeal under the ordinary statutory provisions.

[2] Section 194C defines the grounds upon which the Commission may exercise this power to refer a case to the court. They can do so where they believe

In order to perform this function, the Commission are given certain powers. In particular, in terms of Section 194F the Commission

Section 194D(3) provides that, when considering whether to make a reference to the court,

In this petition the Commission seek the Court's opinion on certain matters relating to their powers under Section 194, given the existence of Section 8 of the Contempt of Court Act 1981 ("Section 8"). Section 8 provides:

Although the points raised by the Commission are of a general nature, in the petition they aver that the points in question have arisen in the course of their consideration of whether to make references to this court in the cases of William Gray and James Bernard. These men were convicted of murder in 1992 and their appeals against conviction were refused by the Appeal Court in 1994: Gray v. H. M. Advocate 1994 J.C. 105. The allegations which the Commission are investigating concern members of the jury. One juror is said to have visited the locus during the trial and to have subsequently discussed it with three other jurors. There is also a suggestion that one of the co-accused formed an association with two female members of the jury and that there was a risk that their views had been influenced by that relationship. We need say nothing more about these matters than to indicate that the Commission's averments in the petition disclose a relevant basis for seeking the opinion of the court under Section 194D(3) as to their powers of investigation.

[3] In their petition the Commission originally asked for the opinion of the court on four questions:

[4] At the initial hearing of the petition Mr. Allan, who appeared for the Commission, still sought answers to all four questions but, in the light of the discussion at that stage, he later informed us that the Commission now accepted that they were bound by Section 8 of the 1981 Act. They also accepted that their power, under Section 194F, to "take any steps" which they considered appropriate did not include a power to take steps which would constitute a contempt of court under Section 8. In these circumstances the Commission did not insist on us answering the first question. The remaining questions appear to us to involve a considerable degree of overlap. We have therefore thought it preferable to indicate our views on the points raised without returning specific answers to the questions. In dealing with the issues raised by those questions, however, we should make it clear that we proceed on the basis that we are satisfied that Section 8 does indeed bind the Commission.

[5] Section 8 provides that it is a contempt of court "to obtain, disclose or solicit" particulars of various matters which took place "in the course of [the jurors'] deliberations in any legal proceedings". The reference to the course of the jurors' "deliberations" must have been intended to restrict the ambit of the section: if Parliament's intention had been to cover the whole period from the time when the jurors were empanelled, the subsection need not have included the words "in the course of their deliberations". Common usage among practitioners in our criminal courts indicates that the "deliberations" of a jury occur when the jurors are considering their verdict after having been directed by the judge to retire to do so. That is the moment when the jury engage in the formal discussion of the evidence and determine the accused's guilt or innocence. A discussion of this kind is a solemn matter, appropriately described by the term "deliberations". Nor do we see anything in Section 8 as a whole which points to the term being used in any other sense in this context. We find support for our interpretation in the decision of the Court of Appeal in R. v. Young [1995] 2 Cr. App. R. 379. Their Lordships held that the term "deliberations" covered what occurred while the jury were considering their verdict in the jury room but not what happened while the jurors were accommodated in a hotel overnight during their retirement. A similar approach to the meaning of "deliberations" was adopted by the Court of Appeal in R. v. Brackley and Weller 3 November 2000 unreported.

[6] We should add that, in our experience, in trials in the High Court judges and counsel have always operated on the basis that, during the running of a trial before they retire to consider their verdict, jurors can be asked questions about what has occurred in the jury room. For instance, where a juror has become "tainted" for some reason, the judge will frequently ask the juror whether she has discussed the objectionable matter with other members of the jury. In an obiter passage in McCadden v. H. M. Advocate 1985 J.C. 98 at pp. 101 - 102 Lord Justice Clerk Wheatley, giving the opinion of the court, might seem to have implied that such investigations during the running of a trial were justified only because the jurors' answers were exempted from the scope of Section 8(1) by falling within the terms of subsection (2)(a). Presumably, they were thought to fall into the category of disclosures "in connection with the delivery of [the jurors'] verdict". For the reasons which we have given we are satisfied that the same practical result can be reached by giving proper weight to Parliament's use of the term "deliberations" in Section 8(1). This approach has the advantage of avoiding the need to adopt what appears to us to be a somewhat strained interpretation of subsection (2)(a).

[7] It follows that the limitation on the scope of the Commission's powers of investigation which derives from Section 8 applies only to the investigation of what passes among the jurors while they are considering their verdict after the judge has directed them to retire to do so. The Commission can therefore make inquiries and obtain statements from witnesses, including jurors, about matters which occur before the jurors retire. Obviously, the Commission will have to conduct those inquiries with the degree of discretion needed to avoid trespassing into the prohibited area. Provided they act in this way, however, we see nothing in Section 8 which would prevent the Commission, for example, from asking a juror whether he had visited the locus and whether he had discussed this with other jurors before they retired to consider their verdict. Equally, Section 8 would not prevent an investigation designed to discover whether female jurors had formed a relationship with a co-accused during the trial, since ex hypothesi this must have occurred at a time when the jurors were not engaged in their deliberations on the verdict. On the other hand, the Commission could not investigate what had happened during those deliberations in order to see whether any such relationship had affected the jurors' assessment of the evidence or their decision as to the guilt of the other accused.

[8] We would observe that investigations involving approaches to jurors, even if not intended to interfere with the administration of justice, may nevertheless have that result. Jurors generally serve in the impression that their privacy will be respected and their identities remain undisclosed. It is also necessary to bear in mind that jury service can be an anxious responsibility for many jurors. For these reasons, and bearing in mind also that a jury has to be brought together by compulsion to perform a vital public duty, the privacy of jurors is a factor to which due weight should be given. We also observe that the Commission's power of investigation is ancillary to their power to refer a case to the High Court where they believe that a miscarriage of justice has occurred and that it is in the interests of justice that a reference should be made; and that the case is then to be heard and determined as if it was an appeal. Investigations by the Commission into the conduct of jurors will therefore be appropriate only to the extent that such conduct can be considered by the High Court when hearing and determining an appeal.

[9] During the hearing on this petition we entertained submissions on a range of matters. As we have already noticed, in terms of Section 194F of the 1995 Act, the Commission may request the Lord Advocate to undertake inquiries or to obtain statements, opinions and reports. One point which counsel explored was whether, in undertaking those inquiries or obtaining the statements, the Crown would be bound by Section 8. For present purposes we are content to assume, without deciding, that the rule of construction, most recently enunciated by the House of Lords in Lord Advocate v. Dumbarton District Council 1990 S.C. (H.L.) 1, applies to the Crown when carrying out this function. On the usual rule of construction Section 8 would not bind the Crown unless it did so expressly or by necessary implication. There is no question of Section 8 binding the Crown expressly but, as the Advocate Depute submitted, the clear implication from its terms is that the Crown cannot generally obtain or solicit particulars of matters discussed during the jury's deliberations. In particular, if the Crown could freely solicit disclosures from jurors and the jurors were equally free to make them in response to questioning by the Crown, the terms of subsection (2)(b) could have been expected to reflect the difference between the position of the Crown and the defence in this respect. The fact that no such distinction is made points to the conclusion that the Crown are indeed bound by Section 8. As the Advocate Depute pointed out, the reported decisions show that the Crown have hitherto proceeded on that basis. See, for instance, Gray 1994 J.C. at p. 111 H.

[10] On a strict reading, subsection 2(b) applies only to disclosures made in evidence in subsequent proceedings for an offence alleged to have been committed in relation to the jury. The Advocate Depute submitted that, while there was an implication from this provision that in court the prosecutor could ask the questions which would result in these disclosures, it would not be possible for the prosecutor to precognosce the potential witness if that would involve prompting such disclosures at that stage. The Advocate Depute similarly submitted that, while defence counsel might also question a former juror in court, the accused's agents could not prepare the defence by precognoscing the juror in order to discover what the evidence against the accused might be. Although the point does not arise for decision in these proceedings, we are not attracted by such a narrow construction of the legislation. The terms of the subsection show that Parliament envisaged that, in certain criminal proceedings, it would be necessary to lead evidence about matters that occurred during the jury's deliberations. Effective and just prosecution, and the effective and just conduct of the defence to such a prosecution, both presuppose careful preparation. It would therefore be extraordinary if the Crown were required to launch proceedings for, say, the grave offence of perverting the course of justice without being able to ascertain in advance what a potential juror - perhaps a key witness - would say about any relevant matters which occurred during the jury's deliberations. Equally, if the defence agents could not find out what the witness would be likely to say about these matters, they would not have adequate facilities for the preparation of the accused's defence to this serious charge. This would give rise to a breach of Article 6(3) of the European Convention on Human Rights and Fundamental Freedoms. For these reasons, and having regard to Section 3 of the Human Rights Act 1998, we should tend to favour a construction of Section 8(2)(b) which implied that both the Crown and the defence had a right to ascertain in advance what a former juror would disclose in evidence.

[11] Since the Crown are bound by Section 8, it is plain that, if the Lord Advocate were asked by the Commission to undertake inquiries under Section 194F, the scope of those inquiries would be limited in the same way as the Commission's own inquiries would be limited. In the debate the question then arose as to whether the Commission could ask the High Court to use its powers to carry out inquiries on behalf of the Commission. This gives rise to two distinct issues. First, have the Commission power to ask the court to act in this way? Secondly, if so, would the court's powers of investigation be similarly circumscribed by Section 8?

[12] So far as the first of these issues is concerned, we start by noting that any powers of investigation by the court would have to be common law powers, since the specific powers granted by Section 104 of the 1995 Act apply only to appeals which are actually before the court. But we have, in any event, reached the conclusion that the Commission have no power to approach the court for this purpose. As we have noted already, Parliament has given the Commission certain express powers to ask for assistance of various kinds, including the power under Section 194D(3) of the 1995 Act to seek the opinion of the court. On the other hand the Commission are given no express power to ask this court to initiate enquiries on their behalf. In such a situation, where the statute creates the Commission and gives them certain, limited, express powers, we would hesitate to ascribe to the Commission an implied power of this significance. The power would be one which affected the relationship between this court and the Commission. That relationship is one of some delicacy since much of the raison d'être of the Commission is to review cases where this court has refused an appeal and, if appropriate, to refer the case to this court to consider de novo. The sensitive nature of the relationship and the need for checks and balances make it even more unlikely, in our view, that such a power on the part of the Commission could be implied where the result of their investigations might be that a case would be referred to this court and the court itself, when dealing with the case, might then require to exercise its powers of inquiry under Section 104.

[13] Since we are satisfied that the Commission have no power to ask the court to carry out investigations on their behalf, it is, strictly speaking, unnecessary for us to consider whether any powers of investigation which the court possesses are limited by Section 8. Since the matter was debated, however, we think it right to outline the issues. The court's powers in relation to pending appeals are to be found in Section 104 of the 1995 Act which provides inter alia:

Section 104(2) provides that the evidence is to be taken in accordance with the law and practice applying in criminal trials in Scotland, while subsection (3) allows the appellant and his counsel to be present and to take part in the examination of any witness.

[14] As the Advocate Depute accepted, it would not be difficult to imagine a hypothetical case with, say, an Asian accused where it emerged that a number of jurors had expressed racist sentiments during the course of the jurors' deliberations. He also accepted that, in the event of a conviction, this could constitute a possible basis for an alleged miscarriage of justice. He none the less submitted that, despite the wide terms of paragraphs (b) and (d) of Section 104(1), Section 8 of the 1981 Act meant that this court could not hear evidence or remit to anyone to enquire into the alleged miscarriage. It would be just as much a contempt of court for this court to solicit information about the jury's deliberations as it would be for anyone else to do so. Faced with such an allegation, it appeared, this court would either have to dispose of the appeal on the basis that the allegation might be true (when it could well not be) or on the basis that it did not appear to be true (when it might in fact be true). In each case the court would require to form their view without having the power to hear evidence about, or to enquire into, the critical allegation.

[15] We recognise that in Young the Court of Appeal readily accepted ([1995] 2 Cr. App. R. at pp. 382 E - 383 B) that Section 8 was in the widest terms and that no-one, including the courts, was excepted from its range. In particular they considered that, as a matter of principle, the object of the section was clearly to maintain the secrecy of the jury's deliberations in their retiring room. "To give the court power, after verdict, to inquire into those deliberations, would," they said, "force the door of the jury room wide open." Those are indeed powerful arguments and are consistent with a considerable tract of powerful authority that the court should never inquire into the jury's deliberations. See, for example, R. v. Gough [1993] AC 646 at pp. 659-660 per Lord Goff and R. v. Millward (1999) 1 Cr. App. R. 61 at p. 66 per Lord Bingham. As we have already suggested, however, there are arguments on the other side. In particular, we note that, according to the long title, the purpose of the 1981 Act was "to amend the law relating to contempt of court and related matters". In that context we have some difficulty in applying the idea of contempt of court to a situation where a court itself makes enquiries, not with the aim of bringing the court in question into contempt but with the very different aim of trying to ensure that justice does not miscarry. Moreover, Parliament has not qualified the Appeal Court's powers under Section 104 of the 1995 Act by reference to Section 8. The Advocate Depute informed us that there was nothing in the responsible ministers' speeches in Hansard which could elucidate any ambiguity. In these circumstances, since the point does not actually arise for determination, we need say no more than that we reserve our opinion both as to the effect of Section 8 on the Appeal Court's powers under Section 104 of the 1995 Act and as to whether, in any event, the court would ever use those powers to inquire into a jury's deliberations.

[16] This leads us to the final observation which we would wish to make. The scope of the investigations which the Commission undertake must be geared to the due performance of the duty which Parliament has laid on them. Under Section 194C they may refer a case to this court where they believe "that a miscarriage of justice may have occurred" and that it is in the interests of justice to make a reference. We should not in any way wish to minimise that duty or to suggest that the Commission can form the appropriate belief without looking into matters in a serious fashion. Nevertheless, the Commission's role is not to determine whether a miscarriage of justice has occurred: that is a matter for this court. The Commission's role is to decide whether or not they believe that a miscarriage may have occurred in the case. And they may properly believe that there may have been a miscarriage in a case where, ultimately, this court - perhaps after fuller argument and investigation - decides that there was in fact no such miscarriage of justice. The scale of the Commission's investigations and, perhaps, of their resources for carrying out those investigations will be determined by what they need to discharge their statutory duty. We surmise that the Commission will often be able to perform that duty, in cases involving allegations of misconduct on the part of a juror, without needing to investigate what actually happened during the jurors' deliberations.