Scottish High Court of Justiciary Decisons

[1] The appellant was convicted at Airdrie Sheriff Court on 4 August 2004 of two charges of lewd, indecent and libidinous practices. In each charge he was alleged to have committed the offences at a house in Plains and at a locus between Plains and Salsburgh. The police officers who were witnesses in the trial were stationed at Airdrie and Motherwell.

[2] Because there were so few unempanelled jurors remaining at the conclusion of the trial, the sheriff required the jurors in the appellant's trial to be available for balloting in the next trial. When the next jury was balloted, it included a young lady who had been the forewoman of the jury in the appellant's trial. After this jury was empanelled, but before evidence was led, this juror told the clerk of court that she had trained with the police in Lanark. She asked the clerk to check whether there were any police witnesses in the case whom she knew. Counsel agree that this trial was a Lanark case and that Lanark is within a separate police division from Airdrie and Motherwell.

[3] It then emerged that this juror had been a special constable in 1999, had become a police constable in 2000 and had resigned from the force in 2001. The sheriff discharged her from the jury on the ground that she was ineligible for jury service.

[4] It is agreed that, by reason of section 1(1)(d) of the Law Reform (Miscellaneous Provisions)(Scotland) Act 1980 (the 1980 Act) and Part 1, Group B(i),(l) and (w) of Schedule 1 to that Act, which we need not quote, the juror was ineligible.

[5] Section 1(4) of the 1980 Act provides that the fact that a person serving on a jury is ineligible for jury service "shall not in itself affect the validity of any verdict returned by that jury in the trial."

[6] Counsel for the appellant relied on the statements of this court in McTeer v HM Adv (2003 JC 66, at paras [11]-[15]). He submitted that from the mere fact that the juror in question was ineligible, an informed and objective observer would conclude that the proceedings lacked an appearance of impartiality and that the verdict of the jury constituted a miscarriage of justice. Section 1(4) (supra), which seemed to suggest otherwise, had now to be read subject to the fair trial provisions of the Convention.

[7] The advocate depute submitted that in the absence of any suggestion that the juror had a connection with the appellant or his case, or with any of the witnesses, one could not reasonably conclude that there was an appearance of unfairness. The fact that the juror had raised her difficulty in the second trial, which was a Lanark case, implied that she had had no such difficulty in the first. On the facts, the case could be distinguished from cases such as McLean v HM Adv (2001 SCCR 526), where a juror knew of the accused's background. The proposition for the appellant was contrary to the plain words of section 1(4) of the 1980 Act.

[8] Section 1(4) provides that in a case such as this the juror's ineligibility does not "in itself" invalidate the verdict. That implies that the verdict will be invalidated on that account only if the participation of the ineligible juror could cause an objective observer to entertain legitimate doubts as to the impartiality of the jury. The Convention is not relied on in the grounds of appeal; but even if it is open to counsel for the appellant to take the point, he has given us no reason why the Convention should require us to read section 1(4) as meaning the opposite of what it says.

[9] This is not a case like McTeer v HM Adv (supra), where the foreman of the jury knew that the appellant had assaulted his son, or McLean v HM Adv (supra), where a juror knew that the appellant was a shoplifter. If the juror in this case had been a former colleague of any of the police witnesses or during her police service had acquired some knowledge of the appellant or of the case, it might have been open to the appellant to argue that there had been a miscarriage of justice. But in this case there is no suggestion that the juror had any personal connection with the appellant's case or with any witness, or any knowledge of the appellant. On the contrary, her scrupulous attitude in the second trial, where some personal connection might have emerged, indicates that she had no such personal connection in the first. She took her juror's oath and we have no reason to think that she failed to keep it. We can see no reason why an informed observer could reasonably have concluded that the verdict in the appellant's trial lacked the appearance of impartiality. In our view, there was no miscarriage of justice.

[10] We shall refuse the appeal.