Scottish High Court of Justiciary Decisons

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Cite as: [2006] ScotHC HCJAC_9, [2006] HCJAC 9

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APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice Clerk

Lord Penrose

Lord Cameron of Lochbroom

[2006] HCJAC 9

Appeal No: XC153/04

OPINION OF THE COURT

delivered by the THE LORD JUSTICE CLERK

NOTE OF APPEAL

JOHN BROWN

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

Appellant: D R Macleod QC; Balfour & Manson

Respondent: Bell QC, AD; Crown Agent

31 January 2006

Introduction

[1] On 16 January 2004 the appellant was convicted at Glasgow Sheriff Court on a charge of lewd and libidinous practices. The charge related to offences committed against a girl when she was between 4 and 9 years old. The appellant appeals against conviction on the ground that there was a miscarriage of justice arising from the selection and composition of the jury.

[2 ] The panel of jurors available for this trial consisted of seven men and fifteen women. When the case called, counsel for the appellant submitted that, while there was a sufficient number for the ballot to proceed, the list was unrepresentative and could lead to the balloting of a jury with a disproportionate number of women. In a case of this nature, the jury should be balloted from a balanced list.

[3 ] Sheriff Normand allowed counsel an adjournment to enable him to research the authorities on the point. During that adjournment the sheriff ascertained that it was not certain how many other potential jurors could be obtained from another court, but that it was likely that most of them would be women.

[4 ] After the court resumed, counsel moved the sheriff to desert the diet pro loco et tempore. The sheriff refused the motion and directed that the jury should be balloted. The ballot produced a jury of twelve women and three men.

The sheriff's reasoning

[5 ] The sheriff has given us the following reasons for his decision.

"I did not consider that there was any substance in the defence argument. It did not appear to me that the accused would be denied a fair trial by the selection of a jury from the list or by such a jury deciding the case. I did not consider that it was correct to suggest that the jury would not be selected randomly from a range of citizens. The original list of jurors contained an equal number of men and women, but more female jurors than male jurors had attended in response to citation. The list of those present for selection contained both male and female potential jurors. I considered that the particular mix did not prevent the jury from being a random selection. The selection through the usual ballot would be random.

No reason was put forward to support the proposition that a jury drawn from the particular list would not be impartial. I had no reason to believe that the members of the jury - of whichever sex - would not be true to the oath they would take at the start of the trial and would not follow the standard directions that would be given to them to ensure a fair trial. Nor, as I have said, was any such reason presented to me on behalf of the defence. There was no suggestion that any of the potential jurors in question, who had answered their citations as responsible citizens, possessed any characteristic that predisposed them to bias in serving as a juror in this case, other than - as I took from the submission - their gender. In rejecting the submission and deciding that the ballot should proceed I was satisfied that no reasonable conclusion that the jury would be biased could be drawn from the gender constitution of the group of potential jurors and I was satisfied that the accused could receive a fair trial. That in my view remained the position after the selection of the jury, although it will be noted that the defence motion inviting me to desert the proceedings was before and not after the ballot.

As for the question of a possible appearance of unfairness, that again was not clearly presented in the defence submission, but was not in my view a sound objection, particularly where the list did consist of a mix of men and women, even if not an equal mix, and also having regard to such features of the process as the random ballot, the jury's oath and the standard directions to the jury."

The issue

[6 ] The law relating to the preparation of jury lists, the disclosure of jury lists to the defence and the making of objections to individual jurors has been considerably modified in recent years. In this case, however, it is unnecessary for us to consider the legislation in detail. The point in this appeal is a short one and we are asked to decide it on the agreed basis that the law at present does not oblige the sheriff clerk to provide a jury panel of any minimum number for balloting for an individual trial.

"It is not possible to comment specifically on the circumstances and events of 13 January 2004. Lists of assize are not as a matter of routine retained after the conclusion of each sitting, there being no reason to do so. Details of jurors who attended are of course available. In early 2004 difficulty was experienced in getting jurors to answer citations. The details provided by the private company above referred to were, it is understood, somewhat out of date. That situation has now been rectified. It was not unusual at that time to have only 20 to 25 jurors attend per court despite 60 having been cited initially. It is considered that the low number of jurors in attendance on 13 January 2004 would not have been unusual at that time. There is no reason capable of identification for the imbalance between male and female jurors, equal numbers having been cited at the outset."

This answer was no doubt based on what the sheriff principal was told by the sheriff clerk. It was plainly inadequate. We therefore required further clarification from the sheriff principal on five specific points with a view to understanding how a panel of 60 was reduced to 22 before even the first jury had been ballotted.

[12 ] By letter dated 21 July 2005 the sheriff principal reported further on these points. We were pleased to learn that, as a result of our further request, the information that could not be provided to him at the time of his original report had by then become available.

[13 ] According to the sheriff principal's letter, the panels of jurors cited for each of the seven Glasgow courts have equal numbers of men and women. In this case 60 jurors were cited to attend at the appellant's trial court on Monday 12 January 2004, the first day of the sitting. A copy of the list of those jurors was kept by the sheriff clerk's jury manager. The list detailed the excusals that were allowed by the jury management staff before the lists were passed to the clerks of court on the previous Friday. This was a manual record noted on the computer-generated lists. A separate computer record was kept of jurors who attended and were balloted. The sheriff principal has provided us with both of these lists.

[14 ] When the original list of 60 jurors reached the clerk of court, 26 had already excused by the jury manager. Of those 26, five were excused for medical reasons supported by doctor's certificates, eleven were excused because the citations had been returned by the Post Office, and ten were excused for what are described as "other reasons," such as statutory exemption.

[15 ] It was therefore expected that on Monday 12 January 34 jurors would attend in answer to their citations. In the event, seven of those jurors failed to appear with no reason being known to the court. A further three were excused attendance by the clerk of court that day, for reasons that are not recorded.

[16 ] The trial began in the afternoon of Tuesday 13 January. On that date, 24 jurors ought to have attended; but two of them failed to appear. The sheriff clerk depute checked in the 22 jurors who turned up. She was plainly concerned by the low attendance and the imbalance of the panel between men and women because she mentioned the matter to the Crown and the defence. The defence then decided to object.

[17 ] The sheriff principal says that no specific instructions are given to clerks of court in relation to the minimum number of jurors from whom a jury can be empanelled. If clerks of court are in any doubt on the point they are advised to consult the presiding sheriff and their superiors, if necessary. In view of the numbers of attending jurors at Glasgow, clerks of court are able to add to the assize list for any given trial from other courts within the building. But, as the sheriff principal reports,

"Regrettably in this case the clerk of court was unable to do so, as there were no other jurors in attendance that afternoon when the trial commenced at 14.20 hours on 13 January 2004."

Submissions for the appellant

[18 ] Counsel for the appellant submitted that the appellant's rights under article 6 of the Convention had been infringed. He did not suggest that the jury was not impartial; but there had not been an appearance of impartiality (Porter v Magill [2002] 2 AC 357, Lord Hope of Craighead at p 494; Gregory v United Kingdom [1997] 25 EHRR 577, Commission Opinion at paras 41-42; Remli v France [1996] 22 EHRR 253 at para 48). Since juries are chosen at random from jury lists, a non-discriminatory method of compilation of the jury lists was an essential ingredient of a fair trial by jury; that this was inherent in the concept of a fair trial by an impartial jury; and that fairness was achieved in the composition of a jury by random selection from a list which is itself fairly constituted (Rojas v Berllaque, [2003] UKPC 76, at para 14). In this case there was a gross imbalance between men and women on the panel. In any event, there were so few on the panel that it could not be said that the ballot had an appearance of fairness.

Submissions for the Crown

[19] The advocate depute submitted that the residue of 22 members out of the original jury panel of 60 had been arrived at by a process of random removals from the original list by reason of ineligibility, excusal and the like. That number was sufficient for a ballot to be held. That number consisted of both men and women. It had not been suggested that any individual member of the panel should be disqualified and there was no suggestion that those balloted could not act, or had not acted, in accordance with their oath.

[20 ] In answer to a question from the court, the advocate depute said that the Crown accepted that there must be an irreducible minimum number of potential jurors below which no proper ballot could be held. However, the Crown had no submission to make as to what that number should be. In the discussion he himself suggested that a figure of less than 20 might be seen as unfair. Any number below that would fail to allow for the possibility of objections by the defence. There was no minimum figure set in the legislation. If there were to be such a figure, it should be set by primary legislation or by an Act of Adjournal, but not by the court.

Conclusions

[21] The system of jury trial is based on the constitutional principle that a person indicted for trial should be judged by a randomly chosen jury of his peers. The jury in this case was the first to be balloted from the panel assigned to that court; yet before the case was even called, the panel had been reduced from 60 jurors, of equal numbers of men and women, to 22, with more than twice as many women as men.

[22 ] We find it difficult to analyse the sheriff's reasoning with precision. It appears that his primary consideration in refusing the defence motion was that even with only 22 jurors, there could still be a random selection by ballot and that the imbalance of men and woman did not make the ballot any less random. That approach should have prompted him, in our view, to ask himself at what point a jury panel would be too small, or at what point the imbalance between male and female members would be too great, for there to be a proper ballot.

[23 ] The submission of counsel at the trial emphasised the imbalance between male and female jurors; but in our opinion it is unnecessary to consider that aspect of the submission or the decision in Rojas v Berllaque (supra) on which it is based. It is sufficient, in our view, to consider the question in relation to the size of the panel from which the ballot was held.

[24 ] If the original panel of 60 was randomly selected and if the excusals and no-shows are considered to be random events, the panel that remained for the appellant's trial was in a sense, as the Crown argued, the product of random selection; and therefore the balloting of the jury produced a random result. That is a question that might be of interest to statisticians. We prefer to stand back from the mathematics of the problem and take a commonsense view of what happened. In our opinion, this case should be decided on the straightforward basis that the balloting of a jury of 15 from a panel of only 22 lacked the appearance of fairness. The ballot was plainly unsatisfactory and the sheriff should have recognised that. In our opinion, there was a miscarriage of justice.

[25 ] We are surprised that the sheriff took such a strong line when he had a simple solution at hand. When the debate on the defence objection ended, it was well into the afternoon. The sheriff appears not to have considered the obvious course of adjourning the trial until the following morning when other panels from the pool of 420 jurors available at that sitting would be brought in for trials in other courts. The availability of that solution and the sheriff's failure to pursue it confirm us in the conclusion that we have reached.

[26 ] We agree with the advocate depute that it would be wrong for us on this occasion to attempt to prescribe the minimum number from which a jury should be balloted in any trial or to suggest whether or to what extent an imbalance between the sexes within that number is acceptable. These are questions for possible legislation. But they are aspects of a wider problem. What we have learned from the sheriff principal's reports suggests to us that a re-examination of the system by which jurors are excused and jury panels are put together would be opportune. We are particularly concerned to learn of the high rate of excusals and non-appearances and of the practice by which the sheriff clerk can excuse a juror without recording the reason therefor.

Decision

[27 ] We shall allow the appeal and quash the conviction.