APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General Lord Eassie Lord Wheatley |
[2007]
HCJAC 24
Appeal
No: XC564/06
OPINION OF THE COURTdelivered by THE LORD
JUSTICE GENERAL in APPEAL by ELIZABETH CLOW, Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Act: Shead, Mitchell; Beaumont & Co., Edinburgh
Alt: Murphy, Q.C., A.D.; Crown Agent
25 April 2007
The procedural
background
[1] On 11 July
2006 a jury, sitting in the High Court of Justiciary at Edinburgh, after a
trial which ran, with interruptions, for about six months, returned a majority
verdict of guilty (subject to a restriction) against Ms. Elizabeth Clow on the
single charge (of fraud) then remaining on the indictment. In the course of the trial three jurors had
been excused. At a subsequent diet the
trial judge sentenced her to imprisonment for four years. Ms. Clow gave timeous notice of an intention
to appeal against conviction and sentence.
No grounds of appeal were lodged within the time prescribed by section
110 of the Criminal Procedure (
[2] On
The correspondence
[3] We have now
heard argument on further procedure in relation to the correspondence referred
to. Mr. Shead on behalf of Ms. Clow
(whom we shall for convenience refer to as "the appellant", although at the
time of the discussion the only appeal at her instance was one against refusal
of bail) invited the court to order further inquiry into the
correspondence. The background to the
correspondence is as follows. On
"Dear Sirs,
I am writing to express my concern as
a jury member in the case of Miss Elizabeth Clowe. I am appalled at how this jury came to their
verdict;
·
From
the very first week they had all judged Miss Clowe to be guilty
·
They
judged Miss Clowe by the clothes that she wore
·
They
commented on how they wanted to hang her and throw her in front of a lorry
·
They
called her by abusive names
·
They
blamed her for them sitting jury service for so long
·
One
member of the jury tried to ask the judge a question
·
Some
members were extremely prejudiced
·
Some
of the Jury members were more concerned about how much money they could squeeze
out of the court including claiming for compensation
I and others have suffered six months
of this fiasco, which has impacted on my physical and mental health. If it has had this impact on myself I despair
to think about the effect this whole event has had on Miss Clowe.
On two occasions I did mention to the
clerk that it was unbearable sitting in the jury room listening to them
constantly saying Miss Clowe was guilty.
Which I may mention the judge did address the court on twice and reminded
them to listen to all the evidence before making their verdict - which I
believe went unheard by my fellow jurors.
I feel so strongly that British
Justice has not been received in this case, so much so that I feel like making
my experience public knowledge in order to prevent others from becoming victims
of a jury similar to the one that I served upon.
As a British citizen, I was proud to
be part of a jury and to try and assisting in maintaining British Justice. However, I can honestly say that this experience
of jury shames me and I am extremely disappointed and upset that I was part of
this circus parade and I strongly believe that there was no Justice for Miss
Elizabeth Clowe.
Yours sincerely,".
Submissions for the
appellant
[4] Mr. Shead did
not invite us to accept the statements made in the letter at face value but
submitted that, coming from a serving juror, they gave rise to such concerns about
whether the appellant had had a fair trial that the court should authorise or
appoint further inquiry into the conduct of the jury in this case. There was, he said, some uncertainty as to
whether in cases of this kind there was a responsibility on the appellant's
representatives to trace and precognosce jurors; reference was made to an implication to that
effect said to arise from the comments of the Lord Justice Clerk in Adam v H.M. Advocate 2006 S.C.C.R. 354 at para. [26]. Whether the inquiry was undertaken by the
appellant's representatives or by the court (by private investigation or
otherwise), the appellant's right to a fair trial demanded that inquiry in some
form be made. Such an inquiry would not
trench upon the jury's "deliberations" as that had been interpreted, for the
purposes of section 8 of the Contempt of Court Act 1981, in Scottish Criminal Cases Review Commission,
Petitioners 2001 S.C.C.R. 775. The
decision in Ready v H.M. Advocate [2007] HCJAC 15 was
concerned only with discussion by jurors within the confines of the jury room after
enclosure (para. [16]). Improper
conduct on the part of a jury could be addressed by asking whether, viewed from
the standpoint of a well-informed observer, justice had been seen to have been
done. Reference was made to Gray v H.M. Advocate 2005 J.C. 233, 2005 S.C.C.R. 106 and McTeer v H.M. Advocate 2003 J.C. 66, 2003 S.C.C.R. 282. A premature conclusion as to guilt would
vitiate a subsequent determination (as, for example, most recently in Reid v Barbour 2003 S.C.C.R. 559).
The first of the bullet points made in the juror's letter indicated an
equivalent prematurity of judgment on the part of this jury. In McCadden
v H.M. Advocate 1985 J.C. 98 the
court had contemplated an inquiry into an allegation that a juror had been
biased, although it had not, in the event, found there to be a sufficient basis
for ordering such an inquiry. In R. v Mirza,
R. v Connor and Rollock [2004] UKHL 2, [2004] 1 AC 1118 the House of
Lords had by a majority held that evidence could not, in an English appeal
against conviction, be led of anything said in the course of the jury's
deliberations while they were considering their verdict. But that case was concerned with the
admissibility of evidence; in
Submissions for the
Crown
[5] The advocate
depute submitted that Ready v H.M. Advocate had been correctly decided
and that its circumstances were very similar to those in the present case. The views expressed by the majority of their
Lordships in Mirza were also highly
persuasive and should be followed. The
important distinction was between extrinsic matters (which could be inquired
into) and intrinsic matters (which could not).
Alternatively, communications among jurors in the jury room prior to
enclosure touching on their views of the evidence as it proceeded could be
regarded as truly part of the process of deliberation or, if not so, to be
sufficiently close to it as to be covered by the exclusionary rule. So far as had been discovered, there had been
only two cases in which the court had contemplated an inquiry into matters
touching on a jury's deliberations.
These were McCadden v H.M. Advocate and Swankie v H.M. Advocate
1999 S.C.C.R. 1. In neither of these
cases had an inquiry in the event been ordered.
It was noticeable also that in neither of them had the older authorities
(Hume, and the cases of Stewart and Pirie) been cited.
Objectively viewed, the juror's observations in the letter might be of
limited value; what was significant was
not what might have been said in the first week of the trial but rather the
jury's ultimate consideration of their verdict.
The observations might simply amount to a single juror's subjective view
of the grumblings made by fellow jurors over a protracted trial and
inappropriate remarks made during that period.
The risk that those chosen as jurors might be prejudiced in various ways
was inherent in trial by jury but the legal system guarded against such risks (Mirza, per Lord Rodger at para.
152). It was natural that, in the course
of a trial, particularly a long trial, jurors would, during breaks in the
evidence, talk to one another, including conveying their impressions as to the
state of the evidence as it unfolded. It
was unrealistic to suppose otherwise.
These provisional impressions were as much entitled to protection as the
content of the jury's deliberations once they had retired to consider their
verdict. In Stewart the court had (as subsequently in McCadden and Swankie)
found the material placed before it insufficiently compelling to warrant any
inquiry and had also ruled on public policy grounds against such an inquiry -
even where the allegation was that the verdict had been reached by the casting
of lots. The jury's deliberations after
their retiral were clearly confidential;
the same confidentiality should in principle be accorded to their
internal communications about the case throughout the trial. Even if, in light of Scottish Criminal Cases Review Commission, Petitioners the scope of "deliberations" for the purposes of
section 8 of the Contempt of Court Act 1981 was relatively narrow, that
provision was designed to protect the jury at a critical stage in the
trial; it did not follow that a wider protection
was not available at common law. The
distinction between external influences on the jury and the influence of jurors
upon each other was clearly drawn in the passage in Hume. That distinction had
also been noticed in Mirza (see Lord
Hope at para. 107, Lord Rodger at para. 162).
The scope of the protection as extending from the moment the jury had
been empanelled had in
Discussion
[6] In Mirza at para. 142 Lord Hobhouse of
Woodborough stated that the confidentiality of jury deliberations was a well-established
principle of both English law and Scottish law.
He referred, by way of example, to Ellis
v Deheer [1922] 2 K.B. 113 (an
English civil case), to R. v Miah (where Kennedy L.J. at page 18
observed that the reasoning underlying that principle "must extend to cover anything
said by one juror to another about the case from the moment the jury is
empanelled") and to Russell v H.M. Advocate 1991 J.C. 194 (where it
was observed by Lord Justice General Hope at page 198 that the principle that
justice must be seen to be done does not extend "to what is heard in the
privacy of the jury room"). It is clear
that in
"The rationale of the rule includes
the need for finality. A verdict
returned in the presence of all of the jurors and on their behalf is not open
to second thoughts and must, subject to very limited exceptions, e.g. patent
inconsistency with another verdict, be accepted by the trial judge. This finality works as much in favour of the
accused as against him. Finality is what
the acquitted defendant wants and needs;
the convicted defendant on the other hand can always invoke his right of
appeal to the Court of Appeal. But for
present purposes, another reason for the principle is more important. It underpins the independence and
impartiality of the jury as a whole. It
enables them to be true to their oath to return a true verdict according to the
evidence without fearing the consequences of the reporting of things individual
jurors have said or the arguments they have advanced. They can play their part in the collective
deliberations of the jury without fear of quotation, embarrassment or
victimisation. A jury is a collection of
lay citizens selected at random. They
arrive at the court with all their preconceptions and misconceptions. ... Those
randomly selected are each required to take the juror's oath before they are
empanelled. The trial judge will
himself, as the course of the trial dictates, reinforce the message, for
example reminding them that the only evidence is that adduced at the trial not
what their friends and relations or the media say, and that they must discard
any prejudices they have had and approach the case with an open mind and he
will direct them further during his summing-up".
[8] These
considerations are as applicable to a Scottish criminal jury as to one sitting
in
" ... a part of the jury, while they
allow the authenticity of the writing now produced, can yet be allowed to allege
that it was unduly obtained, and therefore ought not to be received; because the question was not duly put, or the
voices were not fairly counted, or some of the assizers misunderstood the state
of the vote; or because unlawful means
of threats, importunity, or the like, were used by some of the assize with the
others, to obtain their assent".
While acknowledging that the answer to that question might be
"more open to difference of opinion", he positively excludes it in
circumstances where, prior to the challenge, the jurors have had the
opportunity of communicating with others than their fellow jurors. For he says:
"If a plea of this sort, in
impeachment of the substance of a verdict, can at all be listened to, one thing
at least seems to be clear, that it can only be in those cases, comparatively
but few in number, where the jury re-enter the Court straightway on breaking up
their private sitting. For if they
disperse, and disclose their verdict (as sometimes happens), then are they
exposed to all those temptations, from the opinions and commentaries of the
world, against which it is the very object of our law to guard, when it orders
them to be enclosed; and they may thus
be prevailed with to disavow their genuine verdict, on false and affected
grounds. Nay, though they conceal even,
as they ought to do, the results of their deliberations, yet still they learn
the sentiments of others concerning the case and the evidence, and are liable
to be influenced, less or more, by what they thus hear passing in the world".
[10] Hume continues (at page 430):-
"But further, even if the assize
returns straightway into Court, it still is far from being clear that it is
competent to impeach the written verdict, on the ground of irregularity in
their proceedings or deliberations while they were inclosed. To withstand and control any attempt, by any
of their number, to overawe, constrain, or impose on them, was both the duty of
the assize, and within their power; and
rather, if there were no other remedy, to continue inclosed till the Court
meet, and then dissolve their sederunt and state the reason to the Judge,
(though it should invalidate the whole proceedings,) than to acquiesce in a
downright usurpation and injustice. If,
therefore, they have wittingly allowed the verdict to be made up in their
presence, such as it is, they have thus given their deliberate and solemn
testimony, as if under their own hands, and such as they cannot be allowed to
gainsay, to the truth of this written report, and the lawfulness and regularity
of the proceedings in their sederunt.
Any other rule would obviously lead to hurtful, and indeed interminable
inquiries".
"I am fully satisfied that a
considerable measure of secrecy surrounding the deliberations of the jury is
essential to the proper functioning of that important institution and that the
preceding rationales serve as a useful guide to the boundaries between the
competing demands of secrecy and reviewability".