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APPEAL COURT, HIGH COURT OF JUSTICIARY
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Lord Osborne
Lord Johnston
Lord Penrose
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[2007] HCJAC 15
Appeal No: XC246/06
OPINION OF THE COURT
delivered by LORD OSBORNE
in
APPEAL AGAINST CONVICTION
by
GARY READY
Appellant;
against
HER MAJESTY'S ADVOCATE
Respondent:
_______
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Act: A. Ogg, Solicitor
Advocate; Allan McDougall
Alt: Mackay, A.D.; Crown Agent
16 February 2007
The background
circumstances
[1] On 10 March 2006 at Glasgow Sheriff Court the appellant was found guilty by a
majority of the jury on charge 3 of the indictment which he faced. That charge was in the following terms:
"(3) on
26 July 2004 at Millbeg Place, Glasgow, you did assault Thomas Thomson, c/o
Shettleston Police Office, Glasgow and did stab him in the body with a
knife to his severe injury, permanent disfigurement and to the danger of his
life;
you did commit this offence while on
bail, having been granted bail on 20 May 2004 at Glasgow District Court."
On 31 March 2006 a sentence of four years
imprisonment was imposed in respect of that conviction.
[2] The appellant
has appealed against his conviction on two grounds in the following terms:
"(1) the
sheriff erred and misdirected himself in repelling the submission of 'no case
to answer' made on behalf of the appellant;
and (2) that the appellant believes that there were irregularities
within the jury room which require investigation."
In consequence of criticism levelled at the unspecific nature
of the second ground of appeal, an additional ground was subsequently lodged,
intended to be an elaboration of it.
That ground was in the following terms:
"(2) that
the jury (a) failed to comply with the terms of their oath to well and truly
try the accused and give a true verdict according to the evidence and (b)
failed to comply with the directions of the trial judge as to how they should
reach their verdict in respect that they, or a number of them did not consider
the evidence, declined to discuss it with their fellow jurors and returned a
verdict to bring proceedings to an end quickly."
This second ground of appeal has, as its basis, circumstances
that were brought to the attention of the sheriff by Mr Wyse, a solicitor
who had acted for the appellant at the trial, following the determination of
the proceedings on 31 March 2006.
This occurred at a meeting in the sheriff's chambers at which both the
procurator fiscal depute and the sheriff clerk were present. Mr Wyse explained that, following the
conviction of the appellant, he had received a letter from a female juror in
the case. The effect of the letter was
to express the concern of this juror that three of the other jurors had not
given the case fair consideration. That
letter, which has now been produced in this appeal, is in the following terms:
"I was a serving juror in the case of
Gary Ready and as a serving juror I don't think the case brought upon the
jurors was a fair decision as due to a lack of thought and consideration and my
sincere opinion that 3 of the serving jurors wanted the case over with as soon
as possible as they didn't give it their due concern as what they where (sic) supposed to due (sic) I myself as one of the serving
jurors voiced my opinion on many occasions through the way the case was getting
handled with 3 of the jurors and I sincerely think the case against
Mr Ready should be brought to a retrial as my concience (sic) is telling me he sincerely didn't
get a fair enough hearing from the jurors concerned."
The letter was signed by the writer.
[3] There has
also been lodged a precognition of a male person who was acquainted with the
appellant, in which he narrates a meeting with an acquaintance in a bar in Glasgow.
The acquaintance, a male, was the partner of the female juror who wrote
the letter narrated. In the conversation
that ensued, an account was given by him of her experience as a member of the
jury. It included the suggestion that
she had been "more or less nearly fighting with two or three of the jurors
because they weren't really interested in the case". There followed a meeting between the male
person who has given the precognition and the female juror. On the occasion of that meeting, the female
juror wrote the letter quoted above. At
the meeting the juror is reported in the precognition to have said:
"There was no way in this world that
he should have got a guilty. There was
no evidence to convict him but three jurors were not interested in listening to
any of the evidence. One was giggling
and laughing when they were going over the evidence in the jury room. (It was an Irish lassie.) In fact the Irish lassie turned round in
front of the jurors and said:
'Fuck this. I'm not coming back on Monday, let's just
give him a guilty and get to fuck out of here.'"
[4] It is
pertinent to narrate the comment made by the sheriff on the second ground of
appeal, in its unelaborated form. In his
Report to this court he said this:
"As to the second ground of appeal
concerning irregularities occurring in the jury room, this is a matter about
which I have little knowledge. My notes
record that the jury first retired to consider their verdict at 3.30pm on Thursday 9 March. The court was reconvened at 4.50pm when it was established that the jury
were not in sight of a verdict and wished to see the transcript of the taped
interview of the appellant. The court
was then adjourned to the following day and arrangements were made to provide
the jury with some copies of the transcript.
On Friday 10 March the court was again convened and the jury
resumed their deliberations at 10.33am with copies of the transcript. The jury returned at 11.55 and delivered the
verdict complained of having been engaged in deliberation for a total period of
about 2 hours and 40 minutes over the two days."
[5] At a
procedural hearing at which the grounds of appeal were considered and
preparations for the appeal discussed, the issue was raised of whether any
practical steps required to be taken in respect of ground of appeal 2. It was indicated by Miss Ogg, on behalf
of the appellant, that some enquiry into the matters raised in that ground
would require to be made. The court then
raised the issue of whether such an enquiry would be lawful or appropriate,
whereupon it was recognised that a debate would be necessary to discuss those
matters. A further procedural hearing
was fixed for that purpose, which took place on 6 February
2007.
The submissions
[6] Miss Ogg, on behalf of the
appellant, moved the court to remit the case to the sheriff principal to make enquiries
of the juror who had written the letter mentioned and to invite her to expand
upon the terms of the letter. She
contended that there was no obstacle to the taking of that course. She made three submissions in that
regard. First, she submitted that
section 8 of the Contempt of Court Act 1981, which rendered certain
actions a contempt of court, could not apply to the court itself; if the court decided that it was appropriate
to enquire into statements made or opinions expressed in the course of the
deliberations of the jury, the provisions of that section would not constitute
an obstacle. Second, Miss Ogg
submitted that the common law position in Scotland was expressed in Swankie v Her Majesty's Advocate 1999 S.C.C.R. 1. In that case the court had stated that an enquiry
into the conduct of a member of a jury was not lightly to be entered upon,
especially where the court was being asked to order an investigation into the
jury's deliberations. She maintained that
what had been said in that case showed that such an investigation would be
undertaken in appropriate circumstances.
Thirdly it was submitted that, if there were thought to be sensitivities
about enquiring into the deliberations of a jury, any inquiry undertaken here
would not in fact involve that. The
allegation was that certain jurors had not been prepared to undertake proper
deliberations but had simply wished to terminate the proceedings as quickly as
possible. That did not amount to
deliberation. In connection with her
submissions Miss Ogg drew the attention of the court to R. v Mirza
[2004] 2 CrApp R 8; Scottish Criminal Cases Review Commission,
Petitioners 2001 S.C.C.R. 775; McCadden v Her Majesty's Advocate 1985 S.C.C.R. 282; Adam v
Her Majesty's Advocate 2006 S.C.C.R.
354; and Gray v Her Majesty's Advocate
1994 S.C.C.R. 225.
[7] The Advocate depute
moved us to refuse the appellant's motion.
He submitted that an inquiry into the matters suggested would be
illegitimate. It was useful to see what
had happened during the course of the trial, as described in the sheriff's
report. What emerged from that was that
the jury had had ample time to consider their verdict over two separate
days. That suggested that there had been
full deliberation concerning the issues in the case. He then referred to the terms of the letter
written by the female juror and the precognition which we have mentioned. He contended that it was clear from the terms
of those documents that the concerns were focused upon the behaviour and
observations of certain jurors during the course of the jury's
deliberations. The law was that the
court would not enquire into such matters.
The justification for such a posture was not so much section 8 of
the Contempt of Court Act 1981, but rather the provisions of the common
law. He submitted that the law of Scotland as well as of other jurisdictions
had been explained by Lord Hope of Craighead in R. v Mirza, particularly
in paragraphs 95-97. The general
rule was that the court would not investigate or receive evidence about
anything said in the course of the jury's deliberations while they were
considering their verdict in their retiring room. In the view of Lord Hope, expressed at
paragraph 123, the only modification of that rule related to a situation
where there was a complete repudiation by the jury of their only function
which, as the jurors' oath put it, was to give a true verdict according to the
evidence. Thus a trial which resulted in
a verdict by lot or the toss of a coin, or was reached by consulting an Ouija
board in the jury room, would not be a trial at all. If that were what had happened, the jurors
would have no need to be protected as the verdict would not have been reached
by deliberation. The Advocate depute
contended here that the court was not dealing which any such situation. The material put before the court in support
of ground of appeal 2 was in the nature of a criticism of the quality of
the deliberations which had taken place.
He submitted that the case of R. v
Mirza demonstrated that there were
weighty public policy reasons why there should be no inquiry into the
deliberations of a jury. In support of
his submissions the Advocate depute also relied upon the observations of Baron
Hume in Commentaries of the Law of
Scotland Respecting Crimes, 4th ed. [1844] at p.429. While it might be legitimate for inquiry to
be conducted into matters extrinsic to the deliberations of the jury, as was
contemplated but not ordered in McCadden v
Her Majesty's Advocate, that was not
what was involved in the present case.
The difficulties attached to the notion that inquiry should be conducted
into the deliberations of a jury were considered by Lord Rodger of Earlsferry
in R. v Mirza at paras.161-174. At
para.166 his Lordship contemplated the possibility that an inquiry might be
made if it were suggested that a "verdict" had been arrived at by a totally
illegitimate or irrational process, although he reserved his opinion on that
point. As he saw it, the difficulty was
of devising a workable exception to the rule against enquiry into deliberations
that would not undermine the rule itself.
The Advocate depute submitted that the opinions of the House of Lords in
R. v Mirza were not inconsistent with the Scottish authorities.
[8] In any event
in McCadden v Her Majesty's Advocate the court had indicated that a very rigorous
test had to be applied to material tendered as the basis for a suggested
inquiry. He submitted that the material
that had been placed before the court in this case did not pass that test. The letter written by the juror here expressed
concern in rather general terms. The
precognition which had been furnished contained hearsay material. The court should not enter upon an inquiry of
the kind suggested on the basis of such material.
[9] In the case
of Kerr v Her Majesty's Advocate 1999 S.C.C.R. 763 an investigation was
ordered, but that was in relation to the question of whether the provisions of
section 99(2) of the Criminal Procedure (Scotland) Act 1995 had been
contravened; a consequence of such
contravention would have been that a person affected fell to be acquitted in
terms of section 99(5). That case
was not comparable to the present one.
Likewise, in Gray v Her Majesty's Advocate the court had
ordered certain enquiries to be made, but these were concerning whether one of
the members of the jury had visited the locus of the crime alleged. The matters raised in that case were
extrinsic to the deliberations of the jury.
Scottish Criminal Cases Review
Commission, Petitioners arose out of the same circumstances as were
concerned in Gray v Her Majesty's Advocate. Swankie
v Her Majesty's Advocate could not be
relied upon for the proposition that a court would order an inquiry into
matters concerned with the deliberations of the jury; important authorities, such as Hume's Commentaries had not been put before the
court in that case.
[10] Summarising
his position, the Advocate depute said that his fundamental position was that
the court could not lawfully initiate an inquiry into matters which formed part
of the deliberations of the jury. In any
event, the material that had been placed before the court was insufficient to
justify any inquiry. None of the cases
put before the court demonstrated that enquiries had been ordered into matters
which formed part of the deliberations of the jury. They had involved matters which had been
extrinsic to such deliberations.
[11] Finally, the
Advocate Depute relied upon Pirie v Caledonian Railway Company (1890) 17 R.
1157. In that case it had been held
that, after a jury had been discharged, it was incompetent to show by the
evidence of jury men that the verdict did not correctly express the result at
which the jury had arrived. The Lord
President emphasised that the verdict of a jury could not be challenged by the
jurors themselves who had returned the verdict, or by any others. The utmost danger and uncertainty would be
the consequence if questions were to be raised against the verdicts of juries
by examining the jurors themselves after their verdict had been delivered. It was submitted that that case was wholly
consistent with the analysis of the law of Scotland undertaken by Lord Hope of Craighead
in R. v Mirza.
[12] Miss Ogg,
in reply, pointed out that, in Pirie v
Caledonian Railway Company, Lord
Shand had contemplated that there might be an exception to the general rule in
a case where it was contended that a jury had reached their result in an
improper manner, as for example by casting lots, instead of deliberating.
The decision
[13] In the course of the discussion before us
little significance was attributed to the provisions of section 8 of the
Contempt of Court Act 1981. That section
provides, inter alia, as follows:
"8(1) Subject
to subsection (2) below, it is a contempt of court to obtain, disclose or
solicit any particulars of statements made, opinions expressed, arguments
advanced or votes cast by members of a jury in the course of their
deliberations in any legal proceedings.
(2) This
section does not apply to any disclosure of any particulars -
(a) in the proceedings in question for the
purpose of enabling the jury to arrive at their verdict, or in connection with
the delivery of that verdict; or
(b) in evidence in any subsequent proceedings
for an offence alleged to have been committed in relation to the jury in the
first mentioned proceedings, or to the publication of any particulars so
disclosed."
The form of this section is to render the defined activities
a contempt of court. If the court itself
were to decide that an inquiry into the matters defined in the section was
necessary in the interests of justice, it is difficult to see how the
provisions of the section could operate, since it is plain that the court could
not be in contempt of itself.
Accordingly, attention in the debate before us was focused upon the
common law. As regards that, the general
rule in Scots law was expressed in this way by Lord Hope of Craighead in R. v Mirza
in para.94:
"It is common ground that the primary
obstacle to the admission of the evidence which the appellant seek to adduce in
this case is to be found not in the statute but in the common law rule that
evidence of jury deliberations after the verdict has been delivered is
inadmissible. ... The general rule is that the court will not
investigate, or receive evidence about, anything said in the course of the
jury's deliberations while they are considering their verdict in their retiring
room. ...
The rule was also recognised long ago in Scotland:
see Hume, Commentaries of the Law
of Scotland respecting Crimes, the first edition of which was published in
1797. What, Hume asked, was to be done
if the verdict is challenged on the ground that it had been obtained
improperly, such as by the use of unlawful means to obtain the jury's assent to
it? He gave this answer, as it appears
in the fourth edition (1844) at p.429, in terms which place the rationale for
the rule on a more secure basis:
'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 the 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 inclosed; 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 result 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.'
In Pirie v Caledonian Railway
Company ... Lord President Inglis said that it was out of the question for
the court to entertain any challenge after the trial to a verdict which had
been delivered and agreed by the jurors as their verdict. He said that this point had been regarded as
settled in Scotland in Stewart v Fraser (1830) 5 Murray 166, in which the
Lord Chief Commissioner Adam had referred to the passage from Hume's Commentaries which I have set out above
in which, as the Lord President put it, the principle could not have been
better expressed."
In succeeding paragraphs 106, 107, 115-119, Lord Hope of
Craighead enters into a detailed analysis of the justification for the general
rule. In para.123 he recognises the
possibility of a modification to it that distinguishes, after the verdict has
been delivered, between the things which are intrinsic to the deliberation
process and those which are extrinsic to it.
In para.123, he says this:
"So it is arguable that an allegation
that the jury as a whole declined to deliberate at all, but decided the case by
other means such as drawing lots or by the toss of a coin, can be placed into a
different category. Conduct of that kind,
were it ever to occur, would amount to a complete repudiation by the jury of
their only function which, as the jurors' oath puts it, is to give a true
verdict according to the evidence. A
trial which results in a verdict by lot or the toss of a coin, or was reached
by consulting an ouija board in the jury room, is not a trial at all. If that is what happened, the jurors would
have no need to be protected as the verdict was not reached by deliberation -
that is, by discussing and debating the issues in the case and arriving at a
decision collectively in the light of that discussion. The law would be unduly hampered if the court
were to be unable to intervene in such a case and order a new trial. But that is not the situation which is before
us in these appeals."
[14] Likewise Lord
Rodger of Earlsferry, in paras.161-174, analyses the nature of the general rule
and its justification. In para.165, he
said this:
"For these reasons, even though
invited from time to time to reconsider their approach, the highest appeal
courts have consistently refused to entertain appeals based on the allegations
of a juror, made later, that during their deliberations other jurors showed
bias, failed to apply the judge's directions or otherwise acted improperly. If that was indeed the juror's view, then the
time to make it known was before the verdict was returned - either by sending a
note to the judge, or by speaking to the jury bailiff or by declaring the
objection in open court."
In para.172, he continued:
"If it were indeed possible to devise
a workable exception which would not eat up the rule, then that might be the
ideal solution. But over the years
judges of the highest authority have considered the matter and have not found such
a solution. They have therefore affirmed
the rule that evidence about jurors' deliberations should not be admitted."
[15] During the
course of the debate before us reliance was placed by Miss Ogg upon McCadden v Her Majesty's Advocate and Swankie
v Her Majesty's Advocate. In the former of these cases, the court held
that the statutory powers available then under the Criminal Procedure
(Scotland) Act 1975 section 252(d) were available to enquire into the
ground of appeal there stated, which was in fact concerned with a matter extrinsic
to the jury's deliberations, but decided that the material placed before the
court was not substantial enough to justify inquiry. Having regard to the ground of appeal that
was there stated and to the fact that the authorities which we have had the
benefit of considering were not before the court, we cannot regard anything in
that decision as militating against the view which we intend to take in this
case. In Swankie v Her Majesty's
Advocate the ground of appeal tabled was that a member of a jury had
disclosed to the jury during the deliberations that the appellant had a
previous conviction for drugs offences.
Against that background the court held that an enquiry into the conduct
of a member of the jury was not to be lightly entered upon, especially where the
court was being asked to order an investigation into the jury's
deliberations. We note from the report
of that case that neither the passage from Hume's Commentaries, nor Pirie v
Caledonian Railway Company was
cited. In those circumstances, we take
leave to doubt whether the opinion expressed there that an inquiry might be
entered upon even where it amounted to an investigation into the jury's
deliberations was soundly based.
[16] In the end,
Miss Ogg's position was that the matters sought to be enquired into here
did not in fact truly form part of the jury's deliberations, since the alleged
observations by the three members of the jury referred to were not related to
the merits of the case. We cannot accept
that submission. It appears to us that discussion
by jurors of whatever nature within the confines of the jury room after
enclosure must be seen as part of the jury's deliberations, unless they fall
within the modification to the general rule contemplated by Lord Hope of
Craighead in para.123 in R. v Mirza.
There is no question in this case of a suggestion that the jury had
completely repudiated their function.
What the allegation here amounts to is that the three jurors concerned
had not given appropriately thorough consideration to the issues in the case
and wished the jury's deliberations to be brought to an early close. It appears to us that it is inevitable that,
from time to time, one juror may regard the general attitude of another to jury
service as unsatisfactory. However, in
our opinion, for sound reasons of public policy, investigation into such matters
cannot be entertained. If it were, the
trust which the jury system justifiably enjoys would be undermined.
[17] In all these
circumstances we shall refuse the motion made by Miss Ogg. In view of the fact that the debate before us
occurred in the course of a procedural hearing, as opposed to the full hearing
of the appeal, we do not think it appropriate at this stage to refuse the
second ground of appeal, but no doubt, in due course, that will be done.
