Elizabeth Clow V. Her Majesty's Advocate

JudgeLord Eassie,Lord Justice General,Lord Wheatley
Neutral Citation[2007] HCJAC 24
Published date25 April 2007
Date25 April 2007
Docket NumberXC564/06
CourtHigh Court of Justiciary


Lord Justice General

Lord Eassie

Lord Wheatley

[2007] HCJAC 24 Appeal No: XC564/06 OPINION OF THE COURT











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 (Scotland) Act 1995 but in December 2006 an extension of time to lodge such grounds was granted. That extended period expired at close of business on 8 March 2007. When this court, having heard argument on the issue referred to hereafter for almost three days, rose on the afternoon of 8 March no grounds had yet been lodged, although a proposed or intended ground, together with an association devolution minute, had been intimated.

[2] On 11 December 2006 Ms. Clow submitted to the court a petition for bail. This was refused in hoc statu by a single judge. On 30 January 2007 this court refused in hoc statu an appeal against that decision but appointed that appeal to a procedural hearing before three judges "for the purpose of determining procedure in relation to correspondence received from one of the serving jurors". At a procedural hearing on 13 February 2007 the court continued the question of interim liberation and the appeal to a further procedural hearing to await the Opinion of the Court in another appeal considered to be pertinent to the question (Ready v H.M. Advocate). On 20 February the Opinion of the Court in Ready having become available, the court continued consideration of the appeal (against refusal of bail) for a further procedural hearing before a bench of three judges to a date to be afterwards fixed and continued the question of interim liberation until that hearing.

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 3 August 2006 a deputy advocate's clerk received a telephone call from a person who identified herself as having been a juror at the appellant's trial. She was in a very distressed state. She indicated to the clerk that she wished to call with a letter to counsel who had acted for the appellant at the trial. According to a note prepared by the clerk the juror said that "she was greatly distressed by something which occurred which she said in her view resulted in Elizabeth Clowe (sic) not having a fair trial". Certain advice was given to the juror as to where she should address any letter and arrangements were made for any such letter which was received to be forwarded to the court. In the event a letter dated 9 August 2006 was received bearing to be from a juror who identified herself by name and address. The addressee was not specifically identified but it may be taken that the concerns therein referred to were intended to be drawn to the attention of the court. The letter was in the following terms:

"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 A.C. 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 Scotland, where the court could institute an inquiry which need not proceed upon evidence (in the formal sense), the same considerations did not apply. The observations on Scottish procedure made by Lord Hope of Craighead and Lord Rodger of Earlsferry in Mirza were obiter. The passage in Hume - Commentaries on the Law of Scotland respecting Crimes (vol. II page 429) discussed in Ready v H.M. Advocate and in Mirza did not warrant the proposition that, according to the law of Scotland, communications between jurors prior to their having retired to consider their verdict were protected from investigation. Any proposition that such communications were so protected would involve an extension of the law. That was not justified. It ran counter to present trends (which had in England included proposals for radical reform of the jury system). There was an obligation on every national court to ensure that it (and any court from which an appeal lay to it) was an "impartial tribunal" (Remli v France (1996) 22 EHRR...

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