Court of Criminal Appeal
| Date | 01 October 1962 |
| DOI | 10.1177/002201836202600405 |
| Published date | 01 October 1962 |
| Subject Matter | Article |
Court
of
Criminal
Appeal
TRIAL BY
II
JURORS: CRIMINAL JUSTICE ACT, 1925, s.15
R. v. Browne
IT is provided by s. 15 of the Criminal Justice Act, 1925,
thatwhere a member of the
jury
dies or is discharged by the
court as being through illness incapable of continuing to act
or for any other reason, the
jury
shall nevertheless be con-
sidered as remaining for all the purposes of the trial properly
constituted, and the trial shall proceed and a verdict be given
accordingly, subject to "assent being given in writing by or on
behalf of both the prosecutor and the accused" and so long as
the number of the
jury
is not reduced below ten.
This
section
fell to be interpreted by the Court (Lord Parker, C.J., Winn
and Brabin,
JJ.)
in R. v. Browne (1962, IW.L.R.759). On the
second day of the trial at quarter sessions one
juror
did not
attend court because of bad weather. Counsel for both sides
signed a certificate pursuant to s. 15 of the Act assenting to the
continuation of the trial with only eleven jurors, without the
defendant being consulted or giving his consent.
The
defendant
was convicted.
He
appealed on the grounds that the twelfth
juror
was never properly discharged and that he, the defendant,
never consented to the trial continuing with only eleven jurors.
His appeal was dismissed.
It
was held, in the first place, that no formality is required
to discharge a
juror
under s. 15 of the Act of 1925; it was not
necessary to bring the discharge to the notice of the
juror
nor
did it need to be said expressly in open court.
It
is sufficient
if
ajudge says to counsel words to this effect: "Are you pre-
pared to go on with eleven jurors on the basis of my discharging
the one juror who has not arrived?
If
you are, and sign the
certificate, that
juror
is discharged. If, on the other hand you
refuse, I must consider whether to adjourn the case until that
juror
turns up or whether Ishould discharge the whole
jury
and empanel another".
It
seemed to the Court that the
discharge of the juror in R. v. Browne was to be implied.
It
was held, secondly, that as counsel was expressly
empowered by the Act to sign a certificate, the Court was
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