Judge's Right to Close the Public Gallery
| DOI | http://doi.org/10.1177/002201839906300522 |
| Published date | 01 October 1999 |
| Date | 01 October 1999 |
| Subject Matter | Article |
The
Journal
of
Criminal
Law
QB 353, RVPalin [1969]1 WLR 1544 and Rv
Coughlan
and
Young
(1976)
60 Cr App R 33 are in contrast with those authorities exemplified by the
decision of the House of Lords in
Gough's
case (1993)97 Cr App R 188,
in which amember of a tribunal concerned with the decision of fact, or
with advising on that decision, has
not
so decided or advised in accord-
ance with the evidence. Roch LJ stated that the two lines of authority
come together at the point at which the jury hears evidence which it
ought
not
to hear, with the result that it may be thought to be a question
of
whether
they are any longer capable of giving an impartial verdict on
the sole basis of the admissible evidence, so that the judge has to exercise
his discretion whether to discharge the jury or not. The first line of
authority shows that it is not in every case of prejudice that the
jury
must be discharged: it is for the judge to decide,
and
the Court of Appeal.
stated in R v
Weaver
and
Weaver
that it would
not
lightly interfere with
the judge's exercise of his discretion. The second line of authority ended
with the search in the House of Lords for 'some readily understandable
and
easily applicable principles' for the exercise of
the
judge's discretion
in all cases of apparent bias. That single test was there stated to be
the
existence
of'a
real danger' (rather
than
a real likelihood) of bias, for that
would entail
the
possibility (rather
than
the probability) of bias. For the
Court of Appeal in the present case, that meant that the question at issue
was, 'Is the conviction unsafe because of the possibility of bias on
the part of
the
jury?'. Roch LJ added that where, as in this case, the
impugned statement by the witness is reasonably capable of being
interpreted in more
than
one way, so that one interpretation can be said
to be more prejudicial to the defendant
than
another
interpretation, the
judge,
when
weighing the issue of bias
and
the danger it causes, must
proceed on the basis of the more prejudicial of the meanings that can
reasonably be placed on the witness's answers. Here, the Court of
Appeal agreed that the judge may have founded his conclusion upon an
incorrect basis, thus rendering flawed the exercise of his discretion. But
the court drew attention to
the
fact that neither counsel
had
submitted
to the judge the possibility that the witness's statement in this case might
be capable of two interpretations. The court held that in any event any
error of
the
judge in this respect could not have rendered the conviction
unsafe.
Judge's Right to Close the Public Gallery
R v
Richards
(1999) 163 JP 246
At the trial of the applicant for leave to appeal against his conviction for
murder, awoman who said that she had 'just turned 18 years of age' and
who was to give evidence for the prosecution, intimated that she felt
intimidated by the presence in the public gallery of the defendant's
family and friends. Having cleared the court, the judge invited the
witness to appear before him and he endeavoured to persuade
her
to
give evidence in public. The judge was later informed that the witness
434
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