Pet: Scottish Criminal Case Review Commission In Terms Of Section 194d(3) Of The Crminal Procedure (scotland) Act 1995 For An Opinion Of The Court V.
| Jurisdiction | Scotland |
| Judge | Lord Marnoch,Lord Reed,Lord Justice General |
| Court | High Court of Justiciary |
| Date | 25 July 2001 |
| Published date | 25 July 2001 |
| HIGH COURT OF JUSTICIARY | |
| Lord Justice General Lord Marnoch Lord Reed
| Misc. 247/00 OPINION OF THE COURT delivered by THE LORD JUSTICE GENERAL in the PETITION of THE SCOTTISH CRIMINAL CASE REVIEW COMMISSION Petitioners in terms of Section 194d(3) of the Criminal Procedure (Scotland) Act 1995 for AN OPINION OF THE COURT _____ |
Petitioners: Allan; Gray & O'Rourke
Respondent: Turnbull, Q.C., A.D.; Crown Agent
25 July 2001
[1]The petitioners are the Scottish Criminal Cases Review Commission ("the Commission"), a body corporate established by Section 194A(1) of the Criminal Procedure (Scotland) Act 1995. Under Sections 194B(1) and 194E, together with The Scottish Criminal Cases Review Commission (Application to Summary Proceedings) Order 1999 (1999/1181), the Commission have the power to refer a case, where someone has been convicted of an offence, to the High Court and the court must then hear and determine the case as if it were an appeal under the ordinary statutory provisions.
[2]Section 194C defines the grounds upon which the Commission may exercise this power to refer a case to the court. They can do so where they believe
"(a)that a miscarriage of justice may have occurred; and
(b)that it is in the interests of justice that a reference should be
made."
In order to perform this function, the Commission are given certain powers. In particular, in terms of Section 194F the Commission
"may take any steps which they consider appropriate for assisting them in the exercise of any of their functions and may, in particular -
(a)themselves undertake inquiries and obtain statements, opinions
or reports; or
(b)request the Lord Advocate or any other person to undertake
such inquiries or obtain such statements, opinions and reports."
Section 194D(3) provides that, when considering whether to make a reference to the court,
"the Commission may at any time refer to the High Court for the Court's opinion any point on which they desire the Court's assistance; and on a reference under the subsection the High Court shall consider the point referred and furnish the Commission with their opinion on the point."
In this petition the Commission seek the Court's opinion on certain matters relating to their powers under Section 194, given the existence of Section 8 of the Contempt of Court Act 1981 ("Section 8"). Section 8 provides:
"(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 their 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."
Although the points raised by the Commission are of a general nature, in the petition they aver that the points in question have arisen in the course of their consideration of whether to make references to this court in the cases of William Gray and James Bernard. These men were convicted of murder in 1992 and their appeals against conviction were refused by the Appeal Court in 1994: Gray v. H. M. Advocate 1994 J.C. 105. The allegations which the Commission are investigating concern members of the jury. One juror is said to have visited the locus during the trial and to have subsequently discussed it with three other jurors. There is also a suggestion that one of the co-accused formed an association with two female members of the jury and that there was a risk that their views had been influenced by that relationship. We need say nothing more about these matters than to indicate that the Commission's averments in the petition disclose a relevant basis for seeking the opinion of the court under Section 194D(3) as to their powers of investigation.
[3]In their petition the Commission originally asked for the opinion of the court on four questions:
"1.whether the petitioners are entitled to carry out their statutory responsibility to investigate alleged miscarriages of justice in any manner and by any means they see fit which are permitted under section 194F of the Criminal Procedure (Scotland) Act 1995;
2.whether the petitioners may undertake inquiries and obtain statements from witnesses, including jurors, in relation to questions of improper conduct amongst jurors and in relation to statements made and expressions of opinion given in the course of their deliberations within the jury room;
3.whether, if the petitioners are entitled to make inquiries and obtain statements in terms of question 2 above, there are limitations or qualifications attaching to that entitlement; and
4.if there are limitations or qualifications attaching to the petitioners' entitlement, what are the limitations or qualifications."
[4]At the initial hearing of the petition Mr. Allan, who appeared for the Commission, still sought answers to all four questions but, in the light of the discussion at that stage, he later informed us that the Commission now accepted that they were bound by Section 8 of the 1981 Act. They also accepted that their power, under Section 194F, to "take any steps" which they considered appropriate did not include a power to take steps which would constitute a contempt of court under Section 8. In these circumstances the Commission did not insist on us answering the first question. The remaining questions appear to us to involve a considerable degree of overlap. We have therefore thought it preferable to indicate our views on the points raised without returning specific answers to the questions. In dealing with the issues raised by those questions, however, we should make it clear that we proceed on the basis that we are satisfied that Section 8 does indeed bind the Commission.
[5]Section 8 provides that it is a contempt of court "to obtain, disclose or solicit" particulars of various matters which took place "in the course of [the jurors'] deliberations in any legal proceedings". The reference to the course of the jurors' "deliberations" must have been intended to restrict the ambit of the section: if Parliament's intention had been to cover the whole period from the time when the jurors were empanelled, the subsection need not have included the words "in the course of their deliberations". Common usage among practitioners in our criminal courts indicates that the "deliberations" of a jury occur when the jurors are considering their verdict after having been directed by the judge to retire to do so. That is the moment when the jury engage in the formal discussion of the evidence and determine the accused's guilt or innocence. A discussion of this kind is a solemn matter, appropriately described by the term "deliberations". Nor do we see anything in Section 8 as a whole which points to the term being used in any other sense in this context. We find support for our interpretation in the decision of the Court of Appeal in R. v. Young [1995] 2 Cr. App. R. 379. Their Lordships held that the term "deliberations" covered what occurred while the jury were considering their verdict in the jury room but not what happened while the jurors were accommodated in a hotel overnight during their retirement. A similar approach to the meaning of "deliberations" was adopted by the Court of Appeal in R. v. Brackley and Weller 3 November 2000 unreported.
[6]We should add that, in our experience, in trials in the High Court judges and counsel have always operated on the basis that, during the running of a trial before they retire to consider their verdict, jurors can be asked questions about what has occurred in the jury room. For instance, where a juror has become "tainted" for some reason, the judge will frequently ask the juror whether she has discussed the objectionable matter with other members of the jury. In an obiter passage in McCadden v. H. M. Advocate 1985 J.C. 98 at pp. 101 - 102 Lord Justice Clerk Wheatley, giving the opinion of the court, might seem to have implied that such investigations during the running of a trial were justified only because the jurors' answers were exempted from the scope of Section 8(1) by falling within the terms of subsection (2)(a). Presumably, they were thought to fall into the category of disclosures "in connection with the delivery of [the jurors'] verdict". For the reasons which we have given we are satisfied that the same practical result can be reached by giving proper weight to Parliament's use of the...
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