Pullar v HM Advocate
| Jurisdiction | Scotland |
| Judgment Date | 26 February 1993 |
| Neutral Citation | 1993 SCCR 514 |
| Docket Number | No. 19 |
| Date | 26 February 1993 |
| Court | High Court of Justiciary |
JC
L.J.-G. Hope, Lords Allanbridge, Cowie
Procedure—Solemn proceduremdash;Trial—jury—whether sheriff ought to have directed members of jury at the outset of trial that, should they have personal knowledge of the subject-matter of the charge on the indictment or of any of the persons named in the indictment, then they should bring that fact to the attention of the court—Juror employee of principal Crown witness—Unempanelled jurors—Stage at which unempanelled jurors should be released—Verdict—Majority verdict of guilt—whether majority should be ascertained—Whether miscarriage of justice
The appellants were convicted by a majority verdict of corruptly soliciting money while acting as members of a regional council in respect of an application for planning permission which was to be considered by the council for a proposed service area contrary to sec. 1 (1) of the Public Bodies Corrupt Practices Act 1889. The person who had been cited for jury service had been at the time an employee of the firm of which a principal Crown witness was a director and had been given notice of redundancy a few days before the trial. No challenge had been made or objection taken when his name was called on being balloted and he served as a juror. The sheriff omitted to inform the jurors that, should they have personal knowledge of the subject-matter of the charge or of any of the persons named in the indictment, they should bring this to the attention of the court. The trial thereafter began without it having been disclosed to the sheriff by anybody that this person was employed by the firm. However, at the preliminary stage, when the potential jurors were being spoken to by the clerk of court prior to the diet being called the employee had been asked whether he knew either of the accused or the circumstances of the case to which his answer had been in the negative. The unempanelled jurors were released after the first witness in the trial had been sworn.
The Crown witness became aware that the employee was on the jury about an hour after the trial had started while he was waiting in the witness room and brought the matter to the attention of the clerk of court. The clerk of court, without consulting the sheriff, did not think there was anything objectionable in the juror remaining on the jury. The employee had made it known when he had arrived at court that he was employed by the firm but the clerk of court at the time did not think it necessary to draw the information which he had been given to the attention of the sheriff, the Crown or the defence. In the course of addressing the jury counsel for one of the appellants asked the jurors to inform the court if they knew anything at all about two of the Crown witnesses, one of whom was the director in question. Counsel did this not knowing that the employee was in fact employed by the firm. On being convicted the appellants appealed to the High Court of Justiciary by way of note of appeal against conviction.
Held (1) that, although there was no doubt that if something was brought to the attention of the presiding judge in open court during the progress of the trial which suggested that a juror ought to be excused, justice would not be seen to be done if he were to refuse to listen to the point or did not give an opportunity for grounds to be stated in open court under sec. 133 of the Criminal Procedure (Scotland) Act 1975 as to why a juror should be excused, it was a different matter if no objection of that kind was made known to him in open court while the trial was in progress, the assumption being that the jury which had been empanelled in terms of the statute was one which could be entrusted with the responsibility of reaching a true verdict according to the evidence, so that the fact that a juror was afterwards discovered to have some knowledge of the case or of the persons named in the indictment was not of itself to be taken to mean that there was a miscarriage of justice; (2) that there was no way in which the court could ensure that all persons who d knowledge of the case or might be thought to be prejudiced would disclose this fact to the court and it would be impracticable for the clerk to go through the lists of witnesses, including defence witnesses, in order to discover whether any of them were known to any of those who might be balloted to serve as jurors so that, if a problem of this kind occurred when the trial was over, the question must be whether a miscarriage of justice had in fact occurred; (3) that although mistakes might occur which resulted in the presence on the jury of someone who ought not to have been allowed to serve on it, these should not in themselves be held to invalidate the verdict which had been returned by the jury as a whole; (4) that if a juror had indicated that he had a prejudice against the accused or knew one of the parties named in the indictment it was not to be assumed that the juror's prejudice or knowledge would have led him to ignore the evidence and the directions by the trial judge and to vote only on the basis of personal prejudice in defiance of his oath; and (5) that as nothing occurred in open court in the presence of the sheriff or had been drawn to his attention at any stage during the proceedings in the case to suggest that the employee's presence on the jury might be objectionable, on this ground there had been no miscarriage of justice; and appeals refused.
Opinion (1) that when unempanelled jurors arrive in court the clerk of court should (a) tell them the name or names of the accused whose case is to be tried; (b) remind them at that stage that if they knew the accused they should make this known to the clerk; (c) tell them the name of the complainer or of anyone else who was sufficiently important to the case to have been named in the charge or charges in the indictment for, as the aim was to eliminate the risk of prejudice to the accused so far as possible, it was appropriate that they should be given this information so that if they knew any of the persons involved the clerk might be made aware of this fact; (2) that it was in the discretion of the trial judge to remind the jury, when they were empanelled and ready to try the case, that if they felt that there was any reason why they should not serve on a jury they should inform the court of this fact immediately and, although there should be no questioning of the jury in order to find out whether or not any of them should be excused, if the trial judge thought it desirable he should simply ask them or tell them to let the court know if they thought there was any particular reason why they should be excused and remind them at that stage that they should take that step if they knew the accused or any person named in the charge or charges in the indictment; (3) that the stage at which unempanelled jurors should be released depended on whether there was to be an adjournment before any evidence was led so that, if there was to be an adjournment, the unempanelled jurors must not be released until the jury had returned to the jury box and the court was in a position to start the trial and, if there were to be no adjournment and it was clear that the court was in a position to start the trial immediately, the unempanelled jurors could be released then, it not always being necessary for the further step to be taken of requiring the first witness to enter the witness box and take the oath, albeit that it was in the discretion of the trial judge not to release the unempanelled jurors until this further step had been taken if he thought this appropriate; and (4) that it was the duty of all those in attendance in the court who had become aware during the trial of circumstances which might suggest that a juror had personal knowledge of the case or might be suspected of being prejudiced to draw this at once to the attention of the presiding judge so that such steps could then be taken as might be appropriate, but it was not appropriate for counsel to take the step, when he was addressing the jury, of asking them to disclose at that stage whether they had any interest, for these were matters for the presiding judge and the proper time to put the point to the jury was after they had been empanelled but before any evidence was led, there being provision in sec. 133 of the 1975 Act to cover the situation where a particular reason at a later stage for a suggestion that a juror should be excused arose.
Opinion reserved on whether the jury should be asked after a majority verdict of guilt had been returned how many of them were in favour of that verdict.
Robert Alexander Pullar and Raymond Anthony Mennie were charged on an indictment at the instance of the Rt. Hon. The Lord Rodger of Earlsferry, Q.C., Her Majesty's Advocate, the libel of which set forth that: "[Y]ou, being members and councillors of Tayside Regional Council, being a public body within the meaning of sec. 7 of the Public Bodies Corrupt Practices Act 1889 and sec. 4 (2) of the Prevention of Corruption Act 1916 and being members of the planning committee of said council, did, on … 15th February 1991 … and at the offices of McBains Cormack, Quantity Surveyors, South Methven Street, Perth, corruptly solicit from Alastair David Cormack, partner in...
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