R v Chapman (William)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE JAMES |
| Judgment Date | 23 March 1976 |
| Judgment citation (vLex) | [1976] EWCA Crim J0323-8 |
| Docket Number | No. 483/R/76 |
| Court | Court of Appeal (Criminal Division) |
| Date | 23 March 1976 |
[1976] EWCA Crim J0323-8
Lord Justice James
Mr. Justice Michael Davies
and
Mr. Justice Jupp
No. 483/R/76
No. 484/R/76
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
MR. P. FEINBERG appeared for the Appellants.
MR. B.L. CHARLES appeared for the Crown.
On the 6th January, of this year, at the Crown Court at Chelmsford, Mr. Chapman and Mr. Lauday, the Appellants were convicted by a jury, unanimously, of an offence of burglary and a further offence of going equipped for burglary.
The Crown case was that they were caught red-handed. The defence case was that they were at the place where they were found for innocent purposes and the jury had to decide that issue. They did so adversely to the defence and so the conviction was recorded.
On the next day that followed a further trial took place. Upon that trial, which is not the subject of any proceedings in this Court, one or more of the jurors who had convicted the Appellants also served. In the course of the deliberations of that jury it came to the notice of the Foreman that one of their number was (and I use the expression for want of a better one) "hard of hearing". That fact, before the jury returned a verdict was reported to the Circuit Judge, Judge Petre. As a matter of history, the course taken by the Judge then was to discharge the jury from returning a verdict and ordering a new trial. In that case we are not concerned with the facts. It is relevant only from this aspect; in that way it came to the attention of the Circuit Judge and Clerk of the Court that the juror who was suffering from this disability of being "hard of hearing" had also served as one of the jury who had convicted the Appellants.
It was thought right to disclose that fact to the Appellants and their advisors so that they could take such action as they thought right, The action that they then took was to make an application to this Court for leave to appeal against conviction. That application came before the single Judge who, granting leave, ordered certain enquiries to be made. The single Judge was clearly impressed by the fact that this was an important issue and one that ought to be fully argued before the Court. As a result of the enquiries that were made there has come into existence a statement made by the "hard of hearing" juror, Mr. MacKay, and a statement by Mrs. Cleworth who is an executive officer discharging the jury duties – instruction of jurors as to where they go and what time they should arrive at the Grown Court, Those statements do not disclose anything of the proceedings between the members of the jury in the juryroom in the trial of the Appellants. This Court will not receive evidence from jurors as to what happened in the juryroom but this evidence does not go to that.
This evidence of Mr. MacKay we received de bene esse (and we will take note of it) is to the effect that in the trial of the Appellants he did not hear half the evidence because of his condition of hearing and he did not hear all that the Judge was saying because the Judge was sitting some distance away from him when summing-up. He provided particulars of the name of his doctor and as a result of the communication with the doctor it has been ascertained that Mr. MacKay is a gentleman who unfortunately is one of those who accumulates substantial quantities of wax in his ears in the ordinary course of life. For many years now he has had to have medical attention at times, going back to have his ears syringed. It so happens that very shortly after his service as a juror it was found that his attendance to the doctor was necessary to have his ears syringed.
The other evidence of Mrs, Cleworth which has been put in statement form, we also received de bene esse and we take note of it. It amounts to this. On each of the occasions upon which Mr. MacKay was called from the jury assembly room to take his seat in the jury box he answered to his name – but then one knows that persons who call out, deliberately call out in a loud voice and he may well have been able to hear people speaking in a loud voice. However, not every witness necessarily speaks in a loud voice when giving evidence in Court. So there may not be much in that. Certainly at no stage, until the conclusion of the trial of the other person or persons took place subsequently to the trial of the Appellants did Mr. MacKay disclose his disability. Had he done so, had he spoken up at any stage before the trial started, the Crown Court rules provide the machinery by which the alleged disability of the juror can be brought to the attention of the Judge and the juror can be told if he is entitled to be excused. If the juror who has disclosed a disability declines to be excused then the Court officer can still bring that matter before the Judge and the Judge has to decide whether the juror should serve or not. If he brought his disability to the attention of the Judge or counsel or Court staff at any time during the course of the trial before the jury retired, that is a matter which is then reported to the Judge and the Judge can make one of two decisions. He can enquire of the juror the extent of the disability, ascertain the effect in that way, and either the Judge will say, "I propose to carry on the trial with you serving" or he may say, "I propose to discharge the jury". He may not discharge the whole jury, he can discharge an indiviual juror and he does not have to get the consent of the prosecution or defence to do that.
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