Queen v Clarke (Michael Patrick) and McStravick (Stephen Paul) Ruling No. 4
| Jurisdiction | Northern Ireland |
| Judge | McCloskey J |
| Judgment Date | 2010 |
| Neutral Citation | [2010] NICC 7 |
| Date | 01 February 2010 |
| Court | Crown Court (Northern Ireland) |
1
Neutral Citation No. [2010] NICC 7 Ref:
McCL7733
Judgment: approved by the Court for handing down Delivered:
01/02/10
(subject to editorial corrections)*
IN THE CROWN COURT IN NORTHERN IRELAND
________
[BELFAST]
________
THE QUEEN –v- MICHAEL PATRICK CLARKE
and
STEPHEN PAUL McSTRAVICK
________
RULING NO. 4: SECTION 46, CRIMINAL JUSTICE ACT 2003
________
McCLOSKEY J
I INTRODUCTION
[1] This is the ruling of the court under Section 46 (3) of the Criminal Justice Act
2003, which applies in circumstances where the jury sworn to try an accused person/s
has been discharged on account of tampering. Where discharge occurs for this reason,
the trial judge is empowered to continue without a jury. The question to be determined
is whether it is appropriate to exercise this power in the present case.
II THE ISSUE
[2] The Defendants are jointly charged with the six offences specified in the Bill of
Indictment. These consist of one count of robbery, three counts of false imprisonment
and two counts of kidnapping. All of the offences are alleged to have occurred on 28th
May 2008. The locations of this alleged offending are, in sequence, a private residence
at an address in County Down; a house on the Ravenhill Road, Belfast; and at Duncrue
Road, Belfast. Collectively, the alleged offences disclose a soi-disant “tiger kidnapping”
scenario.
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[3] The events precipitating this ruling arose initially on the eleventh day of trial,
when a note was received from the jury foreperson. At this stage of the trial, the
prosecution case had closed and the court had just rejected an application on behalf of
the Defendants that verdicts of not guilty should be directed on the ground of no case
to answer. The court had been informed that all that remained of the trial was the
evidence of the two Defendants, to be followed by the conventional closing addresses.
The note having been received, the juror concerned was separated from the other jury
members from the outset of this phase of the trial. It appears that upon the juror’s
arrival at the courthouse, the aforementioned note was handed to a jury keeper, who
immediately took this sensible step.
[4] The contents of the note were duly probed by me, mainly in open court, in the
presence of the two Defendants, their legal representatives and prosecuting counsel.
No other person was permitted to be present. With the consent of all parties, a little
further probing occurred in chambers, with a stenographer present. The main purpose
of this part of the exercise was to ascertain whether the juror would reveal the names
and addresses of certain protagonists. She seemed to me unlikely to do so in open court
and, further, I had a duty to treat this frightened lady as humanely as possible,
consistent with the Defendants’ right to a fair trial. The ensuing transcript was
disclosed immediately to all parties’ legal representatives and is attached [see
Appendix 1]. The questioning was designed to ensure that the transcript is
comprehensive of all matters probed and ventilated both in open court and in
chambers.
[5] After the parties’ legal representatives had considered the transcript, the court
reconvened. All were agreed that the juror concerned should be discharged, without
further ado. I duly discharged the juror. Upon being discharged, the juror concerned
was instructed not to make any contact with any of the other jurors. Ultimately, at
around 12.30pm, the remaining eleven jurors were discharged for the rest of the day.
[6] As appears from the transcript the person who was involved in the telephone
communication with the relevant juror’s son-in-law stated, inter alia, “We are all going
down to court on Monday” [viz. the tenth day of trial]. At the time of making the
aforementioned ruling, it seemed improbable that the caller would have known that the
jury had been excused from attendance on that day, to enable the court to deal with an
application for a direction of no case to answer and any related matters and to make
rulings. Further, I was informed that on the morning of the tenth day of trial, a larger
than normal group of persons assembled in the public gallery. This was notable, as the
public gallery had been virtually deserted, and was sometimes empty, from
approximately the third day of trial.
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[7] A reporting restrictions order under Section 4(2) of the Contempt of Court Act
1981 concerning the entirety of the proceedings on the eleventh day of trial was made
without delay.
[8] Logically, the next question to be addressed was what was to become of the
remaining eleven jurors. An adjournment ensued, to enable the police to conduct some
preliminary enquiries into the matter. The court reconvened the following day (viz. the
twelfth day of trial). At that stage, I exercised my power under Article 26B (9) of the
Juries (Northern Ireland) Order 1996 (as amended) to authorise disclosure by the
Northern Ireland Court Service of the personal particulars of the juror concerned to the
police, to facilitate their enquiries.
[9] All of the parties uniformly advanced the submission that the court should
discharge the remainder of the jury. In The Queen –v- Mackle and Others [2007] NIQB
105, it is recorded in paragraph [9] that in determining to discharge the entire jury in
circumstances of intimidation of a single juror, Hart J stated:
“I think in those circumstances there is really no
alternative but to discharge the jury because one does not
know whether there have been similar approaches to other
jurors and a mere reference to that or any inquiry, I think,
would lead to a situation where one would have prejudiced
the jury against the accused”.
Thus it is apparent that the learned judge considered, and rejected, the possibility of
assembling the remaining eleven jurors and attempting to question them (whether
individually or collectively) in appropriate terms, with a view to ascertaining whether
any of them had been the subject of any kind of improper approach or communication
or otherwise felt unfairly disposed against the accused.
[10] By the twelfth day of trial, it was unavoidably apparent to the remaining eleven
jurors that their foreperson no longer counted as one of their members. I considered
that this would inevitably stimulate unhealthy speculation about why this had
occurred, notwithstanding the clear instruction given by the court the previous day,
when no evidence was adduced in their presence and an unforeseen adjournment
ensued, following a delay of some two hours. It seems to me that one must constantly
bear in mind that in this field appearances are all important. The principles are
summarised in Ruling No. 1, given on 8th January 2010 [McCL7712]: see paragraphs [8]
– [11]. I consider that, in this sphere, a possibility of contamination or infection which is
not trivial or fanciful is sufficient to warrant the discharge of a jury, while treating this
always as a measure of last resort.
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2 books & journal articles
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Indexes
...vCF 2010 ONCA691 . . . . . . . . . . . . . . . . . . . . 141R vClark [2003] EWCACrim 1020 . . . . . . . . . . 141R vClarke and McStravick[2010] NICC 7 . . . . . 90 THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF 373TABLE OF CASESR vCM 2010 ONCA690. . . . . . . . . . . . . . . . . . . . 141R v......
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The Prosecution of Organised Crime: Removing the Jury
...Ibid. at [20].45 R v S 2010] Crim LR 643, comment by N. Taylor.46 R v Guthrie [2011] EWCA Crim 1338 at [25].47 R v Clarke and McStravick [2010] NICC 7.48 Ibid. at [38].49 Ibid. at [47].50 R v Guthrie [2011] EWCA Crim 1338.51 Ibid. at [13].52 Ibid. 90 THE INTERNATIONAL JOURNAL OF EVIDENCE & ......