R v Ford (Royston)
| Jurisdiction | England & Wales |
| Judge | THE LORD CHIEF JUSTICE |
| Judgment Date | 25 July 1989 |
| Judgment citation (vLex) | [1989] EWCA Crim J0725-8 |
| Docket Number | No. 7196/S/88 |
| Court | Court of Appeal (Criminal Division) |
| Date | 25 July 1989 |
[1989] EWCA Crim J0725-8
The Lord Chief Justice of England (Lord Lane)
Mr. Justice Rose
and
Sir Bernard Caulfield
No. 7196/S/88
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
MR. P.P. HERBERT appeared on behalf of the Applicant.
MR. P. RICHARDS appeared on behalf of the Crown.
In the Crown Court at Cardiff on 26th September last year, this applicant, Royston James Ford, pleaded guilty to count 2, which was a charge of driving whilst disqualified. On 30th September he was convicted on counts 1 and 3. Count 1 charged him with driving a conveyance which had been taken without authority, and count 3 charged him with reckless driving. He was acquitted on counts 5 and 6. Those were assaults with intent to resist arrest. There was a further count, count 4, which alleged wounding with intent. The jury were unable to agree upon that. The learned Judge ordered a retrial, and in due course, when he was tried again for that, the jury aquitted him.
The sentences imposed upon him were three months' imprisonment in respect of driving the conveyance taken without authority (count 1), nine months' imprisonment concurrent in respect of driving whilst disqualified – the count to which he pleaded guilty – and the sentence was nine months' imprisonment concurrent on the charge of reckless driving.
There is now an appeal by leave of this Court by the appellant in respect of the convictions on counts 1 and 3.
The facts of the case are immaterial for the purposes of this judgment, save to say that the police chased this man driving a motor vehicle, which they thought had been taken without authority. They alleged that he had driven it recklessly whilst he was being chased and he admitted, as already indicated, that he was disqualified from driving at the material time. The three further counts of assault upon which he was acquitted, two at the first trial and one eventually at the second trial, arose out of incidents which happened after the car had stopped and the police endeavoured to arrest this man.
The points taken by Mr. Herbert on behalf of this appellant are these. First of all he submits that the learned Judge was wrong in declining to accede to an application for a multi-racial jury. Secondly it is alleged that the learned Judge prevented defence counsel from effectively putting his case as to the police officer's motives for giving evidence, which the appellant was alleging was cogent evidence. Thirdly he complains that the Judge interrupted learned counsel in his conduct of the case in such a way as to produce an injustice. Finally he submits that the learned Judge was biased in the way he conducted the case.
We deal first of all with the fact that the learned Judge refused the application for a multi-racial jury.
This is a problem which has arisen more than once in recent months, and it is likely to be a problem that will arise again. Consequently it seems to us that it is necessary to give careful thought to the way in which a learned Judge should approach the problem.
At common law a Judge has a residual discretion to discharge a particular juror who ought not to be serving on the jury. This is part of the Judge's duty to ensure that there is a fair trial. It is based on a duty of the Judge expressed by Lord Campbell, Chief Justice, in Mansell (1857) 8 E. & B. 54, and he expressed it as a duty "to prevent scandal and perversion of justice". A Judge must achieve that for example by preventing a juryman from serving who is for example completely deaf or blind or otherwise incompetent to give a verdict.
It is important to stress however that that is to be exercised to prevent individual jurors who are not competent from serving. It has never been held to include a discretion to discharge a competent juror or jurors in an attempt to secure a jury drawn from particular sections of the community, or otherwise to influence the overall composition of the jury. For this latter purpose the law provides that "fairness" is achieved by the principle of random selection.
The way in which random selection should take place is a matter not for the Judge but for the Lord Chancellor, as we endeavoured to point out in the course of argument to Mr. Herbert by citing the relevant portion of the Juries Act 1974, which is section 5(1). That reads as follows:
"(1) The arrangements to be made by the Lord Chancellor under this Act shall include the preparation of lists (called panels) of persons summoned as jurors, and the information to be included in panels, the court sittings for which they are prepared, their division into parts or sets (whether according to the day of first attendance or otherwise), their enlargement or amendment, and all other matters relating to the contents and form of the panels shall be such as the Lord Chancellor may from time to time direct."
There are several cases which give examples of this residual discretion. It may be exercised even in the absence of any objection by any of the parties. The basic position is that a juror may be discharged on grounds that would found a challenge for cause. In addition jurors who are not likely to be willing or able properly to perform their duties may also be discharged.
Those grounds are again set out in the judgment of Lord Campbell, Chief Justice, in Mansell, already referred to, when he said this:
"If a juror is completely deaf, or blind, or afflicted with bodily disease which rendered it impossible for him to continue in the jury-box without danger to his life, or were insane or drunk, or with his mind so occupied by the impending death of a near relative that he could not duly attend to the evidence."
That was repeated in different words by Lord Justice Lawton in the case of Mason (1981) Q.B. 881, 887. Lord Justice Lawton gave as an example of common judicial intervention exclusion from the jury of a member of the panel who is infirm, has difficulty in hearing or one for whom taking part in a long trial would be unusually burdensome.
That discretion has now been confirmed by express statutory provision in the Juries Act 1974, section 10; and the Practice Direction to be found in (1988) 3 All E.R. 177 expressly provides for excusal of jurors at the Court's discretion on grounds of "personal hardship or conscientious objection to jury service". It does not however envisage excusal on more general grounds such as race, religion or political beliefs.
On occasion however, as Mr. Herbert has pointed out to us by citing certain cases, in particular the case of Binns (1982) Crim. L.R. 522, trial Judges have been invited to exercise their discretion not merely to remove an individual juror, but to go further and use the power of discretionary discharge to alter the composition of the panel or of a particular jury.
The most common cases in which this question has arisen have involved questions of ethnic groups where it has been suggested that the jury should consist partly or wholly of members of that same ethnic group. Those applications provide particular difficulty for the learned Judge and the present case is a very good example. They arise without warning and are usually argued without any reference to authority, as indeed was very largely the case in the present instance.
There have been occasions on which it has been accepted that such a discretion exists, most notably Thomas (1989) 88 Cr. App. R. 370, where the prosecution conceded, and the Judge accepted, that such a discretion did exist, albeit, it was added, that it was only to be exercised sparingly and in very exceptional circumstances.
In the judgment of this Court that concession made in Thomas was not correct. The trial Judge had no discretion to interfere in that way with the composition of the panel or of an individual jury.
It is important to note the nature of the objection to the juries in question, and of the discretion that is supposed to meet that objection.
The racial composition of a particular panel or part panel would not be grounds for challenge to the array. A challenge to the array is a challenge to the whole panel on the ground of some irregularity in their summoning by the officer responsible.
In Danvers (1982) Crim. L. R. 680, an application was made to challenge the array at the trial of a defendant of West Indian origin, when all members of the jury panel were found to be white. The application was made on the ground that the jury panel did not reflect the ethnic composition of the community, and on the further ground that an all-white jury could not understand the mental and emotional atmosphere in which black families live, so that a black defendant could not have unreserved confidence in an all-white jury. Not surprisingly, due to the fact that the challenge contained no allegation that the all-white jury panel was the result of bias...
To continue reading
Request your trial
-
R v Smith (Lance Percival)
...victim and defendant. 28 Under section 2 of the 1974 Act, the responsibility for the summoning of jurors is that of the Lord Chancellor. In R v Ford (1989) 89 Cr App R 278 it was held in this Court, Lord Lane CJ presiding, that a trial judge has no power to empanel a jury, let alone a discr......
-
R v Abdroikov; R v Green; R v Williamson
...of a juror. He also refers to the residual discretion of the judge at common law which was explained by Lord Lane CJ in R v Ford (1989) 89 Cr App Rep 278 at 280: "At common law the Judge has a residual discretion to discharge a particular juror who ought not to be serving on the jury. This ......
- Hinds (Rodney) v R
-
Hinds v The Queen
...2) [1964] 2 Q.B. 322 at p.327,) by Lawton, L.J. (see Mason [1981] Q.B. 881 at p.887 (G-H) and, most recently, by Lord Lane, C.J. in Ford [1989] Q.B. 868. The discretion may and should be exercised where an individual juror is obviously incompetent to act but, for whatever reason, counsel do......
-
The Criminal Jury in England and Scotland: The Confidentiality Principle and the Investigation of Impropriety
...at first instance refused to allow this, and on appeal this decision wasupheld by the High Court of Justiciary. 75 R v Ford (Royston) [1989] 3 All ER 445.76 For instance, an Afro-Caribbean witness is unlikely to look a questioner in the eye. This may interpreted by a white juror as a sign t......
-
Subject Index, Volume 77, 2004
...177–180R v E, April 2004, CA (Crim) 184R v Fagin ex p. Mountstephen [1996] COD 416 224R v Forbes (2000) UKHL 66 269, 270, 271R v Ford (1989) QB 868 275R v Fox, Campbell and Hartley (1990) 13 EHRR 157 263, 264R v Geddes [1996] Crim LR 895 242R v Gomez [1993] AC 442 249R v Gribben (1999) NIJB......
-
Trial by Jury: Still a Lamp in the Dark?
...of those who were involved in theadministration of justice professionally did not offend the principle of fairness.53 R vFord (Royston) [1989] QB 868 applied in R vSmith (Lance Percival) [2003] EWCACrim 283, [2003] 1 WLR 2229. The right to challenge jurors without cause wasabolished by the ......
-
Reigniting the Lamp: The Case for Including People who are Blind or Deaf as Jurors
...59 [70]; R v Searle (1993) 2 VR 367 (Marks and McDonald JJ); Johns v The Queen [1979] HCA 33 [15] (Gibbs J). See generally R v Ford (1989) 89 Cr App R 278; R v Mason (1980) 71 Cr App R 157; R v Burns (1883) 9 VLR 191, 193-194. 21 Rachel Heather Hinckley, ‘Evading Promises: The Promise of Eq......