R v Hambery
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE LAWTON |
| Judgment Date | 24 March 1977 |
| Judgment citation (vLex) | [1977] EWCA Crim J0324-12 |
| Docket Number | No. 4774/B2/76 |
| Court | Court of Appeal (Criminal Division) |
| Date | 24 March 1977 |
[1977] EWCA Crim J0324-12
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Lord Justice Lawton
Mr Justice MacKenna
and
Mr Justice Gibson
No. 4774/B2/76
MR C. R. ABLE appeared on behalf of the Appellant.
MR N. PHILPOT appeared for the Crown.
The judgment which I am about to read is the judgment of the court. It has been seen by Mr Justice Gibson and approved by him.
This appeal calls for consideration of these questions: first can a judge discharge a juror in the course of a trial and byre the jury retires to consider its verdict merely because that juror has arranged to go on holiday before the trial was likely to end? Secondly, if the judge in this case had power to discharge a juror for this reason, and did so, can his decision be challenged in this Court?
On August 2, 1976 at Croydon Crown Court the Appellant was convicted of theft and three offences of false accounting. He was sentenced to concurrent sentences of 12 months' imprisonment for theft and four months' imprisonment for each of the offences of false accounting. A suspended sentence of two years' imprisonment passed upon him on June 17, 1974 was ordered to be put into effect consecutively to the sentences for the offences on the indictment which had been committed during the period of suspension.
He now appeals against conviction by leave of the single Judge. In his notice of appeal he raised a number of points about the summing-up and in addition alleged that there had been a material irregularity in the course of the trial because of the discharge of a juror. The single Judge thought little of the complaint about the summing-up and gave leave because of the alleged material irregularity. Mr Rabie, who appeared before this Court on behalf of the Appellant, did not make any submissions about the summing-up. He directed his attention solely to the alleged irregularity.
For the purposes of this appeal all that need be said about the offences themselves is that the Appellant was employed to sell household goods on commission. He stole some of them and tried to cover up what he had done by making false entries in the records he was required to keep.
The trial started on Monday, July 16, 1976. It was expected to last not more than about three to four days. The jurors who were empanelled had been summoned for jury service for the week ending on Friday, July 30. The trial took longer than was expected. The Judge, his Honour deputy Judge Campbell-Salmon, started his summing-up on the Friday morning. After the midday adjournment he told the jury that it was unlikely that the case would finish that day and that there was a possibility that they might have to come back to court on the Monday. The following exchange then took place between the Judge, the jury and counsel: "Judge: 'What do you say about that, is anyone going on holiday?' Member of the jury (a lady): 'Yes, I am going on Saturday.' Member of the jury: 'So am I.' The Judge: 'Where are you going?'
Member of the jury: 'Somerset.' The Judge: 'Where are you going?' Member of the jury: 'I am going camping but it can be delayed.' The Judge: 'Could it be delayed?' Member of the jury: 'Yes.' The Judge: 'I am very sorry, it is not my fault, I have got to do the case properly, we have to have a fair trial. It may be you may have to delay your camping till Monday but in the case of the lady, if she is going to South Devon t" - that was the place he mentioned - "II think I have the power to release you and go on with eleven. No-one would object to that would they?' Mr Rabie: 'I would like to consult my client.' The Judge: II think I have the power. Perhaps you could look it up.'"
The Judge then continued with his summing-up. Later in the afternoon there was a short adjournment. When he came back into court he said: "To the lady who wants to go to Somerset, I have power to discharge you from any further service on this jury. I expect you would like to go now."
The lady juror thanked the Judge and left the jury box. The Judge then said: "That arises under Section 16 of the Juries Act, 1972" - that was a mistake as it was 1974.- "I am afraid to say you will have to carry on, but I am sorry about that. We will go on with eleven jurors."
He continued his summing-up. When he had finished, which was on the Monday, the jury retired. They returned unanimous verdicts of guilty on four counts.
Mr Rabie submitted first, that the judge had no jurisdiction to discharge the juror; secondly, that if he had jurisdiction he exercised it wrongly; and thirdly, that this court has jurisdiction to review the exercise of any discretion the judge may have had to discharge a juror.
The judge purported to act under section 16(1) of the Juries Act, 1974, which is in these terms: "(1) Where in the course of a trial of any person for an offence on indictment any member of the jury dies or is discharged by the court whether as being through illness incapable of continuing to act or for any other reason, but the number of its members is not reduced below nine, the jury shall nevertheless (subject to sub-sections (2) and (3) below) be considered as remaining for all the purposes of that trial properly constituted, and the trial shall proceed and a verdict may be given accordingly." In this appeal sub-sections (2) and (3) have no application.
Sub-section (1) does not expressly confer upon the Judge a power to discharge a juror. It provides that if a juror is discharged, the jury shall be considered as remaining for all the purposes of the trial. What the sub-section does is to set out what the consequences of discharging a juror shall be. The reason why the sub-section is in this form is to be found in the past.
From Sir Edward Coke's time until 1866 there was doubt whether a jury "sworn and charged in a case of life or member" could "be discharged by the court or any other, but they ought to give their verdict": see Co. Litt. 227 b and Hawkins' Pleas of the Crown (1787), vol 2, 622. According to Hawkins' this rule did not apply in what he described as "cases of an inferior nature". Whatever may have been the rule in Coke's time (and it is doubtful whether his statement of the law was correct) by the second half of the 18th century, it was accepted that a jury could be discharged before verdict "in cases of evidence necessity": see Blackstone's Commentaries, (1857 edition) vol 4, 425. "A case of evidence necessity would occur if a juror became so ill as to be unable to continue (see Gray v. R. 11 C & F. 427) and probably if one or more jurors misbehaved (see Hawkins, p. 221). But when a "case of evident necessity" involving one or more jurors did occur, the whole jury had to be discharged. Whatever doubts about the discharge of juries existed before 1866 they were dissipated in that year by the decision of the Exchequer Chamber in R. v. Winsor, L.R. 1 Q.B. 391. This was an appeal on writ of error.
Chief Justice Erle delivering the judgment of the court, said at p. 394: "We assume it to be clear that the discharge of the jury before verdict may be lawful at some time and...
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