R v Mason
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE LAWTON |
| Judgment Date | 03 June 1980 |
| Judgment citation (vLex) | [1980] EWCA Crim J0603-10 |
| Docket Number | No. 2795/R/79 |
| Court | Court of Appeal (Criminal Division) |
| Date | 03 June 1980 |
[1980] EWCA Crim J0603-10
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Lord Justice Lawton
Mr. Justice Michael Davies
and
Mr. Justice Balcombe
No. 2795/R/79
MR. D. MARTIN Q.C. and MR. GARSIDE appeared as Counsel on behalf of the Applicant.
MR. D. BARKER Q.C. and MR. D. BRUNNING appeared as Counsel on behalf of the Crown.
MR. S. BROWN and MR. J. LAWS appeared as amici curiae.
This applicant, Vincent Mason, on 30th April and 1st May, 1979 was convicted in the Crown Court at Northampton before his Honour Judge MacGregor, after a trial lasting five weeks, on two counts of burglary (counts 3 and 6) and two counts of handling stolen goods (counts 2 and 5). The handling counts were alternatives to counts of burglary (counts 1 and 4), and the property mentioned in them consisted of articles stolen in the course of the burglaries which had been committed. He was sentenced to concurrent terms of five years' imprisonment on each of the burglary counts and to two years' imprisonment on each of the handling counts. He now applies for leave to appeal against his convictions.
The four burglaries charged in the indictment were of country houses situated within 20 miles of one another in Derbyshire, and all within a night's operating distance for a burglar from Salford, where the applicant lived. They were committed within a period of seven and a half months. On each occasion valuable antiques were stolen. On three of the four occasions the burglar or burglars hid the stolen articles near the house, the inference being that whoever was taking part would be travelling from the houses to base by road at night and did not wish to be found by the police in possession of stolen articles. On two occasions the burglar or burglars carried with them gas cylinders which, when attached to cutting appliances, could be used for gaining entry. Similar cylinders of identical make, one with a blowlamp attachment, were found in the applicant's house when it was searched. Antiques from three of the houses either were or had been in the applicant's possession. A pair of Georgian silver wine coasters, stolen from Ashford Hall during the night of September 10-11, 1976, were entered by him for an auction which took place in London on 29th April, 1977 An eighteenth-century French mantel clock, stolen from Windley Hall in the early hours of 11th March, 1977 was found in his possession on 5th May, 1977, as were a gold key and a lump of gold which came from Kedleston Hall, which was burgled during the night of 22nd-23rd April, 1977. Scientific examination revealed that the gold had come from gold leaf stripped from an ornamental pagoda which had been stolen from Kedleston Hall during the burglary and which had been recovered by the police on 27th April, 1977.
When interviewed by the police the applicant made a number of oral statements which were consistent with his knowing that the burglaries had taken place and his being in close touch with the burglars. At his trial he put forward alibi defences in respect of two of the burglaries, those at Tissington Hall and Kedleston Hall. The jury rejected both alibi defences. The one relating to Kedleston Hall had clearly been fabricated and involved the production of a forged hotel register. The evidence of the applicant's participation in the Tissington Hall burglary was very strong. Part of the property stolen from that house had been hidden nearby in cushion covers and half a curtain. Cushion covers having a similar stitching and the other half of the curtain were found in the applicant's house.
The applicant handed in a notice of appeal at the prison on 31st May, 1979. He was three days out of time, but we have granted an extension. He stated that his grounds of appeal were being prepared by counsel. On 4th July, 1979 grounds of appeal settled by counsel were received by the Registrar. They were lengthy and related mainly to alleged misdirection about the evidence. After they had been submitted a journalist, so Mr. Martin Q.C. informed us, told someone representing the applicant that at his trial the jury had been empanelled in breach of the guidelines issued by the Attorney-General, Mr. S. C. Silkin Q.C. and communicated to Chief Constables, including the Chief Constable of Northamptonshire, by Home Office Circular No. 165/1975, dated 10th October, 1975. Inquiries on behalf of the applicant showed that this was so. As a result further grounds of appeal were submitted on 13th February, 1980. They can be summarised in the terms in which Mr. Martin made his submissions to the Court, namely, that before the applicant's trial the police in Northamptonshire had checked the names of those summoned to attend the Crown Court to form a jury panel against the criminal records kept locally. They had supplied prosecuting counsel in this. case (Mr. David Barker QC) with particulars of the convictions of those on the panel, which he had wrongly used for the purpose of asking some members of the panel, not disqualified by their convictions from serving, but whose names were called to serve on the jury to try the applicant, to stand by for the Crown.
As there was no record of what had happened when the jury were empanelled, I asked counsel and those instructing them to attend a pre-appeal review. Counsel were able to agree that Mr. Barker had asked four members of the jury panel to stand by for the Crown. His recollection was that he had asked one to do so because the officer in charge of the prosecution's case had told him that this member was known to him. The probabilities were that he had asked the others to stand by because, on the information supplied to him through the instructing solicitor, they had previous convictions. He could not remember whether they were convictions which would have disqualified them from service on a jury. As a result of further inquiries which were made following the directions which I gave, it was discovered that at least one of the three asked to stand by because of convictions was not disqualified thereby from jury service.
It is pertinent to record what was discovered when the jury panel was scrutinised by the police against the criminal records. Of the 100 persons believed by the jury officer of the Crown Court to be qualified for jury service and summoned to attend the Crown Court at the relevant time, the police on searching the local criminal records found that 10 appeared to have previous convictions. Of these, two had convictions for road traffic offences, but in one of these cases there was a conviction for driving with excess alcohol. In six cases, however, the convictions were not positively linked with members of the panel; there was nothing more than a similarity of names. Of those who were positively linked two were disqualified from service; and of these two one had served a sentence of five years' imprisonment for buggery; the other had numerous findings of guilt as a juvenile for a variety of offences, including burglary and indecent assault, and four years before the start of the trial, when he was about 17, he had been sent to a detention centre for six months for eight offences of criminal damage. The probabilities are that the member of the jury who was not disqualified, but who was asked to stand by for the Crown, had been found guilty as a juvenile in 1974 for two cases of burglary and two cases of theft. He had been made the subject of a supervision order.
We found these facts disturbing. The inference which we draw is that persons who are disqualified from jury service are not disclosing that they are so disqualified and that they are sitting on juries. We were told by Mr. Simon Brown, who appeared as amicus curiae, that since 1974, when the present qualifications for jury service were fixed by the Juries Act of that year, there have been only two prosecutions for serving on a jury whilst disqualified, which is an offence under s. 20(5) of the 1974 Act. In one of these two cases there was an acquittal; in the other the penalty imposed was a fine of £10. If two disqualified jurors can turn up in Northamptonshire out of 100 summoned, the number is likely to be much greater when a panel is summoned from an urban area with a high level of crime. This case reveals how over-optimistic the Master of the Rolls was when he said, obiter, in R. v. The Chief Constable of South Yorkshire (March 3, 1980):
"As a matter of practical politics, even if jury vetting were allowed, the chances are 1,000 to one against any juror being found unsuitable; and, if he should be, the chances of his being on any particular jury of twelve –so as to influence the result – are minimal –especially in these days of majority verdicts."
In this case had not Mr. Barker asked three jurors to stand by for the Crown there might have been two disqualified jurors and one with findings of guilt for burglary and theft on the jury which tried the applicant. As a result of what he did the members of the jury which was empanelled had no convictions. That at least is certain.
Mr. Martin in the course of his submissions accepted that he had to satisfy this Court that there had been a material irregularity in the course of the trial. This was because we exercise a statutory jurisdiction under which we can allow an appeal against conviction only if we think that one or more of three grounds for doing so have been established: see s. 2(1) of the Criminal Appeal Act 1968. The only relevant ground in this case was that relied on by Mr. Martin. He agreed that he could not rely upon what happened before the trial started as a material irregularity. Prosecuting counsel had knowledge about...
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