R v Mirza; R v Connor and Rollock
| Jurisdiction | England & Wales |
| Judge | LORD STEYN,LORD SLYNN OF HADLEY,LORD HOPE OF CRAIGHEAD,LORD HOBHOUSE OF WOODBOROUGH,LORD RODGER OF EARLSFERRY |
| Judgment Date | 22 January 2004 |
| Neutral Citation | [2004] UKHL 2 |
| Date | 22 January 2004 |
| Court | House of Lords |
and another
(On Appeal from the Court of Appeal (Criminal Division))
(On Appeal from the Court of Appeal (Criminal Division)) (Conjoined Appeals)
[2004] UKHL 2
The Appellate Committee comprised:
Lord Steyn
Lord Slynn of Hadley
Lord Hope of Craighead
Lord Hobhouse of Woodborough
Lord Rodger of Earlsferry
HOUSE OF LORDS
My Lords,
The principal question:
These appeals raise the question whether evidence about the deliberations of a jury, which reveal a lack of impartiality on the part of the jury, is always inadmissible under the common law secrecy rule however compelling the evidence may be and however grave the circumstances of the lack of impartiality may be. Two examples will illustrate the point. A juror reveals after verdict that during the jury deliberations it emerged that some members of the jury were associated with a Neo-Nazi group and that they urged the conviction of the accused because he was a black immigrant. In the second example a juror reveals after verdict that a majority of the jury refused to deliberate and that the jury ultimately arrived at a verdict of guilty by spinning a coin. Nobody would seriously contest that such guilty verdicts would be the result of perverse processes by judicial tribunals. Neither example is fanciful or extreme: both were suggested to me by decided cases. Moreover, anyone versed in criminal practice would be able to match these hypothetical cases with other equally telling examples.
In the two appeals now before the House, viz Mirza [2002] EWCA Crim 1235; [2002] Crim LR 921; and Connor and Rollock [2002] EWCA Crim 1236, the Court of Appeal gave separate judgments on 13 May 2002. The thrust of the judgments given by the Vice President, Rose LJ, with the concurrence of Hunt and Keith JJ, was that the Court of Appeal was bound by the decision of a differently constituted Court of Appeal in R v Qureshi [2001] EWCA Crim 1807; [2002] 1 WLR 518, which had enunciated an absolute rule of the secrecy of deliberations of the jury after verdict. It follows that even in cases such as I have described the Court of Appeal would feel compelled by stare decisis to rule that it has no jurisdiction to examine a possible miscarriage of justice in this corner of the law.
It is inherent in the opinions of the majority delivered today that even in the exceptional cases postulated the evidence must always be excluded and the conviction upheld. That reflects the submissions of counsel for the Lord Chancellor who asserted "that the residual possibility (of a miscarriage of justice) is the necessary price for the preservation and protection of the jury system": Case para 53. In contradistinction counsel for the Director of Public Prosecutions, when taxed with the problem I identified in paragraph 1, acknowledged that the point is one of great difficulty. Ultimately, he did, however, support the reasoning which has been upheld by the majority. It is to the effect that in the interests of maintaining the efficiency of the jury system the risk of occasional miscarriages of justice may acceptably be tolerated. In other words one must accept some dubious verdicts, even in cases of the utmost gravity, as the cost to be paid for protecting the jury system. While I acknowledge that the problem is one of acute difficulty, I cannot assent to the austere conclusion reached by the majority.
The risk of miscarriages of justice
Nowadays we know that the risk of a miscarriage of justice, a concept requiring no explanation is ever present. In earlier times courts sometimes approached the risk of a miscarriage of justice in ways which we would not nowadays find acceptable. In 1980 the Court of Appeal denied the Birmingham Six the right to sue the police in civil proceedings. Lord Denning MR said about the possible innocence of the men: "This is such an appalling vista that every sensible person in the land would say: It cannot be right that these actions should go any further": McIlkenny v Chief Constable of the West Midlands [1980] QB 283, at 323D. The men stayed in prison. Some 12 years later their convictions had to be quashed. Together the miscarriages in the cases of the Guildford Four, the Maguire Seven and the Birmingham Six were described by Lord Devlin as "the greatest disasters that have shaken British justice in my time": "The Conscience of the Jury" (1991) 107 LQR 398. It led to the appointment of a Royal Commission on Criminal Justice which reported in July 1993: Report (Cm 2263). One of the key messages of that Report was that the Court of Appeal must be readier to examine possible miscarriages of justice. One of the recommendations was the creation of new and independent arrangements for identifying miscarriages of justice. This recommendation was implemented in 1995 by the setting up of the Criminal Cases Review Commission: section 8 of Criminal Appeal Act 1995. It is an independent body with extensive powers to investigate complaints of miscarriages of justice. There was also a more general change in legal culture. A good illustration of that is the decision in R v Secretary of State for the Home Department, Ex p Simms [2000] 2 AC 115 where, in the face of some 60 miscarriages of justice in the 1990s, the House of Lords set aside Home Office instructions denying prisoners access to journalists in their efforts to get their convictions overturned. The philosophy became firmly established that there is a positive duty on judges, when things have gone seriously wrong in the criminal justice system, to do everything possible to put it right. In the world of today enlightened public opinion would accept nothing less. It would be contrary to the spirit of these developments to say that in one area, namely the deliberations of the jury, injustice can be tolerated as the price for protecting the jury system.
The scope of the problem should be put in context. In only 1% of criminal cases is there a trial by a judge and jury. In all other cases there is no jury and the law is, and always has been, that the accused has an absolute right to a trial before an impartial tribunal: see article 6(1) of the European Convention on Human Rights. If there are substantial reasons to doubt the impartiality of the tribunal, the matter must be examined in order to determine whether there has been a breach of this fundamental guarantee. That is so even if the reasons for doubt about the impartiality of the tribunal only emerged after the verdict. If there has been a breach, the conviction cannot stand. All this is elementary law. But in respect of the 1% of cases where there are jury trials it is said to be essential to prohibit absolutely any examination of evidence about jury deliberations which suggests that the jury was not impartial. On this basis, and to this extent, the law would then subordinate the risk of a miscarriage of justice to the interests of protecting the efficiency of the jury system. And it has to be faced that jury trials involve the most serious cases in the criminal calendar resulting sometimes in lengthy determinate sentences or life imprisonment. One is not dealing with a cost/benefit analysis: a miscarriage of justice bears on real individuals, their families, and communities. If the law requires individual cases to be subordinated to systemic considerations affecting the jury system, one may question whether the law has not lost its moral underpinning.
The jury is a judicial tribunal
It is important to take account of the fact that a jury is a judicial tribunal, and is expected to conform to judicial standards. Lord Devlin (Trial by Jury, 1956) explained (at p 41):
"As the jury changed its character from a body of witnesses into a body of persons who had to determine facts on the evidence placed before them, it became a judicial tribunal and fit to be invested with judicial attributes. The judges punished as misconduct any deviation by the members of the jury from judicial standards and as contempt of court any interference by outsiders with the discharge of their judicial duties. There is no code embodying this. The rules came into existence piecemeal during the long period in which the jury was changing its character.
JUDICIAL IMMUNITY
Jurymen are invested with judicial immunity. They have full judicial privilege and are not accountable for anything said or done in the discharge of their office, and any threats or abusive language directed towards them as jurymen is punishable as contempt of court."
A jury is not above the law. As a judicial tribunal it must comply with the requirements of article 6(1) of the European Convention on Human Rights. In a case of a grave departure by the jury or jurors from judicial standards, a judge may before verdict have to discharge the jury. A subsequently revealed infringement of judicial standards by the jury or jurors may require the Court of Appeal to quash the conviction. A lack of impartiality would be a classic case requiring such action to be taken.
Lord Devlin observed "that trial by jury is more than an instrument of justice and more than one wheel of the constitution: it is the lamp that shows that freedom lives": Trial by Jury, (1956), p 164. This was a reference to the candles that were lit in London in the windows of London houses following the acquittal of the seven Bishops in 1688: see Macaulay, The History of England from the Accession of James II, (1849) vol 2, at p 389. The jury is an integral and indispensable part of the criminal justice system. The system of trial by judge and jury is of constitutional significance. The jury is also, through its collective decision-making, an excellent fact finder. Not surprisingly, the...
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Subject Index
...141, 142R v Miah [1997] 2 Cr App R 12 ........187R v Miller [1952] 2 All ER 667 ..........169R v Mirza; R v Connor and Rollock[2004] UKHL 2, [2004] 2 WLR 201........................................... 186–190R v Momo [2001] EWCA Crim 397 .. 175R v My ers [1998] AC 124. .. 165, 170, 175,177,......
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Table of Cases
.... . . 93R v Miah [1997] 2 Cr App R 12 . . . . . . . . . . . . . 344R v Miller [1952] 2 All ER 667. . . . . . . . . . . . . . 129R v Mirza [2004] UKHL 2. . . . . . . . . . . 60, 344–345R v Moghal (1977) 65 Cr App R 56, CA . . . . . . 115R v Momodou [2005] 1 WLR 3442, CA . . . . . . . 17R v M......