R v Schot ; R v Barclay
| Jurisdiction | England & Wales |
| Judge | THE VICE PRESIDENT,and |
| Judgment Date | 12 May 1997 |
| Judgment citation (vLex) | [1997] EWCA Crim J0512-7 |
| Docket Number | No: 9701958 Y5 9701959 Y5 |
| Court | Court of Appeal (Criminal Division) |
| Date | 12 May 1997 |
[1997] EWCA Crim J0512-7
IN THE COURT OF APPEAL CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London WC2
The Vice President
(Lord Justice Rose)
Mr Justice Forbes
and
Mr Justice Keene
No: 9701958 Y5 9701959 Y5
MR J PERRY QC & MR L REDHEAD appeared on behalf of the Appellant SCHOT
MR S SOLLEY QC & MR M SIDHU appeared on behalf of the Appellant BARCLAY
MR D PANNICK QC appeared as Amicus Curaie
Monday 12th May 1997
At Knightsbridge Crown Court, on 24th March 1997, his Honour Judge Cooray made a finding that the two appellants were in contempt of court and sentenced them to 30 days' imprisonment. They appeal as of right by virtue of section 13 of the Administration of Justice Act 1960 against the finding of contempt and the sentence. They were granted bail by the Single Judge on 25th March 1997.
The events leading to the judge's findings were these. On 17th February 1997 proceedings started in relation to the trial of defendants called Gibbons, Abrahams, Campbell and Osbourne at Knightsbridge Crown Court before Judge Cooray and there were, on that date, a number of applications. The defendants were charged with having custody or control of a counterfeit note.
The jury were sworn in to try the case on 19th February. Before that happened the judge told potential jurors that the trial would take more than two weeks, and asked if that would cause any of them any difficulty. The two appellants were among the jurors sworn. There is before this Court the information which they would have had before they were sworn, which includes the terms of the jury summons from the Knightsbridge Crown Court, an explanatory pamphlet, and a video, of which this Court has a transcript, explaining some of the features involved in jury service.
After the jury had retired at 12.30pm on 12th March, their first note was received at 3.18pm. It was in these terms:
"Your Honour,
We are unable to come to any decisions owing to some jurors conscious beliefs.
Please advise."
The judge, in the absence of the jury, discussed the terms of the note with counsel. Thereafter the jury were brought in and were asked to write:
"…..a much fuller note explaining to the Court what the problem is that you are having. We do not quite understand what you mean by 'conscious beliefs', and so on and so forth".
The foreman of the jury was the appellant Schot.
At 4.00pm a second note was received. It was in these terms:
"Your Honour,
Some members of the jury cannot bring themselves to make a true judgment due to our beliefs, not religious but personal.
At the beginning of the trial, before we took the oath we felt that we could not stand up in the court and stress this fact.
We thought that our feelings may change over time. After retiring we found that we still feel the same and cannot give a true verdict to these defendants."
There were discussions in the absence of the jury between the judge and the various counsel representing the defendants. In the course of those discussions, as appears from the transcript, on four separate occasions the judge referred to the "contempt" (at one stage "awful contempt") which he said had been committed. The judge decided that the jury should, in its entirety, be discharged. However, before doing so, he asked the jury to write down the names of the members of the jury to whom the second note, in particular, related. The jury, having had that request, retired again, and returned with the names of the two appellants written down. Thereupon, without any further submissions being made to him, the judge discharged the jury. He did so saying this at page 26H of the transcript in relation to the jury note:
"Well thank you very much madam foreman. I have got your note with the two names in it. I have discussed your problems with counsel. I must say that I am truly surprised and I am truly disappointed and on behalf of the public I do complain very very bitterly that this matter was not brought to the notice of the Court at a much earlier stage. You will remember that before I selected you very carefully indeed I told each and every one of you if you had any problems to let me know particularly in view of the time and so on and so forth.
This trial has cost this country and the taxpayer an awful lot of money. It has caused a great deal of anxiety and pressure on those five people up there who were relying upon your verdict and you let them all down. And I am going to say to you therefore that I am angered about it and will discharge you from further deliberating on this matter. But in so far as those two jurors are concerned whose names are Carol Barclay and Bonnie Schot I want them to come before this court for the direct contempt that they have shown to this court and show cause why they ought not to be fined substantial amounts of money and I will give them until the 24th March if they so wish to go and see solicitors, have themselves represented and be before me, on 24th March at 10.15 in the morning, okay. That is…show cause why you should not be fined for the deliberate contempt you have shown to this court in wasting so much of court time and leading us into this situation."
On 14th March the two appellants were each sent, though one of them did not at that stage receive, a summons ordering them to attend at the Knightsbridge Crown Court at 10.15am on 24th March "to show cause why you should not be held in Contempt of Court for the said refusal to deliver a verdict". That summons was accompanied by a letter written by the Deputy Chief Clerk, plainly on the instructions of the judge, who, it said, had taken the view that there appeared to be a prima facie case of contempt of court in refusing to deliver a verdict. The letter went on to indicate that the judge had ordered that:
"…..legal aid be granted for you to be represented by a Solicitor Advocate or a Barrister alone. In the circumstances, you should notify the Court Clerk immediately on your arrival at Court so arrangements can be made for a Solicitor Advocate or Barrister to be assigned."
That is what happened. Counsel who happened to be at that Crown Court on 24th March, in relation to other matters, were assigned to represent each appellant. That occurred, clearly, not very long before the learned judge dealt with the matter in court. Counsel appeared on behalf of the Crown. No application was made by counsel on behalf of either appellant that the matter should be adjourned. No warning was given by the judge that, as what was about to be embarked upon was a quasi criminal procedure and his powers under the Contempt of Court Act included a power to imprison for contempt for a period of two years, there was no obligation on either of the appellants to give evidence or to answer questions which might incriminate them. It appears to have been assumed by those participating in this inquiry that, the summonses having been issued and served, it was for the appellants to show cause, by evidence if need be, why they had not been in contempt. Counsel appearing for the appellants had had very little time to consider the matter.
The appellant Barclay gave evidence first. She said that she had not wanted to perform jury service because she did not like the idea of having to judge people. Her opinion had not changed during the course of the trial. She had not brought her concerns in this respect to the attention of the trial judge, either initially or subsequently, through any note, because she lacked the courage to do so. The second jury note had been written by Schot, the foreman, with the assistance of other jurors. It applied to her, Barclay, and she agreed with its contents, but she had not contributed to its drafting. She said she had taken no part in the jury's discussion of the case. Having heard the evidence, she could not make up her mind as to the guilt or otherwise of the defendants. She said she had tried her best to return a verdict, but felt she could not. She did not intend to disrupt the proceedings of the court nor to be disrespectful towards it. She answered a number of questions from the judge in relation to her participation in another trial, but those are not presently relevant. She denied that she had been approached by anyone in order to seek to persuade her to behave as she had behaved.
Schot, in her evidence, said that she had had every intention of reaching a verdict when the jury retired. Indeed, she was elected foreman, and she initiated discussion among the jurors and took part in their deliberations. The second note she wrote with the assistance of other jurors. It had been badly expressed. Her own position was that, having made a real effort to arrive at a verdict, she had found herself unable to do so, in that she could not decide if the defendants were guilty or not. The judge again asked a number of questions. She repeated that the second note was badly phrased, and she was not able to provide any satisfactory explanation of the phrase "beliefs, not religious but personal". She also said that she had not been approached by anyone seeking to persuade her to behave in the way which she did.
The judge, having heard the evidence from the two appellants, concluded that they were both guilty of contempt. He said, at page 29E of the contempt transcript:
"I know about the facts of the background to this matter much better than any counsel that appears before me here today because I was the trial judge. I do not need to go into details of it because the record will show the details of it. This is a case that occupied 17 days of this court's time involving five...
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