R v Sheffield Crown Court, ex parte Brownlow
| Jurisdiction | England & Wales |
| Judge | MASTER OF THE ROLLS,LORD JUSTICE SHAW,LORD JUSTICE BRANDON |
| Judgment Date | 03 March 1980 |
| Judgment citation (vLex) | [1980] EWCA Civ J0303-3 |
| Date | 03 March 1980 |
| Court | Court of Appeal (Civil Division) |
[1980] EWCA Civ J0303-3
In The Supreme Court of Judicature
Court of Appeal
On Appeal from The High Court of Justice
Queen's Bunch Division
(Divisional Court)
The Master of the Rolls (Lord Denning)
Lord Justice Shaw and
Lord Justice Brandon
MR. S. BROWN and MR. J. LAWS (instructed by the Director of Public Prosecutions) appeared on behalf of the Appellants.
MR. N. FRICKER, Q. C., MR. A. McCALLUM and MR. GITTLING (instructed by Messrs. Barrington Black, Austin & Co.) appeared on behalf of the Respondents.
Two police officers, Michael Hodgkinson and Peter Oliver, have been charged with assault occasioning actual bodily harm. They were committed for trial at Sheffield Crown Court. The case was expected to be tried at the sittings in the week beginning the 8th October, 1979. Some time before that date, the officials of the court had made up the list of persons to be summoned as jurors. The list is called the Jury Panel. It contained the names and addresses of the persons. They had been duly summoned to attend the court. Then, a fortnight before the sittings were due to begin, the solicitors for the accused wanted the jury to be "vetted" so as to see if any of them had any previous convictions. They wrote this letter to the County Prosecuting Solicitor:
"We have been advised by Counsel to ask for an investigation of the Jury Panel in this case, having regard to the fact that the two defendants are Police Officers. It is thought that it would be in the interest of justice for the defence to be informed whether any members of the Jury Panel have criminal convictions".
That letter was a plain request that the police should go through all their records, look up the names of all the persons on the panel, and see if any of them had any previous convictions of any kind - not only for serious offences which would disqualify them for jury service; but also for less serious offences, even down to trivial offences like driving too fast or without due care and attention; and also apparently for "spent" convictions as well.
The County Prosecuting Solicitor refused to comply with this request. So on Thursday, 4th October, 1979 counsel went before the Crown Court judge who, it was anticipated, would try the case. He gave this ruling:
"I am always anxious that people should have, and feel that they have had, a fair trial… I direct that the prosecution shall inform the defence whether any members of the jury panel have criminal convictions and give details of any such convictions. Of course, the details will be available to both sides. Plainly, any information which is given to one side in a matter like this must also be given to the other".
The judge made his order upon the Chief Constable of South Yorkshire. It was in these words:
"Upon hearing Counsel for the defence and the prosecution, it is hereby ordered that the Chief Constable of South Yorkshire be supplied with a copy of the panel of jurors from which the jury in this case will be drawn, and that he supply to the solicitors for the defence and for the prosecution full details of any criminal convictions recorded against any member of the said panel".
The judge was told that the Chief Constable wished to test his decision in a higher court before the information was given, the judge said:
"I am happy to know that the matter is to be tested, because it is far better that the matter should be decided by those set over me than by me".
THE ATTEMPT TO TEST THE ORDER
The Chief Constable took immediate steps to test the validity of the judge's order. He applied for certiorari that the order be quashed. But - lo and behold - to the disappointmentof the judge - and of the Chief Constable - the Divisional Court held that they could not entertain the application. They made no pronouncement about jury vetting: for the simple reason that they had no jurisdiction in the matter. Nor indeed had any other court. If their decision is correct, there is no means open to any court in the land of testing the judge's order. The law on this important subject will have been settled by a Crown Court judge. Other judges will follow his example. And we shall have "jury vetting" introduced into this country beyond recall - unless Parliament in two or three years' time takes a hand.
THE JURISDICTION OF THIS COURT
This morning Mr. Fricker, Q. C. raised a point which had not been taken before. He suggested that this Court of Appeal had no jurisdiction to hear this appeal from the Divisional Court: and that any appeal lay to the House of Lords. He suggested that this was a "criminal cause or matter" within section 31(1)(a) of the Judicature Act 1925: and he cited cases from the last century saying that those words should be given the widest possible interpretation. He relied especially on the words of Lord Esher, M. R. in Ex parte Woodall (1888) 20 Queen's Bench Division at page 836. But those cases were all considered by the House of Lords in Amand v. Home Secretary (1943) Appeal Cases 147. The words were there given a much narrower interpretation. Viscount Simon, L. C. said (at page 156):
"If the matter is one the direct outcome of which may be trial of the applicant and his possible punishment for an alleged offence by a court claiming jurisdiction to do so, the matter is criminal".
We applied that test in Regina v. Southampton Justices, Ex parte Green (1976) 1 Queen's Bench at page 15. So here. There is no possibility of the "trial" of the Chief Constable, or of his possible punishment for an "offence". This is not a criminal cause or matter. Vie have jurisdiction to hear this appeal.
SECTION 10(5) OF THE COURTS ACT 1971
Important as the issue is, it depends on two words in section 10(5) of the Courts Act 1971. The two words "relating to". The section reads:
"In relation to the jurisdiction of the Crown Court (other than its jurisdiction in matters relating to trial on indictment) the High Court shall have all such jurisdiction to make orders of mandamus, prohibition or certiorari as the High Court possesses in relation to the jurisdiction of an inferior court".
That section excludes the jurisdiction of the Divisional Court "in matters relating to trial on indictment". So the question here is whether the judge's order for jury vetting was a matter "relating to" trial on indictment.
So once again we have here the problem of statutory interpretation. It vexes us daily. Not only us. But also the House of Lords. Even the simplest words give rise to acute differences between us. Half of the judges think the interpretation is clear one way. The other half think it is clear the other way. Notable instances in the House of Lords recently are Buchanan v. Babco (1978) Appeal Cases 141, and Nothman v. Barnet Council (1979) 1 Weekly Law Reports 67. In each case three to two. It shows what a gamble it is. Change the constitution by one and you have a different result. No one can say whether the majority were right or wrong. As it happened in those twocases, they were right. They affirmed the unanimous decisions of the Court of Appeal in (1977) Queen's Bench 208 and (1978) 1 Weekly Law Reports 220. The same cannot be said of the latest excursion. It is in Newbury District Council v. International Rubber Company on Thursday last. There the five judges in the House of Lords gave a different meaning to the one word "repository" from that given to it by the Secretary of State, and the six judges below, including the Lord Chief Justice, the Master of the Rolls, two Lords Justices and two High Court Judges The five thought it clear their way. The six thought it clear the other way. The five prevailed. Thus overruling the meaning which had been given to the word "repository" by all the judges over the previous twenty years - and acted on by successive Secretaries of State, see Horwitz v. Robson (1960) 1 Weekly Law Reports at page 810; Trentham v. Gloucester County Council (1966) 1 Weekly Law Reports 506; and the Newbury case (1978) 1 Weekly Law Reports 1241.
To get rid of these continuous conflicts, we should throw aside our traditional approach and adopt a more liberal attitude. We should adopt such a construction as will promote the general legislative purpose. Such as I have advocated for years from Seaford Court Estates v. Asher (1949) 2 King's Bench at pages 498-9 to Buchanan v. Babco (1977) 1 Queen's Bench at pages 213-4; and Nothman v. Barnet Council (1978) 1 Weekly Law Reports at page 218: and such as Sir David Renton and his colleagues recommended in their valuable report on the Preparation of Legislation: and such as Lord Scarman inserted in the Bill he introduced into the House of Lords a little while ago: which unfortunately got no further.
Put quite simply - perhaps too simply - whenever you have a choice between two interpretations, the choice is a matter of policy for the law - Which gives the more sensible result? It is not a semantic or linguistic exercise. Nine times out of ten you will find that judges will agree on what is the sensible result - even though they disagree on the semantic or linguistic result.
So far as commercial contracts are concerned, the House of lords have already accepted that very' test, notably in Wickman Tools v. Schuler, A. G. (1974) Appeal Cases 235 at page 251; and Oldenorff & Co. v. Tradax (1974) Appeal Cases 235 at page 533, where Lord Reid said:
"Normally when language is to be construed is ambiguous, it is important to consider which interpretation leads to the more reasonable result, and when dealing with commercial matters it is, I think, specially important to consider...
To continue reading
Request your trial
- R v McCann
-
R v Ford (Royston)
...should not be recognised. The whole essence of the jury system is random selection, as the passage from the case Ex parte Brownlow (1980) Q.B. 530, from Lord Denning's judgment cited in the course of argument shows. He said: 25 "Our philosophy is that the jury should be selected at random –......
-
R v Chelmsford Crown Court, ex parte Chief Constable of Essex
...pre-trial directions. In any such case to allow an appellate or review process might, as Shaw L.J. pointed out in Brownlow's case [1980] Q.B. 530, 544, 545, seriously delay the trial. If it is the prosecutor who is aggrieved by such a decision, it is in no way surprising that he has no rem......
-
R v Maidstone Crown Court ex parte LB Harrow
...or by way of pre-trial directions. In any such case to allow an appellate or review process might, as Shaw LJ pointed out in Brownlow [1980] QB 530, 544, 545, seriously delay the trial. If it is the prosecutor who is aggrieved by such a decision, it is in no way surprising that he has no re......
-
Court of Appeal
...to estreat bail cannot possibly have this result,it could not be a criminal matter. Lord Denning repeated his view inEx parte Brownlow [1980] Q.B. 530, but his remarks were obiterand the other two members of the court expressly refrained fromstating their opinion. In Ex parte McComb[1983]Q.......
-
Court of Appeal
...on theAttorney General's power to stand-by contained in the obiter dictaof Lord Denning MR and Shaw U in R v Sheffield CC, ex pBrownlow [1980] QB 530, where it was said that it was unconstitu-tional for the police to go behind the back of jurors through theirrecords to enable the Attorney G......