Petition No. Of 2008 By The Scottish Criminal Cases Review Commission
| Jurisdiction | Scotland |
| Judge | Lord Kingarth,Lord Justice General,Lord Clarke |
| Judgment Date | 28 May 2010 |
| Neutral Citation | [2010] HCJAC 49 |
| Court | High Court of Justiciary |
| Date | 28 May 2010 |
| Docket Number | XM35/08 |
| Published date | 28 May 2010 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Justice General Lord Kingarth Lord Clarke | [2010] HCJAC 49 Appeal No: XM35/08 OPINION OF THE COURT delivered by THE LORD JUSTICE GENERAL in Petition of SCOTTISH CRIMINAL CASES REVIEW COMMISSION Petitioners; (NO.1 OF 2008) _______ |
Appellant: Lake, Q.C.; Office of the SCCRC
Respondent: MacLeod, Q.C., A.D.; Crown Agent
28 May 2010The reference
[1] This is a reference (by way of petition) made by the Scottish Criminal Cases Review Commission ("the Commission") under section 194D(3) of the Criminal Procedure (Scotland) Act 1995 for the opinion of the High Court. The point on which the Commission desire assistance relates to their ability to investigate an allegation concerning the conduct of a juror or jurors prior to seclusion. Although the point arises in the context of a particular application made to them, the Commission seek assistance more generally.
The Contempt of Court Act 1981
[2] In Scottish Criminal Cases Review Commission, Petitioners 2001 SCCR 775 the court addressed the question whether the Commission were bound by section 8 of the Contempt of Court Act 1981, which renders it a contempt of court "to obtain, disclose or solicit any particulars of statements made, opinions expressed, arguments advanced or votes cast by members of a jury in the course of their deliberations in any legal proceedings". The court was satisfied that section 8 was binding on the Commission (para [4]). It then addressed the statutory expression "in the course of their deliberations in any legal proceedings" and concluded that that was a reference to the stage after the jury had been directed by the judge to retire to consider their verdict (para [5]). At paras [7] and [8] it added:
"[7] It follows that the limitation on the scope of the Commission's powers of investigation which derives from section 8 applies only to the investigation of what passes among the jurors while they are considering their verdict after the judge has directed them to retire to do so. The Commission can therefore make enquiries and obtain statements from witnesses, including jurors, about matters which occur before the jurors retire. Obviously, the Commission will have to conduct those enquiries with the degree of discretion needed to avoid trespassing into the prohibited area. Provided they act in this way, however, we see nothing in section 8 which would prevent the Commission, for example, from asking a juror whether he had visited the locus and whether he had discussed this with other jurors before they retired to consider their verdict. Equally, section 8 would not prevent an investigation designed to discover whether female jurors had formed a relationship with a co-accused during the trial, since ex hypothesi this must have occurred at a time when the jurors were not engaged in their deliberations and the verdict. On the other hand, the Commission could not investigate what had happened during those deliberations in order to see whether any such relationship had affected the jurors' assessment of the evidence or their decision as to the guilt of the other accused.
[8] We would observe that investigations involving approaches to jurors, even if not intended to interfere with the administration of justice, may nevertheless have that result. Jurors generally serve in the impression that their privacy will be respected and their identities remain undisclosed. It is also necessary to bear in mind that jury service can be an anxious responsibility for many jurors. For these reasons, and bearing in mind also that a jury have to be brought together by compulsion to perform a vital public duty, the privacy of jurors is a factor to which due weight should be given. We also observe that the Commission's power of investigation is ancillary to their power to refer a case to the High Court where they believe that a miscarriage of justice has occurred and that it is in the interests of justice that a reference should be made; and that the case is then to be heard and determined as if it was an appeal. Investigations by the Commission into the conduct of jurors will therefore be appropriate only to the extent that such conduct can be considered by the High Court when hearing and determining an appeal."
[3] As is plain from para [7], the court was there concerned with what limitations, if any, were placed on the investigative activities of the Commission by section 8 of the 1981 Act. However, para [8] touches on the privacy of jurors and the possibility that approaches to them may interfere with the administration of justice. The present reference is concerned with what restrictions, if any, are imposed by the common law on approaches, including approaches by the Commission, to those who have served as jurors.
Enquiries of jurors
[4] In Clow v HM Advocate 2007 SCCR 201 the court held that the confidentiality (privacy) of jury deliberations was a well-established principle of Scots, as of English, law (paras [6] - [8]) and that that confidentiality extended to their internal communications before as well as after enclosure. At para [18] it was noted that it had been suggested in the course of the hearing that there was some uncertainty as to whether agents acting for an appellant could at their own instance precognosce persons who had served on the relative jury. The court said:
"Suffice it to say that we are satisfied that any enquiry into the words or actions of serving jurors should be made only by the court or in furtherance of orders made by it."
[5] That statement was made in the context of a case in which no investigations had been made or were contemplated by the Commission. On the other hand, it does not expressly exclude the Commission from its ambit. The Commission has in the past made at its own instance investigations of former jurors. Following the judgment of the court in Scottish Criminal Cases Review Commission, Petitioners the Commission made enquiries of former jurors on certain matters (apparently an unauthorised visit by a juror to the locus and an intimate relationship between a relative of one of the accused and a member of the jury). They then referred the case to the High Court, the outcome of the relative appeal being reported at 2005 JC 233; 2005 SCCR 106. No adverse comment was made by the court on the Commission's having undertaken those enquiries.
[6] Counsel for the Commission in the present proceedings submitted that at common law, as under the Contempt of Court Act 1981, the line between what could be investigated legitimately and what could not was to be drawn at the point when the jury retired to consider their verdict.
Submissions on behalf of the petitioners
[7] Mr Lake's submissions focussed on three propositions. The first, which was the most fully elaborated, was that the common law rule of jury confidentiality did not apply before a jury retired to deliberate on their verdict. That was a key stage in a criminal trial. Only then did section 8 of the Contempt of Court Act 1981 apply (Scottish Criminal Cases Review Commission, Petitioners 2001 SCCR 775, per Lord Justice General Rodger at para [5]). Before, but not necessarily after, that point a trial judge could make enquiries of jurors (per Lord Rodger in Scottish Criminal Cases Review Commission, Petitioners at para [6]; cf R v Mirza [2004] 1 AC 1118, per Lord Rodger of Earlsferry at para 156; R v Smith [2005] 1 WLR 704, per Lord Carsewell at para 20). Jurors had a duty to report any prejudicial matters before they retired, but their deliberations could not be inquired into (R v Mirza, per Lord Slynn of Hadley at para 51 and cf Lord Hobhouse of Woodborough at para 142; Attorney General v Scotcher [2005] 1 WLR 1867). The scope of the common law confidentiality should be the same as the scope of the statutory restriction on investigating deliberations viz. after seclusion. A clear line could be drawn there. On its facts, the appeal in Clow v HM Advocate 2007 SCCR 201 concerned matters which arose after the jury had retired: the trial judge had given sufficient directions to deal with anything which had occurred prior to that stage. It could be distinguished. Alternatively, it should be departed from, possibly by an enlarged bench.
[8] The authorities did not support an extension of the rule. The majority in R v Mirza confined its scope to the jury's deliberations on the verdict (per Lord Steyn at para 11; Lord Hope of Craighead at paras 61, 76, 94 - 95, 101 - 102, 107 and 123; Lord Hobhouse at paras 142 and 148; Lord Rodger at paras 161 - 162, 165 and 172; but cf Lord Slynn at para 41). That approach was followed in later cases (R v Smith, per Lord Carsewell at para 16; Attorney General v Scotcher, per Lord Rodger at para 17). In R v Miah [1997] 2 Cr App R 12 and R v Qureshi [2002] 1 WLR 704 the English Court of Appeal had relied on earlier authorities which suggested the rule applied to discussions "in the jury box itself" (Ellis v Deheer [1922] 2 KB 113, per Bankes LJ at page 117). However, they had to be considered in context: historically jurors could deliberate on the verdict while in the jury box (R v Mirza, per Lord Hobhouse at para 148). R v Brown (1907) VII NSWR 290, which was also cited, concerned the admissibility of jurors' evidence and was not in point. The earlier Scottish cases also focussed on deliberations on the verdict and...
To continue reading
Request your trial
-
Frank Carberry V. Her Majesty's Advocate
...[2012] Crim LR 134 R v MearsUNK [2011] EWCA Crim 2651; (2011) 108 (45) LSG 21 Scottish Criminal Cases Review Commission, PetrsSCUNK [2010] HCJAC 49; 2011 JC 18; 2010 SLT 976; 2010 SCCR 773; 2010 SCL 1118 Toal v HM AdvocateUNK [2012] HCJAC 123; 2012 SCCR 735; 2012 SCL 1063 The cause called b......