Stewart v H. M. Advocate
| Jurisdiction | Scotland |
| Judgment Date | 19 June 1980 |
| Docket Number | No. 19. |
| Date | 19 June 1980 |
| Court | High Court of Justiciary |
JC
L.J.-G. Emslie, Lords Cameron, Kissen.
Procedure—Attempt to interfere with juror during trial—Whether substantial risk of grave prejudice to accused to continue with trial when other jurors knew of attempt—Whether direction to jury sufficient in circumstances.
During the course of a long trial at the High Court at Edinburgh an attempt was made by a person claiming to be the brother of one of the accused to bribe a female juror. The female juror indicated to the trial Judge in court that she had important information to impart to him. The trial Judge told her to discuss the matter with the other jurors first. Subsequently the nature of the information was discovered and the trial Judge discharged the female juror. He then continued with the trial after giving a direction to the remaining jurors. The accused appealed,inter alia, on the ground that the trial Judge should have discharged the whole jury and that his failure to do so created a substantial risk of grave prejudice to the accused.
Held (1) that the trial Judge had not erred in refusing to discharge the whole jury and desert the diet pro loco et tempore and was entitled to conclude that any possible prejudice or risk of injustice could readily be corrected by a clear and specific direction to a reasonably intelligent and sworn jury; (2) that in the particular circumstances of the case the direction given by the trial Judge was adequate; and appeal dismissed.
Observed that where the alleged interference or other intercourse with a juror is brought to the notice of a Judge in the course of a trial it will usually be of assistance to him in deciding on the course of action to inform the prosecutor and those appearing for the defence of the report which has been made to him (if they do not know of it already) and invite discussion of the problem in court in the absence of the jury.
James Lumsden Stewart, John Maxwell and Thomas William Moore were charged on indictment with a number of offences connected with the corrupt soliciting and receipt of various rewards and advantages contrary to section 1 of the Public Bodies Corrupt Practices Act 1889, as amended by the Prevention of Corruption Act 1916. During the course of the trial at the High Court at Edinburgh an attempt was made, by a person claiming to be the brother of one of the accused, to offer a bribe to a female juror. On the following day the female juror in open court indicated to the trial Judge that she had important information to impart to him. The trial Judge told her to discuss the matter with the other jurors and if she then still thought it to be of importance to tell him. When the trial Judge subsequently learned of the nature of the information (i.e. that an attempt had been made to bribe the juror) he discharged her and gave a direction to the remaining jurors. The Crown subsequently prepared a note on the circumstances of the attempt to bribe the juror. The note stated, inter alia, that the "information to which the juror, Mrs Gallo, referred in her reply to the Judge on Wednesday 12th March was that at about 7.30p.m. the previous evening a man had called at her house. He introduced himself as Mr Maxwell and referred to the accused as his brother. He offered her the sum of £5,000 if she would agree to try to persuade the jury to return a verdict of “not guilty.” He stated that two other members of the jury had been approached and that they had already agreed to do this in return for money. Mrs Gallo was seen by the clerk of court and later by the Judge during the lunch adjournment. It is understood that she told them that she had communicated the information which she had to the other jurors. After the trial had been concluded each of the remaining jurors was interviewed by the police, with a view to finding out whether any of them had been approached and offered bribes. The police were satisfied that none of them had been so approached … Police inquiries had failed so far to trace the man or establish his identity."
The accused appealed, inter alia, on the grounds that a substantial risk of prejudice to them had occurred in that the trial Judge should have discharged the diet pro loco et tempore, that he should have ascertained the nature of the juror's information before telling her to discuss it with the other jurors and that he had not given a sufficient direction to the remaining jurors.
Application for leave to appeal was granted and the appeal was heard by the High Court of Justiciary on 10th June 1980 and following days.
At advising on 19th June 1980, the opinion of the Court was delivered by the Lord Justice-General.
LORD JUSTICE-GENERAL (Emslie).—[His Lordship dealt with the charges against the appellants, and continued]—The first submission on behalf of all three appellants was presented as the result of certain events which happened on the second last and final days of the trial of the appellants. The circumstances in which it came to be made were as follows.
On 10th March 1980 the learned Advocate-Depute made and concluded his address to the jury. Closing speeches by counsel for each of the...
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