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Cite as: [1997] EWCA Crim 3364

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JAMES NICHOLAS TARRANT, R v. [1997] EWCA Crim 3364 (18th December, 1997)

IN THE COURT OF APPEAL
CRIMINAL DIVISION

Royal Courts of Justice
Strand
London WC2A 2LL

Thursday 18th December 1997

B e f o r e:


LORD JUSTICE HENRY


MR JUSTICE GAGE

and

HIS HONOUR JUDGE TUCKER
(Acting as a Judge of the Court of Appeal Criminal Division)



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R E G I N A

- v -

JAMES NICHOLAS TARRANT


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(Handed-down judgment of Smith Bernal Reporting Limited
180 Fleet Street, London EC4A 2HD
Tel: 0171 421 4040
Official Shorthand Writers to the Court)


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MR J DEIN appeared on behalf of the Appellant

MR JWT DOCKING (MISS SJ VAUGHAN-BROWN)appeared on behalf of the Crown

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J U D G M E N T
(As approved by the Court)

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Crown Copyright

LORD JUSTICE HENRY: This is the judgment of the Court. On the 3rd October 1996 in the Crown Court at Snaresbrook before His Honour Judge Brooks, the appellant was convicted (after a retrial, and in his absence, he having absconded whilst the jury was considering its verdict, by a majority of 10:2) of conspiracy to possess a controlled drug of Class B (cannabis resin) with intent. After being recaptured, he was sentenced on the 14th March 1997 to six years' imprisonment, and a Drug Trafficking Confiscation Order in the amount of £13,960 (in default to serve 12 months' imprisonment consecutive; payment to be made forthwith). He now appeals his conviction with the leave of the Single Judge. The principal ground of appeal is that the trial was a nullity because the judge ordered that the jury should not include anyone whose address contained an "E" in their postcode.

To understand how the judge came to make that order it is necessary to examine the facts.

The first trial of this man was before His Honour Judge Radford. On the third day of the trial the judge learned that it was suspected that a juror had been or would be approached by someone well known to the police who had been seen at court the previous afternoon. For those reasons Judge Radford discharged the jury.

On 14th June there was an interlocutory hearing in relation to the retrial. The judge, after an ex parte meeting with the prosecution, in open court informed the defence that the prosecution had asked for the trial to be transferred out of the area, but he had decided that the case would be tried at Snaresbrook. However, he was going to order
"a panel, a random panel to be brought in from outside this catchment area so they have nothing to do with the area"

and gave notice to the Defence that application for jury protection would be made at the trial.

On 30th July 1996 there was another ex parte meeting between the judge and the Crown, and at a public hearing on 5th September, the judge indicated to Mr Dein for the Defence that, from the evidence he had heard, a jury protection order should be made. He also ordered that the jury should be brought in from " outside the catchment area ".

The case was listed to commence on 30th September, it being agreed that only the empanelment of a jury would occur that day. This was to accommodate Mr Dein's professional commitments. Miss Piercy from his chambers attended. A jury who had been bussed over from Southwark Crown Court were sworn in. The judge was supplied with a list of the jurors and saw that eleven out of the twelve of them lived in the East End, in fact close to the court. This was exactly the situation that the judge had wished to avoid, because of his fears that the jury might be intimidated. The reason why this happened is that apparently Southwark jurors come from the panel of the Central Criminal Court, whose catchment area overlaps with that of Snaresbrook. The relevant officer at Southwark, seeing that Snaresbrook needed a jury, exercised his intelligence and initiative by sending to Snaresbrook a batch of jurors who, being local, would find it convenient to do their jury service there. Thus was the judge's intention defeated. So he discharged that jury:
"it transpires that a great majority of them come from an East London address. It seems to me that is unsatisfactory"

He was then told by the Chief Clerk that there were, at Court, 50 jurors who did not have an East London address. They came from other parts of the Snaresbrook catchment area such as " Essex and places like Romford ". Miss Piercy opposed this course:
"If you take away all the East London postal districts from this court's catchment area then, effectively, you take away the random nature of any selection because you take away effectively the heart [of this catchment area]".

The judge rejected her submission, and so a jury thus constituted was sworn in, and convicted. The principal ground of appeal is that the trial was a nullity because the jury was not randomly selected.

Logically Mr Dein's submissions (for the appellant) would attack both the discharge of the predominantly East End jury, and the empanelment of a replacement jury. Mr Dein bases his submissions on the case of R -v- Ford [1989] 89 Cr App R 278, a decision of this Court presided over by Lord Lane, Lord Chief Justice. In that case the appellant challenged the learned judge's refusal to accede to an applicant to swear in a multi-racial jury. The Court concluded that the judge was right in coming to the conclusion that he should not order a multi-racial jury to be empanelled, because he had no power to do so.

The Court's reasoning is relevant to and conclusive of this case.

First, by way of background, Lord Lane said at 281:
"The whole essence of the jury system is random selection as the passage from Sheffield Crown Court ex parte Brownlow [1980] Cr App R 19, from Lord Denning's judgment cited in the course of argument shows. He said at p25:
´Our philosophy is that the jury should be selected at random - from a panel of persons who are nominated at random. We believe that twelve persons selected at random are likely to be a cross-section of the people as a whole - and thus represent the views of the common man .... The parties must take them as they come.'"

Therefore both the nomination of the prospective jurors onto the panel and the selection of jurors from the panel to try the case must be random.

Second, that random process is to be carried out not by or on behalf of the judge, but by the court's administration (We see this from the Juries Act, 1974, sections 2, 5 & 6:
"2(1) Subject to the provisions of this Act, the Lord Chancellor shall be responsible for the summoning of jurors to attend for service in the Crown Court, the High Court and County Courts, and for the determining of the occasions on which they are to attend when so summoned, and the number to be summoned. ...

5(1) The arrangements to be made by the Lord Chancellor under this Act shall include the preparation of lists (called panels) of persons summoned as jurors, and the information to be included in panels, the court sittings for which they are prepared, their divisions into parts or sets ... their enlargement or amendment and all other matters relating to the contents and form of the panel shall be such as the Lord Chancellor may from time to time direct.

5(2) A party to proceedings in which jurors are or may be called on to try an issue, and any person acting on behalf of a party to such proceedings, shall be entitled to reasonable facilities for inspecting the panel from which the jurors are or will be drawn. ...

6(1) If it appears to the court that a jury to try an issue before the court will be, or probably will be, incomplete, the court may, if the court thinks fit, require any persons who are in, or in the vicinity of, the court, to be summoned (without any written notice) for jury service up to the number needed (after allowing for any who may not be qualified under section 1 of this Act and for excusals and challenges) to make up a full jury."

As will be apparent from section 5(1), in any multi-court Crown Court centre, the panel will contain a large number of names. A challenge to the composition of the panel is known as a challenge to the array, and was specifically preserved by section 12(6) of the Juries Act, 1974:
"Without prejudice to subsection (4) above [right to challenge individual jurors] the right of challenge to the array that is to say the right of challenge on the ground that the person responsible for summoning the jurors in question is biased or acted improperly, shall continue unaffected by the fact that, since the coming into operation of section 31 of the Courts Act, 1971 (which is replaced by this Act), the responsibility for summoning jurors for service in the Crown Court ... has lain with the Lord Chancellor."

The selection of individual jurors for the case they are to try is governed by Section 11(1), which provides:
"The jury to try an issue before a court shall be selected by ballot in open court from the panel, or part of the panel, of jurors summoned to attend at the time and place in question."

Individual challenging is preserved by Section 12, which also in sub-section 6 preserves the right of challenge to the array which is defined by Section 12(6) as being:
"the right of challenge on the ground that the person responsible for summoning the jurors in question is biassed or has acted improperly".

So it will be seen that the statutory scheme makes jury selection an administrative and not a judicial function. As we have seen, Section 2(1)makes the Lord Chancellor responsible for the summoning of jurors, and he is consequently responsible for the fairness of the process. The fairness of the process is achieved by the principle of random selection culminating in the ballot in open court for the panel (or part thereof) as summoned. So fairness is achieved by random selection rather than by weighted selection to achieve an "average" jury, with a representative spread of gender, race, religion etc.

In this process, the judge's powers are limited: As Lord Lane said in Ford:
"So far as the mode of summoning the panel is concerned, the judge is limited, we repeat, to considering, in a challenge for cause, whether the summoning officer has displayed bias or other impropriety. If that cannot be established, the judge has no power to review or take action in respect of any procedures that are alleged to have led to the panel not being in fact ´random'. Any such complaint would be a complaint of administrative error and has to be tackled by means other than the judges action. If the officer is in fact not performing his duty properly, in circumstances that fall short of his displaying bias or impropriety, he must be corrected, in other words, by administrative means.

As emphasised above, action could certainly not take the form of directions by the judge as to how the task of selection should in fact be performed. That being the case, in the present instance, although the judge was not given the opportunity of argument on this point to any extent, he was right in the upshot to come to the conclusion that he should not order a multi-racial jury to be empanelled, because he had no power to do so."

Lord Lane had earlier in his judgment shown just why the trial judge had no discretion:
"to discharge a competent juror or jurors in an attempt to secure a jury drawn from particular sections of the community, or otherwise to influence the overall composition of the jury".

The trial judge has a residual common law discretion to discharge individual potential jurors if they are not likely to be willing or able properly to perform their duties. Thus he may discharge individual potential jurors if they are incompetent (whether physically or mentally), if they know personally any defendant, or any witness, or may have any employment loyalties favouring one side rather than the other. He may also excuse those who are likely to be too preoccupied by personal tragedy, or personal responsibilities unfulfilled by reason of jury service (eg looking after the very young or the very old). And in very long trials, the practice is to excuse those for whom taking part in a long trial would cause hardship. But that discretion cannot be used to interfere with the composition of the panel or of an individual jury. The judge's powers are restricted to attempting to ensure that all twelve jurors are competent, are not disqualified by conscientious objection, and will not suffer personal hardship (which might be distracting) through jury service. Indeed Lord Lane specifically dealt with the problem we here confront on page 282:
"It is not the function of the judge to alter the composition of the panel, or give any directions about the district from which it is to be drawn."

Yet that is what the judge here has done - albeit from innocent motives. He had been asked by the Crown to transfer the case out of London (by his powers under Section 76 of the Supreme Court Act, 1981), and he no doubt saw the route he took as an alternative to that course, and one likely to be more convenient to the witnesses.

We are no here concerned with the quality of that decision, but only as to the consequences of it.

Those consequences were:
i) that he deliberately set out to affect (and ultimately did affect) the composition of the trial jury, by attempting to ensure that no-one from the postal area of East London was on the part of the panel from which the jury would be balloted;
ii) that such an action went beyond the residual common law discretion left to a judge to discharge individual jurors in the circumstances we have already summarised and trespassed on the composition of the panel (or part of it) which is an administrative matter for the Lord Chancellor, and not for the trial judge;
iii) in so doing he deprived the appellant of the protection of a randomly selected jury, that protection which forms the basis of our concept of fairness in jury selection. Essentially, the choice is between the designer jury, pre-selected to some sociological template, or random selection. We have sensibly preferred the former as affording the better protection to the accused. And the judge's action deprived him of that protection by effectively disqualifying what must have been a large proportion (indeed probably the majority) of the panel. The judge had no power to do that.

The route by which the appellant submits that the trial was, as a result of the judge's conduct, a nullity is that the case is one where the old form of writ venire de novo should be awarded. The Court of Appeal Criminal Division have powers to issue such writs - see Section 53(2)(d) of the Supreme Court Act, 1981. In R -v- Rose and Others [1982] AC 822 Lord Diplock said at p 831:
"the state of judicial authority as to the extent of the jurisdiction of the Court of Criminal Appeal to issue writs of venire de novo at the date of its abolition in 1966. That Court could do so if there had been an irregularity of procedure which resulted in there having been no trial that had been validly commenced. It could do so if the trial had come to an end without a properly constituted jury ever having returned a valid verdict."

There are two linked grounds for saying that this conviction was not by a properly constituted jury. First, the jury bailiff at Southwark had bussed over to Snaresbrook part of the jury panel. He was entitled to make the selection that he did because of Section 2(2) of the Act:
"In making arrangements to discharge his duty under sub-section (1) above, the Lord Chancellor shall have regard to the convenience of the person summoned and to their respective places of residence, and in particular to the desirability of selecting jurors within reasonable daily travelling distance of the place where they are to attend."

The judge had no power to discharge that jury when he discovered that 11 out of 12 of them came from a postal district in East London. That jury was a properly constituted jury for this case, and should not have been discharged. Secondly, the second jury sworn in was not a properly constituted jury, because the judge had wrongly taken it upon himself to interfere with the composition of the part of the jury panel from which the Section 11 balloting would take place.

We were referred to the transcript of R -v- Comerford , a decision of another Division of this Court presided over by the Lord Chief Justice (unreported, judgment given on 28th October 1997). There one of the points was whether, when the jury was sworn in open court they were identified by number and not by name, that rendered the trial a nullity, leaving the Court with no choice but to quash the conviction and (if so advised) order a venire de novo. The Court there said:
"Plainly the procedure adopted here was a departure from [the] standard practice. We do not, however, consider that the mere fact of this departure renders the trial a nullity, unless it violated the legal right of the appellant or made the proceedings unfair to him."

The Court concluded that the procedure was not an irregularity, such as it would have been had, for instance, he been denied an effective opportunity to exercise his right of challenge, and ruled:
"It was entirely desirable that in normal circumstances the usual procedure for empanelling a jury be followed. But if, to thwart the nefarious designs of those suspected of seeking to nobble a jury, it is reasonably thought to be desirable to withhold jurors' names, we can see no objection to that course providing the defendant's right of challenge is preserved."

We have considered anxiously whether the procedure adopted violated the legal right of the appellant, or made the proceedings unfair to him. We acknowledge the common sense in the argument that this defendant had no legal right to be tried by a jury containing some jurors from East London. Such a jury would have tried him if the case had been transferred. There is nothing to suggest that there was anything in fact wrong with the verdict of this jury.

But having anxiously considered those arguments, we feel bound to reject them. Here the first protection of the fairness of the selection procedure for juries is that it is done by the administration, who may properly for reasons of spreading the load equally, summons panels from different parts of the catchment area. The selection of the actual jury from the panel or part of the panel is again a matter for the administration and not for judge. Here the judge did what was impermissible. First, he discharged a properly selected jury, when he had no right to. Second, he dictated the composition of that part of the panel from which the jury was selected by ballot. Again, he had no right to. What he did deprived the appellant of what common law and statute entitles him to: a genuinely randomly selected jury. We regard that as a fundamental irregularity and so consequently feel bound to order that a venire de novo be issued. We will hear counsel on the form of that order if necessary, but as present advised will base ourselves on the form of the order quoted in Archbold, paragraph 7-288:
"That the conviction and judgment in this case be set aside and annulled and that James Nicholas Tarrant do appear at the next session of the [ ] Crown Court or such other court shall be suitable and plead to and answer the indictment in this case and that in the meantime the said James Nicholas Tarrant shall be remanded in custody."

A subsidiary ground of appeal was raised by Mr Dein. He complained that the jury protection orders had been made after the judge had heard submissions ex parte from the Crown. He challenged this process. However, having read the judgment in R -v- Comerford (above) he conceded that the judge had such powers, and abandoning his original ground of appeal based on the ex parte hearings, put forward a qualified ground asking us to look at the transcripts of those hearings, and to entertain an appeal if unfairness to the defence had resulted. That investigation delayed the delivery of this judgment, as we did not originally have a transcript of the principal ex parte hearing. However, now that we have seen all the transcripts, we are satisfied that no unfairness to the defendant resulted from the use of the ex parte procedure in this case.

(Question of retrial adjourned. Defendant to remain in custody.)


© 1997 Crown Copyright


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