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England and Wales Court of Appeal (Criminal Division) Decisions


You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Thoron, R v [2001] EWCA Crim 1797 (30th July, 2001)
URL: http://www.bailii.org/ew/cases/EWCA/Crim/2001/1797.html
Cite as: [2001] EWCA Crim 1797

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THORON, R v. [2001] EWCA Crim 1797 (30th July, 2001)

Case No: 2000/02711/Y4
Neutral Citation Number: [2001] EWCA Crim 1797
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
Royal Courts of Justice
Strand, London, WC2A 2LL
Monday 30th July 2001

B e f o r e :
LORD JUSTICE HENRY
MR JUSTICE BUTTERFIELD
and
HIS HONOUR JUDGE RIVLIN QC
(sitting as a Judge of the Court of Appeal, Criminal Division)
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REGINA



- and -



FRANCOIS PIERRE MARCELLIN THORON



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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
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P Hughes Esq, QC & Ms M Sparrow (instructed for the Appellant)
A Abell Esq (instructed for the Respondent)
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Judgment
As Approved by the Court
Crown Copyright ©


LORD JUSTICE HENRY:
1. This is the judgment of the Court. On 10th April 2000, following a trial which lasted five weeks the appellant, François Thoron, was convicted of eight offences on an indictment charging ten counts. He was sentenced by His Honour Judge Hawkesworth QC to a total of 18 months' custody as follows:
Count 1: Conspiracy with his employees, Jaggs, Nutting, Seaston & Derua to falsify drivers' record sheets, contrary of Section 1(1) of the Criminal Law Act 1977 - 18 months imprisonment.
Count 2: Failure to conduct his undertaking in such a way as to ensure the health and safety at work of all his employees including Jaggs, Seaston, Derua & Nutting in that by allowing them to drive beyond permitted hours and/or with inadequate rest period he:
1) failed to provide and maintain systems of work that were so far as reasonably practicable safe without risk to their health;
2) failed to make arrangements for ensuring so far as was reasonably practicable safety and the absence of risk in connection with their transport of articles;
3) failed to provide such instruction and supervision as was necessary to ensure so far as was reasonably practicable their health and safety
contrary to section 2(1) of the Health and Safety at Work Act, 1974. For this offence he was sentenced to no separate penalty, because of his conviction and sentence on Count 1.
Counts 4/5/6/8: Using an instrument, namely a tachograph chart, which was and which he knew or believed to be false with the intention of inducing another person to accept it as genuine - 6 months' imprisonment on each count (concurrent inter se and to other counts).
Count 7/9: Forgery of tachograph charts contrary to section 1 of the Forgery Act, 1981 - 6 months' imprisonment on each count concurrent inter se and to other counts.
He was acquitted on Count 10 which charged him with paying the driver Nutting to lie to the DoT when they investigated the broken tachograph seal, and Count 3 was treated as an alternative to Count 2.
2. He now appeals against conviction with the leave of the Full Court, finally limited to perfected Ground of Appeal 1, namely that there was a real or potential danger that two members of the jury might not have been impartial, and that the judge in failing to discharge them used his discretion wrongly. The complaint is that this was contrary to Article 6(1) of the European Convention on Human Rights. The events in question took place in 1997 and 1998, all occurring more than two years before the Convention became part of United Kingdom law. But of course the common law requires that impartiality be protected.
3. For the purposes of this appeal what we need to know of the facts is found in the judge's thumbnail sketch of the case with which he opened his summing-up:

"In this case the Crown's allegations against this defendant are, in effect, that between 1st April 1997 and 21st March 1998, just under a year, in running his small haulage business together with Suzanne Welberry, and in order, as he saw it, to run this small business successfully, he agreed with the drivers that he had employed to break the rules and regulations which applied to his drivers - in effect, compelling them to drive beyond their permitted hours and with insufficient rest periods, by the implied and sometimes explicit threat that otherwise they would lose their jobs.
Having agreed with them to do so it was necessary, of course, for him to cover his tracks and so, the Crown asserts, in order to do so he agreed with and encouraged his drivers to falsify their records by various means; false names on tachograph sheets (ghosting as it is called), putting back the clock, pulling the fuse, wiring the tachograph head. By so doing, the Crown asserts that Monsieur Thoron subjected his work force to a system of working which failed to ensure their safety so far as it was reasonably practicable for him to do so.
Apart from the stresses and strains which this caused to his work force and, you may think, the inevitable and concomitant effects which this had on their respective abilities as lorry drivers, this failure, say the Crown, was a substantial contributing factor to the death of one of his drivers, John Jaggs. And, say the Crown, to compound matters further, Monsieur Thoron paid Ron Nutting some money to give a false account to those charged with investigating an offence committed by himself."

The Crown called three drivers employed by the appellant to make out this case.
4. Thoron's defence was a total denial. He placed all the blame on his drivers. He said that what they got up to was their affair, not his - he had not agreed to or encouraged the breaking of any laws. The drivers had given false evidence against him because of vindictiveness towards him caused by the loss of their jobs.
5. It is plain from the verdicts that the defendant's account of what had happened was rejected on every issue save that of Count 10. Crucially it was found that he was a party to the conspiracy alleged in Count 1, together with the driver's who went along with the firm's dishonesty.
6. The scheme of the indictment was this: Count 1 charged a conspiracy between Mr Thoron and his named drivers that they together agreed to make false entries in the record sheets which they were required to keep under the Transport Act, 1968 and the Community Recording Equipment Regulations. Breach of those regulations is a criminal offence. The conspiracy alleged is of course much wider than the specific examples of the conspiracy in action found in Counts 4, 5, 6 and 8.
7. Counts 4, 5, 6 and 8 deal with some of the substantive offences committed within it and accuse the appellant employer of aiding and abetting, counselling and procuring his drivers to falsify tachograph records so that they showed false information as to who was driving, over what route, over what time, when the vehicle was at rest, and when it was being driven. It was the drivers who falsified the charts, and that was done to seek to show that they had complied with the driving time Rules and Regulations when they had in fact breached them, and that was done by agreement between employee and employer. They were in it together. Count 8 deals with a less sophisticated form of false recording: by driving as far as was legal, then pulling the fuse on the recording device. Counts 7 and 9 charge the appellant with forgery: he himself falsified the tachograph records.
8. Lastly there is Count 2. This is founded on the Health and Safety at Work Act, 1974. This was a framework Act which imposes (by section 2) a series of duties owed by employers to employees, and punishes failure to discharge those duties as criminal offences. The broad section 2 duty here, as pleaded in the indictment, is the duty to provide a safe system of work, with the qualifications "... so far as was reasonably practicable." A system of work where the Driver's Hours Regulations were routinely flouted is clearly not a safe system of work. But if the appellant could show that he had done all that he reasonably could to have in place such a system, he had a defence. But once Count 1 is made out, the jury have already decided that the systematic falsification of driver's hours, etc was by agreement between employer and employee, a verdict of guilty on Count 2 against the appellant adds nothing to Count 1 - hence the sentence on Count 2 ("... no separate penalty"). That then was the scheme of the indictment.
9. The Single Judge refused leave to appeal on all grounds, but the Full Court granted leave on Grounds 1 and 5.
10. We will deal with Ground 5 first, to get it out of the way. It relates to Count 2. It reads:

"The judge erred in refusing to accept that the use of the Health and Safety at Work Act, 1974 was misconceived. The Act was designed to protect the health and safety of employees in the premises of the employer. The spirit of the Act is to give a chance to remedy the breach before action is taken. Section 2 offences are punishable with a fine. In the absence of authority that the Health and Safety at Work Act applied to working hours, it was submitted that working hours, tachographs etc were only governed by the more severe Transport Act."

11. There is nothing in the drafting of the 1974 Act to restrict the wide words of section 2, sub-section 7 to the employers premises. The Act was passed as a result of the recommendations of the Robens Committee (as to which see 1972, Cmnd 6534) which makes it perfectly clear that in relation to transport undertakings the system of work applies wherever and whenever the drivers are in their cabs in the course of their employment. It ensures that their employers provide a safe system of work for them, which of course includes the requirement of compliance with drivers' hours regulations. In any event, compliance with those regulations would also bind the employer under the common law obligation found in Wilson and Clyde Coal Co Limited -v- English [1938] AC 57 to provide a safe system of work. We consider that this count was properly laid, and cannot agree that its inclusion in the indictment resulted in unfair prejudice to the appellant. As it happens, as a result of the conviction on Count 1, the finding of guilt on Count 2 is entirely academic, as no separate penalty was imposed. But if the jury were found to be biased, this conviction would fall with the others.
12. At the opening of the hearing the Court was asked to grant leave on a further ground of appeal:

"Under domestic law, sections 2 and 40 of the Health and Safety at Work Act created an offence of strict liability subject to a defence of non-practicability in respect of which the onus of proof runs on the defence. So interpreted the said provisions are incompatible with Article 6(1) and (2) of the European Convention on Human Rights by imposing a reversed burden of proof in what is otherwise an offence of strict liability without the need of any proof of any intention to commit the offence."

13. Having regard principally to the implications of the convictions on Count 1, but for a number of other reasons as well, Mr Hughes QC, leading counsel for the appellant, wisely withdrew his application that this ground of appeal be considered.
14. That leaves the Court with one ground of appeal to consider:

"The learned judge used his discretion wrongly in that there was a real danger, or at least a potential danger, in this case that two members of the jury might not have been impartial."

Cases where such an objection is taken are very fact sensitive, so it is necessary to set out the facts in detail.
15. Juries are randomly selected from individual geographical panels. That random selection is part of the jury's strength. But there are situations where it is clear certain jurors should not serve. Potential jurors, in the literature with which they are provided, are given basic instruction as to situations where they should not serve. It is also not uncommon in medium to long cases, for jurors on the panel from which the final random selection will be made, to be asked to answer a short questionnaire. Here the prospective jurors were asked to tell the court if they knew of Euroreefer - the appellant's firm - or if they were an HGV driver, or if any family member had been involved in an accident with an HGV driver. No juror claimed to come under any one of those three categories. The jury was empanelled, and counsel for the Crown began his opening, which was not completed on the first day.
16. When the trial resumed the next day, there were notes from two individual jurors. The first was from a man who we will call Juror A. He alerted the court to the fact that he believed that he knew one of the police officers that he had seen in court. The second note was from a woman who will we will call Juror B. Her note informed the court that her husband was a lorry driver, but operate in the United Kingdom only. Both sought guidance from the court. The judge arranged that counsel for the Crown and the defence saw the notes. He sat in open court (in the absence of both Jurors A and B and the other jurors) to investigate the facts and to decide what course to take.
17. As Juror A's note made clear, he believed he recognised PC Sexton, who the Crown intended would be in court for most of the trial, and would be a witness in the case. The juror did not know PC Sexton's name, and had not seen him, nor had any contact with him for ten years. He had known him only within the course of his, the juror's, work as an ambulance driver. Counsel for the Crown properly informed the court that PC Sexton would be quite an important witness in the case. At this point the judge asked Mrs Sparrow, counsel for the defence, for her reaction. She took her client's instructions and objected to both jurors. She was asked on what ground she objected to Juror A, and she said:

"Mr Sexton is a very important witness and that person, although ten years ago, may have some dealings with him in the way he works. ... the juror's reaction to my cross-examination, knowing what he knows about him may prejudice him."

18. The judge then suggested that he should question the juror and Mrs Sparrow agreed that was a proper course. Juror A was then called. He made it clear that he did not know the name of the officer he had recognised, but recognised him from when he was working as an ambulance driver ten years ago. The juror was in charge of the Chelmsford Ambulance Station and quite often police officers used to come to the station to get reports as to whether crews were in or not. That was the extent of his dealing with this officer. There had been no social contact with him, nor had he seen him since. He said, in reply to the judge's question whether his knowledge of the officer would affect his judgment, that in no way was it "... going to influence his (inaudible) of the oath to give a true verdict". The judge then investigated the matter further and established that PC Sexton had no recollection of having meeting Juror A, nor did he recognise his name.
19. In relation to Juror B, her note said:

"I have taken the oath and will not break it or discuss the case with my husband. I feel you should be aware of his job."

The judge was impressed by what she had written:

"... there does not really seem to be any ground for suggesting that she would be unable to fulfil her duties of returning a true verdict on the evidence."

20. Mrs Sparrow reiterated her objection:

"The objection on behalf of my client is that because I have to discredit, in effect, the evidence of three lorry drivers, and the fact that the lady's husband is a lorry driver, it may or may not subconsciously affect the way of thinking, that is the objection."

21. The judge then called Juror B in to give evidence. Her husband was a long-distance lorry driver operating within the United Kingdom. The judge asked her whether the fact that she was married to a lorry driver might or might not influence her judgment about the evidence in relation to lorry driving, and she answered:

"I don't think it would. I look at it from my point of view."

The judge said:

"Yes. You very properly and fairly said you had taken the oath and you were not going to discuss the case with your husband."

and she replied:

"No. I don't intend to. I have said no. I would not anyway, even knowing he is a lorry driver, I wouldn't intend to because that would make me more adamant, but no way then I would feel happy within myself."

22. She then volunteered that:

"Obviously, there are some jurors that have been on another case with me that do know what my husband does. Is that going to be a problem?"

and the judge answered:

"No, it is not going to be a problem, provided you do not discuss this issue with the other jurors."

to which she said: "OK".
23. The judge then called on Mrs Sparrow who said:

"These two members look nice people and I leave the decision in your hands because I have nothing else to add to my previous submissions."

The judge said:

"You would agree presumably that on their face there was no indication from either of them that they were going to be incapable of returning a true verdict?"

Mrs Sparrow said:

"No, my submission was not on their face, it was it could. [sic]"

The judge said:

"Yes. I understand that. Very well. Subject to Mr Abell just clarifying with the officer whether he has any particular knowledge of [Juror A] or any particular contact with the Ambulance Service which might have led to a particular relationship with [Juror A]. I am minded at the moment simply to note the sensible concerns expressed by both these jurors, not to discharge either of them and continue with the jury as presently constituted."

24. We approach the question of impartiality through the leading common law authority, R -v- Gough [1993] AC 656 HL. First, the court must ascertain the relevant circumstances from the available evidence. The striking factor of the conduct of both jurors was their responsible wish to bring to the court's attention their personal situation to ensure that it and their conduct complied with the oath they had taken as jurors.
25. We can see no reason whatsoever for the judge to have discharged Juror A. There was simply no basis for reading the possibility of bias into any of the evidence.
26. The case of Juror B is not quite the same. The appellant's defence did involve an attack on the drivers he employed. The suggestion is that, given that the enquiry into this employer stemmed from the death of one of the employee drivers, there was a real risk that Juror B might not be impartial.
27. Now defendants in criminal cases often are charged with offences which would fill ordinary people with horror, disgust and revulsion. The courts deals with the risk of bias in such cases by a strong warning to the jury as to just how important it is to stand back, be objective, and look at the evidence. The judge here (in a detailed and fair summing-up) said:

"Stand back and be objective. It would be very easy to become driven by emotion and feelings about what had taken place. Just look at the evidence and bear in mind that whatever may have caused the crash, that is but only one small piece in the jigsaw of evidence."

and that passage exemplifies the clinical tone of the summing-up as a whole.
28. In those circumstances, the judge had to ask himself in common law whether there was a "... real possibility or real danger ..." (see Archbold 2001 Supplement 4-32) of bias by either juror, ie that he or she "... might unfairly regard with favour or disfavour ..." (Archbold 2001, at 4-256) the case of a party to the case to be tried. The judge and the prosecution and the defence saw these jurors. It is clear they came across as nice people. No one has suggested any criticism of them or of their conduct. We remind ourselves that, in measuring the conduct of those who perform the responsible task of sitting on a jury, impartiality should be presumed until there is proof to the contrary. There is no basis for any criticism of these jurors, nor for the jury as a whole. There are no external grounds for suggesting that anything went wrong with this trial. The summing-up was fair in content and moderate in tone. The Crown case was a strong one. To have found a real possibility or real danger of bias here would be simply illegitimate guess-work, unsupported by any evidence.
29. We have no hesitation in finding that the judge was not only entitled under common law to refuse to discharge these jurors, but would have been wrong had he done so.
30. We turn to the Convention, and the recent case of Sander -v- UK 2000 Crim LR 767. There there had been allegations of racism within the jury, and the question (in that case as in this) was whether those allegations were capable of causing any objective observer legitimate doubts as to the impartiality of the courts. There one of the jurors had "... indirectly admitted making racist comments". Against that finding of racism within the jury the Court went on to find that the judge should have reacted in a more robust manner, and failing to do so did not provide sufficient guarantee "... to exclude any objectively justified or legitimate doubts as to the impartiality of the court."
31. That is not this case. Here there was no evidence of any bias within the jury. There was no evidence of misconduct or bias in relation to any jury member, and no objective fault to be found with the trial. The judge cannot be criticised for being insufficiently robust in his firm and fair direction
32. Juries over the centuries have been trusted with all our most serious crimes, and have retained the confidence of the nation. While this was a sensitive case, juries are entrusted with far more emotionally wringing cases, and their verdicts command a high measure of acceptance. Jurors listen to and respond to directions.
33. "Objective bias" is a Convention concept. We have dealt with it out of an abundance of caution. It seems to us that here the Human Rights Act, 1998 did not have retrospective effect, and so these verdicts were safe when taken (prior to 2nd October 2000) and do not become appealable when the 1998 Act came into effect. It does not (save in limited circumstances) have retrospective effect (see R -v- Lambert, 5th July 2001, HL, per Lord Hope - paragraphs 95 - 177; Lord Clyde - paragraph 134 - 147; and Lord Hulton - paragraphs 167 - 176). But the restrospectivity point was not argued before us, and we do not base our decision on that conclusion.
34. Accordingly, these appeals against conviction are dismissed.


© 2001 Crown Copyright


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