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You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Ready v. Her Majesty's Advocate [2007] ScotHC HCJAC_15 (16 February 2007)
URL: http://www.bailii.org/scot/cases/ScotHC/2007/HCJAC_15.html
Cite as: 2007 GWD 7-110, [2007] HCJAC 15, [2007] ScotHC HCJAC_15, 2007 SLT 340

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APPEAL COURT, HIGH COURT OF JUSTICIARY

 

Lord Osborne

Lord Johnston

Lord Penrose

 

 

 

 

 

 

 

 

 

 

[2007] HCJAC 15

Appeal No: XC246/06

 

OPINION OF THE COURT

 

delivered by LORD OSBORNE

 

in

 

APPEAL AGAINST CONVICTION

 

by

 

GARY READY

 

Appellant;

 

against

 

HER MAJESTY'S ADVOCATE

Respondent:

 

_______

 

 

 

Act: A. Ogg, Solicitor Advocate; Allan McDougall

Alt: Mackay, A.D.; Crown Agent

 

16 February 2007

The background circumstances
[1] On 10 March 2006 at Glasgow Sheriff Court the appellant was found guilty by a majority of the jury on charge 3 of the indictment which he faced. That charge was in the following terms:

"(3) on 26 July 2004 at Millbeg Place, Glasgow, you did assault Thomas Thomson, c/o Shettleston Police Office, Glasgow and did stab him in the body with a knife to his severe injury, permanent disfigurement and to the danger of his life;

you did commit this offence while on bail, having been granted bail on 20 May 2004 at Glasgow District Court."

On 31 March 2006 a sentence of four years imprisonment was imposed in respect of that conviction.

[2] The appellant has appealed against his conviction on two grounds in the following terms:

"(1) the sheriff erred and misdirected himself in repelling the submission of 'no case to answer' made on behalf of the appellant; and (2) that the appellant believes that there were irregularities within the jury room which require investigation."

In consequence of criticism levelled at the unspecific nature of the second ground of appeal, an additional ground was subsequently lodged, intended to be an elaboration of it. That ground was in the following terms:

"(2) that the jury (a) failed to comply with the terms of their oath to well and truly try the accused and give a true verdict according to the evidence and (b) failed to comply with the directions of the trial judge as to how they should reach their verdict in respect that they, or a number of them did not consider the evidence, declined to discuss it with their fellow jurors and returned a verdict to bring proceedings to an end quickly."

This second ground of appeal has, as its basis, circumstances that were brought to the attention of the sheriff by Mr Wyse, a solicitor who had acted for the appellant at the trial, following the determination of the proceedings on 31 March 2006. This occurred at a meeting in the sheriff's chambers at which both the procurator fiscal depute and the sheriff clerk were present. Mr Wyse explained that, following the conviction of the appellant, he had received a letter from a female juror in the case. The effect of the letter was to express the concern of this juror that three of the other jurors had not given the case fair consideration. That letter, which has now been produced in this appeal, is in the following terms:

"I was a serving juror in the case of Gary Ready and as a serving juror I don't think the case brought upon the jurors was a fair decision as due to a lack of thought and consideration and my sincere opinion that 3 of the serving jurors wanted the case over with as soon as possible as they didn't give it their due concern as what they where (sic) supposed to due (sic) I myself as one of the serving jurors voiced my opinion on many occasions through the way the case was getting handled with 3 of the jurors and I sincerely think the case against Mr Ready should be brought to a retrial as my concience (sic) is telling me he sincerely didn't get a fair enough hearing from the jurors concerned."

The letter was signed by the writer.

[3] There has also been lodged a precognition of a male person who was acquainted with the appellant, in which he narrates a meeting with an acquaintance in a bar in Glasgow. The acquaintance, a male, was the partner of the female juror who wrote the letter narrated. In the conversation that ensued, an account was given by him of her experience as a member of the jury. It included the suggestion that she had been "more or less nearly fighting with two or three of the jurors because they weren't really interested in the case". There followed a meeting between the male person who has given the precognition and the female juror. On the occasion of that meeting, the female juror wrote the letter quoted above. At the meeting the juror is reported in the precognition to have said:

"There was no way in this world that he should have got a guilty. There was no evidence to convict him but three jurors were not interested in listening to any of the evidence. One was giggling and laughing when they were going over the evidence in the jury room. (It was an Irish lassie.) In fact the Irish lassie turned round in front of the jurors and said:

'Fuck this. I'm not coming back on Monday, let's just give him a guilty and get to fuck out of here.'"

[4] It is pertinent to narrate the comment made by the sheriff on the second ground of appeal, in its unelaborated form. In his Report to this court he said this:

"As to the second ground of appeal concerning irregularities occurring in the jury room, this is a matter about which I have little knowledge. My notes record that the jury first retired to consider their verdict at 3.30pm on Thursday 9 March. The court was reconvened at 4.50pm when it was established that the jury were not in sight of a verdict and wished to see the transcript of the taped interview of the appellant. The court was then adjourned to the following day and arrangements were made to provide the jury with some copies of the transcript. On Friday 10 March the court was again convened and the jury resumed their deliberations at 10.33am with copies of the transcript. The jury returned at 11.55 and delivered the verdict complained of having been engaged in deliberation for a total period of about 2 hours and 40 minutes over the two days."

[5] At a procedural hearing at which the grounds of appeal were considered and preparations for the appeal discussed, the issue was raised of whether any practical steps required to be taken in respect of ground of appeal 2. It was indicated by Miss Ogg, on behalf of the appellant, that some enquiry into the matters raised in that ground would require to be made. The court then raised the issue of whether such an enquiry would be lawful or appropriate, whereupon it was recognised that a debate would be necessary to discuss those matters. A further procedural hearing was fixed for that purpose, which took place on 6 February 2007.

 

The submissions
[6
] Miss Ogg, on behalf of the appellant, moved the court to remit the case to the sheriff principal to make enquiries of the juror who had written the letter mentioned and to invite her to expand upon the terms of the letter. She contended that there was no obstacle to the taking of that course. She made three submissions in that regard. First, she submitted that section 8 of the Contempt of Court Act 1981, which rendered certain actions a contempt of court, could not apply to the court itself; if the court decided that it was appropriate to enquire into statements made or opinions expressed in the course of the deliberations of the jury, the provisions of that section would not constitute an obstacle. Second, Miss Ogg submitted that the common law position in Scotland was expressed in Swankie v Her Majesty's Advocate 1999 S.C.C.R. 1. In that case the court had stated that an enquiry into the conduct of a member of a jury was not lightly to be entered upon, especially where the court was being asked to order an investigation into the jury's deliberations. She maintained that what had been said in that case showed that such an investigation would be undertaken in appropriate circumstances. Thirdly it was submitted that, if there were thought to be sensitivities about enquiring into the deliberations of a jury, any inquiry undertaken here would not in fact involve that. The allegation was that certain jurors had not been prepared to undertake proper deliberations but had simply wished to terminate the proceedings as quickly as possible. That did not amount to deliberation. In connection with her submissions Miss Ogg drew the attention of the court to R. v Mirza [2004] 2 CrApp R 8; Scottish Criminal Cases Review Commission, Petitioners 2001 S.C.C.R. 775; McCadden v Her Majesty's Advocate 1985 S.C.C.R. 282; Adam v Her Majesty's Advocate 2006 S.C.C.R. 354; and Gray v Her Majesty's Advocate 1994 S.C.C.R. 225.

[7] The Advocate depute moved us to refuse the appellant's motion. He submitted that an inquiry into the matters suggested would be illegitimate. It was useful to see what had happened during the course of the trial, as described in the sheriff's report. What emerged from that was that the jury had had ample time to consider their verdict over two separate days. That suggested that there had been full deliberation concerning the issues in the case. He then referred to the terms of the letter written by the female juror and the precognition which we have mentioned. He contended that it was clear from the terms of those documents that the concerns were focused upon the behaviour and observations of certain jurors during the course of the jury's deliberations. The law was that the court would not enquire into such matters. The justification for such a posture was not so much section 8 of the Contempt of Court Act 1981, but rather the provisions of the common law. He submitted that the law of Scotland as well as of other jurisdictions had been explained by Lord Hope of Craighead in R. v Mirza, particularly in paragraphs 95-97. The general rule was that the court would not investigate or receive evidence about anything said in the course of the jury's deliberations while they were considering their verdict in their retiring room. In the view of Lord Hope, expressed at paragraph 123, the only modification of that rule related to a situation where there was a complete repudiation by the jury of their only function which, as the jurors' oath put it, was to give a true verdict according to the evidence. Thus a trial which resulted in a verdict by lot or the toss of a coin, or was reached by consulting an Ouija board in the jury room, would not be a trial at all. If that were what had happened, the jurors would have no need to be protected as the verdict would not have been reached by deliberation. The Advocate depute contended here that the court was not dealing which any such situation. The material put before the court in support of ground of appeal 2 was in the nature of a criticism of the quality of the deliberations which had taken place. He submitted that the case of R. v Mirza demonstrated that there were weighty public policy reasons why there should be no inquiry into the deliberations of a jury. In support of his submissions the Advocate depute also relied upon the observations of Baron Hume in Commentaries of the Law of Scotland Respecting Crimes, 4th ed. [1844] at p.429. While it might be legitimate for inquiry to be conducted into matters extrinsic to the deliberations of the jury, as was contemplated but not ordered in McCadden v Her Majesty's Advocate, that was not what was involved in the present case. The difficulties attached to the notion that inquiry should be conducted into the deliberations of a jury were considered by Lord Rodger of Earlsferry in R. v Mirza at paras.161-174. At para.166 his Lordship contemplated the possibility that an inquiry might be made if it were suggested that a "verdict" had been arrived at by a totally illegitimate or irrational process, although he reserved his opinion on that point. As he saw it, the difficulty was of devising a workable exception to the rule against enquiry into deliberations that would not undermine the rule itself. The Advocate depute submitted that the opinions of the House of Lords in R. v Mirza were not inconsistent with the Scottish authorities.

[8] In any event in McCadden v Her Majesty's Advocate the court had indicated that a very rigorous test had to be applied to material tendered as the basis for a suggested inquiry. He submitted that the material that had been placed before the court in this case did not pass that test. The letter written by the juror here expressed concern in rather general terms. The precognition which had been furnished contained hearsay material. The court should not enter upon an inquiry of the kind suggested on the basis of such material.

[9] In the case of Kerr v Her Majesty's Advocate 1999 S.C.C.R. 763 an investigation was ordered, but that was in relation to the question of whether the provisions of section 99(2) of the Criminal Procedure (Scotland) Act 1995 had been contravened; a consequence of such contravention would have been that a person affected fell to be acquitted in terms of section 99(5). That case was not comparable to the present one. Likewise, in Gray v Her Majesty's Advocate the court had ordered certain enquiries to be made, but these were concerning whether one of the members of the jury had visited the locus of the crime alleged. The matters raised in that case were extrinsic to the deliberations of the jury. Scottish Criminal Cases Review Commission, Petitioners arose out of the same circumstances as were concerned in Gray v Her Majesty's Advocate. Swankie v Her Majesty's Advocate could not be relied upon for the proposition that a court would order an inquiry into matters concerned with the deliberations of the jury; important authorities, such as Hume's Commentaries had not been put before the court in that case.

[10] Summarising his position, the Advocate depute said that his fundamental position was that the court could not lawfully initiate an inquiry into matters which formed part of the deliberations of the jury. In any event, the material that had been placed before the court was insufficient to justify any inquiry. None of the cases put before the court demonstrated that enquiries had been ordered into matters which formed part of the deliberations of the jury. They had involved matters which had been extrinsic to such deliberations.

[11] Finally, the Advocate Depute relied upon Pirie v Caledonian Railway Company (1890) 17 R. 1157. In that case it had been held that, after a jury had been discharged, it was incompetent to show by the evidence of jury men that the verdict did not correctly express the result at which the jury had arrived. The Lord President emphasised that the verdict of a jury could not be challenged by the jurors themselves who had returned the verdict, or by any others. The utmost danger and uncertainty would be the consequence if questions were to be raised against the verdicts of juries by examining the jurors themselves after their verdict had been delivered. It was submitted that that case was wholly consistent with the analysis of the law of Scotland undertaken by Lord Hope of Craighead in R. v Mirza.

[12] Miss Ogg, in reply, pointed out that, in Pirie v Caledonian Railway Company, Lord Shand had contemplated that there might be an exception to the general rule in a case where it was contended that a jury had reached their result in an improper manner, as for example by casting lots, instead of deliberating.

 

The decision
[13
] In the course of the discussion before us little significance was attributed to the provisions of section 8 of the Contempt of Court Act 1981. That section provides, inter alia, as follows:

"8(1) Subject to subsection (2) below, it is 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.

(2) This section does not apply to any disclosure of any particulars -

(a) in the proceedings in question for the purpose of enabling the jury to arrive at their verdict, or in connection with the delivery of that verdict; or

(b) in evidence in any subsequent proceedings for an offence alleged to have been committed in relation to the jury in the first mentioned proceedings, or to the publication of any particulars so disclosed."

The form of this section is to render the defined activities a contempt of court. If the court itself were to decide that an inquiry into the matters defined in the section was necessary in the interests of justice, it is difficult to see how the provisions of the section could operate, since it is plain that the court could not be in contempt of itself. Accordingly, attention in the debate before us was focused upon the common law. As regards that, the general rule in Scots law was expressed in this way by Lord Hope of Craighead in R. v Mirza in para.94:

"It is common ground that the primary obstacle to the admission of the evidence which the appellant seek to adduce in this case is to be found not in the statute but in the common law rule that evidence of jury deliberations after the verdict has been delivered is inadmissible. ... The general rule is that the court will not investigate, or receive evidence about, anything said in the course of the jury's deliberations while they are considering their verdict in their retiring room. ... The rule was also recognised long ago in Scotland: see Hume, Commentaries of the Law of Scotland respecting Crimes, the first edition of which was published in 1797. What, Hume asked, was to be done if the verdict is challenged on the ground that it had been obtained improperly, such as by the use of unlawful means to obtain the jury's assent to it? He gave this answer, as it appears in the fourth edition (1844) at p.429, in terms which place the rationale for the rule on a more secure basis:

'If a plea of this sort, in impeachment of the substance of a verdict, can at all be listened to, one thing at least seems to be clear, that it can only be in those cases, comparatively but few in number, where the jury re-enter the Court straightway on breaking up their private sitting. For if they disperse, and disclose their verdict (as sometimes happens), then are they exposed to all the temptations, from the opinions and commentaries of the world, against which it is the very object of our law to guard, when it orders them to be inclosed; and they may thus be prevailed with to disavow their genuine verdict, on false and affected grounds. Nay, though they conceal even, as they ought to do, the result of their deliberations, yet still they learn the sentiments of others concerning the case and the evidence, and are liable to be influenced, less or more, by what they thus hear passing in the world.'

In Pirie v Caledonian Railway Company ... Lord President Inglis said that it was out of the question for the court to entertain any challenge after the trial to a verdict which had been delivered and agreed by the jurors as their verdict. He said that this point had been regarded as settled in Scotland in Stewart v Fraser (1830) 5 Murray 166, in which the Lord Chief Commissioner Adam had referred to the passage from Hume's Commentaries which I have set out above in which, as the Lord President put it, the principle could not have been better expressed."

In succeeding paragraphs 106, 107, 115-119, Lord Hope of Craighead enters into a detailed analysis of the justification for the general rule. In para.123 he recognises the possibility of a modification to it that distinguishes, after the verdict has been delivered, between the things which are intrinsic to the deliberation process and those which are extrinsic to it. In para.123, he says this:

"So it is arguable that an allegation that the jury as a whole declined to deliberate at all, but decided the case by other means such as drawing lots or by the toss of a coin, can be placed into a different category. Conduct of that kind, were it ever to occur, would amount to a complete repudiation by the jury of their only function which, as the jurors' oath puts it, is to give a true verdict according to the evidence. A trial which results in a verdict by lot or the toss of a coin, or was reached by consulting an ouija board in the jury room, is not a trial at all. If that is what happened, the jurors would have no need to be protected as the verdict was not reached by deliberation - that is, by discussing and debating the issues in the case and arriving at a decision collectively in the light of that discussion. The law would be unduly hampered if the court were to be unable to intervene in such a case and order a new trial. But that is not the situation which is before us in these appeals."

[14] Likewise Lord Rodger of Earlsferry, in paras.161-174, analyses the nature of the general rule and its justification. In para.165, he said this:

"For these reasons, even though invited from time to time to reconsider their approach, the highest appeal courts have consistently refused to entertain appeals based on the allegations of a juror, made later, that during their deliberations other jurors showed bias, failed to apply the judge's directions or otherwise acted improperly. If that was indeed the juror's view, then the time to make it known was before the verdict was returned - either by sending a note to the judge, or by speaking to the jury bailiff or by declaring the objection in open court."

In para.172, he continued:

"If it were indeed possible to devise a workable exception which would not eat up the rule, then that might be the ideal solution. But over the years judges of the highest authority have considered the matter and have not found such a solution. They have therefore affirmed the rule that evidence about jurors' deliberations should not be admitted."

[15] During the course of the debate before us reliance was placed by Miss Ogg upon McCadden v Her Majesty's Advocate and Swankie v Her Majesty's Advocate. In the former of these cases, the court held that the statutory powers available then under the Criminal Procedure (Scotland) Act 1975 section 252(d) were available to enquire into the ground of appeal there stated, which was in fact concerned with a matter extrinsic to the jury's deliberations, but decided that the material placed before the court was not substantial enough to justify inquiry. Having regard to the ground of appeal that was there stated and to the fact that the authorities which we have had the benefit of considering were not before the court, we cannot regard anything in that decision as militating against the view which we intend to take in this case. In Swankie v Her Majesty's Advocate the ground of appeal tabled was that a member of a jury had disclosed to the jury during the deliberations that the appellant had a previous conviction for drugs offences. Against that background the court held that an enquiry into the conduct of a member of the jury was not to be lightly entered upon, especially where the court was being asked to order an investigation into the jury's deliberations. We note from the report of that case that neither the passage from Hume's Commentaries, nor Pirie v Caledonian Railway Company was cited. In those circumstances, we take leave to doubt whether the opinion expressed there that an inquiry might be entered upon even where it amounted to an investigation into the jury's deliberations was soundly based.

[16] In the end, Miss Ogg's position was that the matters sought to be enquired into here did not in fact truly form part of the jury's deliberations, since the alleged observations by the three members of the jury referred to were not related to the merits of the case. We cannot accept that submission. It appears to us that discussion by jurors of whatever nature within the confines of the jury room after enclosure must be seen as part of the jury's deliberations, unless they fall within the modification to the general rule contemplated by Lord Hope of Craighead in para.123 in R. v Mirza. There is no question in this case of a suggestion that the jury had completely repudiated their function. What the allegation here amounts to is that the three jurors concerned had not given appropriately thorough consideration to the issues in the case and wished the jury's deliberations to be brought to an early close. It appears to us that it is inevitable that, from time to time, one juror may regard the general attitude of another to jury service as unsatisfactory. However, in our opinion, for sound reasons of public policy, investigation into such matters cannot be entertained. If it were, the trust which the jury system justifiably enjoys would be undermined.

[17] In all these circumstances we shall refuse the motion made by Miss Ogg. In view of the fact that the debate before us occurred in the course of a procedural hearing, as opposed to the full hearing of the appeal, we do not think it appropriate at this stage to refuse the second ground of appeal, but no doubt, in due course, that will be done.


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