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Scottish High Court of Justiciary Decisons


You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Clow v. Her Majesty's Advocate [2007] ScotHC HCJAC_24 (25 April 2007)
URL: http://www.bailii.org/scot/cases/ScotHC/2007/HCJAC_24.html
Cite as: 2007 SCCR 201, 2007 SLT 517, [2007] HCJAC 24, [2007] ScotHC HCJAC_24, 2007 GWD 14-277

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APPEAL COURT, HIGH COURT OF JUSTICIARY

 

Lord Justice General

Lord Eassie

Lord Wheatley

 

 

 

 

 

 

[2007] HCJAC 24

Appeal No: XC564/06

 

OPINION OF THE COURT

 

delivered by THE LORD JUSTICE GENERAL

 

in

 

APPEAL

 

by

 

ELIZABETH CLOW,

Appellant;

 

against

 

HER MAJESTY'S ADVOCATE

Respondent:

 

_______

 

 

 

Act: Shead, Mitchell; Beaumont & Co., Edinburgh

Alt: Murphy, Q.C., A.D.; Crown Agent

 

25 April 2007

 

The procedural background

[1] On 11 July 2006 a jury, sitting in the High Court of Justiciary at Edinburgh, after a trial which ran, with interruptions, for about six months, returned a majority verdict of guilty (subject to a restriction) against Ms. Elizabeth Clow on the single charge (of fraud) then remaining on the indictment. In the course of the trial three jurors had been excused. At a subsequent diet the trial judge sentenced her to imprisonment for four years. Ms. Clow gave timeous notice of an intention to appeal against conviction and sentence. No grounds of appeal were lodged within the time prescribed by section 110 of the Criminal Procedure (Scotland) Act 1995 but in December 2006 an extension of time to lodge such grounds was granted. That extended period expired at close of business on 8 March 2007. When this court, having heard argument on the issue referred to hereafter for almost three days, rose on the afternoon of 8 March no grounds had yet been lodged, although a proposed or intended ground, together with an association devolution minute, had been intimated.

[2] On 11 December 2006 Ms. Clow submitted to the court a petition for bail. This was refused in hoc statu by a single judge. On 30 January 2007 this court refused in hoc statu an appeal against that decision but appointed that appeal to a procedural hearing before three judges "for the purpose of determining procedure in relation to correspondence received from one of the serving jurors". At a procedural hearing on 13 February 2007 the court continued the question of interim liberation and the appeal to a further procedural hearing to await the Opinion of the Court in another appeal considered to be pertinent to the question (Ready v H.M. Advocate). On 20 February the Opinion of the Court in Ready having become available, the court continued consideration of the appeal (against refusal of bail) for a further procedural hearing before a bench of three judges to a date to be afterwards fixed and continued the question of interim liberation until that hearing.

 

The correspondence

[3] We have now heard argument on further procedure in relation to the correspondence referred to. Mr. Shead on behalf of Ms. Clow (whom we shall for convenience refer to as "the appellant", although at the time of the discussion the only appeal at her instance was one against refusal of bail) invited the court to order further inquiry into the correspondence. The background to the correspondence is as follows. On 3 August 2006 a deputy advocate's clerk received a telephone call from a person who identified herself as having been a juror at the appellant's trial. She was in a very distressed state. She indicated to the clerk that she wished to call with a letter to counsel who had acted for the appellant at the trial. According to a note prepared by the clerk the juror said that "she was greatly distressed by something which occurred which she said in her view resulted in Elizabeth Clowe (sic) not having a fair trial". Certain advice was given to the juror as to where she should address any letter and arrangements were made for any such letter which was received to be forwarded to the court. In the event a letter dated 9 August 2006 was received bearing to be from a juror who identified herself by name and address. The addressee was not specifically identified but it may be taken that the concerns therein referred to were intended to be drawn to the attention of the court. The letter was in the following terms:

"Dear Sirs,

I am writing to express my concern as a jury member in the case of Miss Elizabeth Clowe. I am appalled at how this jury came to their verdict;

·        From the very first week they had all judged Miss Clowe to be guilty

·        They judged Miss Clowe by the clothes that she wore

·        They commented on how they wanted to hang her and throw her in front of a lorry

·        They called her by abusive names

·        They blamed her for them sitting jury service for so long

·        One member of the jury tried to ask the judge a question

·        Some members were extremely prejudiced

·        Some of the Jury members were more concerned about how much money they could squeeze out of the court including claiming for compensation

I and others have suffered six months of this fiasco, which has impacted on my physical and mental health. If it has had this impact on myself I despair to think about the effect this whole event has had on Miss Clowe.

On two occasions I did mention to the clerk that it was unbearable sitting in the jury room listening to them constantly saying Miss Clowe was guilty. Which I may mention the judge did address the court on twice and reminded them to listen to all the evidence before making their verdict - which I believe went unheard by my fellow jurors.

I feel so strongly that British Justice has not been received in this case, so much so that I feel like making my experience public knowledge in order to prevent others from becoming victims of a jury similar to the one that I served upon.

As a British citizen, I was proud to be part of a jury and to try and assisting in maintaining British Justice. However, I can honestly say that this experience of jury shames me and I am extremely disappointed and upset that I was part of this circus parade and I strongly believe that there was no Justice for Miss Elizabeth Clowe.

Yours sincerely,".

 


Submissions for the appellant

[4] Mr. Shead did not invite us to accept the statements made in the letter at face value but submitted that, coming from a serving juror, they gave rise to such concerns about whether the appellant had had a fair trial that the court should authorise or appoint further inquiry into the conduct of the jury in this case. There was, he said, some uncertainty as to whether in cases of this kind there was a responsibility on the appellant's representatives to trace and precognosce jurors; reference was made to an implication to that effect said to arise from the comments of the Lord Justice Clerk in Adam v H.M. Advocate 2006 S.C.C.R. 354 at para. [26]. Whether the inquiry was undertaken by the appellant's representatives or by the court (by private investigation or otherwise), the appellant's right to a fair trial demanded that inquiry in some form be made. Such an inquiry would not trench upon the jury's "deliberations" as that had been interpreted, for the purposes of section 8 of the Contempt of Court Act 1981, in Scottish Criminal Cases Review Commission, Petitioners 2001 S.C.C.R. 775. The decision in Ready v H.M. Advocate [2007] HCJAC 15 was concerned only with discussion by jurors within the confines of the jury room after enclosure (para. [16]). Improper conduct on the part of a jury could be addressed by asking whether, viewed from the standpoint of a well-informed observer, justice had been seen to have been done. Reference was made to Gray v H.M. Advocate 2005 J.C. 233, 2005 S.C.C.R. 106 and McTeer v H.M. Advocate 2003 J.C. 66, 2003 S.C.C.R. 282. A premature conclusion as to guilt would vitiate a subsequent determination (as, for example, most recently in Reid v Barbour 2003 S.C.C.R. 559). The first of the bullet points made in the juror's letter indicated an equivalent prematurity of judgment on the part of this jury. In McCadden v H.M. Advocate 1985 J.C. 98 the court had contemplated an inquiry into an allegation that a juror had been biased, although it had not, in the event, found there to be a sufficient basis for ordering such an inquiry. In R. v Mirza, R. v Connor and Rollock [2004] UKHL 2, [2004] 1 AC 1118 the House of Lords had by a majority held that evidence could not, in an English appeal against conviction, be led of anything said in the course of the jury's deliberations while they were considering their verdict. But that case was concerned with the admissibility of evidence; in Scotland, where the court could institute an inquiry which need not proceed upon evidence (in the formal sense), the same considerations did not apply. The observations on Scottish procedure made by Lord Hope of Craighead and Lord Rodger of Earlsferry in Mirza were obiter. The passage in Hume - Commentaries on the Law of Scotland respecting Crimes (vol. II page 429) discussed in Ready v H.M. Advocate and in Mirza did not warrant the proposition that, according to the law of Scotland, communications between jurors prior to their having retired to consider their verdict were protected from investigation. Any proposition that such communications were so protected would involve an extension of the law. That was not justified. It ran counter to present trends (which had in England included proposals for radical reform of the jury system). There was an obligation on every national court to ensure that it (and any court from which an appeal lay to it) was an "impartial tribunal" (Remli v France (1996) 22 EHRR 253). The decisions made in the context of civil jury trials (Pirie v Caledonian Railway Co. (1890) 17 R. 1157; Stewart v Fraser (1830) 5 Murray 166) did not assist.

 

Submissions for the Crown

[5] The advocate depute submitted that Ready v H.M. Advocate had been correctly decided and that its circumstances were very similar to those in the present case. The views expressed by the majority of their Lordships in Mirza were also highly persuasive and should be followed. The important distinction was between extrinsic matters (which could be inquired into) and intrinsic matters (which could not). Alternatively, communications among jurors in the jury room prior to enclosure touching on their views of the evidence as it proceeded could be regarded as truly part of the process of deliberation or, if not so, to be sufficiently close to it as to be covered by the exclusionary rule. So far as had been discovered, there had been only two cases in which the court had contemplated an inquiry into matters touching on a jury's deliberations. These were McCadden v H.M. Advocate and Swankie v H.M. Advocate 1999 S.C.C.R. 1. In neither of these cases had an inquiry in the event been ordered. It was noticeable also that in neither of them had the older authorities (Hume, and the cases of Stewart and Pirie) been cited. Objectively viewed, the juror's observations in the letter might be of limited value; what was significant was not what might have been said in the first week of the trial but rather the jury's ultimate consideration of their verdict. The observations might simply amount to a single juror's subjective view of the grumblings made by fellow jurors over a protracted trial and inappropriate remarks made during that period. The risk that those chosen as jurors might be prejudiced in various ways was inherent in trial by jury but the legal system guarded against such risks (Mirza, per Lord Rodger at para. 152). It was natural that, in the course of a trial, particularly a long trial, jurors would, during breaks in the evidence, talk to one another, including conveying their impressions as to the state of the evidence as it unfolded. It was unrealistic to suppose otherwise. These provisional impressions were as much entitled to protection as the content of the jury's deliberations once they had retired to consider their verdict. In Stewart the court had (as subsequently in McCadden and Swankie) found the material placed before it insufficiently compelling to warrant any inquiry and had also ruled on public policy grounds against such an inquiry - even where the allegation was that the verdict had been reached by the casting of lots. The jury's deliberations after their retiral were clearly confidential; the same confidentiality should in principle be accorded to their internal communications about the case throughout the trial. Even if, in light of Scottish Criminal Cases Review Commission, Petitioners the scope of "deliberations" for the purposes of section 8 of the Contempt of Court Act 1981 was relatively narrow, that provision was designed to protect the jury at a critical stage in the trial; it did not follow that a wider protection was not available at common law. The distinction between external influences on the jury and the influence of jurors upon each other was clearly drawn in the passage in Hume. That distinction had also been noticed in Mirza (see Lord Hope at para. 107, Lord Rodger at para. 162). The scope of the protection as extending from the moment the jury had been empanelled had in England been recognised (R v Miah [1997] 2 Cr App R 12 and R. v Quereshi [2002] 1 W.L.R. 518, both noticed in Mirza at para. 101). Reference was also made to Walker on Evidence (2nd edition) at para. 13.20.3 and Dickson on Evidence (Grierson's edition) at paras. 1642-4. As to any non-public inquiry instituted under judicial authority, the results of that inquiry would inevitably require ultimately to be discussed in open court, so breaching the jurors' rights to confidentiality of their discussions.

 

Discussion

[6] In Mirza at para. 142 Lord Hobhouse of Woodborough stated that the confidentiality of jury deliberations was a well-established principle of both English law and Scottish law. He referred, by way of example, to Ellis v Deheer [1922] 2 K.B. 113 (an English civil case), to R. v Miah (where Kennedy L.J. at page 18 observed that the reasoning underlying that principle "must extend to cover anything said by one juror to another about the case from the moment the jury is empanelled") and to Russell v H.M. Advocate 1991 J.C. 194 (where it was observed by Lord Justice General Hope at page 198 that the principle that justice must be seen to be done does not extend "to what is heard in the privacy of the jury room"). It is clear that in England such confidentiality is not restricted to the stage when the jury has retired to consider its verdict (R. v Miah; R. v Qureshi, in the latter of which the Convention implications of the rule were considered). In Russell, although the Lord Justice General refers to section 8(1) of the Contempt of Court Act 1981 (in respect of which "deliberations" have subsequently been more narrowly construed - Scottish Criminal Case Review Commission, Petitioners), there is nothing to suggest that the information in question (that one of the jurors had known the victim personally and that another had a daughter who suffered from a similar disability to the victim) was communicated only after the jury had retired to consider its verdict.

[7] In expanding upon the principle in question Lord Hobhouse continued at para. 142 in Mirza as follows:-

"The rationale of the rule includes the need for finality. A verdict returned in the presence of all of the jurors and on their behalf is not open to second thoughts and must, subject to very limited exceptions, e.g. patent inconsistency with another verdict, be accepted by the trial judge. This finality works as much in favour of the accused as against him. Finality is what the acquitted defendant wants and needs; the convicted defendant on the other hand can always invoke his right of appeal to the Court of Appeal. But for present purposes, another reason for the principle is more important. It underpins the independence and impartiality of the jury as a whole. It enables them to be true to their oath to return a true verdict according to the evidence without fearing the consequences of the reporting of things individual jurors have said or the arguments they have advanced. They can play their part in the collective deliberations of the jury without fear of quotation, embarrassment or victimisation. A jury is a collection of lay citizens selected at random. They arrive at the court with all their preconceptions and misconceptions. ... Those randomly selected are each required to take the juror's oath before they are empanelled. The trial judge will himself, as the course of the trial dictates, reinforce the message, for example reminding them that the only evidence is that adduced at the trial not what their friends and relations or the media say, and that they must discard any prejudices they have had and approach the case with an open mind and he will direct them further during his summing-up".

[8] These considerations are as applicable to a Scottish criminal jury as to one sitting in England. In the present case the trial judge in charging the jury specifically directed them not to be swayed by any prejudice they might have; he also repeatedly directed them that they must reach their verdict on the basis of the evidence they had heard. The whole system of trial by jury proceeds and can only proceed upon the hypothesis that the jury, in ultimately making decisions upon guilt and innocence, will loyally follow the directions they have been given.

[9] At page 429 of volume II of his Commentaries, Hume discusses the circumstances in which a verdict may and may not be impeached. Having examined the situation in which it is alleged that the written verdict then in use was not a true record of the jury's determination, he goes on to consider the question whether

" ... a part of the jury, while they allow the authenticity of the writing now produced, can yet be allowed to allege that it was unduly obtained, and therefore ought not to be received; because the question was not duly put, or the voices were not fairly counted, or some of the assizers misunderstood the state of the vote; or because unlawful means of threats, importunity, or the like, were used by some of the assize with the others, to obtain their assent".

While acknowledging that the answer to that question might be "more open to difference of opinion", he positively excludes it in circumstances where, prior to the challenge, the jurors have had the opportunity of communicating with others than their fellow jurors. For he says:

"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 those 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 enclosed; 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 results 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".

[10] Hume continues (at page 430):-

"But further, even if the assize returns straightway into Court, it still is far from being clear that it is competent to impeach the written verdict, on the ground of irregularity in their proceedings or deliberations while they were inclosed. To withstand and control any attempt, by any of their number, to overawe, constrain, or impose on them, was both the duty of the assize, and within their power; and rather, if there were no other remedy, to continue inclosed till the Court meet, and then dissolve their sederunt and state the reason to the Judge, (though it should invalidate the whole proceedings,) than to acquiesce in a downright usurpation and injustice. If, therefore, they have wittingly allowed the verdict to be made up in their presence, such as it is, they have thus given their deliberate and solemn testimony, as if under their own hands, and such as they cannot be allowed to gainsay, to the truth of this written report, and the lawfulness and regularity of the proceedings in their sederunt. Any other rule would obviously lead to hurtful, and indeed interminable inquiries".

[11] The burden of the learned author's opinion is that it is the duty of every juror to withstand and check any irregular imposition by a fellow juror; and further that it is within the power of any juror to avoid any injustice by reason of irregularity - by reporting it to the presiding judge. If an irregularity is brought to the attention of the judge, he or she may deal with it as appropriate - in an extreme case by deserting the diet pro loco et tempore. If it is not reported, the verdict, according to Hume, must stand. The final observation that any alternative rule would lead to hurtful and interminable inquiries is also well made.

[12] The opportunities in Hume's day for communications among jurors prior to enclosure were no doubt more limited than in modern practice - though jurors then could and did communicate during the trial with each other while in the jury box. But the principle that a juror who has been party to a verdict cannot, after it has been returned and recorded, impeach it on the ground of some claimed impropriety on the part of other jurors emerging in communings among them must apply equally to circumstances occurring before as after enclosure. In R v Pan, R. v Sawyer [2001] 2 S.C.R. 344 (a decision of the Supreme Court of Canada) Arbour J. discussed three rationales for the jury secrecy rule. Her discussion of that rule is referred to in Mirza by Lord Steyn at paragraph [13] and by Lord Hope at paragraph [114]. These rationales are (1) the need to promote candour and full and frank discussion, (2) the need to ensure finality of the verdict and (3) the need to protect jurors from harassment, censure and reprisals. While Arbour J. did not consider the second of these, standing alone, as a convincing rationale, she clearly gave it some weight in combination with the others. She concluded:-

"I am fully satisfied that a considerable measure of secrecy surrounding the deliberations of the jury is essential to the proper functioning of that important institution and that the preceding rationales serve as a useful guide to the boundaries between the competing demands of secrecy and reviewability".

[13] These rationales appear, at least in large part, to be as applicable to internal jury communications before as after enclosure. Where in practical terms it is impossible, as it is, to prevent jurors sharing in the jury room their impressions of the case as it proceeds, the rule cannot be restricted to "deliberations" in the narrow sense of exchanges after the jurors have retired to consider their verdict. The discussion by their Lordships in Mirza does not suggest that any such line can properly be drawn. While it may be that in the result the protection afforded by the criminal sanction under the Contempt of Court Act 1981 is not as extensive as the common law rule, that is not a sufficient reason for giving to that rule an unnaturally restricted scope. The need, based on the rationales discussed, for jury secrecy distinguishes private comments and conduct of jurors in the jury room from public comments or conduct of judges in open court.

[14] This court has recently considered the common law rule (Ready v H.M. Advocate). While the decision in that case appears to have been directed to discussion within the jury room "after enclosure" (para. [16]), the reasoning is equally apt in our view to discussion in the jury room before enclosure. Indeed the letter from the juror in that case suggests that the impropriety with which she was concerned was not restricted to events after the jury's retiral (see para. [2]).

[15] It is unnecessary for the purposes of this case to hold that in no circumstances whatsoever will the court, after verdict, order inquiry into what occurred in the jury room, before or after enclosure. In Swankie v H.M. Advocate the court, without however citation of all relevant authority, contemplated the possibility of an inquiry where it was contended that a juror in the course of the jury's deliberations had told his fellow jurors that the accused had previously served a long sentence of imprisonment for an analogous offence; in the event it held that the basis for the contention was insufficiently compelling. A not dissimilar situation arose in McCadden v H.M. Advocate. The allegations in each of these cases involved extrinsic factors: in the former the introduction of extraneous information into the jury room, in the latter an observation made by a juror outside the jury room. Likewise, cases such as Gray v H.M. Advocate, where a juror had visited the locus and two members of the jury had, during the trial, engaged in a close relationship with a relative (and former co-accused) of one of the accused, involve an extrinsic element. In the present case the concerns expressed are essentially related to intrinsic matters, namely, alleged prematurity of judgement by fellow jurors and inappropriate comment adverse to the appellant made by them, all within the jury room.

[16] In the present case the information giving rise to concern comes, it would appear, directly from a member of the jury - presumably the, or one of the, minority who would not have found the appellant guilty. Without questioning the apparent genuineness of the sentiments expressed in the letter, we would add that we consider that the implication that the whole jury, with the exception of the letter writer, did not in the end properly deliberate on the case is not supported by the history of the trial: the jury were sent out just before 1 p.m. on Thursday 6 July, were enclosed for part of that afternoon and for the whole of the judicial days of Friday 7 and Monday 10 July, returning to deliver their verdict shortly before 4 p.m. on Tuesday 11 July. If eleven of the twelve remaining jurors had reached a conclusion of guilty prematurely without consideration of the evidence and without paying heed to the judge's directions, a much speedier result might have been expected.

[17] In these circumstances we are not persuaded that further inquiry should be ordered in relation to the content of the juror's letter.

[18] In the course of the hearing it was suggested 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. It was said that the observations made by the Lord Justice Clerk in Adam v H.M. Advocate at para. [26] (with which Lords Macfadyen and Penrose agreed) carried the implication that agents were free to do so and that, not having done so in that case, there was no proper basis for the allegation that a juror had visited the locus. It was also said that in another pending appeal agents had, on the basis of that implication, obtained the names and addresses of jurors from the Clerk of Justiciary and had precognosced (or were proposing to precognosce) them. In our view the Lord Justice Clerk's words, fairly read, do not carry the implication placed upon them. Mr. Shead sought to construe these words in the context of exchanges which he said had occurred between him and the bench during the earlier stages of the appeal in that case. But that context does not appear in the judgment, on which alone we can proceed. Suffice it to say that we are satisfied that any inquiry into the words or actions of serving jurors should be made only by the court or in furtherance of orders made by it.

 


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