Regina v. Connor and another (Appellants) (On Appeal from the Court of Appeal (Criminal Division))|
Regina v. Mirza (Appellant) (On Appeal from the Court of Appeal (Criminal Division)) (Conjoined Appeals)
20. I would hold that under article 6(1) the question I posed in the first paragraph of this opinion ought to be answered by saying that in such exceptional circumstances the evidence may be admitted.
The consequences for the jury system.
21. As I have already made clear I regard the jury system, albeit that it is involved in only 1% of criminal cases, as a most valuable part of our criminal justice system. The principle that I have favoured will not damage the jury system and will enhance the moral authority of trial by judge and jury.
22. The effect of the ruling of the majority will in the long run damage the jury system. Leaving aside the jury, we have reached a position where it is recognised that all actors in the criminal justice system, and notably the judge, prosecuting counsel, defence counsel, police, expert witnesses, as well as lay witnesses, can be the cause of miscarriages of justice. Every effort is made to reduce this risk and to expose miscarriages of justice. But the consequence of the ruling of the majority is that a major actor, the jury, is immune from such scrutiny on the basis that such immunity is a price worth paying. This restrictive view will gnaw at public confidence in juries. It is likely in the long run to increase pressure for reducing the scope of trial by jury. A system which forfeits its moral authority is not likely to survive intact. The question will be whether such a system provides a better quality of justice than trial by professionals.
23. I have taken into account the judgments of the majority, and particularly the comprehensive judgment of Lord Hope of Craighead. I am not persuaded. The only point on which I need to comment is the observation of Lord Hope in paragraphs 117-119 of his opinion on evidential difficulties. For my part such difficulties - a perennial problem for appellate courts dealing with irregularities at trial - cannot justify overlooking a real risk of a miscarriage where the context justifies such a view. In any event, in cases involving extrinsic influences on jury deliberations the Court of Appeal has to grapple with such difficulties. Where appropriate it has power to conduct an inquiry. A good illustration is R v Young (Stephen)  QB 324 where some jurors in their hotel room conducted a session with an ouija board and purported to consult a deceased. Lord Taylor of Gosforth CJ explained the inquiry conducted by the Court of Appeal as follows, at p 332B-D:
If the ouija board had been used in the jury room, it is conceded by the Crown that the case would fall within the exception. A similar inquiry could then have been undertaken about the use of the ouija board in the jury room. As Professor Spencer emphasised in the note cited at paragraph 12 above: "The fact that many allegations of this sort are false cannot justify ignoring all of them because, as Young so painfully reminds us, some of them regrettably are true". There are also other illustrations of inquiries about extrinsic matters: Ras Behari Lal v King-Emperor 50 TLR 1 (about whether a juror could understand English) and R v Hood  1 WLR 773 (an affidavit about juror's knowledge of previous convictions). For my part the evidential difficulties postulated do not warrant the conclusion drawn by Lord Hope.
Lord Justice Auld's recommendation
24. In 2001 Lord Justice Auld recommended that legislation should be introduced, inter alia, to permit enquiry "into alleged impropriety by a jury, whether in the course of its deliberations or otherwise"; Review of the Criminal Courts of England and Wales, Report of October 2001, para 98. My view is, of course, that such a jurisdiction already exists. But I am in a minority of one. For my part, therefore, the importance and urgency of the recommendation cannot be overstated. There is comfort in the fact that on 11 September 2003 the Lord Chancellor indicated in a written answer in the House of Lords that he would publish a consultation paper which will also deal with Lord Justice Auld's recommendation (Hansard (HL Debates), col WA 135). It is perhaps too optimistic to hope that the very real problem can be solved by legislation before the matter goes to Strasbourg.
The subsidiary question
25. Section 8 of the Contempt of Court Act 1981 reads as follows:
The certified question regarding section 8 was as follows:
During oral argument it was, however, common ground that it is not necessary to resort to the interpretative obligation under section 3 of the Human Rights Act 1998. The reason is simple: the notion that the Court of Appeal could be in contempt of itself if it exercised the jurisdiction to hear evidence about what happened in the jury room is an absurdity. Properly construed, on ordinary principles of construction, section 8 does not impinge on the jurisdiction of the Court of Appeal to receive evidence which it regards as relevant to the disposal of an appeal. I understand this to be an agreed position between counsel. But I would, in any event, rule accordingly. Section 8 is therefore not an impediment to a consideration of the appeals before the House on their legal merits. If it had been such an impediment, it would in my view have been an appropriate case for reading down the statute under section 3. Moreover, if the issue were to arise whether a juror who reported an irregularity during jury deliberations to the Court of Appeal would commit an offence by so doing, an appropriate reading down of the statute might become necessary.
The Mirza appeal
26. I can take the matter relatively shortly. The appellant is a Pakistani who settled in England in 1988. He was a man of good character. He was charged with six courts of indecent assault, being specimen charges reflecting alleged sexual abuse of his step-daughter. He was convicted by the jury by a majority of 10:2 and sentenced to four years imprisonment, subsequently reduced on appeal to three years. This was upon a retrial after an earlier jury had failed to agree.
27. Since English was not his first language he used an interpreter. The jury found this suspicious and on two occasions sent notes to the judge about the matter. Counsel for the Crown told the jury to draw no adverse inference against the accused. In this summing up the judge directed the jury that they must draw no adverse inference against the accused.
28. Six days after the verdict a juror wrote a letter to counsel for the appellant. It was a lengthy letter. An agreed summary reads as follows:
In a careful and measured speech counsel for the appellant submitted to the House that, stripped of its emotive content, the letter suggests that the jury disregarded the direction of the judge; attached undue significance to the idea that the appellant did not need an interpreter; described an admonition not to attach importance to the use of an interpreter as "playing the race card"; and were influenced by racial prejudice. In my view there are substantial grounds for concluding that the jury reached their verdict on perverse grounds which included a pronounced racial element.
29. In these circumstances I would allow this appeal and quash the conviction of the appellant Mirza.
The appeal of Connor and Rollock
30. The appellants Connor and Rollock faced a joint charge of wounding. They were both convicted by a majority verdict of 10:2. Again, there is a letter from a juror about the course of the deliberations of the jury. It raised matters which could not possibly support a ground of appeal. The only part of the letter which requires consideration reads as follows:
Counsel for the appellants Connor and Rollock concentrated his submissions on the first quoted paragraph.
31. From the rest of the letter it is clear that there was some irritation among the jury about the length of the jury deliberations. After a six day trial the course of events is summarised in the agreed statement of facts and issues as follows:
It is not unusual for disagreements about the length of discussions to arise.
32. Turning to the complaint of the juror, one must take into account that there is a strong presumption that the jury was impartial. The juror raised no complaints before verdict. She appeared to have been generally dissatisfied with the views of the majority. I am not persuaded that her account can be accepted as factually entirely accurate. It may to some extent be the exaggerated protest of a disgruntled juror. Certainly I am not prepared to conclude that there was a real risk of bias on the part of the jury. The presumption has not been displaced.
33. I would dismiss this appeal.
LORD SLYNN OF HADLEY
34. In these two appeals the defendants were convicted of serious offencesMirza of indecent assault, Connor and Rollock of wounding with intent to cause grievous bodily harm. They were given custodial sentences. The Court of Appeal dismissed their appeals against conviction but reduced the sentence of Mirza from four years to three years six months concurrent in respect of counts 1 to 5, that sentence to be concurrent with a sentence of three years in respect of count 6.
35. Two important questions were raised in the Court of Appeal as to matters which it is alleged occurred in the jury room and which it is said require that the convictions be set aside. The Court of Appeal refused to admit evidence of these matters, holding itself bound to follow the decision of the Court of Appeal in R v Qureshi  EWCA 1807;  1 WLR 518 itself a decision based on a long line of authority.
36. In Mirza the accused came to the United Kingdom from Pakistan in 1988 so that he had been living here for some 13 years. He asked for, and was provided with, an interpreter. Before the defence case was opened the jury sent a note to the judge asking "The jury would like to know. What year did the defendant come to this country. How old is the defendant. What is his job at the restaurant." But after the accused had given evidence the jury sent another note. "Questions for the interpreterIn your experience as a Court interpreter would it be typical for a man of the defendant's background to require your services, despite living in this country as long as he has? How long have you held the position of Court interpreter?"
37. Counsel for the Prosecution and for the Defence agreed that in complex and serious cases it was usual for people who are not fluent in English to ask for an interpreter. Prosecuting Counsel told the jury to make full allowances for the accused's linguistic difficulties and the Judge in his summing up clearly emphasised that even if a foreigner spoke some English he might not be fluent or confident enough in court proceedings so that "you should draw no adverse inferences from the defendant exercising his right to have an interpreter".
38. Six days after the conviction, on 26 February 2001, the appellant's counsel received a letter from a juror which was summarised in these terms:
39. In R v Connor and Rollock the foreman of the jury first said that the jury had found Rollock not guilty. That produced a reaction from the jury and after returning for a few minutes he announced that the decision was guilty. The first was obviously a slip which was corrected and in my view nothing turns on that in this appeal. On 15 August 2001 when the case was listed for sentence the Judge told Counsel of a letter dated 30 July 2001 which he had received from a juror. He did not record the contents of the letter but sent the letter in a sealed envelope to the Court of Appeal. It now transpires that the letter set out the juror's anxiety about the conduct of the deliberation viz:
40. The facts of the two cases are thus of course different but the central issues of law are the same. Those issues are encapsulated in the two questions certified by the Court of Appeal, namely:
41. As to the first question, the basic rule as recognised in Qureshi is long-established. Thus in Vaise v Delaval (1785) 1 TR11, where Lord Mansfield said that the court cannot receive an affidavit from a juror as to the nature of the juror's deliberations. In Ellis v Deheer  2 KB 113, Bankes LJ said at pp 117-118 "I desire to make it clear that the court will never admit evidence from jurymen of the discussion which they may have had between themselves when considering their verdict or of the reasons for their decision, whether the discussion took place in the jury room after retirement or in the jury box itself". In R v Miah  2 Cr App R 12 the court cited apparently with approval a statement by Darley CJ in R v Andrew Brown (1907) 7 NSWSR 290 at p 299 viz:
Thus, the prohibition on receipt of evidence takes effect from the moment the jury is empanelled and covers not only what took place in the jury box or the jury room but covers any statement as to what the jury believed the attitude of other jurors to be as deduced from their behaviour in the box or as to what the juror thought the effect of the verdict to be. Once the verdict is given in the presence of all the other jurors then that is the end of the matter and the Court of Appeal will not inquire as to whether the verdict truly reflects what the jurors thought.
42. These cases are all reflecting the view of the domestic courts but it is significant to notice that in eg Gregory v United Kingdom 25 EHRR 577, the European Court of Human Rights said, at p 594, para 4:
43. Although the rule is stated positively, from time to time exceptions to the rule or qualifications of the rule have been recognised. A good illustration of this is to be found in Harvey v Hewitt (1840) 8 Dowl 598, where Coleridge J said in a case in which it was alleged, on information provided by an affidavit from the jury bailiff and persons in an adjoining room, that the jurors had arrived at their verdict by drawing lots:
In R v Brandon (1969) 53 Cr App R 466, on the other hand the evidence was that a jury bailiff had told the jury of the accused's previous convictions. This was held to be a grave irregularity and the conviction accordingly was quashed.
44. In Ras Behari Lal v King-Emperor (1933) 50 TLR 1, it was accepted that evidence might be given that a juryman had not understood English, the language in which the case had principally been conducted. It was held on appeal that the conviction must be set aside on the ground that the effect of the jury's inability to understand the language was to deny the accused persons an essential part of the protection afforded to them by law, and that the result of the trial was a miscarriage of justice.
45. In R v Young (Stephen)  QB 324, evidence was given that the jurors had consulted a ouija board in their hotel in order to arrive at a decision. This evidence was held to be admissible. In the Canadian case of Sawyer v R  2 SCC 344, a distinction was drawn between the admission of intrinsic evidence (which was not admissible) and extrinsic evidence (which was) as eg where there was evidence of pressure on or corruption by an outsider of a member or members of the jury. Such evidence may have to be admitted regardless of the person actually giving the evidence but it is clear that it is not always easy to draw the distinction in what is extrinsic and what is intrinsic.
46. I cite these only as a very small number of cases illustrating that some modifications of the rule have been accepted. On the other hand it seems clear that although the courts' approach may have to be flexible in order to admit evidence where justice requires it (R v Zacharias (1987) 39 CCC (3d) 280), the basic rule has been followed that the court should not receive evidence as to what happens in the jury room or in the jury box. On the fringe there may be difficult cases and exceptions but the rule has been strictly followed in relation to communications between the jurors.
47. How far this rule is justified has been examined in a number of cases. The courts have indicated a number of considerations to show that it is justified. Thus the need to encourage jurors to speak frankly without fear of being quoted or criticised has been very much relied on. Jurors need to be protected from pressures to explain their reasons and it is important to avoid an examination of conflicting accounts by different jurors as to what occurred during the deliberation. It has also been said on a number of occasions that the need for finality once a verdict has been given justifies the rule being applied strictly. On the other hand it has to be observed that in the Canadian Supreme Court case of Sawyer (supra) finality was thought to be an unsatisfactory basis for the rule. On the other hand it seems plain that discussion and disagreement in public as to what happened in the jury room is likely to undermine public confidence in the jury system (R v Armstrong  2 KB 555, at p 568.
48. Even if there may be limited exceptions, experience has led the courts to conclude that it is important that there should be a basic rule and that it is not appropriate that every case should be looked at individually in order to see whether it can be sufficiently said that there has been a breach of the obligation to preserve the confidentiality of jury deliberations.
49. It is apparent that from time to time jurors may be influenced by what is said or done to themmaybe they will even be bribedoutside the court room or in the jury room. It is also apparent that from time to time jurors may show in the course of the trial, or their deliberations, that they have been influenced by strongly held views which result in prejudice or bias which override their obligation to listen and decide impartially. The result in either case might be seen as an unjust decision by the jury.
50. If there were no way of dealing with such allegations the courts' procedures would be seriously defective; this is so regardless of the provisions of the Human Rights Convention but reinforced by it. There are, however, as has been submitted to the House, safeguards which should prevent such a result happening. In the first place there is random selection of a jury even if it may not be as efficient as the elaborate voire dire employed in the American system. The judge himself gives directions to the jury as to how they should deal with interference or improper behaviour. The verdict is declared in public in the presence of all the jurors so it can be said that, if they do not object at that stage, this should be taken as the verdict of them all to which they assent. Moreover it is obvious that if something is alleged to have gone wrong the Court of Appeal can check whether there has been sufficient evidence to justify the verdict or whether fresh evidence is available to justify the Court of Appeal in setting aside the verdict. It is obvious that jurors come to the jury box with a background of ideas and social and educational influence which may affect what they do and it is quite impossible to assume that either they or even judges can be utterly devoid of the influence of outside ideas. By allowing jurors to raise allegations of outside interference or overt bias or improper behaviour in the deliberations, the judge can ensure that the jury system has worked as it should.