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Citation no. (2000) 2119 |
Ref: |
CARE3237 |
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Judgment: approved by the Court for handing down |
Delivered: |
08/09/00 |
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(subject to editorial corrections) |
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IN HER MAJESTY'S COURT OF APPEAL IN NORTHERN IRELAND
_____
THE QUEEN
v
F. J. H.
_____
CARSWELL LCJ
The applicant was convicted on all counts on the indictment on which he was tried at Newry Crown Court on 22 April 1999 before McCollum LJ and a jury. He was sentenced to concurrent terms of imprisonment on the several counts, the longest being of fifteen years for rape. He seeks leave to appeal to this court on the ground that there was material irregularity in the conduct of the trial which makes his conviction unsafe.
It is unnecessary to go into details of the charges against the applicant or the evidence in support of them. It is sufficient for present purposes to say that they consist of sexual offences against the applicant's twin daughters between March 1995 and March 1997, when the girls were between eleven and thirteen years old. The applicant has consistently denied the charges.
He has now been tried three times on these charges. At the first trial the jury disagreed. On the second trial he was convicted, but appealed on the ground that the evidence of one of the complainants had not been taken in accordance with the statutory requirements. His appeal was successful and a retrial was ordered. That third trial took place between 13 and 22 April 1999.
The trial was opened on 13 April and continued normally until the morning of 15 April. Before the court sat on that date a member of the court staff came to the judge's chambers and informed him she had been told by another member of the staff that one of the members of the jury, a Mrs Ward, was the mother of a lady who had served on the jury which had convicted the applicant on his second trial. The judge understood from this conversation that the information was based simply on the fact that the other member of staff knew both the mother and daughter and had thought it right to mention the matter.
The judge at the commencement of the hearing on that morning asked Mrs Ward to come into court in the absence of the other members of the jury. The following discussion then took place:
"LORD JUSTICE McCOLLUM : As I have already indicated to counsel, a question has arisen in relation to the jury and I want to investigate it first of all to see what the right course is.
(To Juror): Now, Mrs Ward, I’m very sorry you’ve been brought into court like this, I’m sure you’re very nervous about it but you need not be at all. I want to ask you some questions and the answer will not, in any way, reflect on you or you’ve absolutely nothing to worry about, I want to make that clear but, of course, it is a very serious and important trial.
MRS WARD: Uh-huh.
LORD JUSTICE McCOLLUM: And the jury, at the end of the day, are the persons who bring in the answer, so it is very, very important that everybody is satisfied with the process and I understand that your daughter has served on a previous jury.
MRS WARD: Yes.
LORD JUSTICE McCOLLUM: And have you discussed the case with her at all?
MRS WARD: No.
LORD JUSTICE McCOLLUM: You haven’t had any discussion whatever with her?
MRS WARD: No.
LORD JUSTICE McCOLLUM: You haven’t. Have you had any discussion with any other members of the jury about that fact?
MRS WARD: No.
LORD JUSTICE McCOLLUM: I mean you simply have not really mentioned it to them?
MRS WARD: No, I just said there was, you know, somebody was saying about there was a case before something like this, but, you know, I’m not to know whether it is the same one or a different one or (interrupted).
LORD JUSTICE McCOLLUM: You haven’t connected them yourself in your own mind?
MRS WARD: No, no.
LORD JUSTICE McCOLLUM: Yes, well, as I understand the position, it was a case concerning the same matter and I think from your point of view it would be better if you didn’t continue to serve on the jury.
MRS WARD: Uh-huh.
LORD JUSTICE McCOLLUM: Now you do appreciate it is no reflection on you at all about that fact but I think the best thing is simply to discharge you from any further service on this jury but if you haven’t at all discussed it then the other members of the jury don’t know anything about this connection.
MRS WARD: No.
LORD JUSTICE McCOLLUM: Yes, very well then. I’ll let you leave the jury box then and we’ll simply continue and you’re quite free to go home."
The judge proposed accordingly to continue the trial without this juror. Counsel was unhappy about the proposal and raised the matter again before the other jurors returned, expressing his concern that they might have got to hear that the applicant had been convicted in an earlier trial. He referred to the way in which the information had come to the court's attention, clearly concerned lest the matter should have been the subject of discussion amongst the jurors. The judge stated:
"Oh no it came from outside the jury. Someone who was acquainted with the make up of the jury realised and happened to know the people involved, realised that this had happened and it simply came through again local knowledge, as it were. It wasn’t any specific – it was nothing that emanated from the jury room itself.”
He then added that it was simply an observer who appreciated that this had happened, which he then understood to be the case.
The trial proceeded with a jury of eleven members, who unanimously convicted the applicant on all counts. He sought leave to appeal, which was refused by the single judge, and he renewed his application to this court, the sole ground argued at the hearing before us being the question whether there was possible bias on the part of the jury in the events which had happened, which would make the conviction unsafe. Further inquiries were made by our direction of the judge and the clerk of the court, and the facts were ascertained more fully than the information which had been before the judge when he decided to continue with the trial.
It now transpires that in exercising his discretion in favour of continuing the trial under the apprehension that there had been no discussion of the matter among the jurors the judge did not appreciate the true facts. Another juror, the mother-in-law of Mrs Durkin, one of the court staff, had spoken on the morning of 15 April both to her daughter-in-law and to one of the jury keepers about the fact that Mrs Ward’s daughter had served on a previous jury. We were told by counsel that she had been a member of the jury which convicted him on the second trial. This information puts a different complexion on the matter. That juror was obviously concerned enough to consider that the situation was something which she should report, and she did so to two different people. It appears from what Mrs Ward was trying to tell the judge that some reference had been made among the jurors, either by her or by another juror or by both, to the fact that the applicant had been on trial before. Knowledge of that fact might not in itself be prejudicial – for it emerged when defence counsel cross-examined one of the complainants about evidence previously given by her – but there must be a significant risk that the jurors were told or guessed that the applicant was convicted on the previous trial. This is reinforced by the degree of concern felt by the juror who reported the matter.
Mr Donaldson QC submitted on behalf of the applicant that there was a real danger that the jury were biased against him because they had learned that he had been convicted by the jury in a previous trial concerning the same offences. The test was authoritatively established in R v Gough [1993] AC 646, after a conflict of opinion in previous cases, as being that of real danger of bias. In that case Lord Goff said at page 670 that he preferred to state the test in terms of real danger rather than real likelihood, to ensure that the court is thinking in terms of possibility rather than probability. In R v Inner West London Coroner, ex parte Dallaglio [1994] 4 All ER 139 at 151 Simon Brown LJ deduced a number of propositions from R v Gough, the first four of which were:
"(1) Any court seised of a challenge on the ground of apparent bias must ascertain the relevant circumstances and consider all the evidence for itself so as to reach its own conclusion on the facts.
(2) It necessarily follows that the factual position may appear quite differently as between the time when the challenge is launched and the time when it comes to be decided by the court. What may appear at the leave stage to be a strong case of ‘justice [not] manifestly and undoubtedly be[ing] seen to be done’, may, following the court’s investigation, nevertheless fail. Or, of course, although perhaps less probably, the case may have become stronger.
(3) In reaching its conclusion the court ‘personifies the reasonable man’.
(4) The question upon which the court must reach its own factual conclusion is this: is there a real danger of injustice having occurred as a result of bias? By ‘real’ is meant not without substance. A real danger clearly involves more than a minimal risk, less the probability. One could, I think, as well speak of a real risk or a real possibility."
Mr McMahon QC submitted on behalf of the Crown that there was not a real danger of bias. He suggested that if the jury had become aware that the applicant had previously been convicted, as distinct from the fact that there was an earlier trial, that would have emerged from Mrs Ward's evidence. He further submitted that in any event it was clear to the jury from cross-examination of one of the complainants that there had been a previous trial and that no harm would have been done if Mrs Ward or any other person had mentioned the fact to other jurors.
Applying the test in R v Gough, we are impelled to conclude that there was a significant risk that the jury did come to know that the applicant had been previously convicted of the offences for which he was on trial and that this creates a real danger that the jury would have been biased against him. We have little doubt that the judge would have discharged the jury if he had appreciated the true facts now known to this court. With some reluctance, because of the history of the case, we must conclude that the conviction was unsafe. We therefore grant leave to appeal, allow the appeal and set the conviction aside. We have considered with care the question whether we should order a new trial, in the light of the principles discussed in Archbold, 2000 edition, paragraph 7-112. We have concluded that in all the circumstances it would be proper that a new trial should be held and we so order.
IN HER MAJESTY'S COURT OF APPEAL IN NORTHERN IRELAND
_____
THE QUEEN
v
F. J. H.
_____
OF
CARSWELL LCJ
______