Neutral Citation Number: [2012] EWCA Crim 2056
Case No. 2011/06253/B1
IN THE COURT OF APPEAL
CRIMINAL  DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL

Date: Tuesday  24  July  2012

B e f o r e:

THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(Lord Judge)

MR  JUSTICE  MACKAY

and

MR  JUSTICE  SWEENEY

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R E G I N A

- v -

A M
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Mr P Jarvis appeared on behalf of the Appellant

Mr R Hearnden appeared on behalf of the Crown
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J U D G M E N T

THE LORD CHIEF JUSTICE:  

1.  On 10 October 2011 in the Crown Court at Snaresbrook before His Honour Judge King and a jury the appellant was convicted of Administering Chloroform, contrary to section 22 of the Offences against the Person Act 1861 (count 1), and of two offences of Rape (counts 2 and 3).  The victim in each case was his wife.  He was sentenced to eight years' imprisonment concurrent on each count.  Appropriate consequential directions were also given.  The appellant appeals against conviction by leave of the single judge.  

2.  No criticism is advanced against the general conduct of the trial or the way in which the judge left the issues to the jury for decision.  The single ground of appeal arises from the way in which the jury was selected.  In brief, the trial began with a jury randomly selected from a panel of fifteen jurors in waiting.  They were duly sworn on 26 September 2011.  The appellant was put in the charge of the jury.  The Crown opened the case.  The following morning, shortly after the complainant had given some of her evidence, it became apparent that one of the twelve jurors was insufficiently proficient in English to do justice to the case.  As the trial had only just begun, rather than discharging the one juror and continuing with the eleven remaining jurors, the judge discharged the entire jury.  He indicated publicly that the eleven remaining jurors would be re-sworn and the twelfth juror would be randomly selected from the remaining three members of the jury panel.

3.  Counsel for the Crown was concerned about this proposal and its impact on the "randomness principle".  He urged the judge "out of an abundance of caution to take a slightly different course".  He suggested that the eleven original jurors should be brought into court with the three members of the jury in waiting and that the jury of twelve should then be selected in the usual way.  His concern was that otherwise the judge would, in effect, be pre-choosing eleven out of the twelve jurors.  The issue was debated between the judge and counsel for the prosecution.  The judge repeated more than once that the jury would consist of eleven properly selected jurors who had been randomly selected for the purposes of the first trial and that only one vacancy needed to be filled.  He was concerned that if he adopted a different approach then the assurance he had given to the eleven jurors that they would be re-selected would be unfair to them.  He said that he had taken this course without demur or complaint on previous occasions and, having reflected on the discussion, he could not see that the course he proposed would represent any practical prejudice or unfairness to the appellant.  Counsel for the Crown accepted that there would be no unfairness or prejudice and that from a practical point of view the suggestion seemed right; but he aired his concerns in courteous and careful language, designed to reflect the obligation of counsel for the Crown to act as a minister of justice.  Having highlighted his concerns, he concluded his observations.  The plain suggestion was that the proposed course might be inappropriate.  The judge concluded that the course he proposed was technically correct because those forming the jury had at the outset been selected at random.  

4.  The judge then turned to counsel for the appellant and expressly asked whether he had any observations on the point.  Mr Jarvis, who appeared before the court below as he has done on appeal, made it clear that he did not take any point "of technicality".  He raised questions about a possible lack of unfairness and cited the decision of the House of Lords in R v Clarke and McDaid [2008] 1 WLR 338, which had decided that, notwithstanding the absence of any unfairness, the lack of due process involved in the failure to sign a bill of indictment led the court to quash the conviction.  Mr Jarvis said that he had never been involved in a case where anything like this had happened and that if the judge had, and there has been no problems, then "as far as the defence are concerned it is not an issue".  The judge recalled two occasions when the course he proposed had taken place.  He indicated that the jurors would all be re-sworn in the presence of each other from the very beginning so that none of the jurors from the original trial would be in any different position from the new member of the jury.  Accordingly, the eleven original jurors returned to the jury box and they were joined by the twelfth juror chosen through the ballot system.  All were then sworn in the presence of each other.

5.  The case began again and the jury returned their guilty verdicts on 10 October.

6.  It is now submitted that the way in which the jury was empanelled was wrong in law because it contravened section 11(1) of the Juries Act 1974.  Accordingly, the trial was a nullity and the convictions cannot stand.

7.  Section 11 of the Juries Act 1974, so far as relevant, provides:

"(1)  The jury to try an issue before a court shall be selected by ballot in open court from the panel, or part of the panel, of jurors summoned to attend at the time and place in question.

...."

8.  The other statutory provision which bears on the decision in this case is section 18 of the 1975 Act, which provides:

"(1)  No judgment after verdict in any trial by jury in any court shall be stayed or revered by reason --

(a)	that the provisions of this Act about the summoning or impanelling of jurors, or the selection of jurors by ballot, have not been complied with, ....

(2) Subsection (1)(a) above shall not apply to any irregularity if objection is taken at, or as soon as practicable after, the time it occurs, and the irregularity is not corrected. 

...."

9.  The selection of the jury (the ballot) is said to require a random process: see R v Ford [1989] QB 868, and R v Tarrant [1998] Cr LR 342. R v Salt [1996] Crim LR 517 suggests that the randomness principle is not absolute.  We need not venture into the differences between these authorities.

10.  In the present case, at one stage or another, each juror was selected by ballot in either the first abortive, or in the second completed, trial.  In any practical sense, therefore, the principle of random selection was applied.  However, as a matter of law, when the eleven jurors who had been randomly selected for the purposes of the abortive trial were recalled into the jury box for the trial which resulted in the convictions, strictly speaking, they had been pre-selected.  

11.  This issue was addressed in R v Mulkerrins and Sansom (unreported, 20 June 1997) by this court (Kennedy LJ, Nelson J and Sir Patrick Russell, well-respected experts in criminal justice).  An issue arose about the membership of the jury.  The jury, which was trying a case of major criminal activity, was provided with escorts and given a degree of protection.  Shortly afterwards, one of the jurors who had been sworn indicated that in the circumstances he did not feel able to remain impartial and asked to be excused.  The judge decided, in agreement with counsel, that the juror should be allowed to stand down.  He was therefore discharged.  The eleven remaining jurors were brought into court.  The judge told them that he had discharged juror number 10.  He continued:

"The law now requires me to discharge the whole lot of you, but your names will be recalled and you will be re-sworn in the presence of the new juror who is about to be brought into court.  So I am going to discharge you.  Will you please sit at the side.  Thank you very much."

The court record of what follows reads:

"Jury cont. 11 old jurors into court.  Gap re juror no. 10.  Jury re-sworn with no. 13 replacing 10 -- others stay in same seats."

From that record the court concluded that what happened was:

(1)  The original juror was discharged.

(2)  One spare juror from the panel was brought into court.

(3)  The eleven jurors who had previously been sworn, and the additional juror, were sworn in to try the same case with the new juror taking the position in the jury box which had previously been occupied by juror number 10.

The court concluded that the judge had failed to comply with section 11(1) of the Juries Act 1974, and that there was a breach of the balloting requirement.  The ballot which took place before the original jury were sworn was irrelevant because that jury had been discharged.  In short, in almost identical circumstances to those which arise in the present appeal, it was held that the terms of section 11(1) of the 1974 Act were contravened.  

12.  The decision that what happened in that case constituted an irregularity is binding on us.  If objection to the irregularity was taken at the time, or as soon as practicable after it occurred, the present verdicts could not stand.

13.  What follows now is governed by the provisions of section 18(1) and (2).  It is to be noted that the concern reflected in these statutory provisions is the process by which the verdict of the jury may be set aside.  In other words, it is focused on a process which follows the conviction of a defendant, not his acquittal.  Indeed, although we have not had full argument on the point, we believe that it is a matter of exclusive concern to the defence rather than the prosecution, which cannot, normally at any rate, seek to set aside the verdict of the jury.

14.  In this case no objection was taken by counsel for the appellant. We can understand why.  Today Mr Jarvis is driven to advance "the objection to the proposal canvassed by counsel for the Crown".  If it was an objection, in our judgment Mr Jarvis should have adopted it.  Counsel for the Crown plainly issued a cautionary note in which he aired his concerns and reservations about the proposal for consideration not only by the judge, but also by the defence.  Generally speaking, a cautionary exploration by the prosecution of potential difficulties, to which a course proposed by the judge  may give rise, does not constitute an objection.  However, for present purposes we are prepared to treat the part played in the discussion by counsel for the prosecution as an objection.  Section 18(2) is clearly intended to avoid concerns or difficulties arising during the process of jury selection or relating to the composition of the jury constituting the basis for an appeal in the event of conviction.  That is why any possible irregularities must be raised at the trial or as soon as practicable.  Given the context in which the issues are addressed in section 18(1), and the purpose of section 18(2), it seems to us clear that counsel for the appellant cannot rely on objections to potential irregularities to the process raised by counsel for the Crown, unless he expressly adopts them for himself.  He cannot, at the stage when counsel for the Crown raises these concerns, having listened to them, simply take a neutral or uncommitted stance to a possible irregularity and then, following conviction, rely on it as a basis for circumventing the prohibition in section 18(2).  Accordingly, the appeal against conviction must be dismissed.  

15.  We shall add a footnote.  This decision does not mean that sensible arrangements may not be reached between the judge and the advocates for each side in the Crown Court for the selection of additional or the replacement of individual members of the jury when difficulties arise after the trial has started.  Sometimes the difficulties should be anticipated.  Certainly in a long or complex trial it would be as well if they were.  Generally speaking, it is undesirable for a case which runs into this sort of trouble just after it has started to continue with eleven jurors, rather than to start again with a full complement of twelve.  At the same time, it is not in anyone's interests for a trial which has just started to be postponed to enable a new jury panel to be convened.  That would inevitably involve a wearisome and unnecessary postponement which of itself might put strain and stress on all those involved in the case. In short, we do not expect purely technical objections to be raised if, as here, the reality is that the jurors were in fact a random group of individuals who had formed part of the jury panel and whose irregular selection as jurors for the second trial followed an entirely regular selection process which led them into the jury box for the purposes of the first trial.

16.  We thank both counsel for the assistance they have given us, both in their written submissions and in their oral submissions.

MR JARVIS:  My Lord, may I raise a very brief matter?

THE LORD CHIEF JUSTICE:  Yes?

MR JARVIS:  My Lord, there was a first appeal we had some years ago now and the court imposed a section 4(1) embargo on the publication of it.  I do not know whether that has ever been lifted.  Your Lordships' judgment today brings this case to an effective conclusion.  I do not know whether the court would wish to say that that previous judgment ought now to be capable of publication?

THE LORD CHIEF JUSTICE:  The issues raised in this appeal may now be published.  The identity of the victim of the rapes must not be brought to the public attention.  For the purposes of reporting the initials "AM" may be the appropriate way to deal with it.

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