AS TO THE ADMISSIBILITY OF
Application No. 22399/93
by Robert PULLAR
against the United Kingdom
The European Commission of Human Rights (First Chamber) sitting
in private on 29 June 1994, the following members being present:
MM. A. WEITZEL, President
C.L. ROZAKIS
F. ERMACORA
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
Mrs. J. LIDDY
MM. M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
Mrs. M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 26 May 1993 by
Robert PULLAR against the United Kingdom and registered on
2 August 1993 under file No. 22399/93;
Having regard to:
- the report provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on
11 February 1994 and the observations in reply submitted by the
applicant on 25 March 1994;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a British citizen born in 1949. When the
application was introduced he was serving a prison sentence in
HM Prison Noranside. He was released on 1 October 1993. He is
represented before the Commission by Mr. Robert Carr, a solicitor
practising in Edinburgh.
The facts as submitted by the parties may be summarised as
follows.
The applicant was an elected member of Tayside Regional Council.
The applicant was indicted for trial on 13 July 1992 on a charge
that he had corruptly solicited money from Mr. McLaren, a partner in
a firm of architects and from Mr. Cormack, a partner in a firm of
quantity surveyors in exchange for exerting his influence in favour of
an application for planning permission for a proposed development.
The applicant pleaded not guilty. The Sheriff Clerk proceeded to
ballot the jury which included a Mr. Forsyth who was an employee in the
firm of Mr. McLaren who was a principal witness for the prosecution.
Mr. Forsyth was also acquainted with Mr. Cormack, another principal
prosecution witness. The juror Mr. Forsyth was one of fifteen
employees in the architects firm. He had entered the employment of the
firm on 30 April 1990 and had been given notice of redundancy on
10 July 1992 to be take effect on 7 August 1992.
The evidence of Mr. McCormack and Mr. McLaren concerning a
meeting held with the applicant and his co-accused was to the effect
that the applicant and the co-accused were seeking money in exchange
for using influence to bring about the success of a planning
application. The applicant did not give evidence but the co-accused
did, denying that money was solicited by him or anyone else.
The applicant and his legal advisers did not discover the
connection between the juror and the prosecution witnesses until after
the five day trial at the conclusion of which the applicant had, on
17 July 1992, been found guilty by a majority of the jury of 15 members
and sentenced to 12 months' imprisonment.
The applicant appealed to the High Court against conviction and
sentence. The appeal at which the applicant was represented was heard
on 5 and 12 February 1993 but dismissed on 26 February 1993.
The applicant had complained to the High Court of the presence
of Mr. Forsyth on the jury on the basis that his presence constituted
a miscarriage of justice and that the Sheriff had failed to direct the
jury that they should bring it to the attention of the court if they
had any personal knowledge of the subject matter of the charge or of
any of the persons named in the indictment.
The court had before it a statement of the employer explaining
Mr. Forsyth's employment history but this had not been disclosed to the
applicant before 12 February 1993 and he had no opportunity to
cross-examine the employer as to its contents. No objection however was
made by the applicant to the statement nor any challenge made to the
factual accuracy of any of the contents of the statement during the
appeal.
In its judgment, the court noted that Mr. McLaren had noticed
Mr. Forsyth, the employee in his firm, on the jury on the first day of
trial and had brought the matter to the attention of a sheriff clerk.
The clerk had already been informed by Mr. Forsyth of his position as
an employee in the firm of Mr. MacLaren. The clerk had asked
Mr. Forsyth if he knew the circumstances of the case or the accused and
when he had replied in the negative the clerk had allowed his name to
go forward for selection as a juror. The clerk had not informed the
Sheriff.
The court considered that there was no evidence that the juror,
an architectural technician, had been involved in any work on the
proposed development or that he knew anything of the alleged
transaction between his employer and the applicant. The court commented
that if the Sheriff or the parties had been informed it was probable
that the juror would have been excused by the court under section 133
of the Criminal Procedure (Scotland) Act 1975 or subject to a valid
objection by the defence under section 130 (4) of that Act and that the
clerk had been in error in not bringing the matter to the notice of the
Sheriff himself. However it found on the basis of authorities that the
mere suspicion that a juror is biased is insufficient to justify
quashing a verdict. It was not to be assumed that the verdict of the
jury was affected by the presence of a juror with a material interest
nor that the juror's knowledge would have led him to ignore the
evidence and the directions by the trial judge and to vote only on the
basis of personal prejudice in defiance of his oath. It did however
make a number of recommendations as to practice in order to avoid
recurrence of this situation (see below Relevant domestic law and
practice).
Relevant domestic law
Section 130(1) of the Criminal Procedure (Scotland) Act 1975
enables an accused and the prosecutor in any trial to challenge three
jurors without giving any reasons. Such challenge must be made when the
juror is balloted. A juror may also be challenged "on cause shown"
before he has been sworn to serve (section 130(4) and (6))
Pursuant to section 133 of the 1975 Act, "the court shall have
power to excuse any juror from serving on any trial, the grounds of
such excuse being stated in open court."
Section 1(4) of the Law Reform (Miscellaneous Provisions)
(Scotland) Act 1980 provides that the fact that any person serving on
a jury for a particular trial was ineligible or not qualified for or
disqualified from jury service shall not of itself affect the validity
of any verdict returned by the jury.
In their decision in Pullar v. HMA (1993 SCCR 514), the High
Court gave guidance as the steps which in future should be taken to
avoid risk of prejudice to the accused. In particular:
i. when potential jurors arrived at court they should be told the
names of the accused, complainer or anyone else sufficiently
important to the case to have been named in the charge or charges
on the indictment;
ii. it should be open to the trial judge in his discretion to ask
the jury to let him know if they think there is any particular
reason why they should not serve, reminding them that they should
take this step if they know the accused or anyone named in the
indictment;
iii. it is the duty of all those in attendance on the court who
become aware during the trial of circumstances, which might
suggest that a juror has personal knowledge of a case or might
be suspected of being prejudiced, to draw this at once to the
attention of the presiding judge.
COMPLAINTS
The applicant invokes Article 6 para. 1 of the Convention. He
complains of the presence on the jury in his criminal trial of an
employee of a principal Crown witness who was also acquainted with
another Crown witness. He points that the juror depended on his
employer for his livelihood and would be influenced inevitably by his
personal knowledge of the employer. He cannot therefore be considered
impartial either on a subjective or objective test. Valid grounds
existed in domestic law for the juror to be excused and his presence
on the jury cast doubts on its verdict. The failure of the Sheriff to
warn jurors to inform the court of such personal knowledge was a
shortcoming in the proceedings. Consequently, it cannot be said that
justice was seen to be done.
The applicant also complains under Article 6 para. 3 (d) that the
statement from the juror's employer was accepted by the appeal court
without his being afforded the opportunity to attack such evidence in
cross-examination.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 26 May 1993 and registered on
2 August 1993.
On 19 October 1993, the Commission decided to communicate the
application to the Government and to ask for written observations on
the admissibility and merits of the application.
The Government's observations were submitted on 11 February 1994
after one extension in the time-limit and the applicant's observations
in reply were submitted on 25 March 1994.
THE LAW
The applicant complains that he did not receive a fair trial by
an impartial tribunal since one of the jurors was an employee of a
principal Crown witness and was acquainted with another. He also
complains of being unable to challenge the statement of the juror's
employer before the appeal court. He invokes Article 6 para. 1 and 6
para. 3 (d) (Art. 6-1, 6-3-d) which provide as relevant:
"1. In the determination of his civil rights and obligations or
of any criminal charge against him, everyone is entitled to a
fair and public hearing within a reasonable time by an
independent and impartial tribunal established by law...
3. Everyone charged with a criminal offence has the
following minimum rights:
d. to examine or have examined witnesses against him and to
obtain the attendance and examination of witnesses on his behalf
under the same conditions as witnesses against him..."
The Commission has examined the parties' observations concerning
the applicant's complaints. It considers that these complaints raise
serious issues of fact and law the determination of which should depend
on an examination of the merits. It follows that the applicant's
complaints cannot be dismissed as manifestly ill-founded within the
meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other
ground for declaring them inadmissible has been established.
For these reasons, the Commission, unanimously
DECLARES THE APPLICATION ADMISSIBLE, without prejudging the
merits.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (A. WEITZEL)
Full & Egal Universal Law Academy