CEDH · CASELAW;REPORTS;ENG — 11 janvier 1995

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                        EUROPEAN COMMISSION OF HUMAN RIGHTS                            Application No. 22399/93                                Robert Pullar                                   against                             the United Kingdom                           REPORT OF THE COMMISSION                        (adopted on 11 January 1995)                              TABLE OF CONTENTS                                                                    page   I.     INTRODUCTION       (paras. 1-15) . . . . . . . . . . . . . . . . . . . . . . . . 1         A.   The application           (paras. 2-4). . . . . . . . . . . . . . . . . . . . . . . 1         B.   The proceedings           (paras. 5-10) . . . . . . . . . . . . . . . . . . . . . . 1         C.   The present Report           (paras. 11-15). . . . . . . . . . . . . . . . . . . . . . 2   II.    ESTABLISHMENT OF THE FACTS       (paras. 16-30). . . . . . . . . . . . . . . . . . . . . . . . 3         A.   Particular circumstances of the case           (paras. 16-25). . . . . . . . . . . . . . . . . . . . . . 3         B.   Relevant domestic law and practice           (paras. 26-30). . . . . . . . . . . . . . . . . . . . . . 4   III.   OPINION OF THE COMMISSION       (paras. 31-50). . . . . . . . . . . . . . . . . . . . . . . . 6         A.   Complaints declared admissible           (para. 31). . . . . . . . . . . . . . . . . . . . . . . . 6         B.   Points at issue           (para. 32). . . . . . . . . . . . . . . . . . . . . . . . 6         C.   Article 6 para. 1 of the Convention           (paras. 33-43). . . . . . . . . . . . . . . . . . . . . . 6              CONCLUSION            (para. 44) . . . . . . . . . . . . . . . . . . . . . . . 8         D.    Article 6 para. 3 (d) of the Convention            (paras. 45-47) . . . . . . . . . . . . . . . . . . . . . 8              CONCLUSION            (para. 48) . . . . . . . . . . . . . . . . . . . . . . . 9         E.    Recapitulation            (paras. 49-50) . . . . . . . . . . . . . . . . . . . . . 9   DISSENTING OPINION OF Mr. C.L. ROZAKIS. . . . . . . . . . . . . .   10     APPENDIX I        HISTORY OF THE PROCEEDINGS . . . . . . . . . . . .11   APPENDIX II       DECISION ON ADMISSIBILITY. .   . . . . . . . . . . 12   I.     INTRODUCTION   1.     The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.   A.     The application   2.     The applicant is Robert Pullar, a British citizen born in 1949 and resident in Methven. He is represented by Mr. Robert Carr, a solicitor practising in Edinburgh.   3.     The application is directed against the United Kingdom.   The respondent Government are represented by Mr. Martin Eaton, Foreign and Commonwealth Office, as Agent.   4.     The case concerns the complaints of the applicant that he did not receive a fair trial by an impartial tribunal and that he was not able to challenge certain evidence before the appeal court. It raises issues under Articles 6 paras. 1 and 3(d) of the Convention.   B.     The proceedings   5.     The application was introduced on 26 May 1993 and registered on 2 August 1993.   6.     On 19 October 1993, the Commission decided to communicate the application to the respondent Government for their written observations on the admissibility and merits of the application.   7.     The Government submitted their written observations on 11 February 1994.   The applicant submitted his written observations in reply on 25 March 1994.   8.     On 29 June 1994, the Commission (First Chamber) declared the application admissible.   9.     The parties were then invited to submit any additional observations on the merits of the application.   10.    After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, placed itself at the disposal of the parties with a view to securing a friendly settlement of the case.   Consultations with the parties' took place between 13 July 1994 and 24 October 1994. In the light of the parties' reactions, the Commission now finds that there is no basis on which a friendly settlement can be effected.   C.     The present Report   11.    The present Report has been drawn up by the Commission (First Chamber) in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:              Mr.    C.L. ROZAKIS, President            Mrs.   J. LIDDY            MM.    F. ERMACORA                  E. BUSUTTIL                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  M.P. PELLONPÄÄ                  B. MARXER                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  E. KONSTANTINOV                  G. RESS   12.    The text of the Report was adopted by the Commission on 11 January 1995 and is now transmitted to the Committee of Ministers in accordance with Article 31 para. 2 of the Convention.   13.    The purpose of the Report, pursuant to Article 31 para. 1 of the Convention, is         1)   to establish the facts, and         2)   to state an opinion as to whether the facts found disclose           a breach by the State concerned of its obligations under           the Convention.   14.    A schedule setting out the history of the proceedings before the Commission is attached hereto as Appendix I and the Commission's decision on the admissibility of the application as Appendix II.   15.    The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.   II.    ESTABLISHMENT OF THE FACTS   A.     Particular circumstances of the case   16.    The applicant was an elected member of Tayside Regional Council.   17.    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.   18.    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, also a 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 take effect on 7 August 1992.   19.    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.   20.    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.   21.    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.   22.    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.   23.    The High Court had before it a statement of Mr. McLaren explaining Mr. Forsyth's employment history and the involvement of both at the trial 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.   24.    In its judgment, the High 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. McLaren. 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.   25.    The High 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 Sheriff 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 juror's prejudice or 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).   B.     Relevant domestic law and practice   26.    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))   27.    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."   28.    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.   29.    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.   30.    The Contempt of Court Act 1981 provides in section 8 (1):         "It is a contempt of court to obtain, disclose or solicit any       particulars of statements made, opinions expressed, arguments       advanced or votes cast by members of a jury in the course of       their deliberations in any legal proceedings."   III.   OPINION OF THE COMMISSION   A.     Complaints declared admissible   31.    The Commission has declared admissible the applicant's complaint 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. It also declared admissible the applicant's complaint that he was unable to challenge the statement of the juror's employer before the appeal court.   B.     Points at issue   32.    The issues to be determined are:   -      whether there has been a violation of Article 6 para. 1       (Art. 6-1) in that the applicant did not receive a fair hearing       before an impartial tribunal;   -      whether there has been a violation of Article 6 para. 3 (d)       (Art. 6-3-d) in that the applicant was unable to challenge the       statement of the juror's employer before the appeal court.   C.     Article 6 para. 1 (Art. 6-1) of the Convention   33.    Article 6 para. 1 (Art. 6-1) of the Convention provides in its first sentence:         "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."         a) applicability of Article 6 para. 1 (Art. 6-1) of the Convention   34.    The applicant was the accused in criminal proceedings brought against him in relation to a charge of corruptly soliciting money. It is not in dispute that Article 6 para. 1 (Art. 6-1) is applicable to those proceedings.         b) independent and impartial tribunal   35.     The applicant complains that he did not receive a fair trial before an impartial tribunal since one of the jurors was an employee of one of the principal Crown witnesses. He also refers to the juror's acquaintance with another Crown witness. He points out that if the connection had been known by his counsel, objection would have been made and, as indicated by the High Court, the applicant's counsel could have challenged the juror for cause or the court could have discharged him. He contends that the statement by the juror's employer, who was a Crown witness, concerning the juror's connection with the case should not have been taken into account since his credibility had been challenged throughout the trial. In the circumstances, the applicant contends that the participation of the juror in the proceedings was bound to raise in the minds of a reasonable man a suspicion of bias and that justice could not therefore have been seen to be done.   36.    The Government accept that a jury can be said to form part of the tribunal and thus attracts the requirements of independence and impartiality. However they submit that mere suspicion of bias by one juror amongst fifteen should not be sufficient, in the absence of actual evidence of bias or influence on the verdict, of indicating that the tribunal as a whole was not impartial. There was no evidence of actual bias. The fact that the juror was an employee in the firm in which a Crown witness was a partner is not sufficient by itself to indicate   that the applicant did not receive a fair trial before an impartial tribunal, particularly, it is submitted where the juror was only a junior employee and had not been involved in the area of work in question. There was accordingly no real risk in this case of bias occurring and the case, in their view, fails to establish any lack of impartiality contrary to Article 6 (Art. 6).   37.    The case-law of the Convention organs indicates that for the purposes of Article 6 para. 1 (Art. 6-1) the existence or not of impartiality of a tribunal, whether composed of judges or jurors,   must be determined according to a subjective test, that is on the basis of the personal conviction of a particular member or members of the tribunal (sometimes referred to as actual or personal bias) and also according to an objective test, that is ascertaining whether the tribunal offered guarantees sufficient to exclude any legitimate doubt in this respect (see eg. Eur. Court H.R., Piersack judgment of 1 October 1982, Series A no. 53 p. 14 para. 30)   38.    While it may be possible to regard the applicant's complaints as concerning the independence of the tribunal, the Commission notes that it is often difficult to dissociate the concepts of independence and impartiality. It proposes in the present case to deal with the issues as concerning impartiality.   39.    The Commission recalls that there is no evidence as to whether the juror, Mr. Forsyth, was in fact biased one way or another in respect of the applicant. The Commission and Court have constantly held that the personal impartiality of a judge (mutatis mutandis a juror) is to be presumed unless there is evidence to the contrary (see eg. Eur. Court H.R. Le Compte, Van Leuven and De Meyere judgment of 23 June 1981, Series A no. 43, p. 25, para. 58). Given however that jurors in the United Kingdom deliberate in private, give no reasons for their decisions and that it is prohibited from investigating what passes in the jury room, it will generally not be possible to adduce such evidence. In these circumstances, additional importance may attach to ensuring by other means that the impartiality of the jury is objectively guaranteed (see eg. No. 14191/88, Holm v. Sweden, Comm. Rep. 13.10.92, Series A no. 279-A p. para. 64).   40.    As regards the objective aspect, the Commission recalls that the juror was an employee in the firm in which one of the principal Crown witnesses was a partner. The firm was small in size, with 15 employees and notwithstanding the junior status of the juror, the Commission considers that the juror, who had been employed there for over 2 years, must be presumed as having more than a casual acquaintance with the partner. The Commission finds it significant that the High Court considered that if the juror's connection with the Crown witness Mr. McLaren had been made known during the trial, it is more than probable that he would have been discharged, the nature of his connection furnishing grounds for legitimate objection. While it is true that the juror was only one of fifteen, it cannot be excluded that his own personal views of the credibility of that Crown witness, which was crucial to any decision to convict the applicant, may have played an influential role in the jury room deliberations.   41.    Further, the Commission notes the possibility that the fact that a sheriff clerk found no objection to his continued participation in the proceedings may have left the juror the impression that it was valid to bring to bear any personal knowledge of the participants or events.   42.    Having regard to the above, the Commission finds that in the circumstances of this case the impartiality of the jury which convicted the applicant was capable of appearing open to doubt and that the applicant's fears in this regard can be considered as objectively justified. Consequently the Commission is of the opinion that the applicant's case was not determined by a tribunal which can be regarded as impartial within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.   43.    In light of its findings above, the Commission does not consider it necessary to consider separarately the juror's alleged acquaintance with another Crown witness Mr. Cormack, which was in   any case not raised in the proceedings in the High Court.         CONCLUSION   44.    The Commission concludes, unanimously, that there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention.   D.     Article 6 para. 3 (d) (Art. 6-3-d) of the Convention   45.    Article 6 para. 3 (d) (Art. 6-3-d) provides:         "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;"   46.    The applicant complains under this provision that the statement from the juror's employer, Mr. McLaren, who was a Crown witness, was accepted by the appeal court without his being afforded the opportunity to test the veracity of such evidence by examination or cross- examination. This statement which was obtained by the prosecution prior to the appeal hearing was not disclosed to the applicant until the hearing and concerned information given by the Crown witness as to the employee juror's connection with the case. The applicant objects to the consideration by the court of a statement issued by a witness whose credibility was the principal issue in the case.   47.    In view of its conclusion in para. 44 above that there has been a violation of Article 6 para. 1 (Art. 6-1) in respect of the participation of the juror in the applicant's conviction, the Commission finds it unnecessary to examine the applicant's complaints concerning the use made of the statement before the High Court.         CONCLUSION   48.    The Commission concludes, by 12 votes to 1, that it is not necessary to examine whether there has been a violation of Article 6 para. 3 (d) (Art. 6-3-d) of the Convention.     E.     Recapitulation   49.    The Commission concludes, unanimously, that there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention (para. 44 above).   50.    The Commission concludes, by 12 votes to 1, that it is not necessary to examine whether there has been a violation of Article 6 para. 3 (d) (Art. 6-3-d) of the Convention (para. 48 above).     Secretary to the First Chamber      President of the First Chamber         (M.F. BUQUICCHIO)                    (C.L. ROZAKIS)                                                           (Or. English)                   DISSENTING OPINION OF MR. C.L. ROZAKIS         While   my opinion is that there was no breach of the Convention because of the fact that the applicant was not afforded the opportunity to test the veracity of the evidence of the juror's employer, Mr. McLaren, still I am unable to accept the conclusion of the majority of the Chamber that it was not necessary to examine this complaint separately under Article 6 para. 3 (d) of the Convention.         It seems to me that the conclusion of the Commission is drawn because of the fact that a violation of Article 6 para. 1 of the Convention was found and, hence, the complaint under Article 6 para. 3 (d) (which is considered as guaranteeing a particular aspect of the general protection provided for by Article 6 para. 1, was answered by the finding of the violation of Article 6 para. 1.         Although it is usually the case that a finding of violation or non-violation of Article 6 para. 1 covers also the particular aspects of the protection under Article 6 para. 3, in the circumstances of the case the finding of violation of para. 1 of Article 6 covered only its aspect of independence and impartiality of a court, and not necessarily the whole notion of fair trial.   Therefore, the need for specific reference to Article 6 para. 3 (d) remains intact.                                 Appendix I                         HISTORY OF THE PROCEEDINGS   Date                   Item ________________________________________________________________   26.05.93               Introduction of the application   02.08.93               Registration of the application   Examination of admissibility   19.10.93               Commission's decision to invite the parties to                       submit observations on the admissibility and                       merits   11.02.94               Government's observations   25.03.94               Applicant's reply   29.06.94               Commission's decision to declare the application                       admissible   Examination of the merits   29.06.94               Commission's deliberations   03.12.94               Examination of the state of proceedings   11.01.95               Commission's deliberations on the merits, final                       votes and adoption of the Report