Lexploria

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

Menu

PULLAR v. THE UNITED KINGDOM

PULLAR v. THE UNITED KINGDOM