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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)

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PULLAR v. THE UNITED KINGDOM

PULLAR v. THE UNITED KINGDOM

LEXI