PARTLY DISSENTING JOINT OPINION OF JUDGES RYSSDAL AND MAKARCZYK,

              JOINED BY JUDGES SPIELMANN AND LOPES ROCHA

        In our view, there has been a violation of Article 6 para. 1

of the Convention (art. 6-1).

        The main issue here is not the impartiality of the juror,

Mr Brian Forsyth, but the conduct of the judicial organs and their

failure to secure the obligation to ensure the proper selection of the

jury.

        When proposed for selection as a juror in this case, Mr Forsyth

did what could be expected of him by informing the sheriff clerk about

the fact of his employment by the Crown witness, Mr McLaren.  Here the

clerk committed his first error, which probably determined his further

conduct: he asked Mr Forsyth whether he personally knew the accused or

anything about the circumstances of the case and when Mr Forsyth

answered that he did not, he was in fact deciding that the latter was

qualified to serve as a juror.  However, as the appeal court clearly

indicated, the decision on such a vital issue should have been left to

the presiding judge (the sheriff).  The clerk did not inform either the

sheriff, the Procurator-fiscal who was to prosecute, or the defence

lawyers of his conversation with Mr Forsyth, thus depriving the defence

of their right to object to his serving on the jury.  Later on, the

sheriff clerk again failed to inform anyone when told by the Crown

witness, Mr McLaren, of his connection with Mr Forsyth.

        These problems would not have arisen if the list of names of

potential jurors, which was provided to the parties, had contained

details of their employment, or if the sheriff had asked the empanelled

jurors whether they knew of any reason why they ought not to serve in

the trial.

        On appeal, Lord Hope, the Lord Justice General, recognised that

the clerk ought to have informed the sheriff about the connection

between Mr McLaren and Mr Forsyth and that, had he done so, Mr Forsyth

would almost certainly have been excused under section 133 of the

Criminal Procedure (Scotland) Act 1975.  In addition, the court gave

guidance as to the steps which should be taken in future to avoid such

a risk of prejudice to the accused.  One of these steps was the

obligation imposed on court staff to inform the presiding judge of any

circumstances suggesting that a juror might have personal knowledge of

the case.  In our view this amounts to an implicit recognition that in

the instant case the sheriff clerk failed in his duties.

        It is important to note that the jury convicted Mr Pullar by

a majority, rather than unanimously.  The applicant could reasonably

have considered that Mr Forsyth's role was central to the formation of

that majority.

        Consequently, we consider that the applicant was objectively

justified in having doubts as to the impartiality of the jury which

convicted him, and the requirements of Article 6 para. 1 of the

Convention (art. 6-1) regarding an impartial tribunal were not met.

        On the other hand, for the reasons given by the majority of the

Court, we do not consider that there has been a violation of

paragraph 3 of Article 6 (art. 6-3).