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Regina v. Connor & Anor

Regina v. Connor & Anor

Case [2004] UKHL 2

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These appeals raise the question whether evidence about the deliberations of a jury, which reveal a lack of impartiality on the part of the jury, is always inadmissible under the common law secrecy rule however compelling the evidence may be and however grave the circumstances of the lack of impartiality may be. Two examples will illustrate the point. A juror reveals after verdict that during the jury deliberations it emerged that some members of the jury were associated with a Neo-Nazi group and that they urged the conviction of the accused because he was a black immigrant. In the second example a juror reveals after verdict that a majority of the jury refused to deliberate and that the jury ultimately arrived at a verdict of guilty by spinning a coin. Nobody would seriously contest that such guilty verdicts would be the result of perverse processes by judicial tribunals. Neither example is fanciful or extreme: both were suggested to me by decided cases. Moreover, anyone versed in criminal practice would be able to match these hypothetical cases with other equally telling examples.

In the two appeals now before the House, viz Mirza [2002] EWCA Crim 1235; [2002] Crim LR 921; and Connor and Rollock [2002] EWCA Crim 1236, the Court of Appeal gave separate judgments on 13 May 2002. The thrust of the judgments given by the Vice President, Rose LJ, with the concurrence of Hunt and Keith JJ, was that the Court of Appeal was bound by the decision of a differently constituted Court of Appeal in R v Qureshi [2001] EWCA Crim 1807; [2002] 1 WLR 518, which had enunciated an absolute rule of the secrecy of deliberations of the jury after verdict. It follows that even in cases such as I have described the Court of Appeal would feel compelled by stare decisis to rule that it has no jurisdiction to examine a possible miscarriage of justice in this corner of the law.

It is inherent in the opinions of the majority delivered today that even in the exceptional cases postulated the evidence must always be excluded and the conviction upheld. That reflects the submissions of counsel for the Lord Chancellor who asserted "that the residual possibility (of a miscarriage of justice) is the necessary price for the preservation and protection of the jury system": Case para 53. In contradistinction counsel for the Director of Public Prosecutions, when taxed with the problem I identified in paragraph 1, acknowledged that the point is one of great difficulty. Ultimately, he did, however, support the reasoning which has been upheld by the majority. It is to the effect that in the interests of maintaining the efficiency of the jury system the risk of occasional miscarriages of justice may acceptably be tolerated. In other words one must accept some dubious verdicts, even in cases of the utmost gravity, as the cost to be paid for protecting the jury system. While I acknowledge that the problem is one of acute difficulty, I…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2004] UKHL 2
Decision Date