The People at the suit of the Director of the Director of Public Prosecutions (prosecutor respondent) v Nicholas Tobin (accused/appellant).

Criminal Law - Appeal - Whether appropriate to discharge jury in rape and indecent assault trial when court in- formed by jury foreman that a juror related personal experience of sexual abuse in jury deliberations - Test of jury bias - Whether subjective test or objective test of reasonable apprehension of bias - Determination of objective bias according to standard of reasonable and fair minded observer knowing relevant facts - Juries Act 1976, section 15(3) - Constitution of Ireland, article 38.1.

The Court of Criminal Appeal (Mr Justice Fennelly, Mr Justice Kinlen and Mr Justice Murphy); judgment delivered 22 June 2001.

The appropriate test to be applied to a challenge of jury bias is whether a reasonable person in the circumstances would have a reasonable apprehension that the appellant would not receive a fair trial. The application of this objective test depends on the facts of each case and it must be assessed according to the standard of a reasonable and fair-minded observer who knows the relevant facts. Where the actual facts were meagre and were simply that the appellant was on trial for serious offences, which must have been sufficiently similar to the juror's experience to cause him/her to relate his/her personal experience of sexual abuse during the jury's deliberations, a reasonable and fair-minded observer would consider that there was a danger, in the sense of a possibility, that the juror might have been unconsciously influenced by his/her personal experience. The Court of Criminal Appeal so held in quashing the appellant's convictions and directing a re-trial on all counts.

John A. Edwards SC and Pauline Walley BL for the prosecutor/respondent; Blaise O'Carroll SC and Deirdre Byrne BL for the accused/appellant.

Mr Justice Fennelly delivered the judgment of the court and said that the appellant was convicted on eleven counts of rape and indecent assault against the same female person and that the trial judge sentenced the appellant to concurrent sentences of imprisonment. The trial judge certified the case as one fit for appeal on the sole ground that the court failed to discharge the jury when the foreman informed the court that one juror had, during the jury's deliberations, related personal experience of sexual abuse. Shortly after, the Court of Criminal Appeal admitted the appellant to bail pending the hearing of his appeal.

Mr Justice Fennelly said that the problem confronting the court was that, two hours and twenty minutes after retiring to consider their verdict, the jury sought directions from the court and, upon their being recalled, the foreman told the court that one juror had disclosed personal experience of sexual abuse. When the trial judge inquired as to whether the relevant juror could not deal with the matter objectively, the foreman said that this was not so but that the jury were concerned as a body. No particulars of the experience or the relevant juror's identity or gender were given. Following submissions in the jury's absence, the trial judge recalled the jury and, in response to the question of whether or not the relevant juror considered that his/her ability to approach the case impartially would be affected by his/her experience, the foreman assured the court that it was not affecting the impartiality of that person but he explained that the jury felt that they should report the matter to the court. Mr Justice Fennelly observed that this was the sum total of the information available to the court as to the nature of the problem which had emerged.

Mr Justice Fennelly noted that, after the trial judge decided against further action, the appellant submitted that the jury should be discharged. It was submitted on behalf of the appellant that, if the juror's concern had been disclosed earlier, the defence would have objected to that juror continuing to serve and that, in the actual circumstances, the defence was concerned at the risk to the fairness of the trial from the known presence of a juror with an individual experience of sexual abuse and who might introduce individual personal experience to the case and who might communicate that experience to other jurors. It was submitted that the risk of bias could persist even though the juror believed himself or herself to be free of it and, furthermore, that justice must be seen to be done.

The trial judge did not think that there was a high degree of need to discharge the jury which, Mr Justice Fennelly noted, was the test that the trial judge set for himself. Mr Justice Fennelly commented on the unusual circumstances and difficult choice with which the trial judge was faced. He noted that discharging the juror was not an option because that would have involved identifying him/her and that, faced with the most categorical assurance of the jury's confidence in their own impartiality, the trial judge decided that there was no risk to the fairness of the trial such as to warrant the jury's discharge.

Mr Justice Fennelly outlined the appellant's submissions on appeal. He referred to the reliance placed on the guarantee in Article 38.1 of the Constitution that no person shall be tried on any criminal charge save in due course of law, the submission that this guarantee incorporated the right to be tried by an unbiased jury and, in support of same, the appellant's reliance upon Z v DPP [1994] 2 IR 476, The People (Attorney General) v Singer [1975] IR 408 and DPP v Haugh [2000] 1 IR 184. The appellant relied upon the maxim that justice should not only be done but be seen to be done and submitted that the appropriate objective test was that adopted in Bula Ltd (in receivership) v Tara Mines Ltd (Supreme Court, 4 June 2000, unreported) where Mrs Justice Denham said that the test was: would a reasonable person have a reasonable apprehension that the appellant would not, in the circumstances, receive a fair and impartial trial? Mr Justice Fennelly also noted the appellant's reliance on the decision of the European Court of Human Rights in Sander v United Kingdom [2000] Crim LR 767. In this case, a juror, in a trial of a British national of Asian origin, sent a note to the trial judge in relation to racist remarks made by another juror. The trial judge directed the jury to disregard any prejudices. Subsequently, all the jurors signed a note disowning any racist remarks or prejudices. Applying the objective test, the European Court of Human Rights held that the failure to discharge the jury amounted to a breach of Article 6(1) of the European Convention on Human Rights and Fundamental Freedoms because an objective observer might reasonably entertain doubts as to the jury's impartiality.

Mr Justice Fennelly also noted the appellant's submissions that the lateness of the disclosure denied him the opportunity to challenge the relevant juror and that the trial judge should have interrogated the juror in the absence of the other jurors, in support of which the appellant relied on Blackwell and Others [1995] 2 Cr App R 625, R v Sawyer [1980] 71 Cr App R 283 and R v Spencer [1987] AC 128.

Mr Justice Fennelly further noted the DPP's reliance on D v DPP [1994] 2 IR 465 wherein it was said that the "the robust common sense of juries" could be expected to resist external influences when strongly and effectively directed by the trial judge as to their obligation to try a case only on the facts. Mr Justice Fennelly also considered Kelly v O'Neill and Brady [2000] 1 ILRM 507 wherein Mrs Justice Denham remarked that jurors were "robust" and stated that the test was whether there was a real risk that an accused person would not receive a fair trial.

Mr Justice Fennelly noted that the DPP supported the trial judge's decision not to discharge the jury on the grounds that any issue of subjective bias was disposed of by the questions put to the foreman. The DPP further submitted that the present case was not one of objective bias and that Singer was distinguishable because that case concerned a juror who was actually a victim of the scheme which formed the basis of the fraud charges against the accused. The DPP also relied heavily upon the warnings given to the jury panel prior to their being empanelled and the directions given by the trial judge in his summing up.

Mr Justice Fennelly expressed the court's opinion that the issue had to be decided in light of the guarantee of a fair trial in Article 38 of the Constitution and he said that an accused's right to be tried by a jury free from any suspicion or taint of bias was one of the cornerstones of the criminal justice system.

Mr Justice Fennelly commented upon the dearth of the case law on the issue of biased jurors which, he presumed, was at least partly attributable to the conscientiousness of jurors in disclosing potential sources of bias and the care taken by the law to ensure the absence of partial jurors. He referred to the requirement in section 15(3) of the Juries Act 1976 that, prior to the commencement of jury selection, members of the jury panel be invited to inform the judge of "any interest in or connection with the case or the parties" that any of them might have. Mr Justice Fennelly also referred to the decision in DPP v Haugh [2000] 1 IR 184 in which, at page 193, Mr Justice Carney noted that the statutory scheme worked well "to eliminate biased jurors in the broadest sense of that term". He noted that in the same case, Mr Justice O'Donovan had said that, assuming all potential jurors were honest and forthcoming and responded appropriately, candidly and conscientiously to the trial judge's warning and invitation, the statutory scheme operated to protect an accused from a potentially prejudiced juror.

Mr Justice Fennelly also referred to the statutory provisions for challenging jurors and he acknowledged that the possibility that a juror with inappropriate connections or prejudices might inadvertedly be sworn could not be excluded.

Mr Justice Fennelly reviewed the Singer case, in which the accused was convicted on a number of counts of fraud perpetrated through a company. After the trial, it transpired that the jury foreman was a victim of the frauds and a claimant in the company's liquidation and that a senior partner in the accountancy firm where the foreman worked was the liquidator of the company and a witness at the trial. Mr Justice Fennelly said that, while the conviction in that case clearly could not stand, the egregious facts of the case diminished the general value of the case as a precedent and that, apart from the remark therein that the "whole purpose of a jury trial is third-party judgment, judgment by indifferent person", no general principle for application in cases of alleged bias was enunciated in the decision.

Mr Justice Fennelly said that the present case was not comparable to cases of either material personal interest or those concerning the degree of protection from external influence that the courts should ensure for juries (citing Cullen v O'Beirne [1984] ILRM 577; D v DPP [1994] 2 IR 465; DPP v Haugh; and Kelly v O'Neill and Brady).

Mr Justice Fennelly said that the present problem was that of a juror with particular personal experience which was potentially similar to the subject-matter of the trial and that the decision of the House of Lords in R v Gough [1993] 2 AC 646, that of the High Court of Australia in Webb v The Queen [1994] 181 CLR 41 and the decision of the European Court of Human Rights in Sander v United Kingdom [2000] Crim LR 767 were the most material decisions. Mr Justice Fennelly said that the Supreme Court had brought the threads of these cases together and established a single clear test.

Mr Justice Fennelly reviewed these decisions. In Gough, a juror recognised, at the sentencing hearing, that the accused's brother was her neighbour and, on investigation, she said that she had not noticed references to the brother's involvement in aspects of the crime. Mr Justice Fennelly noted that the House of Lords was invited to choose between two propositions. The first was that the conviction should be quashed if there was a real danger that the accused might not have had a fair trial. The second required only that it be shown that a reasonable and fair-minded person sitting in the court and knowing all the relevant facts would have a reasonable suspicion that the defendant would not have a fair trial. Mr Justice Fennelly noted that, having considered the authorities, Lord Goff of Chievely favoured the first proposition. However Mr Justice Fennelly said that, on close reading, the difference between the two tests was more apparent than real. He quoted from the judgment of Lord Goff and he noted the emphasis that was placed upon the necessity to assess the "real danger of bias" by a standard of possibility rather than likelihood.

In Webb, a juror sent a bunch of flowers to the mother of the murder victim after the judge had commenced his summing up to the jury. Mr Justice Fennelly noted that the Australian High Court declined to follow Gough and applied a test of whether "the circumstances of the incident would still give a fair-minded observer a reasonable apprehension of a lack of impartiality on the part of the juror". Mr Justice Fennelly noted that, while a majority of the court in Webb held that the trial judge was correct not to discharge the jury, the court was unanimous as to the appropriateness of the test of reasonable apprehension or reasonable suspicion of lack of impartiality.

Finally, in Sanders, the trial judge received a note from a juror expressing concern at another juror's expression of racist sentiments, although this was subsequently withdrawn by all jurors. Mr Justice Fennelly observed that the European Court of Human Rights used different language and considered it necessary to examine "whether the court was impartial from an objective point of view, i.e. whether in the circumstances there were sufficient guarantees to exclude any objectively justified or legitimate doubts as to the impartiality of the court". Mr Justice Fennelly noted that both Sanders and Webb discussed a judge's capacity to eradicate any danger of lingering prejudice by way of directions to the jury. Having referred to the lack of case law on juror bias, Mr Justice Fennelly said that it seemed that the Irish courts had, in other cases of alleged bias, preferred the second of the two formulations of the objective test that were set out in Gough. As examples, he cited O'Neill v. Beaumont Hospital [1990] ILRM 419, O'Reilly v Cassidy [1995] 1 ILRM 306 and Dublin Wellwoman Centre Ltd v Ireland [1995] 1 ILRM 408. Mr Justice Fennelly said that, on this basis, Mrs Justice Denham in Bula said: "Thus, there is well settled Irish law that the test is objective, it is whether a reasonable person in the circumstances would have a reasonable apprehension that the appellants would not receive a fair trial of the issues".

Mr Justice Fennelly noted that Mrs Justice Denham proceeded to compare Gough and Webb and quoted extensively from the judgment of Chief Justice Mason in Webb and adopted his reasoning. Mr Justice Fennelly noted that Bula confirmed that the "reasonable apprehension" test applied to the allegations of bias at the highest levels of the judiciary and he said that, a fortiori, therefore, it applied to a challenge of jury bias. Mr Justice Fennelly also referred to the dictum of Lord Hewart in R v Sussex Justices, ex parte McCarthy [1924] 1 KB 256 at 259, "that justice must not only be done, but should manifestly and undoubtedly be seen to be done". He noted that this dictum was recalled in nearly all of the cases upon which the appellant relied in the present case.

Mr Justice Fennelly said that the application of the test was a matter to be decided on the facts of individual cases.

As to the present case, Mr Justice Fennelly said that, at the relevant time, little was known of the personal experience of the individual juror except that, during the jury's deliberations, this history was brought to the attention of the other jurors for the first time and was then brought to the court's attention. Mr Justice Fennelly said that it did not follow that this person was incapable of acting impartially on a jury and that any issue of subjective bias was disposed of by the opinion of the relevant juror and the jury that impartiality was not a problem. Mr Justice Fennelly said that objective bias had to be assessed according to the standard of a reasonable and fair-minded observer who knew the relevant facts. In this regard, Mr Justice Fennelly said that the actual facts were very meagre and the hypothetical observer was necessarily bound to evaluate the possibilities of the matter. He said that one conclusion which might reasonably be drawn was that the juror was the victim of criminal behaviour in the past. He said that the central facts were simply that the appellant was on trial for extremely serious offences which must have been sufficiently similar to the juror's experience to cause him/ her to raise the matter. In that situation, Mr Justice Fennelly said that it was the court's opinion that, in the special circumstances of the case, a reasonable and fair-minded observer would consider that there was a danger, in the sense of a possibility, that the juror might have been unconsciously influenced by his/ her personal experience and, for that reason, the appellant might not receive a fair trial. Furthermore, Mr Justice Fennelly said that, even jurors without similar experience of sexual abuse might well be influenced by sympathy for a fellow juror who had suffered, at the hands of another, the type of abuse with which the accused was charged. He said that this was not to say that such considerations would apply to the trial of every type of offence where a juror had undergone a similar ordeal. Nor did it follow that subsequent discovery that a juror had had an experience of that kind would warrant quashing the conviction. Mr Justice Fennelly said that the issue in the present case was explicitly raised by the jury expressing its concern.

Mr Justice Fennelly added that the court did not discount the possibility that a judge might sufficiently counteract dangers of this nature by a considered and carefully worded special direction such as would render it unnecessary to discharge the jury. He noted that such an approach was considered in the different circumstances of D v DPP. Having noted that no attempt was made to deal with the issue in the present case by way of direction to the jury, Mr Justice Fennelly said that it was unnecessary to address the issue in the present case save to say that prior general remarks made by the trial judge in the course of his charge could not be regarded as sufficient to deal with the specific problem which arose.

The court quashed the appellant's convictions and directed a re-trial on all counts.

Solicitors: Chief State Solicitor for the prosecutor/respondent; Daly Derham & Co (Cork) for the accused/appellant.