Criminal - Jury- Regina v Guildford Crown Court Ex parte SI - Religion not a reasonable cause for being a juror PDF

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ICLR: King's/Queen's Bench Division/1990/Volume 2/REGINA v. GUILDFORD CROWN COURT, Ex parte SIDERFIN - [1990] 2 Q.B. 683

[1990] 2 Q.B. 683

[DIVISIONAL COURT]

REGINA v. GUILDFORD CROWN COURT, Ex parte SIDERFIN 1989 May 15; 25

Watkins L.J. and Judge J.

Practice - Jury - Excusing from service - Conscientious objection to serving on jury - Appeal from appropriate officer's refusal to excuse applicant from jury service - Applicant seeking to be legally represented on appeal - Whether appeal to be adjourned for legal representation - Whether religious belief "good reason" for excusal from service - Juries Act 1974 (c. 23), s. 9(2)

The applicant, who was a member of the Plymouth Brethren, believed that serving on a jury would be contrary to the tenets of her faith. When she was summoned for jury service at the Crown Court, she wrote to the chief clerk of the court, who was the appropriate officer for the purposes of section 9(2) of the Juries Act 1974,1 asking to be excused jury service. The chief clerk refused her request. She then appealed and supplied written reasons for wishing to be excused service. An application by her solicitor for an adjournment of the hearing of the appeal, to allow counsel to be briefed, was refused. The applicant attended the hearing and applied for an adjournment so that she could be legally represented. The judge refused the application on the ground that legal representation was neither necessary nor appropriate. He dismissed the appeal on the ground that the applicant had not established a "good reason" for being excused service. On an application for judicial review of the judge's decision: -

Held, granting the application, (1) that, although the applicant was not entitled to be legally represented on an appeal from the refusal of an application to be excused jury service, a conscientious objection should be considered carefully and sympathetically as it involved for an applicant questions of a sensitive and personal nature; that when time permitted and proper notice had been given, there would rarely be a valid reason for refusing an adjournment to enable an applicant to be legally represented; that, accordingly, the judge had misdirected himself in holding that legal representation was neither necessary nor appropriate (post, p. 694D-E, G-H). (2) That a religious belief of itself was not a good reason for excusal from jury service; that although the judge had applied the right test in posing the question whether the applicant's belief would stand in the way of her fulfilling properly, responsibly and honestly her duties as a juror, he failed to appreciate that she would feel unable to enter into discussions with the other members of the jury or perform her duties in conjunction with them and therefore the decision dismissing her appeal would be quashed and the matter reheard before another judge (post, pp. 695E-F, 696D-G).

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Per curiam. Upon the original application for excusal, the decision under section 9(2) of the Act is the exclusive responsibility of the appropriate officer. Judges are not involved in the original decision and have no role until the appellate

1 Juries Act 1974, s. 9: "(2) If any person summoned under this Act shows to the satisfaction of the appropriate officer that there is good reason why he should be excused from attending in pursuance of the summons, the appropriate officer may excuse him from so attending …" [1990] 2 Q.B. 683 Page 684

process has been invoked. The initial application should not, therefore, be referred to a judge (post, pp. 691G-H, 692AD). The following cases are referred to in the judgment: Mansell v. The Queen (1857) 8 E. & B. 54 Pett v. Greyhound Racing Association Ltd. [1969] 1 Q.B. 125; [1968] 2 W.L.R. 1471; [1968] 2 All E.R. 545, C.A. Practice Direction (Jurors) [1973] 1 W.L.R. 134; [1973] 1 All E.R. 240, C.A. Practice Direction (Jury Service: Excusal) [1988] 1 W.L.R. 1162; [1988] 3 All E.R. 177, D.C. Reg. v. Assessment Committee of St. Mary Abbotts, Kensington [1891] 1 Q.B. 378, C.A. Reg. v. Watson [1988] Q.B. 690; [1988] 2 W.L.R. 1156; [1988] 1 All E.R. 897, C.A. The following additional cases were cited in argument: Enderby Town Football Club Ltd. v. Football Association Ltd. [1971] Ch. 591; [1970] 3 W.L.R. 1021; [1971] 1 All E.R. 215, C.A. Newell v. Gillingham Corporation [1941] 1 All E.R. 552 Reg. v. Secretary of State for the Home Department, Ex parte Tarrant [1985] Q.B. 251; [1984] 2 W.L.R. 613; [1984] 1 All E.R. 799, D.C.

APPLICATION for judicial review. The applicant, Susette Dorothy Evelyn Siderfin, was summoned to attend the Crown Court at Guildford for jury service. She wrote to the court explaining that as a member of the Plymouth Brethren jury service would create a serious conflict of conscience for her. On 4 May 1988, excusal from jury service was refused by the

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chief clerk acting as the "appropriate officer" pursuant to section 9(2) of the Juries Act 1974. The applicant appealed to the Crown Court and was notified of the date of the hearing. Her solicitor applied for an adjournment to allow counsel to be instructed. That application was refused on 19 May. On 23 May the applicant attended the hearing and made an application for a shorthand writer and for an adjournment so that she might be legally represented. Judge Lewisohn refused both applications and dismissed her appeal. The applicant applied for judicial review of the decision of the chief clerk and of the judge's decisions not to allow the applicant to be legally represented and to dismiss her appeal. She sought orders of certiorari to quash the chief clerk's decision, the decisions of 19 and 23 May refusing her applications to be legally represented and the decision dismissing the appeal. She also sought orders of mandamus directing the court to hear her application to be excused jury service according to law and directing the court to allow the applicant to be represented by counsel or solicitor at the hearing of any appeal to the judge in accordance with rule 25 of the Crown Court Rules 1982 (S.I. 1982 No. 1109 (L. 22)). The grounds of the application, inter alia, were that in accordance with the rules of natural justice the applicant was entitled to be legally represented if she so wished; alternatively, if the judge had a discretion, he failed to exercise the discretion properly and in accordance with [1990] 2 Q.B. 683 Page 685 natural justice; that at the appeal hearing on 23 May 1988 the judge wrongly fettered his discretion by refusing the applicant's request for legal representation, not on its merits, but on the ground that the court had not previously heard counsel on such occasions; that, in exercising his discretion on the individual merits of the applicant's case, he wrongly fettered his discretion by applying to her a decided policy not to allow excusal from jury service on the ground of conscientious objection by members of the Plymouth Brethren at Guildford Crown Court; and that he wrongly took into account the view of the presiding judge that excusal from jury service on the ground of conscientious objection should rarely be allowed in the Guildford Crown Court. The ground of appeal, inter alia, against the decision of the chief clerk was that, in exercising his discretion on the individual merits of the applicant's case, he wrongly fettered his discretion by applying a previously decided policy to refuse most requests for excusal from jury service on the ground of conscientious objection. The facts are stated in the judgment.

Beverley Lang for the applicant. The applicant's grounds for excusal from jury service are that as a member of the Plymouth Brethren it would be contrary to one of the central tenets of her faith to take part in reaching a decision with those who were not "brethren." The Plymouth Brethren were established in the late 1820s starting in Dublin. One of the hallmarks of the "calling" was the informal way in which it was organised and its meetings were conducted. It was attractive for those that felt that the established church was not meeting their spiritual needs. In the 1840s there was doctrinal controversy and a split into two groups: the Exclusive brethren, of which the applicant was a member (now numbering some 12,000) and the open brethren. The Exclusive brethren maintained the cardinal principle of preserving a separation from evil and all evil things, and a positive sense of fellowship with those fellow brethren who broke bread with them. Fellowship consisted of keeping themselves apart as far as possible from non "believers," i.e. those not "in fellowship" with them. To maintain a standard of morality which was correct they could not deviate or moderate according to social trends. This was based on their own interpretation of the Bible. To maintain separation from evil it was necessary to avoid all contact and so a member would not be able to reach conclusions together with other members of a jury since this would entail a form of "fellowship" with others with whom they were not actually in fellowship and which was contrary (in their belief) to God's teaching about judgment. It was this background which gave rise to her conviction that she could not perform jury service.

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The Juries Act 1974, which was preceded by the Juries Act 1922 and the Juries Act 1825, followed the Morris Report (Departmental Committee on Jury Service) 1965 (Cmnd. 2627) of 1965 in which Lord Morris had referred to the problems experienced by those with religious scruples concerning jury service. The Courts Act 1971. Section 34(2), dealt with ineligibility. There was a discretional power under section 9(2) of the Juries Act 1974 where a proposed juror could show "good [1990] 2 Q.B. 683 Page 686 and thereby exclude a juror who was a conscientious objector and section 12 of the Juries Act 1974 dealt with rights of challenge. Section 20 covered offences arising out of a failure to attend with sub-section 4 providing that a person should not be liable if he could show reasonable cause. Section 120 of the Criminal Justice Act 1988 introduced section 9(A) to the Juries Act 1974 allowing a discretionary deferral. The Crown Court Rules 1982 (S.I. 1982 No. 1109 (L. 22)), as amended by the Crown Court (Amendment) Rules (S.I. 1984 No. 699 (L. 6)), rules 25 and 27, allowed an appeal to the Crown Court before which the juror was to appear. Under rule 25(5) the Court should not dismiss an appeal under this rule unless the appellant had been given the opportunity of making representations. There was further provision concerning those things which should be taken into account in deciding whether "good reason" in section 9(2) of the Juries Act 1974 had been established. Practice Direction (Jurors) [1973] 1 W.L.R. 134 of January 12 1973 it was proposed that a juror might also be excused at the discretion of the judge on grounds of "… conscientious objection". The words later in this section of the direction, "It is contrary to established practice for jurors to be excused on more general grounds such as race, religion …" involved a contradiction since all conscientious objectors were, ipso facto, objecting for reasons of principle; religious belief. The Statement of Guidance 18 December 1987, Lord Chancellor's Department; L. 20/21/04 and the Practice Direction (Jury Service: Excusal) [1988] 1 W.L.R. 1162, revoked that of 1973 and whilst it did not come into force until after the applicant's case had occurred it did omit the words "it is contrary to established practice …" therefore and thereby removing any question that religious belief was not a reason for excusal. In this it was in accordance with the European Convention on Human Rights, article 9. Newell v. Gillingham Corporation [1941] 1 All E.R. 552, 553F-G, was the only cited case on conscientious objection and set out the definition for what amounted to a true conscientious objector. Tribunal decisions of the First World War also dealt with the case of conscientious objection which are discussed in Hawton, Law and Practice of Military Service Acts 1916-1918 (1918) and in relation to World War II in Ince, Ministry of Labour and National Service (1960). It was possible to elicit from the decisions referred to there the criteria applied in deciding whether conscientious objection had been established: (1) Was the applicant a bona fide member of the religious group in question? (2) Did the tenets of this religious belief conflict with the requirements of active military service? (3) Was the objection genuinely and sincerely held by him? If the answer to all three questions was yes then the objection to military service would be allowed. The appropriate test for excusal from jury service in this case was: (1) Was she a bona fide member of the Plymouth Brethren? (2) Did the tenets of belief of the brethren conflict with the requirements of jury service? (3) Were her objections to jury service genuine and sincere? In the case of the military if it was established then it was a matter of right but with the jury it would still be a matter of discretionary relief. [1990] 2 Q.B. 683 Page 687 The judge's approach was wrong in law. It appeared that he had not properly addressed the questions set out in the criteria to be applied. If he had been satisfied that the three questions were answered in the affirmative then he should have excused the applicant from jury service. In the absence, that was, of any exceptional and overriding reason for refusal such as a severe shortage of jurors in times of war or epidemics. The test which he had applied, "would the applicant's religious belief stand in the way of his/her properly fulfilling his/her duties as a member of the jury?" had not given any or sufficient weight to the applicant's personal objection to jury service, as opposed to the requirements of the court. He thus failed properly to apply his discretion under the Act of 1974 and the Practice Direction (Jurors) [1973] 1 W.L.R. 134. In any event he had misapplied his own test because the applicant's inability or refusal to enter into a collective judgment with other jurors, not members of the brethren, would have stood in the way of a proper fulfillment of her du-

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ties. The judge had failed to approach the issue of excusal with a truly open mind and manifested a bias in favour of service and against refusal. In exercising his discretion the judge took into account a consideration which was factually incorrect or unproven when, on hearing the applicant's grounds for excusal because of conscientious objection, he said: "If we took these grounds we would not be able to get any juries." There was no evidence to substantiate this assertion. The judge relied on the further opportunity open to the applicant to be relieved from service either by the judge at trial or by counsel exercising the right of challenge and stand by. Under existing law the counsel would not have the right to challenge her and if counsel for the prosecution had felt able to exercise his right to stand by, she might still have been required to serve as a juror. In any event there was no guarantee that counsel would exercise their rights. As far as the initial refusal was concerned under section 9(2) of the Juries Act 1974 the application for excusal was to be determined by the "appropriate officer" of the Crown Court, as things stood the chief clerk. (This procedure was first introduced by the Juries Act 1922, following a recommendation from the Mersey Report (Committee on Juries) (Cmnd. 6818) which had reported in 1913.) Section 9(3) provided for a right of appeal to the Crown Court against a refusal by the appropriate officer. Rule 25 of the Crown Court rules set out the procedure. It was clearly intended that the appeal was to be heard by a judge of the court. It appeared from the evidence served by the respondent that the procedure set out above was not followed in the applicant's case. The initial application was apparently decided by the judge, not the appropriate officer, with the judge hearing the initial application as well as the appeal (note the absence of any evidence from the appropriate officer). If this was so it amounted to a wrongful delegation to the judge of the power conferred by statute on the appropriate officer and deprived the applicant of the opportunity, given by the statute, to have her application heard by two different bodies, independently of each other. If, as the applicant submits, it was the judge that took the initial [1990] 2 Q.B. 683 Page 688 decision in place of the "appropriate officer," then the objections already raised would apply at this stage also. If otherwise the initial decision was taken by the appropriate officer then he erred in law in that he wrongly fettered his discretion by applying a set policy to refuse most requests for excusal made on grounds of conscientious objection and a policy to refuse requests for excusal on those grounds by the Plymouth Brethren following a similar case before Judge Rubin. The appropriate test had not been applied by the appropriate officer to determine whether the applicant had legitimate grounds and whether those grounds did amount to "good reason" under the Juries Act 1974. The judge erred in law in not allowing the applicant to be legally represented which as a general principle she was entitled to be, as of right, by counsel or in certain cases counsel and a solicitor; Halsbury's Laws of England, 4th ed., vol. 3 (1973), pp. 637 and 643 paras. 1161 and 1172. There was no basis for excluding appeals under rule 25 of the Crown Court Rules from the general right to be represented by counsel. There was no exclusion to the right to representation contained either in the Supreme Court Act 1981, the Juries Act 1974 or rule 25 and in the absence of an express exclusion the applicant was entitled to representation for her appeal; Reg. v. Assessment Committee of St. Mary Abotts, Kensington [1891] 1 Q.B. 378. In relation to section 83(1) of the Supreme Court Act 1981 Halsbury's Statutes of England, 4th ed., vol. 11 (1985) p. 838, para. 83 refers to the extension of the rights of audience for solicitors in the Crown Court. The broad wording of the section was significant. It was not limited to defending a person charged or to a trial but was wide enough to include an appeal to a judge under rule 25 of the Crown Court Rules. It was not proper to draw the inference that section 83 was not intended to give solicitors any wider rights of representation than those enjoyed by counsel and so it might be properly inferred that counsel currently had the right to "conduct, defend and address the court in any proceedings" in the Crown Court. If, which was not accepted, the court did have a discretion in respect of representation then the judge had failed to exercise that discretion properly and in accordance with the rules of natural justice in refusing the request without hearing or inquiring into the applicant's reasons for wanting representation and he had erred in that he wrongly fettered his discretion by limiting the grounds for allowing representation, saying that he would not grant audience to a legal representative and that such representation had not been allowed in such cases before. He had failed to take into account particular considerations which were relevant to the applicants case. In the cases of conscientious objection to military service there had been representation where the question arose as to the sincerity of the objec-

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tion. Had the judge concluded that it was proper to allow representation by counsel it would then have been unreasonable to have refused the adjournment requested. The hearing was not fair in that the judge had failed to conduct a proper inquiry into the applicant's grounds for excusal, given that they were sincere, and into whether they amounted to genuine conscientious objection; particularly so since the appellant had been refused representation and was therefore appearing in person. The judge was [1990] 2 Q.B. 683 Page 689 considered. The appropriate officer and the judge had both misapplied their ow...