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"Not in interests of justice" to hear SCCRC reference: appeal court

6 September 2013

A reference by the Scottish Criminal Cases Review Commission based on alleged prejudice to an accused because of internet research carried out by one or more members of the jury, has, exceptionally, been rejected by the appeal court without proceeding to an oral hearing of evidence.

Lord Justice Clerk Carloway, sitting with Lady Paton and Lord Marnoch, gave the decision in thre case of Frank Carberry, convicted in Glasgow Sheriff Court in 2006 of three charges of indecent assault against males and given an extended sentence of seven years.

Carberry claimed he had been denied a fair trial following an alleged incident in 2007 when his brother in law, while working as a taxi driver, was told by someone who happened to have served on the jury in his trial that one juror had found on the internet that he was involved with a known leading figure in the Glasgow underworld. Another juror had then done the same and verified the information.

The appeal court refused to allow a proposed ground of appeal based on this account to be received, and Carberry made an application to the SCCRC, which was given permission to interview the jurors in relation to these matters. Having done so, it initially concluded that any impropriety that had occurred had not deprived Carberry of the chance of a fair trial, but on reconsidering the matter after judicial review proceedings were commenced it decided that a miscarriage of justice might have occurred.

Of the interview accounts, the juror who made the initial disclosures gave a different and more limited version of events, involving only one juror and not detailing what had been discovered. Six said nothing of that sort had occurred. One said some of the jury thought the accused was a gangster, but did not recall any internet use. One "vaguely recalled" something about the internet. Six could not be contacted or declined to be interviewed.

Giving the opinion of the court, Lord Carloway said that in light of the available juror statements, the taxi driver's affidavit "falls to be treated as hearsay and of no relevance for present purposes". The court's power to reject a reference from the Commission "should only be exercised in an exceptional case", at least the equivalent of that for judicial review in civil proceedings. However, there was an "exacting" test for an appeal based on alleged malpractice by a juror, and applying it to the material presented, "the court has little hesitation in concluding that it falls well short of the standard of information required before the court would contemplate instructing a judicial inquiry into the happenings in a jury room either before or after seclusion".

It appeared that at the relevant time, the accused had a reputation as a gangster and it would not be surprising if some members of the jury knew of this. If he had been concerned about the prospects for a fair trial because of this, he could have entered a plea in bar of trial or requested a transfer of the case to another part of the country.

"In this particular case, for the appellant to succeed, he would have to demonstrate that the googling juror accessed information which was not already in the public domain and which was prejudicial to his interests in a material way. The material presented does not begin to demonstrate this", Lord Carloway said.

He added that the SCCRC should have regard to a refusal by the court to allow a ground of appeal that formed the basis of a subsequent application to the SCCRC; and that the duty to have regard to the need for "finality and certainty" applied to the particular proceedings and not to the need for finality and certainty in the law.

Click here to view the opinion.

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