Knife attacker’s appeal against conviction rejected in ‘googling juror’ case

Gary Goddard argued that the jury “lacked impartiality” due to the disclosure of the analogous prior conviction, but the High Court of Justiciary Appeal Court ruled that a “fair-minded and informed observer” would not conclude that there was a “real possibility of bias”.

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The Lord Justice Clerk, Lady Dorrian, sitting with Lord Menzies and Lord Drummond Young, heard that the appellant was charged with assault to severe injury, impairment, and permanent disfigurement after repeatedly stabbing his victim with a knife.

He claimed he was acting in self-defence, but was convicted unanimously under deletion of the word “permanent”.

In accordance with usual practice in the court in question, the jurors were asked to submit, anonymously, feedback forms reflecting on their experience and the facilities provided to them.

One of the forms indicated that one of the jurors had “googled” the appellant and discovered that he had a previous conviction in 2015 for an assault with a metal pole - for which he was sentenced to 17 months’ imprisonment - and then shared this information with at least one other juror, namely the author of the feedback form.

From the terms of the form it could reasonably be inferred that at the time the juror conducted the online search he or she had not yet received a warning not to do so.

The form did not allege any impropriety on the part of the juror, suggesting that the action was one of naivety.

And it was not known at what stage the writer of the form was told of the conviction, whether before or after the verdict, or whether any other jurors were also so informed.

Further, there was no suggestion that the information played any part in the jury’s assessment of the case, nor that it had nay effect on their deliberations.

‘Jury lacked partiality’

However, on behalf of the appellant, it was submitted that the awareness of at least some jurors of an analogous conviction, also involving a weapon, was sufficient at least to raise “justified and legitimate doubts about the jury’s impartiality”.

The test to be applied in such circumstances was that set out the case of Carberry v HM Advocate 2014 JC 56, namely “whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased”. 

It was submitted that the juror in question must have ignored the clear instructions given by the sheriff that the jury were not to conduct their own investigations.

Given the nature of the conviction, it was argued that there was a real possibility that the jury had accessed information it ought not to have had, which would be “prejudicial” to the appellant’s interests in a material way, since his credibility was central to the issue of self-defence.

The court had no control over the material, unlike the situation where a witness has volunteered information which can be the subject of immediate correction and instruction, as well as subsequent direction.

The appellant’s position was that if even one of those who took part in the decision could not be seen to have been impartial, that flaw affected the collective decision.

The jury having lacked impartiality, a “miscarriage of justice’ had occurred, it was submitted.

But the advocate depute argued that the disclosure of an analogous previous conviction to the jury, prior to the determination of the charge, does not of itself require the jury to be considered biased or automatically render the trial unfair - for a trial to be deserted or a conviction quashed the disclosure must have had a “prejudicial effect”.

‘No miscarriage of justice’

Refusing the appeal, the judges ruled that the circumstances did not meet the test for bias.

Delivering the opinion of the court, the Lord Justice Clerk said: “In our view, the natural interpretation of the information contained in the form is that the action of searching took place prior to the warning being given, so the obtaining of the information was not done in breach of any instructions from the court. 

“If the information was imparted to the other juror(s) after the jury were balloted, this would have been in disregard of instructions on the matter. However, it is not known when this occurred. 

“In any event, as already noted, the mere act of disclosure does not justify an inference of bias. No information has been provided to establish that the juror’s knowledge of the appellant’s previous convictions was translated into effective action in the jury room.

“For these reasons we do not consider that the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased or lacked impartiality.”

In any event, the case against the appellant was a “compelling” one and the appeal judges did not consider that the circumstances would have constituted a miscarriage of justice.

Lady Dorrian added: “We agree with the advocate depute that in cases where a juror has accessed publicly available hearsay information it is not unreasonable to expect that juries will normally continue to act in accordance with the standard directions to decide the case solely upon the evidence properly led in court.

“There was here no reason to suspect that the jury departed from their oath or that it did not follow the judge’s directions to determine the case on the basis of the evidence alone, directions which were repeatedly and clearly given. Such directions are deliberately given to reinforce for the jury the necessity of determining the case only on the basis of the evidence led in court.

“The advocate submitted that it was not established, or even suggested, that the jury’s deliberations were corrupted by the information obtained; the author of the form made no complaint about improper conduct during the deliberations: had that occurred one would expect the issue to have been raised. We agree with that submission.

“Furthermore, the case against the appellant was a compelling one.”