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	European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> PULLAR v. THE UNITED KINGDOM - 22399/93 [1996] ECHR 23 (10 June 1996) URL: http://www.bailii.org/eu/cases/ECHR/1996/23.html Cite as: 1996 SCCR 755, (1996) 22 EHRR 391, [1996] ECHR 23, 1993 SCCR 514, 22 EHRR 391

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In the case of Pullar v. United Kingdom (1),

The European Court of Human Rights, sitting, in accordance with

Article 43 of the Convention (art. 43) for the Protection of Human

Rights and Fundamental Freedoms ("the Convention") and the relevant

provisions of Rules of Court A (2), as a Chamber composed of the

following judges:

Mr R. Ryssdal, President,

Mr F. Gölcüklü,

Mr A. Spielmann,

Mr N. Valticos,

Sir John Freeland,

Mr M.A. Lopes Rocha,

Mr L. Wildhaber,

Mr J. Makarczyk,

Mr K. Jungwiert,

and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy

Registrar,

Having deliberated in private on 24 January and 20 May 1996,

Delivers the following judgment, which was adopted on the

last-mentioned date:

_______________

Notes by the Registrar

1. The case is numbered 20/1995/526/612. The first number is the

case's position on the list of cases referred to the Court in the

relevant year (second number). The last two numbers indicate the

case's position on the list of cases referred to the Court since its

creation and on the list of the corresponding originating applications

to the Commission.

2. Rules A apply to all cases referred to the Court before the entry

into force of Protocol No. 9 (P9) (1 October 1994) and thereafter only

to cases concerning States not bound by that Protocol (P9). They

correspond to the Rules that came into force on 1 January 1983, as

amended several times subsequently.

_______________

PROCEDURE

1. The case was referred to the Court on 1 March 1995 by the

European Commission of Human Rights ("the Commission"), within the

three-month period laid down by Article 32 para. 1 and Article 47

(art. 32-1, art. 47) of the Convention. It originated in an

application (no. 22399/93) against the United Kingdom of Great Britain

and Northern Ireland lodged with the Commission under Article 25

(art. 25) by a British national, Mr Robert Pullar, on 26 May 1993.

The Commission's request referred to Articles 44 and 48

(art. 44, art. 48) and to the declaration whereby the United Kingdom

recognised the compulsory jurisdiction of the Court (Article 46)

(art. 46). The object of the request was to obtain a decision as to

whether the facts of the case disclosed a breach by the respondent

State of its obligations under Article 6 of the Convention (art. 6).

2. In response to the enquiry made in accordance with

Rule 33 para. 3 (d) of Rules of Court A, the applicant stated that he

wished to take part in the proceedings and designated the lawyer who

would represent him (Rule 30).

3. The Chamber to be constituted included ex officio

Sir John Freeland, the elected judge of British nationality (Article 43

of the Convention) (art. 43), and Mr R. Ryssdal, the President of the

Court (Rule 21 para. 4 (b)). On 5 May 1995, in the presence of the

Registrar, the President drew by lot the names of the other seven

members, namely Mr F. Gölcüklü, Mr A. Spielmann, Mr N. Valticos,

Mr M.A. Lopes Rocha, Mr L. Wildhaber, Mr J. Makarczyk and

Mr K. Jungwiert (Article 43 in fine of the Convention and

Rule 21 para. 5) (art. 43).

4. As President of the Chamber (Rule 21 para. 6), Mr Ryssdal,

acting through the Registrar, consulted the Agent of the United Kingdom

Government ("the Government"), the applicant's lawyer and the Delegate

of the Commission on the organisation of the proceedings

(Rules 37 para. 1 and 38). Pursuant to the order made in consequence,

the Registrar received the applicant's memorial on 29 September 1995

and the Government's memorial on 2 October 1995.

5. In accordance with the President's decision, the hearing took

place in public in the Human Rights Building, Strasbourg, on

22 January 1996. The Court had held a preparatory meeting beforehand.

There appeared before the Court:

(a) for the Government

Ms S.J. Dickson, Foreign and Commonwealth Office, Agent,

Lord Mackay of Drumadoon, Lord Advocate, Counsel,

Ms S. O'Brien, Advocate,

Mr J.L. Jamieson, Scottish Office,

Mr C. Baxter, Scottish Office, Advisers;

(b) for the Commission

Mrs J. Liddy, Delegate;

(c) for the applicant

Mr D. Batchelor, Counsel,

Mr R. Carr, solicitor, Adviser.

The Court heard addresses by Mrs Liddy, Mr Batchelor and

Lord Mackay of Drumadoon.

AS TO THE FACTS

I. Particular circumstances of the case

6. The applicant, Robert Pullar, is a British citizen who was born

on 9 October 1949. Prior to his conviction on 17 July 1992 he was an

elected member of Tayside Regional Council, a local authority in

Scotland.

A. The trial

7. On 13 July 1992 Mr Pullar and another member of the Council

were brought before the Perth Sheriff Court for trial on a charge under

section 1 (1) of the Public Bodies Corrupt Practices Act 1889. It was

alleged that they had offered, in exchange for money, to vote for and

to use their influence on the Council in favour of an application for

planning permission made by Mr John McLaren, a partner in a firm of

architects, and Mr Alastair Cormack, a partner in a firm of quantity

surveyors. The latter two were the key prosecution witnesses.

8. One of the members of the public called for jury service at

Perth Sheriff Court on the day of Mr Pullar's trial was

Mr Brian Forsyth, a junior employee in Mr McLaren's firm, which

employed fifteen people in total. He had started working there on

30 April 1990 and had been given notice of redundancy on 10 July 1992

to take effect on 7 August 1992.

9. Mr Forsyth and Mr McLaren walked to the court house together.

Neither of them knew that Mr Forsyth might be selected to sit on the

jury in Mr Pullar's trial, although they both knew that Mr McLaren was

to give evidence in it.

When Mr Forsyth realised that he was in a pool of potential

jurors who might be selected for the Pullar trial he informed the clerk

of the court that he was employed by Mr McLaren's firm. The clerk

asked him whether he knew Mr Pullar or the co-accused, or anything

about the circumstances of the case. When Mr Forsyth replied that he

did not, the clerk allowed his name to go forward for selection, and

did not inform either the sheriff who was to preside over the trial,

the Procurator-fiscal who was to prosecute, or the defence lawyers,

about his conversation with Mr Forsyth.

10. Mr Pullar and his co-accused both pleaded not guilty, and the

clerk accordingly selected a jury by random ballot in open court (see

paragraph 19 below). Mr Forsyth's was one of the names picked and he

was empanelled and sworn in with the rest of the jurors. The defence

was presented with a list of the names, addresses and occupations of

the jurors, but this did not include details of their employers (see

paragraph 19 below). The sheriff did not ask the empanelled jurors

whether they knew of any reason why they ought not to serve in the

trial. In 1992 there was no general rule of practice to that effect

(see paragraph 21 below).

11. About an hour after the trial had commenced Mr McLaren looked

into the courtroom and saw Mr Forsyth on the jury. He then informed

the clerk about his connection with the latter. The clerk told him

that Mr Forsyth had earlier disclaimed any knowledge of the defendants

or of the circumstances of the case. The clerk then returned to the

courtroom, again without informing the sheriff, Procurator-fiscal or

defence lawyers about what had happened.

12. Mr McLaren and Mr Cormack both testified that the two

defendants had solicited money from them, and their's was the only

evidence to that effect. In his closing speech, counsel acting for

Mr Pullar's co-accused asked the jurors to tell the court if they had

any personal knowledge of Mr McLaren or Mr Cormack, but Mr Forsyth did

not say anything at that stage.

13. At the end of the trial the sheriff directed the jury that it

was their duty to assess dispassionately the credibility of all the

witnesses whom they had heard. They were told that an accused is

presumed to be innocent, and that the prosecution must prove the charge

beyond all reasonable doubt. In addition, they were directed that

conclusive evidence from two or more sources was necessary for a

conviction.

On 17 July 1992 both defendants were convicted by a majority

of the fifteen jurors. On 6 August 1992 they were sentenced to

twelve months' imprisonment and found incapable of holding any public

office for five years from the date of conviction.

B. The appeal

14. Mr Pullar's lawyers became aware of the connection between

Mr Forsyth and Mr McLaren after the verdict. They wrote about it to

the prosecuting authorities on 22 July 1992 and subsequently lodged an

appeal against conviction and sentence in the High Court of Justiciary,

on the grounds, inter alia, that the sheriff ought to have directed the

jury at the start of the trial to inform the court if they had any

personal knowledge of anyone named in the indictment, and that

Mr Forsyth's participation in the deliberations and verdict of the jury

amounted to a miscarriage of justice.

15. When they received the letter of 22 July, the prosecuting

authorities took a statement from Mr McLaren, part of which read:

"I can confirm that Brian Forsyth hadn't worked on the A85

related development (i.e. the subject of the trial) nor had I

any reason to discuss it with him ... I had discussed the

work with my colleagues but there would have been no reason

why they would discuss this with Brian Forsyth who was a

junior member of my firm.

I did not discuss my knowledge of the allegation against

[Mr Pullar and the co-accused] with Brian Forsyth although a

certain amount had been in the papers and I have no doubt that

it would have been the topic of conversation within the

office."

The prosecuting authorities did not originally intend to lay

this statement before the High Court. However, on the first day of the

hearing of the appeal it became apparent that the statement contained

more details than were known by Mr Pullar's counsel. The decision was

therefore taken to make the statement available to the High Court

judges. A copy was also supplied to counsel for Mr Pullar and his

co-accused on the first day of the appeal hearing. The latter had no

opportunity to cross-examine Mr McLaren during the course of the

appeal, but made no objection to the statement being used or challenge

to its accuracy (see paragraph 23 below).

16. The appeal was heard on 5 and 12 February 1993, and dismissed

on 26 February 1993.

Lord Hope, the Lord Justice General, commented that the clerk

ought to have informed the sheriff about the connection between

Mr McLaren and Mr Forsyth, and that if he had done so Mr Forsyth would

probably have been excused under section 133 of the Criminal Procedure

(Scotland) Act 1975 because there would have been cause for an

objection to have been made by the defence under section 130 (4) of the

same Act (see paragraph 20 below). However, a mere suspicion that a

juror was biased was insufficient to justify quashing a verdict; it was

necessary to prove that a miscarriage of justice had in fact taken

place. There was no evidence to show that Mr Forsyth knew anything

about the circumstances of the alleged offences, and in any case it

could not be assumed that he would have ignored the evidence and the

sheriff's directions and voted, in defiance of his oath, on the basis

of any personal prejudice held by him.

Nonetheless, Lord Hope made a number of practice

recommendations in order to avoid recurrence of this situation (Pullar

v. Her Majesty's Advocate [1993] Scots Criminal Case Reports 514 - see

paragraph 21 below).

17. Mr Pullar was taken immediately to Saughton prison and was

obliged to forfeit his position on the Council. He was released on

1 October 1993.

II. Relevant domestic law and practice

A. The jury

18. In Scots criminal trials, a jury of fifteen non-legally

qualified men and women have the role of deciding all issues of fact,

including whether evidence is credible and reliable. The primary duty

of the presiding sheriff (judge) is to direct the jury on the

applicable law. The jury may give its verdict by a simple majority.

19. Section 3 of the Jurors (Scotland) Act 1825 provides for lists

to be maintained of men and women who appear to be qualified and liable

to serve as jurors.

For each day at which trials are due to take place at a Sheriff

Court, the sheriff clerk prepares from these lists a "list of assize",

containing the names, addresses and occupations of prospective jurors.

The people on the list are then asked to attend court at the start of

the session.

On that day, in accordance with section 129 of the Criminal

Procedure (Scotland) Act 1975 ("the 1975 Act"), the sheriff clerk types

on to a separate slip of paper the name of each person on the list of

assize who is present in court. He then places all the slips of paper

in a glass jar or box and, if the accused pleads not guilty, selects

fifteen names at random by drawing the slips out of the jar. This

procedure is carried out in open court in the presence of the accused

and the defence and prosecution lawyers, and the defence is provided

with the details from the list of assize in respect of each juror

selected.

20. Section 130 (1) of the 1975 Act enables the defence and the

prosecution in any trial to challenge three jurors, at the time of

selection, without giving reasons. In addition, each side may

challenge the selection of a juror by showing special cause, and the

court on its own initiative may also excuse any juror at any time

during the course of the trial (section 133 of the 1975 Act).

The High Court of Justiciary has ruled that a juror can be

excused on limited personal grounds only, for example if he was

personally concerned in the facts of the case, or closely connected

with a party to the proceedings or with a witness (M. v. Her Majesty's

Advocate [1974] Scots Law Times (Notes) 25).

By virtue of section 134 of the 1975 Act, a trial can continue

with less than fifteen jurors, provided the number does not fall below

twelve.

21. Prior to Mr Pullar's appeal, there was no standard procedure

in Scots law or practice to assist in establishing whether there were

any grounds on which a person selected for jury service ought to be

excused. In its decision in Pullar v. Her Majesty's Advocate [1993]

Scots Criminal Case Reports 514, the High Court of Justiciary gave

guidance as to the steps which in future should be taken to avoid risk

of prejudice to the accused. In particular, it suggested that

potential jurors arriving at court ought to be told the names of the

accused, the complainant and anyone else named in the indictment; that

it should be open to the trial judge to ask jurors to inform him if

they were aware of any reason why they ought not to serve; and that

court staff who became aware of circumstances suggesting that a juror

had personal knowledge of the case or might be suspected of being

prejudiced, ought to draw this to the attention of the presiding judge

immediately.

B. The prohibition of investigation into the workings of the jury

22. The Law Reform (Miscellaneous Provisions) (Scotland) Act 1980

provides in section 8 (1):

"... it is a contempt of court to obtain, disclose or solicit

any particulars of statements made, opinions expressed,

arguments advanced or votes cast by members of a jury in the

course of their deliberations in any legal proceedings ..."

C. The admissibility of written witness statements

23. It is a general principle of Scots criminal law that a written

statement recording the evidence of a witness ("a precognition"), being

hearsay evidence, is not admissible as evidence of that witness's

testimony except in limited circumstances, none of which applied in

this case. However, at an appeal hearing before the High Court of

Justiciary the court can proceed on the basis of a written statement

relating to matters of fact, if the contents of the statement are not

disputed by any party to the proceedings and if they throw light on the

subject-matter of the appeal.

PROCEEDINGS BEFORE THE COMMISSION

24. In his application of 26 May 1993 (no. 22399/93) to the

Commission Mr Pullar complained that he did not receive a fair trial

by an impartial tribunal, in violation of Article 6 para. 1 of the

Convention (art. 6-1), and that he was not able to challenge witness

evidence put before the High Court, in violation of Article 6

para. 3 (d) (art. 6-3-d).

25. The Commission declared the application admissible on

29 June 1994. In its report of 11 January 1995 (Article 31) (art. 31),

the Commission expressed the unanimous opinion that there had been a

violation of Article 6 para. 1 of the Convention (art. 6-1) and

concluded by twelve votes to one that it was not necessary to consider

whether there had been a violation of Article 6 para. 3 (d)

(art. 6-3-d). The full text of the Commission's opinion and of the

dissenting opinion contained in the report is reproduced as an annex

to this judgment (1).

_______________

Note by the Registrar

1. For practical reasons this annex will appear only with the printed

version of the judgment (in Reports of Judgments and

Decisions 1996-III), but a copy of the Commission's report is

obtainable from the registry.

_______________

FINAL SUBMISSIONS MADE TO THE COURT

26. At the hearing on 22 January 1996 the Government, as they had

done in their memorial, invited the Court to hold that there had been

no violation of Article 6 paras. 1 or 3 (d) of the Convention

(art. 6-1, art. 6-3-d).

27. On the same occasion, the applicant reiterated his request to

the Court, stated in his memorial, to find that there had been a breach

of Article 6 paras. 1 and 3 (d) (art. 6-1, art. 6-3-d) and to award him

just satisfaction under Article 50 (art. 50) of the Convention.

AS TO THE LAW

ALLEGED VIOLATION OF ARTICLE 6 (art. 6) OF THE CONVENTION

A. Article 6 para. 1 (art. 6-1) taken alone

28. Mr Pullar complained that the presence in the jury of

Mr Forsyth, an employee of one of the two key prosecution witnesses,

meant that his case was not heard by "an independent and impartial

tribunal" within the meaning of Article 6 para. 1 of the Convention

(art. 6-1), which, in so far as it is relevant, provides:

"In the determination ... of any criminal charge against him,

everyone is entitled to a fair and public hearing ... by an

independent and impartial tribunal established by law ..."

This claim was contested by the Government but accepted by the

Commission.

29. The Court notes, first, that it was not disputed that the

present case concerned the determination of a "criminal charge", and

that Article 6 para. 1 (art. 6-1) was therefore applicable. Similarly,

it was common ground that the jury which convicted Mr Pullar formed

part of a "tribunal" within the meaning of the same Article (art. 6-1)

(see the Holm v. Sweden judgment of 25 November 1993, Series A

no. 279-A).

It therefore remains only to be decided whether the jury

constituted an "independent and impartial" tribunal. Like the

Commission, the Court considers that the concepts of independence and

impartiality are closely related, but that in this case it is more

appropriate to examine the applicant's complaints in relation to

impartiality.

30. It is well established in the case-law of the Court that there

are two aspects to the requirement of impartiality in Article 6 para. 1

(art. 6-1). First, the tribunal must be subjectively impartial, that

is, no member of the tribunal should hold any personal prejudice or

bias. Personal impartiality is to be presumed unless there is evidence

to the contrary. Secondly, the tribunal must also be impartial from

an objective viewpoint, that is, it must offer sufficient guarantees

to exclude any legitimate doubt in this respect (see, for instance, the

Fey v. Austria judgment of 24 February 1993, Series A no. 255-A, p. 12,

para. 28).

31. With regard to the first aspect, the applicant conceded that

there was no available evidence of personal partiality on the part of

the juror, Mr Forsyth. However, he asked the Court to abandon the

presumption of subjective impartiality in this case because of the

combined effects of section 8 of the Law Reform (Miscellaneous

Provisions) (Scotland) Act 1980, which, he claimed, prohibits any

investigation into matters which occurred in the jury-room (see

paragraph 22 above) and the fact that juries in the United Kingdom, as

in other countries, give no reasons for their verdicts. As a result,

there were no practicable or legal means open to him by which to adduce

any evidence in rebuttal of the presumption.

The Government submitted that the presumption of personal

impartiality should apply equally in this case. The Commission agreed,

but observed that additional emphasis should be placed on the existence

of objective guarantees in cases, such as the present, where it would

not generally be possible to adduce evidence with which to counter the

presumption.

32. The principle that a tribunal shall be presumed to be free of

personal prejudice or partiality is long established in the case-law

of the Court (see, for example, the Le Compte, Van Leuven and De Meyere

v. Belgium judgment of 23 June 1981, Series A no. 43, p. 25, para. 58).

It reflects an important element of the rule of law, namely that the

verdicts of a tribunal should be final and binding unless set aside by

a superior court on the basis of irregularity or unfairness. This

principle must apply equally to all forms of tribunal, including juries

(see the above-mentioned Holm judgment).

Although in some cases, not least the present, it may be

difficult to procure evidence with which to rebut the presumption, it

must be remembered that the requirement of objective impartiality

provides a further important guarantee.

33. With regard to the second requirement, the applicant argued

that the circumstances surrounding the selection of Mr Forsyth as a

juror in his case would have caused an objective observer to doubt the

impartiality of the tribunal.

In support of this proposition he referred to the facts that

both Mr Forsyth and Mr McLaren were sufficiently concerned about their

relationship to bring it to the attention of the sheriff clerk (see

paragraphs 9 and 11 above), and that the High Court confirmed that, had

the connection become known to the sheriff in the course of the trial,

Mr Forsyth would probably have been discharged from the jury (see

paragraph 16 above). Thus, the defence was deprived of its right to

object to Mr Forsyth's presence by the failure of the sheriff clerk to

inform the appropriate persons.

Furthermore, it was reasonable to suppose that Mr Forsyth had

formed a view about the credibility of Mr McLaren prior to the trial,

as a result of working in the same firm as him. In addition,

Mr McLaren testified in his statement that the allegations against

Mr Pullar "would have been the topic of conversation within the office"

(see paragraph 15 above).

34. The Commission was also of the opinion that there were

justifiable grounds on which to doubt the impartiality of the tribunal.

It found it significant that Mr Forsyth would probably have

been discharged from the jury if the sheriff had known of his

connection with Mr McLaren. It also agreed with the applicant that an

objective observer would have presumed that Mr Forsyth had more than

a casual acquaintance with Mr McLaren after working in the same small

firm as him for over two years. Although Mr Forsyth was only one of

fifteen jurors, his influence might have been decisive, and he could

have taken the sheriff clerk's failure to act as a tacit permission to

rely upon his prior knowledge.

35. The Government submitted that the fact that Mr Forsyth worked

in the same firm as Mr McLaren would not in itself have been sufficient

to give rise to a legitimate doubt about the tribunal's impartiality.

It had to be borne in mind that Mr Forsyth held a junior position in

the firm, had not worked on the project in question and, as he told the

sheriff clerk, had no personal knowledge of the two defendants or of

the circumstances of the case (see paragraph 9 above).

Furthermore, Mr Forsyth was only one of fifteen jurors. Each

of these jurors swore an oath to give a verdict in accordance with the

evidence led at trial. At the close of the trial, the sheriff directed

them that they had to reach verdicts based on the evidence that they

had heard, and that evidence from two or more sources must implicate

the accused beyond reasonable doubt before a verdict of guilty could

be returned (see paragraph 13 above). There was no reason to believe

that either Mr Forsyth or any of the other jurors would have

disregarded their oath or the sheriff's directions.

36. In the view of the Court it is by no means decisive that, as

the High Court of Justiciary observed (see paragraph 16 above), the

sheriff would probably have dismissed Mr Forsyth from the jury had he

known about the connection between the latter and Mr McLaren. It is

natural that a presiding judge should strive to ensure that the

composition of the jury is beyond any reproach whatsoever, at a time

when this is still possible, before or during the course of the trial.

However, once the trial was over and a verdict had been given, it

became material whether Mr Forsyth's continued presence on the jury

constituted a defect grave enough to justify setting aside that

verdict. It remains therefore to be considered whether his presence

constituted a defect sufficient to raise a legitimate doubt as to the

impartiality of the tribunal.

37. It is recalled that Mr Pullar's misgivings as to the

impartiality of the tribunal were based on the fact that one member of

the jury, Mr Forsyth, was employed by the firm in which the prosecution

witness, Mr McLaren, was a partner. Understandably, this type of

connection might give rise to some anxiety on the part of an accused

(see, mutatis mutandis, the Sramek v. Austria judgment of

22 October 1984, Series A no. 84, pp. 19-20, paras. 41-42). However,

the view taken by the accused with regard to the impartiality of the

tribunal cannot be regarded as conclusive. What is decisive is whether

his doubts can be held to be objectively justified (see, for example,

the Remli v. France judgment of 23 April 1996, Reports of Judgments and

Decisions 1996-II, p. 574, para. 46).

38. The principle of impartiality is an important element in

support of the confidence which the courts must inspire in a democratic

society (see the above-mentioned Sramek judgment, p. 20, para. 42).

However, it does not necessarily follow from the fact that a member of

a tribunal has some personal knowledge of one of the witnesses in a

case that he will be prejudiced in favour of that person's testimony.

In each individual case it must be decided whether the familiarity in

question is of such a nature and degree as to indicate a lack of

impartiality on the part of the tribunal.

39. In the present case, Mr Forsyth, a junior employee within

Mr McLaren's firm, had not worked on the project which formed the

background to the accusations against Mr Pullar and had been given

notice of redundancy three days before the start of the trial (see

paragraphs 8 and 15 above). On these facts, it is by no means clear

that an objective observer would conclude that Mr Forsyth would have

been more inclined to believe Mr McLaren rather than the witnesses for

the defence.

40. In addition, regard must be had to the fact that the tribunal

offered a number of important safeguards. It is significant that

Mr Forsyth was only one of fifteen jurors, all of whom were selected

at random from amongst the local population. It must also be recalled

that the sheriff gave the jury directions to the effect that they

should dispassionately assess the credibility of all the witnesses

before them (see paragraph 13 above), and that all of the jurors took

an oath to a similar effect.

41. Against this background, Mr Pullar's misgivings about the

impartiality of the tribunal which tried him cannot be regarded as

being objectively justified.

There has therefore been no violation of Article 6 para. 1 of

the Convention (art. 6-1) so far as the applicant's first complaint is

concerned.

B. Article 6 paras. 1 and 3 (d) taken together (art. 6-1,

art. 6-3-d)

42. The applicant also complained that the statement of Mr McLaren

which was prepared by the prosecution before the hearing of the

appeal (see paragraph 15 above), was produced to the High Court of

Justiciary without his being afforded the opportunity to test its

veracity by examination or cross-examination, in violation of Article 6

para. 3 (d) of the Convention (art. 6-3-d). This paragraph

(art. 6-3-d) provides:

"Everyone charged with a criminal offence has the following

minimum rights:

...

(d) to examine or have examined witnesses against him and to

obtain the attendance and examination of witnesses on his

behalf under the same conditions as witnesses against him;"

The Commission decided that it was not necessary to examine

this complaint in view of its finding of a violation of Article 6

para. 1 (art. 6-1).

43. The Government explained that, when the statement was produced,

there were a number of options open to Mr Pullar's counsel. He could

have objected to the statement being seen by the High Court judges; he

could have agreed that they should see it whilst reserving his position

as to its accuracy; he could have asked for Mr McLaren and other

witnesses to be called to give evidence before the court; or applied

to have a reporter appointed, who could have taken evidence from

Mr McLaren and others. Since his counsel elected to take none of these

steps, the applicant could not complain that he had been denied his

Convention right to examine witnesses (see paragraph 15 above).

44. The applicant, however, submitted that the statement was

produced to the High Court before he was given the opportunity either

to read it or to object to it (see paragraph 15 above).

45. The Court observes that the guarantees in paragraph 3 of

Article 6 (art. 6-3) are specific aspects of the right to a fair trial

set forth in paragraph 1 (art. 6-1). For this reason, it considers it

appropriate to examine this complaint under the two provisions taken

together (art. 6-1, art. 6-3-d) (see the Artner v. Austria judgment of

28 August 1992, Series A no. 242-A, p. 10, para. 19).

Although the High Court did not hear Mr McLaren in person, he

should, for the purposes of Article 6 para. 3 (d) (art. 6-3-d), be

regarded as a witness - a term to be given an autonomous interpretation

- because his written statement was produced to the court which took

account of it (ibid.).

46. Mr McLaren's statement was not taken by the prosecuting

authorities with the intention of placing it before the High Court.

This step was only taken when it became apparent that the information

contained in it might be helpful to the judges hearing Mr Pullar's

appeal (see paragraph 15 above). This procedure was in accordance with

the domestic law which provides that, at an appeal hearing before the

High Court, the court can rely upon a written witness statement if its

contents are not disputed by a party to the proceedings (see

paragraph 23 above).

Most importantly, the Court has regard to the fact that a

number of courses of action were open to the applicant's counsel when

the statement was produced. For example, he could have objected to it

being seen by the judges; reserved his position as to its accuracy; or

called for Mr McLaren and other witnesses to give oral evidence either

before the High Court or a reporter appointed by it (see paragraphs 23

and 43 above). However, Mr Pullar's counsel chose, at the material

time, not to take any step to prevent the statement being accepted at

face value by the High Court (see paragraph 15 above). In these

circumstances, it cannot be said that the applicant was denied his

rights under Article 6 para. 3 (d) (art. 6-3-d) as a consequence of the

manner in which the appeal hearing was conducted (see, mutatis

mutandis, the Stanford v. the United Kingdom judgment of

23 February 1994, Series A no. 282-A, p. 11, para. 31).

Accordingly, the Court finds that there has been no violation

of Article 6 paras. 1 and 3 (d) taken together (art. 6-1, art. 6-3-d).

FOR THESE REASONS, THE COURT

1. Holds by five votes to four that there has been no violation

of Article 6 para. 1 (art. 6-1) in relation to the composition

of the jury;

2. Holds unanimously that there has been no violation of

Article 6 paras. 1 and 3 (d) (art. 6-1, art. 6-3-d) in

relation to the witness evidence produced to the High Court of

Justiciary.

Done in English and in French, and delivered at a public

hearing in the Human Rights Building, Strasbourg, on 10 June 1996.

Signed: Rolv RYSSDAL

President

Signed: Herbert PETZOLD

Registrar

In accordance with Article 51 para. 2 of the Convention

(art. 51-2) and Rule 53 para. 2 of Rules of Court A, the partly

dissenting opinion of Mr Ryssdal and Mr Makarczyk, joined by

Mr Spielmann and Mr Lopes Rocha is annexed to this judgment.

Initialled: R.R.

Initialled: H.P.

PARTLY DISSENTING JOINT OPINION OF JUDGES RYSSDAL AND MAKARCZYK,

JOINED BY JUDGES SPIELMANN AND LOPES ROCHA

In our view, there has been a violation of Article 6 para. 1

of the Convention (art. 6-1).

The main issue here is not the impartiality of the juror,

Mr Brian Forsyth, but the conduct of the judicial organs and their

failure to secure the obligation to ensure the proper selection of the

jury.

When proposed for selection as a juror in this case, Mr Forsyth

did what could be expected of him by informing the sheriff clerk about

the fact of his employment by the Crown witness, Mr McLaren. Here the

clerk committed his first error, which probably determined his further

conduct: he asked Mr Forsyth whether he personally knew the accused or

anything about the circumstances of the case and when Mr Forsyth

answered that he did not, he was in fact deciding that the latter was

qualified to serve as a juror. However, as the appeal court clearly

indicated, the decision on such a vital issue should have been left to

the presiding judge (the sheriff). The clerk did not inform either the

sheriff, the Procurator-fiscal who was to prosecute, or the defence

lawyers of his conversation with Mr Forsyth, thus depriving the defence

of their right to object to his serving on the jury. Later on, the

sheriff clerk again failed to inform anyone when told by the Crown

witness, Mr McLaren, of his connection with Mr Forsyth.

These problems would not have arisen if the list of names of

potential jurors, which was provided to the parties, had contained

details of their employment, or if the sheriff had asked the empanelled

jurors whether they knew of any reason why they ought not to serve in

the trial.

On appeal, Lord Hope, the Lord Justice General, recognised that

the clerk ought to have informed the sheriff about the connection

between Mr McLaren and Mr Forsyth and that, had he done so, Mr Forsyth

would almost certainly have been excused under section 133 of the

Criminal Procedure (Scotland) Act 1975. In addition, the court gave

guidance as to the steps which should be taken in future to avoid such

a risk of prejudice to the accused. One of these steps was the

obligation imposed on court staff to inform the presiding judge of any

circumstances suggesting that a juror might have personal knowledge of

the case. In our view this amounts to an implicit recognition that in

the instant case the sheriff clerk failed in his duties.

It is important to note that the jury convicted Mr Pullar by

a majority, rather than unanimously. The applicant could reasonably

have considered that Mr Forsyth's role was central to the formation of

that majority.

Consequently, we consider that the applicant was objectively

justified in having doubts as to the impartiality of the jury which

convicted him, and the requirements of Article 6 para. 1 of the

Convention (art. 6-1) regarding an impartial tribunal were not met.

On the other hand, for the reasons given by the majority of the

Court, we do not consider that there has been a violation of

paragraph 3 of Article 6 (art. 6-3).