R v Fakhreddine

HIS HONOUR: I concluded my summing up to the jury yesterday, and anticipated directing the jury this morning to retire to consider their verdict. A ballot to determine the makeup of the jury was also scheduled to take place before that occurred. However, shortly before resumption at 10am I was notified by the Sheriff’s officer that one of the jurors had phoned to say that she was at her doctor’s rooms and that a medical certificate concerning her condition would soon be sent to the court. That certificate arrived shortly thereafter and was in these terms:

Following consultation with counsel for the parties, I concluded that it would not be in the interests of justice to adjourn the proceedings until Monday of next week by which time it appears the juror in question may be fit to return. I note in passing the Sheriff’s officer has informed me that this is the same juror who raised concerns in a lengthy jury note yesterday, complaining that the jury room was, in effect, claustrophobic and that she was having difficulty coping in the confines of a small room with her fellow jurors. I have some doubt that the juror’s ability to return next week can be assumed with any confidence.

Sections 53B and 53C of the Jury Act 1977 provide relevantly as follows:

In my opinion the juror should be discharged. My reasons for that opinion are as follows.

The juror’s incapacity appears to me to be such that, although she is theoretically able with difficulty to discharge the duties of a juror, her condition for all practical purposes renders her unable to do so. Even if the formation of that opinion were to be considered premature, I am satisfied that it is highly likely that she will become unable to serve as a juror before the jury delivers their verdict.

It is also my opinion that to continue the trial with the remaining jurors would not give rise to the risk of a substantial miscarriage of justice. The most obvious reason for that is that twelve jurors will still remain following the discharge of this juror.