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STUBB LEGAL AUDIO RECORDING SCRIPT
Subscription Area: Criminal
Month of Production: March 2009

This audio recording will concentrate on juries.
Quotations from judgments of the House of Lords are the copyright of the United Kingdom Parliament and from other judgments are Crown copyright. Quotations from statutory legislation are Crown copyright.


1 R v Abdroikof {[2007] UKHL 37}

This case was decided by the House of Lords. The law concerning juries is consolidated in the Juries Act 1974. The jury's duty may be defined as making to the Crown declarations of fact on the reception of evidence. More specifically, the jury's duty is to return verdicts upon issues in criminal courts. Juries also sit in defamation cases.

In the last few years, Parliament has enacted three important changes to the law on juries. Two of them arise under the Criminal Justice Act 2008. Under section 43 of the Criminal Justice Act 2003, the prosecution may apply for trial without jury of serious fraud cases, whose length or complexity is likely to make the trial so burdensome to the jury that the interests of justice require that serious consideration should be given to dispensing with it. This controversial measure has not been met with universal enthusiasm. The former director of the Serious Fraud Office has stated, in relation to serious fraud trials, that: “It is a common belief that the facts of these cases are too difficult for a jury to understand. Whether that is true or not is something we simply do not know. Until controlled research is allowed, we can only guess at how and why the jury decide as they do” {Financial Times, 1 June 1998}. Section 44 of the Criminal Justice Act 2003 allows trial by judge alone where there is a “real and present danger of jury tampering” that is so substantial as to make it necessary in the interests of justice for the trial to be conducted without a jury.
Part 7 of the Act governs trials on indictment without a jury. This Part provides for a trial to be conducted without a jury where there is a real and present danger of jury tampering. Trials which have begun with a jury, may be continued without a jury where the jury has been discharged because of jury tampering. The court must be satisfied that the risk of jury tampering would be so substantial as to make it necessary in the interests of justice for the trial to be conducted without a jury. In trials already under way where the jury has been discharged because of jury tampering, the trial continues without a jury unless the judge considers it necessary in the interests of justice to terminate the trial. In that event, he may order a retrial, and if he does he will have the option of ordering that the retrial should take place without a jury. Section 44 states that a judge must make an order for the trial to be conducted without a jury where there is evidence of a real and present danger that jury tampering would take place. Notwithstanding any steps that might reasonably be taken to prevent jury tampering, the likelihood that it would take place would be so substantial as to make it necessary in the interests ofjustice for the trial to be conducted without a jury. The latter condition emphasises the high threshold required to deprive a defendant of a jury trial. Where jury protection measures could deal with the perceived danger then the condition is not met. An order for trial without a jury cannot be made where the Crown court is dealing with fitness to plead issues under section 4 of the Criminal Procedure (Insanity) Act 1964. A prosecution application for a trial without a jury must be determined at a preparatory hearing. Both parties must be given an opportunity to make representations in relation to the application. Any decision on such an application can be appealed by the unsuccessful party.
The Criminal Justice Act 2003 sets out a non-exhaustive list of examples as to where there may be evidence of a real and present danger that jury tampering may take place, as follows: where the case is a retrial and the jury in the previous trial was discharged because jury tampering had taken place; where jury tampering has taken place in previous criminal proceedings involving the defendant or any of the defendants; where there has been intimidation, or attempted intimidation of any person who is likely to be a witness in the trial.
The appropriate procedure to be adopted where a judge is minded to discharge a jury during trial because of suspected jury tampering has been put on a statutory basis. Before taking any steps to discharge the jury the judge must: inform the parties that he is minded to discharge the jury; inform the parties of the grounds on which he is so minded, and allow the parties an opportunity to make representations.
If the judge decides to discharge the jury because jury tampering has taken place, he may make an order to terminate the trial and start again, or continue without a jury, provided he is satisfied that to continue the trial without a jury would be fair to the defendant. Any such decision can be made the subject of an appeal to the Court of Appeal, in which case the proceedings cannot continue until the appeal has been determined. Where a defendant is convicted by a judge sitting alone, the court must give a judgment at the time of conviction which states the reasons for the conviction.

Abdroikof was about the bias of a jury member. Bias means self-interest has compromised an adjudicator's impartiality. It should be distinguished from a lack of neutrality due to the prejudice of pre-existing opinions. There can be no objection to pre-existing opinions. For example, the fact that a juror had been a victim of a rape does not bar her from sitting on a jury, even where the case to be tried is one of rape {R v Patel: Court of Appeal: 28 April 2004}. Pre-existing opinions might constitute prejudice, but they never amount to bias, at least not in a juror. Actual bias occurs when an adjudicator makes a decision based on self interest rather than on the ground of fairness. A more controversial example occurred in the recent case of R v Alexander {CA: 28 July 2004}. The defendants were charged with conspiracy to defraud. The head juror was female. During the long trial, she found herself romantically attracted to prosecuting counsel. She managed to restrain her desire to promote this romance until after the trial had concluded. Then she sent him a note, asking him to dinner. She also gave him a bottle of champagne. To the barrister's credit, he immediately brought this to the attention of defence counsel. Naturally, there was an appeal. The Court of Appeal held that the conduct of this juror did not necessarily show that she was biased, and therefore the trial was fair. However, this must surely have been a borderline case. In her note to the barrister, she commended him on his advocacy. It is difficult to imagine that she would have voted for an acquittal. Perhaps the Court of Appeal was swayed by the fact that none of the jury voted for an acquittal.
The main issue at stake goes back a long time {R v Sussex Justices [1924] 1 KB 256}. Justice must not only be done but must manifestly and undoubtedly be seen to be done. Thus, even where a tribunal shows no actual evidence of bias, it must also satisfy the "apparent bias test" in Porter v Magill {[2001] UKHL 676, para 103}. Bias is apparent when the fair minded and informed observer, having considered the facts, concludes that there was a real possibility that the tribunal was biased.
The rule against the appearance of bias used to mean that police officers couldn't sit on the jury. Crown prosecutors also used to be automatically excluded. Basically anyone involved in the administration of justice was excluded by statute. However, this rule was abolished by the Criminal Justice Act 2003. The phrase "don't fix it if it ain't broke" springs to mind. Somebody must have thought that the old rule wasn't working. At any rate, the rules on jury eligibility were changed by section 321 and Schedule 33 of the Criminal Justice Act 2003 which removed the bar to police officers, prison officer, lawyers and others involved in the administration of justice from serving. At a stroke, certainty has been replaced by uncertainty, and the predictable flood of appeals has begun.
In R v Abdroikof, the question arose whether a trial can be fair if the jury includes a serving police officer or a Crown Prosecution Service lawyer? In a troublesome decision, the House of Lords has ruled that it depends. Actually, three appeals were heard together at the same time by the House of Lords. In these three cases the police officer jurors did not know the police witnesses, work in the same police station or know anything about the cases. The CPS solicitor did not know the prosecutor and did not know anything about the case.
The House of Lords held that the issue in each case was not actual bias but whether a fair-minded and informed observer would conclude that there was a real possibility the jury was biased. The question was the appearance of bias. The danger of a police officer or prosecutor being biased was no greater than others who were eligible for jury service, such as shopkeepers or house owners who had been burgled, car owners whose cars had been vandalised, or people with strong views on controversial issues such as drugs. It would be for the trial judge to decide whether there could be a fair trial, and whether there would be an appearance of bias. The CPS requires its employees summoned for jury duty to notify the court regarding their position, leaving it for the court to decide on a case by case basis whether or not that creates a problem. The House of Lords accepted that most jurors harboured prejudices, conscious and unconscious. The argument for the appellants, however, was that people professionally involved for the prosecution in the adversary trial system were not merely involved in the administration of justice. These arguments could not just be dismissed. Three appeals were heard at once. In Green there was a crucial dispute on the evidence between the appellant and the police sergeant. And the sergeant and the juror, though not known to each other, shared the same local service background.
In Abdroikof the defendant was convicted of attempted murder. A minor issue in a six-day trial concerned one aspect of the evidence of a police witness. While the jury were considering their verdict, the foreman sent a note to the judge revealing that he was a serving police officer. He was supposed to report for duty at the Notting Hill Carnival on the following Bank Holiday Monday when the court would not be sitting. His concern was the possibility that he might meet officers who had given evidence in the case. The defence did not object to the case going forward - and the juror was directed not to report for duty on Monday.
In Williamson the judge had given no serious consideration to the objection of defence counsel to the CPS lawyer being a juror. The conviction had to be quashed, even though he was accused of very grave crimes, of which he may have been guilty.
The House of Lords held that in relation to police officers there was no hard and fast rule to be applied, each case depended on its own unique set of facts. In relation to prosecutors however, the House of Lords held that Parliament had not contemplated that employed Crown prosecutors would sit as jurors in prosecutions brought by their own authority. The only scenario in which a Crown Prosecutor could sit on a jury is where the prosecuting authority is another organisation.
The House of Lords overturned one of the convictions because a Crown Prosecution Service solicitor served on the jury. The solicitor had declared his profession to the court but served as a juror following changes to eligibility rules under the Criminal Justice Act 2003. It was held that his presence amounted to bias. Justice is not seen to be done if one discharging the very important neutral role of juror is a full-time, salaried, long-serving employee of the prosecutor.
The House of Lords held that it was inconceivable that the director of public prosecutions could sit as a juror in a case prosecuted by the CPS and the same must apply to a CPS lawyer, who is employed to decide upon whether or not to prosecute and to conduct the prosecutions decided upon. Whether or not the same applied to CPS employees whose role in the prosecution process was more peripheral was a separate question that did not arise in this case.
In Green, the two critical factors were that the victim of the alleged crime was a police officer and that the officers were serving in the same borough at the time of the trial.
In Abdroikof, by contrast, there was no link between the court and the station where the police juror served and no important issue turned on a conflict between police and defence evidence.
The serious problems posed by the majority's decision are obvious. Having a police officer on the jury is now a hazard which may result in a conviction being quashed. The majority applied the basic principle that justice must not only be done but be manifestly seen to be done. Legislation can not override that principle. The only cure for the practical problems posed by the decision would seem to be to completely exclude police officers and CPS lawyers from jury service. That might be seen by those organisations as an insult to their profession.
Solicitors can be called to sit on a jury. This raises certain questions for solicitors. Happily, the Law Society has produced guidelines on what solicitors should do if called for jury service. The 10-point briefing includes advice on what to do if you are asked to attend the court at which you regularly practise or sit judicially, and a reminder that solicitors should not express any advice or opinion as to the law or as to any direction on the law given by the judge.


2 R v Ingleton {[2007] EWCA Crim 2999}

This case was decided by the Court of Appeal. It also concerns a police juror. Parliament has decided that police officers are no longer automatically disqualified from juries. Following the judgment of the House of Lords in Abdroikof the Court of Appeal in R v Ingleton has addressed another situation involving a juror who was a police officer. The resulting judgment goes only part way to establishing certainty. The appellant was convicted of assault occasioning bodily harm, attempted grievous bodily harm with intent and kidnap. His wife was the complainant. The jury failed to reach verdicts on further counts of rape. The trial judge was informed that a juror was a serving police officer who knew personally the officers in the case, all four of whom later gave evidence. Defence objections to the juror were rejected, the judge having heard representations from the prosecution that there was no material challenge to the officer's evidence. All of the officers gave evidence. One, in her statement, described how the complainant disclosed to her the physical abuse she had suffered at the hand of the appellant, but at court gave evidence of further disclosures of sexual assaults. On appeal, defence counsel submitted that he had been constrained in his cross-examination of this officer knowing, as he did, that one member of the jury knew her personally. The Court of Appeal gave the following judgment.
"In all cases the test is one of apparent bias. This will depend on the facts. If, for example, a potential juror knows a witness personally, it is common for such a juror to stand down. Where, however, the witness he knows is not contentious and not to be called, but is taken simply as read as an agreed statement, there may well be no possibility of bias. It is therefore necessary for the judge to make all appropriate factual enquiries. Usually, this is by posing questions, either in court or in writing to the potential juror. The manner in which the questions are asked will depend on the circumstances. Sometimes a few questions in open court will suffice. In other cases, where the information might be sensitive, or more detail is required, the matter may have to be dealt with in writing. The results of the factual inquiry should be made known to counsel, who will then be in a position to make submissions to the court. Here, it would have been helpful to have known how well the juror knew the police officers. Had he ever worked with them on any particular matter or in a particular project? How often did he see them in the course of his work? How and in what circumstances did he meet him? All such inquiries can be dealt with by very brief questions, briefly stated and briefly answered. They are not complicated. Although the evidence of the police officers would, we suspect, as a matter of tactics, not have been vigorously challenged, even if the policeman had not been on the jury, we nevertheless think that the evidence from Police Constable Priestley and perhaps also from Police Constable Paddy as well was a relevant part of the background to the case. If the police account that the complainant was frightened and vulnerable and distressed was accepted, it might be more difficult for the defendant to satisfy the jury that, at heart, she was deliberately manipulative and untruthful."
"[...]
"In these circumstances, we have no doubt that there was here a real possibility of bias arising from the presence on the jury of a police officer who knew the police witnesses. The possibility that he might be likely to accept the words of his colleagues, irrespective of the dispute between the parties is one which can only be described as real. We know no more than that and there is no suggestion the police officer was actually biased. None at all. Justice must not only be done but must be seen to be done. We fear that on the facts of this case that did not occur.
"At what stage should the judge have taken the course which this Court thinks he should have taken? The judge could not have known when he first had the matter raised before him by the potential juror, how the police officer's evidence might emerge; what its importance might be, and how it might affect the defence. We consider that caution should have caused him to exclude as a juror the officer who knew all four of the police witnesses who were going to give evidence, particularly in view of the fact that he could not be certain as to the precise scope, when all the evidence was given, of their evidence and how it might emerge, and not forgetting that this was the third attempt, it appears, to bring this matter to trial.
"The problem that arose with the second juror realising that he had worked at the same employer as the defendant but did not know him would not have justified the discharge of the juror. But the raising of this problem gave the judge a renewed opportunity to consider the whole issue of the policeman juror. By that time the possible significance in the police evidence was or should have been apparent. It is the view of this court that he should then, out of a sense of caution and fairness, have discharged the jury as a whole. But the police officer juror should, in our judgment, have been asked to stand down at the outset, as should normally occur where a policeman or indeed any other potential juror knows witnesses who are to be called to give oral evidence, unless it can be said with certainty that the evidence of the witnesses who are known will play no contested part in the determination of the matter.
"We venture to suggest, if it cannot be so determined with certainly, the potential juror who knows witnesses personally should be asked to stand down, whether he be a policeman or not a policeman. In other words, in many cases, if not most, where a potential juror knows witnesses who are likely to be called. It is the case that an enquiry always has to take place, albeit a brief one. When that enquiry has taken place, then the judge will act upon it, but we reiterate, unless it can be said with certainty that the known witnesses to be called will play no contested as opposed to an agreed part in the determination of the issues, a juror who personally knows a witness or witnesses should normally be asked to stand down. Once the juror was not excluded, we accept Mr Dutchman-Smith's submission that the judge had a continuing obligation to keep that decision under review. When facts emerge which might change the situation, having decided not to exclude the juror, the judge is under an obligation to consider such facts and here, it is in the view of this Court when it became apparent there was potential significance of the police evidence, that the jury should have been discharged, as it simply could not known how the juror would deal with the witnesses as against the defendant's case that this was not a genuine vulnerable woman but a woman acting as one who was manipulative and untruthful.
"This is the most unfortunate outcome as the matter has had two failed attempts at trial. We appreciate that these are sometimes, as this was, difficult decisions for a judge to make. Nevertheless, we are clear in our conclusion of apparent bias and we emphasise "apparent" because there is nothing to suggest that the juror in question did anything at any stage that was wrong. As a consequence of this decision, the appeal must be allowed."
On the facts, the court found apparent bias. Although the officer's evidence was unlikely to have been subject to a "wholehearted vigorous challenge," the presence of the officer on the jury influenced the manner of defence counsel's cross-examination. Furthermore, the officer probably expressed his views to other jurors during deliberations, and therefore he influenced the other jurors.
The appeal was allowed and the court gave guidance on the inquiries that trial judges should make where a personal connection between a juror and witness has been identified. The ratio decidendi of R v Ingleton is that the judge should be satisfied that the evidence of the witness will play no contested part in the trial. If this cannot be established with certainty, the juror should stand down.

As well as bias, there is one other bar to sitting on a jury, namely deafness. Deafness is still seen as a barrier to jury service. There are eight million disabled people in the UK. Should a jury contain a disabled person when the accused of a crime or civil wrong is disabled.
The issue last surfaced in November 1999, when Mr McWhinney was called to serve on a jury {Mc Whinney, Woolwich Crown Court, 9 November 1999, unreported}. When the Woolwich Crown Court discovered that he was profoundly deaf, the summons was discharged. Section 9B of the Juries Act 1974, as inserted by the Criminal Justice and Public Order Act 1994 reads as follows.
"(i) Where it appears to the appropriate officer, in the case of a person attending in pursuance of a summons under the Juries Act 1974, that on account of physical disability there is doubt as to his capacity to act effectively as a juror, the person may be brought before the judge.
"(ii) The judge shall determine whether or not the person should act as a juror; but he shall affirm the summons unless he is of the opinion that the person will not, on account of his disability, be capable of acting effectively as a juror, in which case he shall discharge the summons."
The judge had praised Mr McWhinney. He was the first chief executive of the British Deaf Association at the age of 39. He was an intelligent, hard working, responsible man who has made a great contribution to life. But the judge refused to reinstate the summons. She accepted that Mr McWhinney could perform with the aid of a signer, but this would mean that the jury room would have a thirteenth person.
It has long been held that no-one may enter the jury room during their deliberations. A thirteenth person amounts to an irregularity that can only be cured by a retrial.
One also suspects that many judges still view deaf jurors as less capable of assessing witness evidence {In Re Osman, [1996] 1 Cr App Rep 126}. They might not pick up on nuances available to other jurors from the manner and tone of voice in which answers are given. Where assessment of the credibility of a witness is important, as so often it is, that juror may not be capable of acting as effectively as the others. The situation is affected by section 9B of the Criminal Justice and Public Order Act 1994 which creates a presumption in favour of a disabled person to serve on a jury. In addition, the Disability Discrimination Act 1995 makes positive provisions for providing communication help to an individual. Where a claimant, defendant, witness or any other person is required to attend a court, the sign language interpreters are allowed to assist them. This is now mandatory under Part III of the Disability Discrimination Act 1995, except where it can be evidenced that such provision is not reasonably possible. This is not sufficient to force judges to accept a deaf juror. Unless and until the Parliament changes the law, no thirteenth person may enter the jury room. In short, there may soon come a time when the law allows deaf jurors. The presence of a thirteenth person in the jury room should only be viewed as an irregularity if that thirteenth person is not authorised to be there. A sign language interpreter would be authorised by the court, and should not be viewed as a stranger. It may be necessary for the interpreter to take an additional oath that he will not influence the deliberations of the other jurors other than by relaying communications as an agent. The interpreter, while taking the judicial oath, can also be warned about the terms of section 8 of the Contempt of Court Act 1981 which makes it an offence to disclose “any particulars of statements made, opinions expressed, arguments advanced or votes cast by members of the jury.”
Consider this, if you were to ask every defendant who is given a police juror, whether he would prefer a deaf juror instead, you could surely predict their answer every time.


3 R v Khan {[2008] EWCA Crim 531}

This case was decided by the Court of Appeal. It also concerns a police juror. Actually, the Court of Appeal simultaneously heard a series of appeals each revolving around jury bias. These cases followed the House of Lords' judgment in the conjoined appeals in R v Abdroikof, which had attempted to clarify the tests to be applied in bias cases. The judgments contained interesting judicial observation but also some muddled thinking. As a result, the Court of Appeal's application of the Abdroikof principles and approach in Khan is far from satisfactory, and unlikely to be the last word on this difficult issue.
Applying the test to the facts caused difficulty. The critical issue is the proximity of the offending juror to the investigating and prosecuting individuals and agencies in each case. Where there is a shared service background between a crucial police witness and the police officer juror, or where the CPS juror has close connections with the trial court and prosecution team there is apparent bias. Where there is no personal or service connection between the juror and the prosecution there is no apparent bias and the conviction is safe.
In Khan, the court heard five conjoined appeals. In each, the appellant submitted that one juror exhibited apparent bias. Independence and impartiality in a tribunal are not the same - although a lack of the former will often result in an absence of the latter. Lack of independence involves a connection between the tribunal and one of the parties or the executive. Impartiality is usually described as bias. The determinative issue is whether or not the tribunal is seen to be impartial.
The requirement that any tribunal must be seen to be impartial applies to every juror, and impartial jurors must be discharged. However, a distinction is drawn between partiality towards a party and partiality towards a witness. Each may entail bias, but not necessarily to the same degree, and so where a witness is partial to a particular prosecution witness but not to the prosecution case, there may not be an appearance of bias. Even if it is shown that a juror had reason to favour a particular witness, a conviction will be quashed only where the partiality has rendered the trial unfair or given an appearance of unfairness. A two-stage test should therefore be applied:
. would the fair-minded observer consider that the partiality of a juror to the witness may have caused the jury to accept the evidence of that witness and, if so;
. would the fair-minded observer consider that this may have affected the outcome of the trial ?"
Only if the answer to both questions is "yes" will a trial be rendered unfair.
Finally, where a juror knows or learns something prejudicial to a defendant, for example that he has criminal convictions, this does not amount to partiality to the prosecution case or consequent partiality in that juror.
Applying these principles to the facts, each of the conjoined appeals was dismissed. In the first, Rakish Khan, two appellants (Khan and Hanif) were convicted of conspiracy to supply class A drugs. A juror sent a note to say that he was a serving police officer and knew one of the police witnesses although had not worked with him for more than two years. It emerged that the juror had known the witness for 10 years, had worked with him on the same incident on three occasions, but that they had never worked at the same station and did not know each other socially.
The officer's evidence related to surveillance and was challenged by Hanif. After trial, it emerged that the juror had been involved in recent drugs operations in the area and had given evidence in trials in which Khan's counsel had appeared. The appeals were dismissed. There was no appearance of bias merely because the juror was a police officer, or because he had previously taken part in drugs operations. He had no connection with the prosecution because this case was investigated by a police force different from his, and prosecuted by a different CPS branch from that which handled his force's cases. As regards Hanifs additional submission that there was an issue between his account and the police witness's, the jury's acceptance of the officer's version could not, in all the circumstances, be attributed to partiality of the police juror. It was relevant to this question that the appellant's account of his movements that had been under police surveillance was hard to believe.
In the second appeal, Lewthwaite, the appellant was charged with wounding with intent. The main issue was identification. At trial, a juror disclosed that he was a serving police officer but had no personal connection with the prosecution. The appellant argued apparent bias on the basis that the juror would have known the inferences to be drawn from the failure of a witness to identify the appellant on a Viper identity parade and from his "no comment" interview, also that the appellant had explained this interview by his dislike of the police. In addition he had a previous conviction for assaulting a police officer. There was also a dispute on the evidence as to a swelling on the appellant's hand. The court found no apparent bias and dismissed the appeal.
In Michael Ashad Khan the appellant had been convicted of three counts of failing to disclose property in a bankruptcy. A juror at trial was employed by the CPS in the role of liaising with the media. A defence application to discharge the juror was refused-the judge found that the juror was not involved in the prosecution process and in any event the case was brought by the then Department of Trade and Industry not the CPS. After the trial, the defence became aware that the juror had previously worked for the CPS as a caseworker for 14 years. The appeal was dismissed.
In Cross and Hill the appellants had been convicted of wounding with intent, and attempted murder and witness intimidation, respectively. In each case, a juror had been employed as a prison officer at the establishment to which the appellant had been remanded prior to trial. In each case, a Criminal Cases Review Commission investigation established that neither juror had acquired any information about the appellant in the course of his duties. Both appeals were dismissed.
Finally, the court considered precautionary measures to prevent future similar appeals. Trial judges should identify any risk of juror partiality before the start of a trial. While leaving detailed practical guidance for employees to the actual prosecuting agencies, the court expressed the expectation that future difficulties should be avoided by early disclosure from jurors of their relevant professional involvement with the criminal justice system, and careful enquiry by the trial judge as to the significance of this in each case.
These judgments amount to an admirable attempt to establish certainty in the new statutory regime. But the guidance given in the judgments simply does not allow for the complexity and variables inherent in an adversarial trial. The main difficulty is not identifying the juror whose employment may compromise his or her impartiality, but establishing whether or not that employment history does, in fact, lead to apparent bias. What is the position, for example, of a recently retired CPS lawyer? Or of a police officer who knows a police witness well socially but has not worked with that officer? These hypothetical situations are not addressed in the courts' judgments but are likely to occur in reality sooner or later. And it is simply not possible for a trial judge always to evaluate the significance of evidence, contested or otherwise, before it is called. Finally, what of the seeming inconsistencies? In Green the juror worked in the same borough and had once worked at the same station as the witness although not at the same time (apparent bias); in Bakish Khan the juror had known the witness for 10 years and had worked with him on three operations, although they had not worked at the same station (no apparent bias).
One is left wondering if the national pool of jurors was ever really so depleted, or if the interests of justice so strongly called for its expansion, so as to justify valuable court time and resources being allocated to cases like these.
Police officers, prison officers and Crown Prosecution Service staff called for jury duty should tell judges what their profession is prior to the start of trials, the lord chief justice says.
In R v Bakish Khan the question arose of whether a police officer who knows another officer who is giving evidence can serve on a jury. The defendants were convicted of a conspiracy to supply Class A drugs by a jury which included a police officer juror, who informed the judge that he had a passing acquaintance with a police officer who was to give evidence, but failed to inform the court that he had been involved in a number of police drug operations. The Court of Appeal gave the following judgment.
"It is undesirable that the apprehension of jury bias should lead to appeals such as those with which this court has been concerned. It is particularly undesirable if such appeals lead to the quashing of convictions so that re-trials have to take place. In order to avoid this it is desirable that any risk of jury bias, or of unfairness as a result of partiality to witnesses should be identified before the trial begins. If such a risk may arise, the juror should be stood down."
The ratio decidendi of R v Khan is that each case should be considered on its merits. The basic principle is that anyone who is accused of a crime has a right to an impartial rather than a partial jury. Where there is a more than minimal challenge to the police evidence then a police officer should not serve on the jury. Lots of cases go to the crown court where police evidence is formal or not challenged, for example, most sexual assaults and assaults. Then it is difficult to argue that police officers should not serve on juries. However, police officers in particular are paid to arrest and prosecute people, and are part and parcel of the prosecution, so it is not unreasonable to suggest that they are naturally more inclined to believe the evidence of other police officers. In Ingleton, the Court of Appeal came close to saying that if there is likely to be a challenge to police evidence then it is better that police officers do not serve on the jury.


4 R v Collins {[2007] EWCA Crim 854}

This case was decided by the Court of Appeal. It concerns juries. In a criminal case, the common law gives the jury the right to stop the case after the close of the prosecution's evidence. In R v Collins, the Court of Appeal considered that this ancient right probably contravenes Article 6 of the European Convention on Human Rights. It also reminded advocates that they should not invite juries to exercise this right. Indeed, this practice has been comprehensively disapproved by the Court of Appeal in the past. It is difficult to envisage any circumstances when counsel should invite the jury to stop the trial. Really, the right of the jury to stop the trial is now merely a curiosity.
Jury irregularities are treated very seriously. A material irregularity, for instance in respect of the delivery of the verdict, will usually result in a quashed conviction, and a retrial {R v H, CA: 12 July 2004}.
The need for our domestic common law to be aligned with Convention jurisprudence since the advent of the Human Rights Act 1998 has created a number of interesting legal challenges for UK courts. The Strasbourg court has insisted, for example, that Convention rights must be effective and, accordingly, domestic courts must be seen to guard against any alleged abuse or violation.
In relation to juries and bias, the challenge for the appellate courts has been how to react to a complaint of jury bias in a way that maintains public confidence in the system of trial by jury, while ensuring that any investigation into a jury or juror is genuinely effective and thus compatible with an accused’s Convention rights. Trial by jury is a much revered institution, and the courts have vigorously resisted any measure that in their view would call into question the much-heralded innate fairness of juries. This entrenched judicial policy is founded upon two presumptions: first, that juries decide cases only on the evidence; second, that any judicial direction to a jury to disregard any matter possibly giving rise to bias will be scrupulously adhered to by jurors. These presumptions have provided the justification for the common law rule that jury deliberations should always remain secret. On pragmatic grounds, it is also argued that if this rule was not so, then this would inhibit open and frank deliberations among jurors. Partly in consequence of the incorporation of the Convention, the courts have been obliged to reconsider this rule and its underlying presumptions in a series of recent cases. These have been litigated not by disgruntled and convicted defendants, whose allegations of jury bias could perhaps be easily dismissed, but by jurors themselves, who have expressed disquiet about the deliberations of their fellow jurors in a particular trial.
It is well known that section 8 of the Contempt of Court Act 1981 makes it an offence to disclose the deliberations of the jury room. Section 8 reads as follows.
"Confidentiality of jury’s deliberations
(1) Subject to subsection (2) below, 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.
(2) This section does not apply to any disclosure of any particulars:
(a) in the proceedings in question for the purpose of enabling the jury to arrive at their verdict, or in connection with the delivery of that verdict; or
(b) in evidence in any subsequent proceedings for an offence alleged to have been committed in relation to the jury in the first mentioned proceedings, or to the publication of any particulars so disclosed.
(3) Proceedings for a contempt of court under this section (other than Scottish proceedings) shall not be instituted except by or with the consent of the Attorney General or on the motion of a court having jurisdiction to deal with it."
In the recent case of R v Connor and R v Mirza {[2004] UKHL 2}, ex-members of the juries in each case wrote to officers of the respective courts expressing disquiet over the conduct of their fellow jurors while considering their verdicts. In Mirza, it was alleged that jurors had ignored the judge’s directions regarding the defendant’s use of an interpreter, which some jurors found suspicious and which it was alleged had contributed to a guilty verdict based on perverse racial grounds. In Connor, it was complained that the jury had reached guilty verdicts against both defendants on that basis that either one of the two defendants had committed the crime. In consequence, the complainant jurors felt that the convictions of the two accused could be unsafe. Their concerns about the verdicts and their fellow jurors’ behaviour during deliberation were in due course disclosed to the accused, and appeals against conviction ensued.
The issue for the appellate courts was whether such complaints should be investigated at all and, if so, how such allegations should be investigated, bearing in mind the common law secrecy rule. Ultimately, the House of Lords decided that no post-trial investigation of a jury’s deliberations was permissible, and so upheld the secrecy rule on the basis of the presumptions and policy considerations mentioned above. This decision was held by the House to be in conformity with the ECHR judgment in Gregory v UK {(1997) 25 EHRR 577 at 594}, in which the rule governing the secrecy of jury deliberations was found to be a legitimate feature of English trial law and compatible with article 6.
It is, however, submitted that it is difficult to read the judgment of the House in these cases as anything other than an endorsement of a utilitarian view that such is the interest in maintaining public confidence in the jury system that even a well-founded allegation of a miscarriage of justice should be ignored. Such a utilitarian approach is, of course, inconsistent with article 6, and also the recently promulgated Criminal Procedure Rules, which state that the overriding objective of any criminal trial is to acquit the innocent and convict the guilty. It is, of course, not difficult to appreciate why this secrecy rule has been allowed to endure. There are a number of very good reasons: the integrity of our criminal process requires that there is promotion of free and frank discussion of issues during a jury’s deliberation, and that jury verdicts are regarded as final and not subject to qualification. In a well-publicised trial, it is also legitimate to ensure that jurors are not subject to ridicule or intimidation as a consequence of other jurors publicising stories of what really happened in the jury room.
Notwithstanding this valid reasoning, the problem has festered of individual jurors taking a contrary view, believing that the cause of a wrongly convicted defendant should trump any public policy. The absolutist tone of article 6 has moreover required that such concerns cannot be ignored. The issue has recently arisen again in Attorney General v Scotcher {[2005] UKHL 36}, where an ex-juror (Mr Scotcher) wrote to the defendant’s mother alleging that the jury that had convicted her son had done so in order to go home early. In due course, this letter was given to the Attorney General, who then decided to prosecute Scotcher for contempt. In May 2003 the Divisional Court agreed and sentenced him to a suspended prison sentence. Before the House, while it was accepted that Scotcher had acted bona fide with the aim of preventing a miscarriage of justice, it was submitted that he was in contempt of court as his actions had violated section 8 of the Contempt of Court Act 1981. This provides that it is contemptuous to obtain, disclose or solicit any information about jury deliberation. The House held that Scotcher had transgressed section 8 not because he had disclosed the grounds for his concern, but because he had chosen to do so in a letter written to the defendant’s mother. If he had instead written to the trial court, Court of Appeal, or had sent a sealed letter to the defendant’s legal team or even a citizen’s advice bureau, then the House held that his action would have been lawful. The distinction it drew between all those bodies and the mother was that the latter had no authority to receive such a letter and, once delivered, the defendant had no control over the use of the information contained within the letter.
Commentators may find this dichotomy, between a Citizens Advice Bureau and the defendant’s mother, which was used to justify the finding of contempt somewhat difficult to appreciate. Scotcher’s motivation and what he disclosed would have been identical in both situations, but in the House’s view, a clear moral distinction could be drawn. It is submitted that the purported distinction becomes even less convincing when viewed against the context of instructions now given to all potential jurors concerning their duty to report jury misconduct. Post Connor and Mirza, the Lord Chief Justice issued a Practice Direction (Crown Court: Guidance to Jurors) {[2004] 1 WLR 665} that “judges should ensure that the jury is alerted to bring any concerns about fellow jurors to the attention of the judge at the time, and not wait until the case is concluded”. Further, the judge should take the opportunity, as part of his warning to the jury, that they had a duty “to bring to the judge’s attention, promptly, any behaviour among jurors or by others affecting the jurors, that causes concern”. Scotcher’s problem and the cause of his conviction was, of course, the fact that the case had concluded, and he had thus to use his own discretion as to whom to complain. There was no guidance he could have obtained.
Despite the practice direction, it is interesting to note the House’s continued reluctance to undermine the overriding principle of secrecy in the face of complaints made at any time. In R v Smith (No 2) and R v Mercieca {[2005] UKHL 12}, their Lordships ruled that even when a juror has sent a letter to the judge, in good faith, criticising the conduct of other members of the jury during deliberations, the judge is not obliged as a matter of law to question the members of the jury before deciding whether a lawful verdict can be achieved by the giving of a further direction, rather than by discharging the jury. The ruling also contained barely concealed discouragement for judges to investigate complaints, on the basis that such investigations would be likely to make matters worse for the complainant if jurors were questioned individually, and would be unlikely to reveal much if the jury were questioned as a whole.
While Scotcher demonstrates that the courts will only condone complaints of jury malpractice if made through the right channels, it does not disturb the pre-existing and seemingly anomalous common law exception to the bar on admitting post-verdict jury misconduct complaints, where the jury is alleged to have been affected by extraneous influences, such as contact with persons or information that has unlawfully supplemented the evidence before the jury. This ‘exception’ to the rule on secrecy is another example of courts struggling to discover legitimate or justifiable distinctions between reports of misconduct that can be grounds for appeal against conviction, and those that may not. Based upon these purportedly sound distinctions, however, it is plain that any juror or ex-juror acting out of a sense of fairness will nonetheless first need to obtain very careful legal advice as to how and what they can lawfully disclose.
It is submitted that the common law in this area represents the appellate courts’ current policy on jurors being able to disclose jury misconduct and bias. Instead of believing that facilitating legitimate and bona fide complaints will help evidence the overall and underlying fairness of the vast majority of juries, the view currently adopted is that such complaints should, for the most part, be deterred - especially if they arise once the jury has been disbanded. It remains to be seen whether these efforts to uphold the overriding principle of the secrecy of jury deliberations will continue to sustain confidence in the role of the jury in the English legal system, or whether further challenges to verdicts, arising from both lawful and unlawful disclosures of jury misconduct, will embolden those who seek to undermine this vital nexus between the general public and the judicial process.
The House of Lords stated its position on section 8 in R v Mirza {[2004] UKHL 02}. It held that section 8 does not apply to the court of trial, or to the appellate courts, since the court cannot be in contempt of itself”. Therefore, any restriction upon the courts that prevents them from hearing evidence that something has gone wrong with the jury originates from the common law. This principle was stated as follows.
“The court will not investigate, or receive evidence about, anything said in the course of the jury’s deliberations while they are considering their verdict in the retiring room."
This very broad statement is obviously subject to exceptions. A trial judge has the power to communicate with the jury, to answer queries and to give directions, which is usually done with the agreement of counsel. To take an example, the directions given in Mirza were as follows.
“During the course of a trial it is the continuing duty of the trial judge to deal with any problems which arise with the jury and be alert to detect any signs which may lead to a risk of a mistrial. To this end the jury must be told of their right and duty both individually and collectively to inform the court clerk or the judge in writing if they believe that anything untoward or improper has come to their notice."
In extreme cases, the jury may have to be discharged. In Sander v UK {(2001) 31 EHRR 44}, the European Court of Human Rights found that there had been a violation of article 6, the right to a fair trial. In that case, after complaints had been made, one of the jurors admitted to the judge that he had made racist jokes, following which the trial judge adjourned the case and asked the jury to consider whether they could try the case fairly. He accepted their written assurances, but the European Court of Human Rights held that he should have discharged the jury.
Allegations of impropriety may also be made after the verdict, and may form the basis of an appeal. In the notorious case of R v Young {[1995] QB 324}, the Court of Appeal restricted the application of section 8, and admitted evidence that the jury had used a ouija board while they were retired in a hotel, rather than in the jury room itself. This principle was reinforced in Mirza, where it was held that evidence of irregularity could be allowed where the allegation is that the jury has been subjected to some improper influence from outside, such as bribery or intimidation, since in such cases the evidence would not concern the actual deliberations of the jury itself.
In Mirza, the accused, who was from Pakistan, was allowed an interpreter during his trial for indecent assault. The jury sent two notes to the judge querying the need for an interpreter, the inference being that they suspected the accused of abusing the system. The trial judge made clear in his summing up that no adverse inferences should be drawn, and a majority 10:2 guilty verdict was returned. After the trial, a juror wrote to counsel for the accused, alleging that the verdict had been based on prejudice. Both the Court of Appeal and the House of Lords refused to allow the accused’s appeal against conviction. The House of Lords held that neither the common law nor section 8 of the Contempt of Court Act 1981, insofar as they made inadmissible any evidence concerning the jury’s deliberation after verdict, were in breach of article 6 of the European Convention for the Protection of Human Rights, which guarantees the right to a fair trial. The House of Lords considered that there was a danger of undermining public confidence in the jury, and a need for finality of verdicts. These are seen to outweigh the undeniable risk to defendants where genuine concerns are raised after trial by third parties, or by a juror who may have been intimidated by the unique group dynamic of the jury room and who knows that he risks being in contempt by breaking secrecy. However there is a potential conflict between jury secrecy and protection for the accused.


NOTE TO LAWYERS
If you intend to quote one of these cases to a judge, first you must obtain a full copy of the judgment. Use "The Law Reports Index" or "Current Law Case Citator". Judges are entitled to insist upon sight of a full copy of the judgment, before they take notice. When citing a case reference, however, always use the neutral citation.