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FOURTH
SECTION
CASE OF
SZYPUSZ v. THE UNITED KINGDOM
(Application
no. 8400/07)
JUDGMENT
STRASBOURG
21
September 2010
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Szypusz v. the
United Kingdom,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Lech Garlicki, President,
Nicolas
Bratza,
Ljiljana Mijović,
David Thór
Björgvinsson,
Ján Šikuta,
Päivi
Hirvelä,
Mihai Poalelungi, judges,
and
Lawrence Early,
Section Registrar,
Having
deliberated in private on 31 August 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 8400/07) against the United
Kingdom of Great Britain and Northern Ireland lodged with the Court
under Article 34 of the Convention for the Protection of Human Rights
and Fundamental Freedoms (“the Convention”) by a British
national, Mr Simeon Szypusz (“the applicant”), on 19
February 2007.
- The
applicant was represented by Mr R. Kovalevsky Q.C., a barrister
practising in London. The United Kingdom Government
(“the Government”) were represented by their Agent,
Ms E. Willmott, of the Foreign and Commonwealth Office.
- The
applicant, relying on Article 6 § 1 of the Convention, alleged
that he had not had a fair trial as there were insufficient
guarantees to exclude legitimate doubt regarding the independence and
impartiality of the tribunal which tried him on criminal charges.
- On
26 May 2009 the President of the Chamber decided to give notice of
the application to the Government. It was also decided to examine the
merits of the application at the same time as its admissibility
(Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1985 and is currently detained in HMP Lowdham
Grange, Nottingham.
- On
30 May 2004, at around lunch time, an argument broke out between the
applicant and D.M. in a residential street. The applicant had been
trying to park a car he was driving and had collided with a parked
car which belonged to D.M. Within about half an hour of the dispute,
a third man, D.G., arrived at the scene equipped with a loaded
shotgun and shot D.M. in the back of the head. D.M. survived but
suffered permanent brain damage.
- The Crown case was that D.G. had been summoned to the
scene by the applicant and another co-accused, M.H., using a mobile
telephone belonging to M.H. The applicant was charged with attempted
murder and making threats to kill. The applicant denied the charges,
alleging that he had left the scene at an early stage and gone to a
neighbouring house. He disputed allegations that he had played
any part in summoning D.G.
- The Crown's evidence regarding the alleged phone calls
came from a number of sources. They pointed to the fact that the
applicant was the party involved in the original dispute and that,
according to witnesses, he had made threats of violence and of death.
An important part of the Crown case involved video recordings from
closed circuit television (CCTV) cameras near the scene. From a
combination of video recordings and mobile telephone records for
M.H.'s telephone, the Crown contended that the applicant could be
seen making certain calls. There was also eye witness evidence of him
making at least one of the critical calls. In total, the Crown case
was that six relevant calls were made from M.H.'s mobile telephone to
D.G. or one of his associates.
- The applicant's case at trial was that he had made no
calls on M.H.'s mobile telephone. He accepted that eye witness
evidence and CCTV recordings demonstrated that he had used a
telephone at certain points. However, he said that he was a drug
dealer using his own telephone and that the calls were made for his
own criminal purposes and were nothing to do with the summoning of
D.G. As regards one part of the CCTV footage, the applicant denied
the Crown contention that it showed him making a call at a relevant
time.
- A compilation of the CCTV footage was shown a number
of times during the trial. It was played on specialist digital
equipment, which was more sophisticated than an ordinary video
recorder, specially installed for the trial. It had a number of
facilities, including a better capacity to freeze frames, to step
forwards and backwards from frame to frame and to coordinate views of
different cameras at any particular moment. The machine was
operated by a detective constable, Officer M, who had been specially
instructed how to use it. Officer M was a member of the investigating
team of police officers which had conducted the inquiry into the
applicant's case. He was, formally speaking, a witness in the case in
the sense that he had made two single paragraph statements recording
taking possession of some of the CCTV tapes and had made an
uncontroversial statement relating to the taking of a mouth swab
sample for DNA analysis from one of the other accused in the
applicant's case. Over the period of the trial, which lasted around a
month, he had made his services available not only at the trial
itself but also to the Crown and the defendants outside the court.
- There was some early discussion about the possibility
that the jury would wish to view the recordings after they retired.
Leading counsel for the applicant directed the judge's attention to
short notes in Archbold's Criminal Pleading, Evidence and
Practice, an authoritative text on Crown Court practice and
procedure, on the replaying of various different kinds of recording
which may figure in trials. The matter was left that there was no
reason why the recordings could not be taken into the jury room and
played there by the jury if required.
- At the conclusion of his summing-up, the judge told
the jury that should they wish to view the recordings again, they
only had to ask. The following dialogue took place:
“Judge: 'Ladies and gentlemen, it may be
that you will want to see the videos again. Have arrangements been
made for the jury to see them in their room?'
Counsel for the prosecution: '...It is
impossible, as I understand it, in fact, to take this into the jury's
room. There are, therefore, either two options: either to watch a VHS
video on the normal equipment in their room, or alternatively, there
is the higher quality–'
Judge: 'The jury must watch what has been shown
in court.'
Counsel for the prosecution: 'In that case, I am
afraid the position must be that as and when the jury require it,
they will have to come back and see it in court.'
Judge: 'There you are. Any time you want to see the
video, you can pass a note ...'”
- The jury subsequently retired. On the second day of
their deliberations, they indicated their wish to start reviewing the
video evidence in the afternoon. Counsel were advised of the jury's
request and the court convened with junior counsel for the applicant
among those attending. The following discussion ensued:
“Counsel for the prosecution: '... the only
issue that arises as a result of the CCTV request is who exactly is
present in court when they view the material. It is a matter that we
have discussed between counsel, and of course, subject to your
Lordship's view, I think the general view is that if they are able to
watch it on their own, it would be much more constructive – if
counsel and your Lordship were not present. In other words, if this
was an extension of their jury room–'
Judge: 'And then we would have – what –
just the officer working the machine?'
Counsel for the prosecution: My Lord, that is the
only outstanding issue, and I am afraid I have not had an opportunity
to speak to [Officer M] – who, as your Lordship knows, is the
man in charge of the machinery – as to whether it would be
possible for the jury to be shown very briefly how to operate the
machinery, or whether that is unrealistic.'
Judge: 'I should imagine that it is unrealistic–'
Counsel for the prosecution: 'In which case I
understand–'
Judge: 'I mean, you have to go backwards and
forwards, and you have to catch particular frames, and I think you
will probably need [Officer M] –'
Counsel for the prosecution: 'My Lord, I am
inclined to agree, in which case it would be my suggestion, on behalf
of the Crown, that he remains, and at their instruction operates the
machinery–'
Judge: 'And does nothing else but to operate the
machinery–'
Counsel for the prosecution: 'Indeed – and,
of course, makes no communication to them or to anyone else –'
Counsel for M.H.: 'Except where they will want to
go backwards or forwards –'
Counsel for the prosecution: 'Except, of course,
to talk to them about operating the machinery.'
Judge: 'Does anyone have any objections to the
court being cleared, along with the defendants and the public
gallery, and simply leaving [Officer M] there – and in that
case, I do not think I need ask the jury what they want to see.'
Counsel for the prosecution: 'My Lord, no.'
Judge: 'That is probably much better.'
Counsel for the prosecution: 'Indeed. Thank you
very much.'
Judge: 'Thank you. Does everybody agree?'
Counsel for the prosecution: 'My Lord, yes.'
Counsel for D.G.: 'My Lord, yes.'
Counsel for M.H.: 'My Lord, yes.'
- No assent was recorded from junior counsel for the
applicant but no objections were raised to the course of action
proposed.
- The judge instructed the jury to return and directed
them as follows:
“Ladies and gentlemen, having discussed this
matter with counsel, what we are going to do is this: we are going to
leave [Officer M] in this court with you, and he will play any part
of the video that you have seen, and he will play it as you think
fit. Remember that there is more than one camera that operates –
that sometimes you are viewing camera no. 1, and I think at other
times camera no. 2. [Officer M] cannot do anything other than operate
the video machine, and there is to be no other communication with him
– or any communication from him – than simply asking him
to play you what you want to see – and I think it is probably
better, because he was in court – and apart from discussing
among yourselves, perhaps, what you want to see, any other discussion
is in your jury room ...”
- The jury was left alone in the court room with Officer
M at 2.05 p.m. to begin reviewing the video evidence.
- As soon as leading counsel for the applicant, who had
been engaged elsewhere during the earlier discussions with counsel
regarding the viewing of the video recordings as the applicant's
trial had overrun, was informed of the course of action adopted, a
request was made to reconvene the court at 3.30 p.m. The judge agreed
to reconvene at 4 p.m. as he did not wish to interrupt the jury's
viewing of the video evidence. The jury spent almost two hours
viewing the video recordings in the presence of Officer M.
- When the court reconvened, leading counsel for the
applicant directed the judge's attention to various authorities,
including Archbold's Criminal Pleading, Evidence and Practice,
and the following discussion took place:
“Counsel for the applicant: 'The court has,
for all purposes, during this afternoon, whilst the jury have been
reviewing the material, really been an extension of the jury room –'
...
Counsel for the applicant: 'And what has
happened, in reality, is that an individual – he happens to be
a police officer – an individual has, in fact, been within that
jury room –'
Judge: 'There was instructions –'
Counsel for the applicant: 'I know that, but the
difficulty with that is that the person who would normally be
supervising “the sanctity”, if I can put it that way, of
the jury – because, of course, normally there is no problem;
they are in their jury retiring room, and there is no individual who
can come near them –'
Judge: 'No –'
Counsel for the applicant: 'Because the jury
bailiff acts in accordance with their oath, as one expects, to
prevent that – by my understanding is that this afternoon there
has been no such person present.'
Judge: 'But are you saying that if one of the
jury bailiffs had been present, that would be all right? That would
have caused other problems.'
Counsel for the applicant: 'My Lord, I am trying
to see a way through it. This is a very unusual circumstance.
Judge: 'The unusual circumstance is this ...: we
cannot put the equipment in the jury room'.
Counsel for the applicant: 'Yes, I understand
that'.
Judge: 'And that is the first problem ... The
second problem is that the jury could not work the equipment.'
...
Counsel for the applicant: '...we understand that
[Officer M] was able, in fact, to instruct another officer how to use
this machine in pretty short order.'
Judge: 'Perhaps, but that is how it was presented
to me –'
...
Counsel for the applicant: 'I am merely looking
at the peculiar situation that arises here, and the simple fact of
the matter, if we boil it down to first principles, is quite simply
this: throughout this afternoon, there has, in fact, been an outsider
in the jury retiring room. Your Lordship, of course, has given
directions, and so be it. In fact, we cannot inquire –
certainly from the jury – as to whether that was followed,
because we have no right –'
Judge: 'No, I agree –'
Counsel for the applicant: 'And the problem is
this: that those who sit behind the dock are essentially put on trust
in relation to the police officer's lack of communication, and as
soon as one recognises that, that, essentially, cannot be right,
because there is no reason why they should, as it were, feel that
they can trust the police officer to that extent ...'
- Counsel for the applicant then suggested that the
police officer could continue to operate the equipment but that the
presence of a jury bailiff in the jury room would ensure that there
was no communication between the parties in light of the oath sworn
by the jury bailiff to prevent any communication with the jury. The
following exchange took place:
“Counsel for the applicant: 'If the jury
bailiff's oath is that they are to stop any approach by any outsider
to the jury, then any communication as to which section of tape the
jury wish to see should, in fact, go through that conduit, and that
can be in the same room, but the jury bailiff can ensure that there
is no communication directly between the parties.'
Judge: '... You are suggesting that the police
officer could operate the machinery – that is obviously the
most convenient way to do it, even if there could possibly be other
ways ... – but the jury bailiff has to be present?'
Counsel for the applicant: 'Yes, because the jury
bailiff, consistent with his or her oath, is duty bound to stop all
communication, and essentially, that communication can only be
complained of if it came from the officer. I am not saying for one
instant – for one instant – that I have reason to believe
that that has happened.'
Judge: 'No.'
Counsel for the applicant: 'I am merely looking
at it from a point of principle ... The system ... has a safeguard
within it, and normally that is the jury bailiff, who essentially
guards the sanctity of the jury once they have retired.”
- The judge observed that there was a need to protect
the privacy of the jury while preserving the integrity of the
situation. However, he pointed out that “the die had been cast”
and that:
“... either the procedure in the circumstances of
this particular case is acceptable, or it is not. I am not sure I
would want to change it now. I mean, counsel can consider all of this
overnight –”
21. He later continued:
“... I think I ought to state for the record –
and I will – precisely what has happened, so that there can be
no doubt about it. I will give counsel a chance to consider this
matter ... it may be that it is just not sensible to do anything
different, and if something has gone wrong, it has gone wrong –
but I will give counsel a chance to consider the matter overnight,
and if they want to suggest to me anything – alternative
procedures – not very different than what we are doing –
but any modified procedures, tomorrow I will listen to them.”
- It was then suggested by counsel for M.H. that either
the jury themselves be instructed how to use the equipment or that
the video be played in open court in the presence of the judge. The
following morning, a solution was agreed which would allow the jury
to operate the equipment themselves, with information provided to
assist them in locating the part of the recordings that they wished
to view. The judge subsequently advised the jury as follows:
“We have reconsidered the procedure for your
viewing [the CCTV] footage, and in order to give you complete freedom
for discussion amongst yourselves as you view that footage, we
propose to give you the opportunity to do so in the absence of any
other person.
What we propose is this: that you should be shown in a
moment or two in open court, with everybody present, how that
equipment works, and you will then be left to it, and you will decide
exactly who is to operate it, and what you wish to see.
Can I remind you that the tape is a composite tape
containing footage from three cameras. You will be given a sheet of
paper – this one – containing an index of counter times,
which show where footage from each camera begins, and what each
camera is focused on ... If you have any problems in working the
equipment, let me know, and I will reconsider the position ...”
- The jury subsequently viewed the video recordings
alone for about an hour. They continued their deliberations for the
rest of the day and into the following morning.
- On 25 February 2005, the jury found the applicant
guilty of attempted murder and making threats to kill. He was
sentenced to 25 years in prison for attempted murder and three years,
to be served concurrently, for making threats to kill. His
co-accused, M.H., was found not guilty.
- The
applicant appealed, arguing that the approach taken to the viewing of
the video recordings amounted to a fundamental infringement of the
integrity of the jury's deliberations.
- On 20 June 2006, the Court of Appeal dismissed the
applicant's appeal. The court summarised the matter before it as
follows:
“[Counsel for the applicant] contends now, as
foreshadowed in his submissions to the judge on his return to court,
that the course taken amounted, however unwittingly, to a fundamental
infringement of the integrity of the jury's deliberations. He takes
his stand on the point of principle. He contends that when somebody
has retired, in effect, with the jury for a substantial period the
conviction is, for that reason alone, unsafe. He adds, of course,
that in this particular case it was a policeman who was in that
position.”
- Discussing the role of Officer M, the court noted
that:
“The officer in question was a serving police
officer. He was a member of the investigating team of police officers
which had conducted the enquiry into this case. That was a team which
had assembled the evidence, taken the statements, and no doubt
planned the investigation. He was, formally speaking, a witness in
the case, in the sense that he had made two single paragraph
statements recording taking possession of some of the close circuit
television tapes and he had also made an entirely uncontroversial
statement relating to the taking of a mouth swab sample for DNA
analysis from one of the other accused ... There was no hint of
question about the formal statements that he had made. He had not
been called as a witness. His credibility was not in any sense
in issue. He was a member of the investigating team, but this was not
a case in which there was any challenge to the credibility or
propriety of any of the police officers. This was not that kind of a
case. There was no challenge whatever to the manner of investigation.
The issue at the trial was what the evidence, which the police were
accepted properly to have gathered, did or did not prove.”
- During the proceedings, the Court of Appeal had been
invited to receive a witness statement from Officer M which had not
been seen by the applicant or his lawyers. However, it concluded
on this matter (at paragraph 28) that:
“...we do not think that we should be invited to
receive partial evidence of what occurred. We are certainly satisfied
that no further enquiry, for example of jurors, would in a case of
this kind be proper”.
- The court examined the trial transcript and, despite
the absence of any recorded assent from the applicant's junior
counsel to the jury's viewing of the CCTV footage in the presence of
Officer M, stated that it had absolutely no doubt that assent to the
presence of Officer M while the jury viewed the CCTV footage was
given by all counsel concerned, referring to the various, non-verbal
manners of expressing assent in such situations.
- The court agreed that a fair trial required that a
jury should not be improperly influenced during its deliberations.
The Court observed that this was not a case where any bias, or
apparent bias, was in question. The question was whether the
conviction was safe, and in particular whether the unusual course
taken meant that there was an unacceptable risk that the jury may
have come under improper extraneous influence after the close of
evidence in the case. The court accepted that this would include an
inquiry into whether there was such appearance of that possibility
that a fair minded, independent observer would conclude that there
was a real danger or a real possibility of the jury's decision being
compromised by external influence.
- The court found (at paragraphs 44-45):
“In the modern era our system proceeds upon the
basis that jurors can be trusted to heed the very careful injunctions
which are given to them throughout the trial process, to try the case
upon the evidence heard in court alone and to be scrupulous in not
discussing the case with anybody outside their number. Such
directions are conventionally given by judges at the outset of the
trial. They will have been foreshadowed before that by the
instruction given to jurors on attending court. They are always
repeated at later stages of the trial and they are invariably
endorsed at time of separation, if that necessity arises. Quite apart
from that, some jurors need transport for various reasons; sometimes,
but not always, of security. Drivers who are not operating under a
bailiff's oath, hotel staff where appropriate, and many others have
dealings with jurors who are in retirement. Once again, the system
proceeds on the basis that the jurors treat their task
conscientiously and can be trusted to obey the oath that they have
taken and not to allow any possibility of extraneous influence to
compromise the integrity of their discussions as a group of 12. The
experience of trial judges up and down the country demonstrates that
in all but a tiny handful of cases that trust is well placed. Jurors
approach what is a difficult and often anxious task with a remarkable
sense of duty.
Now
to accept the risk which thus arises of influence from someone
unknown and unconnected with the case is not, of course, the same as
positively to permit a 13th person to be present with
the jury after it has retired and whilst it is reviewing part of the
evidence in the case. If, therefore, there were in this case an
unacceptable risk of compromise to the integrity of the jury's
discussions, the modern practice as to the separation of juries
during retirement would not necessarily save it. What the modern
practice does, however, is to demonstrate the recognition of the fact
that the safeguard of the integrity of the jury system lies in the
respect that jurors have for the serious oath that they have taken,
reinforced by the directions and warnings that they are given by
trial judges, rather than in requiring formal rules attempting to
insulate them from contact with the outside world.”
- The court noted that the approach adopted in the
present case occurred with the authority of the judge and with the
consent of all parties, although it emphasised that no question arose
as to the applicant's right to a fair trial being waived. Such a
right could only be waived after a full investigation of the facts,
in particular as to whether the applicant was fully apprised of the
options available. However, the court considered that the agreement
of the judge and counsel to the approach adopted was relevant when
assessing whether a fair minded observer would have been of the view
that there was, as a result of the decision, an unacceptable risk of
the jury's discussions being compromised.
- The court further referred to the “careful
direction” given to the jury that there was to be no
communication between them and the officer operating the equipment
except for the purposes of finding the correct place on the video.
The court noted (at paragraph 50):
“He directed them, as we have recorded, that they
were to preserve their own discussions of what they had seen until
they were in private. That direction came on top of, we are quite
sure, conventional directions to the jury of the kind which we have
already mentioned that is to say as to the necessity to try the case
on the evidence, and, on many occasions, to be scrupulous to avoid
discussing the case with anybody outside their number. For the
reasons which we have explained, the modern practice is to trust
jurors to obey injunctions of this kind.”
- The court noted that the suggestion mooted before the
trial judge of having a jury bailiff present demonstrated that there
could be no absolute prohibition on contact with the jury. It further
observed that there was no indication that the jury had been in any
way inhibited by the presence of the police officer: they spent
considerable time viewing the recordings. In any event, they
continued to view the recordings alone the following morning and
clearly gave further consideration to them.
- Finally, the court considered it significant that the
jury had convicted the applicant of attempted murder but acquitted of
attempted murder his co accused, M.H., who was also directly
affected by the CCTV evidence. The significance was that:
“... the jury arrived, after prolonged
deliberation, at discriminating verdicts.”
- The court concluded (at paragraph 55):
“We are satisfied that on the facts of this case,
whether or not what occurred should have happened – and we will
come to that in a moment – the hypothetical informed and fair
minded observer would be aware of all the factors to which we have
called attention and he would, we are satisfied, on the facts of this
case not believe that there was a real danger, or a real possibility,
that the jury's deliberations had been improperly influenced by an
external individual.”
- As to the approach adopted to the viewing of the video
evidence as a matter of principle, the court stated (at paragraphs
56-57) that:
“We add this. Although in this case we are
satisfied that no harm was done, we firmly suggest that this is a
course which is not followed in future with or without the consent of
the parties. We are alive to two considerations which troubled those
who were concerned in this case and we understand how it came about
that they resulted in the judge doing what he did with the consent of
all the parties. We do not, however, think that anybody needed to be
concerned that a jury would betray its thinking by identifying a
piece of recording that it wanted to see again. Jurors commonly ask
questions on all manner of topics. Some of them call for the jury to
be reminded of a particular area of evidence. We do not believe that
anybody who has any experience of jury trials supposes that anything
can be read into the questions which a jury asks. Such a question may
come from all jurors or from one. It may come because the evidence is
regarded by someone as of great importance or it may come because the
jury collectively thinks it is irrelevant but wants to be sure.
The second concern, however, namely that the jury ought
to be able to view real evidence of this kind, and discuss it as it
views it, is of much greater significance. The breadth of close
circuit television coverage in places public and private is nowadays
so extensive that juries are more and more presented with evidence of
this kind. They also have recorded evidence very often in cases of
recorded surveillance. There are other examples, of course, as well.
It seems to us that it should be regarded as the plain duty of any
party, Crown or defence, which is proposing to rely on such recorded
evidence to ensure that there is provided equipment not only to play
the recording in court, but also such as the jury can use in its
retiring room during its retirement. They must, we are quite
satisfied, as jurors be entitled to review precisely the same
material as has been put in evidence in court. The judge in this
case, we are satisfied, was absolutely right not to permit them to be
given a substitute poorer quality VHS recording. If the necessary
equipment can be provided in any particular court by agreement as to
compatibility of machinery between parties and the court, then so
much the better. The ultimate responsibility, however, for the
presentation of evidence lies not with the court, but with the
parties seeking to adduce it. It is not desirable that equipment
should be provided which can only be used in open court, because
although it may turn out to be possible to proceed as was done here
on the second day of viewing, that will often not be possible, and in
many courts the courtroom will by then be in use in the next trial.
If in the last resort it really is the case that the recorded
material simply is incapable of being played on any machinery which
the jury can take into the retiring room -- and we take leave to
doubt that that will ever be so with a little forethought -- then we
think that the normal course should be followed and in that
exceptional case any replaying for the jury during retirement ought
to take place in open court.”
- On
22 August 2008, the applicant was denied leave to appeal to the House
of Lords.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Impartiality
- In
a judgment of the House of Lords in Magill v Porter [2001] UKHL 67, Lord Hope of Craighead endorsed a judgment of the Court of
Appeal, which took into consideration the jurisprudence of this
Court, on the question of apparent bias and concluded that:
“The question is whether the fair-minded and
informed observer, having considered the facts, would conclude that
there was a real possibility that the tribunal was biased.”
- In
Helow v Secretary of State for the Home Department and Another
(Scotland) [2008] UKHL 62, the House of Lords gave further
guidance as to the attributes of the “fair-minded and informed
observer”. Lord Hope of Craighead explained (at paragraphs 2-3)
that:
“The observer who is fair-minded is the sort of
person who always reserves judgment on every point until she has seen
and fully understood both sides of the argument. She is not unduly
sensitive or suspicious ... Her approach must not be confused with
that of the person who has brought the complaint. The 'real
possibility' test ensures that there is this measure of detachment.
The assumptions that the complainer makes are not to be attributed to
the observer unless they can be justified objectively. But she is not
complacent either. She knows that fairness requires that a judge must
be, and must be seen to be, unbiased. She knows that judges, like
anybody else, have their weaknesses. She will not shrink from the
conclusion, if it can be justified objectively, that things that they
have said or done or associations that they have formed may make it
difficult for them to judge the case before them impartially.
Then there is the attribute that the observer is
'informed'. It makes the point that, before she takes a balanced
approach to any information she is given, she will take the trouble
to inform herself on all matters that are relevant. She is the sort
of person who takes the trouble to read the text of an article as
well as the headlines. She is able to put whatever she has read or
seen into its overall social, political or geographical context. She
is fair-minded, so she will appreciate that the context forms an
important part of the material which she must consider before passing
judgment.”
B. The presence of an unauthorised person in the jury room
- In Goby v Wetherill [1915] 2 KB 674, a civil
case, the town sergeant, acting as an usher in the county court, had,
through what was described as an excess of zeal, retired into the
retiring room with the jury and remained there for about 20 minutes
whilst they were considering their verdict. The High Court held that
the action vitiated the verdict, which could not stand.
- In R v McNeil [1967] Crim LR 540, a criminal
case, two uniformed police officers acting as jury bailiffs had
retired with the jury and remained there throughout the time when the
verdict was being arrived at, apparently in ignorance of the fact
that it was something that they ought not to do. The Court of Appeal
allowed an appeal against conviction, holding that the retirement of
strangers with the jury during their deliberations was an
irregularity which was difficult to cure, even if, as in that case,
an assurance had been received from the foreman that the bailiffs had
taken no part in the deliberations and had not influenced the members
of the jury in their decision.
C. Communication with the jury when retired
- In
R v Furlong (1950) Cr App R 79, the Court of Appeal upheld a
conviction where the clerk of court had been instructed to go to the
jury room and ask them to put a question in writing. The court
concluded that it was satisfied that the clerk had not, himself,
entered the jury room but:
“Even if he had, we do not think that that would
have been in itself an irregularity, because the court always has
power to allow somebody to make a communication to the jury, if it is
a communication proper to be made, and if it is made by the direction
of the court. Everybody knows that the oath that is given to a jury
bailiff is that he 'shall suffer no person to speak to them nor speak
to them [himself] unless it be to ask whether they are agreed upon a
verdict, without leave of the court'.”
- In
the subsequent case of R v Dempster (1980) 71 Cr App R 302, an
important part of the evidence was in the form of audio recordings.
With the authority of the judge and by consent of counsel, a scheme
was devised to enable the jury to hear the tapes in their jury room.
The jury were supplied with a loudspeaker in their room which was
connected to the recording and transmitting equipment in the
courtroom. Anyone from the defence or prosecution could sit in the
courtroom and observe the proceedings. The technician in the
courtroom who was in charge of the equipment had been sworn as a jury
bailiff and when the jury required some part of the tapes to be
played, the foreman of the jury would instruct the technician by
two-way radio. The court, dismissing the appeal against conviction,
concluded that:
“... in the special circumstances of this case
what was done was done by order of the court and with the consent of
the parties. As matters exist at the moment we do not see what other
method could easily, properly and practically have been adopted to
overcome the difficulties which obviously existed.”
D. Instructions and directions to the jury
- Upon responding to a summons, jury members are sent a
leaflet called “Your Guide to Jury Service”. The leaflet
explains that jurors' discussions are private and that jurors should
not discuss any aspects of the trial with anyone other than fellow
jurors. It sets out that the verdict must be that of the jurors alone
and reminds jurors that their role is to reach a verdict on the
evidence presented in the court room at trial. The leaflet also notes
that it is an offence for anyone outside the jury to try and
influence them.
- Once selected for jury duty, jurors must swear an oath
or affirmation that they will:
“faithfully try the defendant and give a true
verdict according to the evidence.”
- At the outset of the trial, the jury are
conventionally given a direction to the effect that they must try the
case on the evidence alone, which is what they hear in court. They
are instructed that they must not discuss the case with family,
friends or anyone else or conduct their own research into the case.
- Section 13 of the Juries Act 1974 provides that a
trial judge may allow a jury to separate at any time during a trial.
Upon allowing the jury to separate the judge will normally
re-emphasise that they must not talk about the case to anyone who is
not one of their number.
- Practice Direction (Crown Court: Guidance to Jurors)
was issued on 23 February 2004. The practice direction contained the
following extract:
“IV.42.6 Trial judges should ensure that the jury
is alerted to the need to bring any concerns about fellow jurors to
the attention of the judge at the time, and not wait until the case
is concluded. At the same time, it is undesirable to encourage
inappropriate criticism of fellow jurors, or to threaten jurors with
contempt of court.
IV.42.7 Judges should therefore take the opportunity,
when warning the jury of the importance of not discussing the case
with anyone outside the jury, to add a further warning. It is for the
trial judge to tailor the further warning to the case, and to the
phraseology used in the usual warning. The effect of the further
warning should be that it is the duty of jurors to bring to the
judge's attention, promptly, any behaviour among the jurors or by
others affecting the jurors, that causes concern. The point should be
made that, unless that is done while the case is continuing, it may
be impossible to put matters right.”
E. Secrecy of jury deliberations
- Section 8(1) of the Contempt of Court Act 1981 states
that it is a contempt of court to obtain, disclose or solicit any
particulars of any statements made, opinions expressed, arguments
advanced or votes cast by members of the jury in the course of their
deliberations.
- In R v. Mirza, R v. Connor and Rollock [2004] UKHL 2, the House of Lords considered the implications of Article 6 §
1 of the Convention on the common law rule that the court will not
investigate the content of jury deliberations. Subsequently, Lord
Carswell summarised the current position in R v. Smith, R v.
Mercieca [2005] UKHL 12 (at paragraph 16):
“The principles of the common law relating to
inquiry into the verdicts of juries and matters which may affect the
propriety of the manner in which they reach their verdicts have been
rehearsed in R v Mirza, particularly in paragraphs 94 to 107
of the opinion of Lord Hope of Craighead, and it is unnecessary for
me to repeat what their Lordships have said there. It may
nevertheless be helpful if I set out in a series of brief
propositions how the law stands, prior to considering how a judge
should approach a situation such as that encountered in the present
case:
(1) The general rule
is that 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 their retiring room: Ellis v
Deheer [1922] 2 KB 113, 117 118...; R v Miah [1997] 2 Cr App R 12 at 18...; R v Mirza, paragraph 95...
(2) An exception to
the above rule may exist if an allegation is made which tends to show
that the jury as a whole declined to deliberate at all, but decided
the case by other means such as drawing lots or tossing a coin. Such
conduct would be a negation of the function of a jury and a trial
whose result was determined in such a manner would not be a trial at
all: R v Mirza, paragraph 123...
(3) There is a firm
rule that after the verdict has been delivered evidence directed to
matters intrinsic to the deliberations of jurors is inadmissible. The
House so held in R v Mirza, affirming a line of cases going
back to Ellis v Deheer [1922] 2 KB 113 and R v Thompson
(1961) 46 Cr App R 72.
(4) The common law
has recognised exceptions to the rule, confined to situations where
the jury is alleged to have been affected by what are termed
extraneous influences, e.g. contact with other persons who may have
passed on information which should not have been before the jury: see
such cases as R v Blackwell [1995] 2 Cr App R 625 and R
v Oke [1997] Crim LR 898.
(5) When complaints
have been made during the course of trials of improper behaviour or
bias on the part of jurors, judges have on occasion given further
instructions to the jury and/or asked them if they feel able to
continue with the case and give verdicts in the proper manner. This
course should only be taken with the whole jury present and it is an
irregularity to question individual jurors in the absence of the
others about their ability to bring in a true verdict according to
the evidence: R v Orgles [1994] 1 WLR 108.
(6) Section 8(1) of
the Contempt of Court Act 1981 is not a bar to the court itself
carrying out necessary investigations of such matters as bias or
irregularity in the jury's consideration of the case. The members of
the House who were in the majority in R v Mirza all expressed
the view that if matters of that nature were raised by credible
evidence the judge can investigate them and deal with the allegations
as the situation may require: see the opinions of Lord Slynn at
paragraphs 50-51; Lord Hope of Craighead at paragraphs 92, 112 and
126; Lord Hobhouse of Woodborough at paragraphs 141 and 148; and Lord
Rodger of Earlsferry at paragraph 156.”
F. Discharge of a juror or a jury
- A trial judge has a discretionary power to discharge a
jury, before the jury has given its verdict, if he considers it
necessary to do so in order to ensure a fair trial (R v. Azam and
Others [2006] EWCA Crim 161, at paragraphs 48 and 50).
- A trial judge also has discretion under section 16 of
the Juries Act 1974 to discharge an individual juror for any reason,
provided that the discharge of the juror does not result in the total
number of jurors falling below nine.
G. Code of Conduct for the Bar of England and Wales
- Rule 708 of the Code of Conduct for the Bar of England
and Wales provides, in so far as relevant, that:
“A barrister when conducting proceedings in Court:
...
j) must not suggest that a victim, witness or other
person is guilty of crime, fraud or misconduct or make any defamatory
aspersion on the conduct of any other person or attribute to another
person the crime or conduct of which his lay client is accused unless
such allegations go to a matter in issue (including the credibility
of the witness) which is material to the lay client's case and appear
to him to be supported by reasonable grounds.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that there were insufficient guarantees to
exclude legitimate doubt regarding the independence and impartiality
of the tribunal which tried him on criminal charges in light of the
fact that a police officer responsible for operating video equipment
was permitted to remain alone with the jury for almost two hours
while they viewed important video evidence in his case. As a result,
he alleged that he had been denied a fair trial, as provided in
Article 6 § 1 of the Convention, which reads as follows:
“In the determination of ... any criminal charge
against him, everyone is entitled to a fair ... hearing ... by an
independent and impartial tribunal established by law.”
- The
Government contested that argument.
A. Admissibility
- The
Court notes that the application is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The parties' submissions
a. The applicant
- The
applicant argued that it was necessary to consider the reality of the
situation regarding Officer M. He was a member of the Trident team,
which was a permanent team primarily investigating offences of murder
within the black community. As a dedicated investigating team, its
members developed close links with fellow team members. The status
and role of the team was well-known to the public and had been the
subject of several national television programmes.
- In
the present case, the victim, D.M., was unable to attend court.
However his family attended and sat in the court room, rather than
the public gallery. Thus the family were seated in an area to which
the jury, counsel, witnesses and police officers had access.
Accordingly, the investigating officers associated with family
members outside the court room and as the jury were brought from
their refreshment area in the building they would be unable to avoid
noticing the association. The true position was that the jury were
well aware that Officer M was a member of a dedicated investigation
team which was tasked with investigating the offence which formed the
subject of the charge against the applicant. The applicant argued
that it was a matter of chance which officer actually presented
evidence to the jury, all members of the team being actively involved
in the detection work and the presentation of the case for the
prosecution. The applicant therefore disputed that Officer M's
significance to the prosecution was minimal. He insisted that the
officer was an integral part of the prosecution team, noting the
findings of the Court of Appeal as to the fact that he was a member
of the team which had assembled the evidence against the applicant,
taken the statements and no doubt planned the investigation (see
paragraph 27 above).
- The
applicant also refuted the Government's argument that the defence did
not formally withdraw consent to the unmonitored presence of Officer
M. He referred to the judgment of the Court of Appeal (see paragraph
26 above) and to his grounds of appeal, which he said made it clear
that the submission to the trial judge was that the presence of
Officer M with the jury amounted to a fundamental infringement of the
integrity of the jury deliberations.
- As
to the failure of counsel to seek the discharge of the jury, the
applicant referred to the observations of the Court of Appeal that a
defendant's Article 6 rights are not extinguished by the actions of
counsel (see paragraph 32 above). Indeed, when it was pointed out by
senior counsel for the applicant that there were concerns as to the
course of action followed, the applicant argued that the judge had
taken the view that if it had gone wrong, it had gone wrong (see
paragraph 21 above). In the applicant's contention, this was a clear
statement of the judge's view that he was not going to alter the
course of the trial as he was of the view that the procedure he had
conceived was appropriate. That this was the case could also be seen
from the judge's refusal to reconvene the court immediately when
senior counsel raised his concerns regarding the viewing of the CCTV
footage (see paragraph 17 above).
- The
applicant also referred to Rule 708 of the Code of Conduct for the
Bar of England and Wales (see paragraph 54 above). He considered it
clear that there could be no inquiry as to what had transpired in the
jury retiring room, with reference to the judgment of the Court of
Appeal (see paragraph 28 above). Accordingly, the applicant's
counsel was unable to make any criticism of, or comment on, what had
transpired.
- The
applicant emphasised that the trial court's rules of evidence and
procedure were designed to ensure that cases were presented in the
presence of the parties and the public and the judge was entrusted
with ensuring that the trial was fair by supervising the proceedings
and the application of all relevant laws and rules. The law
concerning the prohibition on contact with a jury in retirement had
developed in order to ensure that deliberations were not extraneously
influenced and to provide safeguards and promote an environment where
jurors were able to speak freely in the absence of any person outside
their number. The applicant argued that the introduction of a member
of the prosecution team as a thirteenth person in the jury's retiring
room, without supervision, could not be viewed as fair. The
guarantees relied upon by the Government (see paragraphs 69-75 below)
were, in the applicant's view, wholly inadequate.
- The
applicant also referred to a warning issued by the Bar Council in its
general standards for the conduct of professional work, where it was
stated that a barrister should be alert to the fact that, even in the
absence of any wish or intention to do so, authority figures do
subconsciously influence lay witnesses. He submitted that the same
principle applied in respect of a police officer's presence with the
lay members of a jury after retirement.
- The
applicant further considered that the acquittal of M.H. had no
relevance to the jury's approach in the case.
- Finally,
the applicant criticised the prosecution for failing to anticipate
the problems which would arise with the viewing of the CCTV footage
by the jury in retirement. As the prosecution had introduced and
sought to rely on the evidence, it was incumbent on them to ensure
the availability of the necessary equipment. He further criticised
the failure of the judge and the prosecution to explore more fully at
the outset whether the jury members could have operated the machinery
themselves.
b. The Government
- The
Government accepted that the requirement of independence and
impartiality in Article 6 § 1 of the Convention applied to a
jury determining a criminal charge, as in the present case. In their
view, the complaint in the present case concerned the impartiality,
rather than the independence, of the jury. Further, there was no
basis to find an absence of subjective impartiality in the case.
- The
Government considered, with reference to the Court's case-law, that
the applicant's fears as to the impartiality of the jury in his case
were neither reasonable nor legitimate. It therefore followed that
they were not objectively justified. In the Government's contention,
there were ample guarantees to ensure that the jury which tried the
applicant's case was impartial. The Government relied in particular
on the following safeguards.
- First, they argued that the trial judge had given the
jury a clear and forceful direction to the effect that they were not
to communicate with Officer M, other than to ask him to play whatever
section of the CCTV recordings they wished to see (see paragraph 15
above). He had further instructed the jury that they should not
continue their discussions in front of the officer but should reserve
them until they returned to the confines of the jury room (see
paragraph 15 above). In the absence of any evidence to the contrary,
the Government also contended that it could be assumed that the trial
judge had additionally directed the jury both at the outset of the
trial and subsequently that they should not discuss the case with any
third party (see paragraphs 31, 33 and 47 above).
- Second,
the Government emphasised that each of the members of the jury was
committed by oath or affirmation to “faithfully try” the
applicant and to “give a true verdict according to the
evidence”, a matter which was considered relevant by the Court
in Gregory v. the United Kingdom, 25 February 1997, §
44, Reports of Judgments and Decisions 1997 I).
- Third,
it was, according to the Government, striking that the course of
action in the present case took place with the authorisation of the
trial judge and with the consent of experienced trial counsel,
including junior counsel for the applicant (see paragraphs 13-14 and
29 above). Even when the applicant's leading counsel subsequently
objected, he did not unequivocally withdraw the consent already
given. In the Government's view, this strongly indicated that any
doubts the applicant may have developed as to the effect of Officer
M's presence on the impartiality of the jury were neither legitimate
nor objectively justified.
- Fourth,
the Government contended that it was significant that counsel for the
applicant had not sought the discharge of the jury, even after
leading counsel had raised his concerns with the trial judge.
- Fifth,
as already mentioned, the trial judge would have directed the jury
that they should bring to his attention any behaviour affecting the
jury which caused them concern. It was significant in these
circumstances that no juror raised any concern with the trial judge
in relation to the viewing of the CCTV footage.
- Sixth,
as to the applicant's contention that Officer M may have
inadvertently revealed his reaction to the jury's requests, thus
influencing them, the Government considered this to be both imprecise
and wholly implausible. It was also, in their view, inconsistent with
the position taken on behalf of the applicant at trial, where it was
not suggested that the jury's deliberations might have been
compromised. In particular, leading counsel for the applicant had
indicated that he would be content for the police officer to be
present to operate the equipment provided that this occurred either
in open court or under the supervision of a jury bailiff (see
paragraphs 19 and 34 above).
- Seventh, the Government considered that it was
relevant that the judge had instructed the jury to inform Officer M
of the footage that they wished to review; that the jury had
continued to view the CCTV evidence without the presence of Officer M
for over one hour the following day; and that the jury had acquitted
the applicant's co-accused, M.H., despite the case against both the
applicant and M.H. being very similar (see paragraphs 15, 23-24 and 35
above). Thus it was clear that any objection that Officer M may have
created an imbalanced picture by omitting to play some of the footage
was not justified.
- Finally,
the Government indicated that they did not consider it to be
significant that there was an alternative to the course of action
initially pursued, arguing that the question for the Court was not
one of proportionality; rather, the Court was required to assess
whether, in all the circumstances, any concerns as to impartiality
were objectively justified. The Government further considered the
fact that the person present in the room was a police officer to be
insignificant as the officer's role in the case was minimal and
uncontentious (see paragraphs 10 and 27 above).
- As
to the effect of the inability of the applicant or the judge to make
inquiries into whether any inappropriate communication had in fact
occurred, the Court pointed out that the secrecy of jury
deliberations had previously been accepted by the Court as an
important safeguard of the jury's independence and impartiality
(citing Gregory, cited above, § 44). The Government
further noted that the applicant's counsel did not suggest that the
trial judge ought to have undertaken any particular inquiry of the
officer in question or of the jury. In this regard, the Government
observed that the Court of Appeal was offered the opportunity to
investigate what had occurred when Officer M was with the jury, by
means of a witness statement made by the officer. Having regard to
all the circumstances of the case, the court did not consider any
such inquiry to be necessary.
- The
Government further considered that the fact that the Court of Appeal
had given guidance to avoid any repeat of the situation was
irrelevant to the consideration of whether there had been a breach of
Article 6 § 1.
2. The Court's assessment
a. General principles
- The
Court recalls that it is of fundamental importance in a democratic
society that the courts inspire confidence in the public and above
all, as far as criminal proceedings are concerned, in the accused. To
that end it has constantly stressed that a tribunal, including a
jury, must be impartial from a subjective as well as an objective
point of view (see Hauschildt v. Denmark, 24 May 1989, §
46, Series A no. 154; Kyprianou v. Cyprus [GC], no. 73797/01,
§ 118, ECHR 2005 XIII; Pullar v. the United
Kingdom, 10 June 1996, § 30, Reports 1996 III;
and Gregory, cited above, § 43).
- The
Court recalls that the personal impartiality of a judge must be
presumed until there is proof to the contrary (see Piersack v.
Belgium, 1 October 1982, § 30, Series A no. 53; and
Kyprianou, cited above, § 119). The same holds true in
respect of jurors (see Sander v. the United Kingdom, no.
34129/96, § 25, ECHR 2000 V). In the present case, it was
not disputed that there was no evidence of actual or subjective bias
on the part of one or more jurors. The Court further observes that
the Court of Appeal found that in the circumstances of the present
case, any further inquiry of the jurors as to what had happened while
they viewed the CCTV footage in the presence of Officer M would not
be proper (see paragraph 28 above). The Court has previously
acknowledged that the rule governing the secrecy of jury
deliberations is a crucial and legitimate feature of English trial
law which serves to reinforce the jury's role as the ultimate arbiter
of fact and to guarantee open and frank deliberations among jurors on
the evidence which they have heard (see Gregory, cited above,
§ 44; and Miah v. the United Kingdom, no. 37401/97,
Commission decision of 1 July 1998, unreported).
- While
the need to ensure a fair trial may, in certain circumstances,
require a judge to discharge a jury it must also be acknowledged that
this may not always be the only means to achieve this aim. In other
circumstances, the presence of additional safeguards will be
sufficient (see Gregory, cited above, § 48). It follows
therefore that the Court must examine whether in the circumstances
there were sufficient guarantees to exclude any objectively justified
or legitimate doubts as to the impartiality of the jury bearing in
mind that the misgivings of the accused, although important, cannot
be decisive for its determination (see Kleyn and Others v. the
Netherlands [GC], nos. 39343/98, 39651/98, 43147/98 and
46664/99, § 194, ECHR 2003 VI; Gregory, cited
above, § 45; and Sander, cited above, § 27).
b. Application of the general principles to the facts
of the present case
- The
applicant's concern in the present case related to the possible
influence on the jury of the presence of Officer M for almost two
hours, after the jury had retired. Regardless of the extent of
Officer M's actual role in the prosecution of the case, the Court
considers that his position as a police officer and his resultant
association with the prosecution could give rise to understandable
misgivings on the part of the accused as to the impartiality of the
jury. In light of this finding, it is not necessary for the Court to
consider the question of post-retirement contact with a non-jury
member who was not associated with the prosecution. The Court would,
however, express doubts as to whether understandable misgivings would
automatically arise in such a case, given that jury members are no
longer isolated throughout the duration of the trial and have contact
with a large number of people on a daily basis (see paragraph 31
above).
- Given
the applicant's understandable misgivings in the present case, the
Court must examine whether, in the light of the applicable
safeguards, his concerns were objectively justified (see Hauschildt,
cited above, § 49; and Simsek v. the United Kingdom
(dec.), no. 43471/98, 9 July 2002). The Court notes that it has, in
previous cases, sought cogent evidence that concerns as to the
impartiality of jurors were objectively justified before finding any
breach of Article 6 § 1. Thus in Pullar, cited
above, §§ 37-41, there was no breach where a member of the
jury was employed by the firm in which a prosecution witness was a
partner. In Hardiman v. the United Kingdom (no. 25935/94,
Commission decision of 28 February 1996, unreported) the Commission
declared inadmissible an application involving a jury trial where a
juror had passed a note to counsel asking him to meet her for a
drink, on the basis that the safeguards in place in domestic criminal
procedure were sufficient to allay reasonable doubts as to
impartiality. Similarly, no breach was found in Gregory, cited
above, §§ 9 and 50, where a juror passed a note to the
judge stating: “Jury showing racial overtones. One member to be
excused”.
- In
the present case, the Court observes, first, that upon being selected
to serve on the jury, each juror was required to swear an oath or
affirmation to the effect that he would faithfully try the applicant
and give a true verdict according to the evidence presented in court
(see paragraph 46 above; Pullar, cited above, § 40; and
Gregory, cited above, § 44). Further, in accordance with
the conventional directions given to juries at the beginning of, and
where appropriate during, the trial, it would have been made clear to
the jury that they were not to discuss the case with any person
outside their number (see paragraphs 33, 45 and 47-48 above). In the
Court's view, this provided an important safeguard to dispel any
reasonable doubt as to the impartiality of the jury, a point also
highlighted by the Court of Appeal (see paragraph 31 above).
- Second,
having decided that the jury should view the CCTV footage in the
court room with the assistance of Officer M, the trial judge gave the
jurors a clear direction in which he emphasised that Officer M was to
do nothing other than operate the video machine and that there was to
be no communication with him other than simply asking him to play the
parts of the footage that the jury wished to see (see paragraph 15
above; Pullar, cited above, § 40; and Gregory,
cited above, §§ 47-48; and compare and contrast Sander,
cited above, § 30). The judge further instructed the jury that
other than discussing among themselves what they wished to see, any
discussion of the case was to take place in the jury room (see
paragraph 15 above). The Court considers that the effect of the
direction was to leave the jury in no doubt as to the purely
technical role of Officer M and the impropriety of engaging in any
discussion with him, other than to indicate what parts of the footage
to play. There was nothing in the circumstances of the case to
suggest that the jury could not be relied upon to follow the judge's
instructions and the trial judge was therefore entitled to assume
that the jury would follow the directions he had given.
- Third,
the Court notes that the jury would have been advised at the
commencement of the trial that they should bring any concerns
regarding fellow jurors to the attention of the trial judge as soon
as such concerns emerged (see paragraph 54 above). It is therefore
significant that, in the present case, no juror sent a note to the
trial judge to express any concerns following the viewing of the CCTV
footage (see Miah, cited above, and compare and contrast
Gregory and Sander, both cited above, where the judge
was alerted to concerns regarding the impartiality of the jury as a
result of notes from jury members). While no inquiries could be made
into whether inappropriate communication had occurred, it is clear
from Lord Carswell's opinion in R v. Smith, R v. Mercieca,
and is implicit from the judgment of the Court of Appeal, that there
is in general some scope to make inquiries where this is shown to be
necessary and appropriate (see paragraphs 28 and 51 above).
- Fourth,
it was clear that Officer M was to show extracts of footage on the
instructions of the jury (see paragraph 15 above). He was not
instructed himself to select relevant parts of footage for the jury
to review. In the circumstances the Court considers the suggestion
that Officer M may have inadvertently contributed to an imbalanced
perception of the evidence by selecting particular extracts to show
to be without reasonable foundation.
88. Fifth, the
Court would further observe that the trial judge sought the
views of the counsel in the case on the proposed course
of action. The defence counsel of two of the defendants
expressly agreed and no objection was voiced by the junior
counsel of the applicant (see paragraph 14 above). As
the Court of Appeal found, there was absolutely no
doubt that assent to the presence of Officer M while
the jury viewed the CCTV footage was given by all counsel
concerned. The Court considers this agreement to be of
particular importance when considering whether
the applicant's fears as to the impartiality of the jury were
legitimate and objectively justified.
- Finally,
as to the firm suggestion of the Court of Appeal that the approach
originally adopted in the applicant's case was not to be followed in
future cases, regardless of whether consent had been given, the Court
emphasises that it is natural for a court to strive to ensure that
future criminal proceedings are conducted in a manner which is beyond
reproach (see, mutatis mutandis, Pullar, cited above, §
36). As such, from time to time, appellate courts may provide
guidance to first-instance courts in order to avoid procedural flaws
which, while not undermining the overall fairness of the trial, are
nonetheless undesirable. As not every procedural flaw will give rise
to a violation of Article 6 § 1, the fact that criticism was
made of the procedure initially adopted in the applicant's case does
not in itself support the conclusion that his rights under Article 6
§ 1 have been violated.
- Taking
into consideration all of the above, the Court finds that there were
sufficient safeguards to exclude any objectively justified or
legitimate doubts as to the impartiality of the jury. There has
accordingly been no violation of Article 6 §
1 in the applicant's case.
FOR THESE REASONS, THE COURT
- Declares the application admissible unanimously;
- Holds by five votes to two that there has been
no violation of Article 6 § 1 of the Convention.
Done in English, and notified in writing on 21 September 2010,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Lech Garlicki
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the dissenting opinion of Judge
David Thór Björgvinsson joined by Judge Garlicki is
annexed to this judgment.
L.G.
T.L.E.
DISSENTING OPINION OF JUDGE DAVID THÓR BJÖRGVINSSON
JOINED BY JUDGE GARLICKI
I.
- I
disagree with the majority in finding no violation of Article 6 §
1 of the Convention in this case.
- It
is clear from the decision of 20 June 2006 that the Court of Appeal
recognised that a fundamental problem had arisen in this case:
“Although in this case we are satisfied that no harm was done,
we firmly suggest that this is a course which is not followed in the
future with or without the consent of the parties ...”
(paragraph 56 of the Court of Appeal's judgment – see § 37
above).
-
The finding of the Court of Appeal that no harm was done does not sit
comfortably with the same court's view that this course of action
ought not to be followed in the future even where the parties
consent. It is self evident, in my view, that no trial should
ever be tainted with a scenario whereby a member of the police
investigation team who was a witness for the prosecution spends two
hours alone with a jury, if the minimum requirements of Article 6 (1)
of the Convention are to be observed.
- In
my view, the reasons for the domestic court's warning that this
course of action should never recur, with or without the consent of
the parties, ought to have been sufficient to lead the Court of
Appeal to find that the applicant's trial was unfair and thus in
violation of Article 6 § 1.
-
The importance in a democratic society of the criminal courts
inspiring confidence in the public at large and, in particular, in
the accused, cannot be overstated. A fundamental prerequisite for
such confidence is that a tribunal must be independent and impartial.
(Hauschildt, cited above, § 46; Kyprianou,
cited above § 118; Pullar, cited above § 30 and
Gregory, cited above § 43). It is clear from this Court's
case-law that the requirement of independence and impartiality of
tribunals applies equally to juries (see Holm v Sweden
14191/88, 25 November 1993, § 30). Thus, when assessing
whether this requirement has been fulfilled the same criteria apply
to judges, lay judges and jurors alike.
6. It is well-established that impartiality for the purposes of
Article 6 § 1 of the Convention must be determined on the basis
of both a subjective and an objective test. In the case of juries the
subjective test relates to the personal conviction of the individual
jurors. Under the objective test it must be ascertained whether there
are sufficient guarantees to exclude any legitimate doubt as to a
juror's impartiality (see mutatis
mutandis
Pétur Thór Sigurðsson v.
Iceland, no. 39731/98, § 37, ECHR 2003-IV;
and Wettstein v. Switzerland, no. 33958/96, § 42, ECHR
2000-XII).
II.
- As
regards the subjective test, the majority finds that there was in
this case no evidence of actual or subjective bias on the part of one
or more of the jurors (§ 80). Nor, however, is there any
evidence to the contrary. Why? Because the Court of Appeal found that
that any further inquiry of the jurors as to what happened while they
were viewing the CCTV footage in the presence of officer M would be
improper. Thus, we do not have any evidence either way. We are left
only with the stark reality that a witness for the prosecution spent
two hours alone with the jury in the absence of any representation
for the accused.
-
Thus, the question is whether this fact alone, viewed objectively,
can be considered to give rise to a justified fear that the jury
might have been influenced by officer M's presence in a way that was
detrimental to the accused.
III.
-
Applying the objective test, it must be determined whether there are
ascertainable facts which may give rise to justifiable doubts as to
the impartiality of the jury and therefore the tribunal (see for
example Pétur Thór Sigurðsson v.
Iceland, judgment, § 37, ECHR 2003-IV). The
question is whether, in the circumstances of this case, the
applicant's fear of lack of impartiality of the jury because of the
presence of officer M in the jury room is objectively justified. I
find that it is.
-
The majority accepts that, regardless of the extent of officer M's
actual role in the prosecution, his status as a police officer and
his resultant association with the prosecution could give rise to
“understandable misgivings” on the part of the accused as
to the impartiality of the jury. However, by reference to the jurors'
respect for their oath and to the directions and warnings given by
the trial judge, the majority finds that there were sufficient
safeguards in place to exclude any objectively justified or
legitimate doubts as to the jury's impartiality. I disagree.
-
None of the safeguards relied upon by the majority, taken
individually or collectively, was sufficient to counterbalance the
procedural irregularity that occurred in a case where the trial judge
allowed the said improper course of action to be followed. I make the
following observations.
-
Firstly, the Court of Appeal itself indicated that this is a
course of action which ought never to be followed in the future, with
or without the consent of the parties.
-
Secondly, it is apparent, that as soon as the lead counsel for
the applicant was apprised of the procedure adopted, he objected to
it. Subsequently, it was discontinued and, thereafter, the jurors
viewed the video recordings alone (see §§ 18-23). By then
it was, of course, too late since the jury had spent almost two hours
alone in the company of M who was in control of the technical
evidence which the jury wanted to review.
-
Thirdly, I am unimpressed by the majority's (§ 82) and
the Court of Appeal's (paragraphs 44-45 of its judgment, cited at §
31 above) reliance on the fact that jurors are no longer as isolated
as they used to be and can potentially be in contact with a large
number of people. The same consideration applies to judges and lay
judges alike. The relevance of this is therefore questionable since,
regardless of whether a judge or a juror is concerned, direct contact
with a witness for the prosecution behind locked doors in the absence
of the defence must always be considered irregular and improper.
-
Fourthly, I emphasise that when assessing whether the
applicant's fear of possible bias on the part of the jurors is
justified, the nature of the role of the jury as the triers of facts
must be borne in mind. In other words the jurors are “judges”
of the facts of the case. The jury, as with a judge, is obliged to
reach an independent judgment on the evidence. The essential idea is
that the jury is impartial and arrives at its verdict on the basis of
an independent consideration of the evidence which has been given in
court. It would certainly give rise to justified fears of
impartiality if a judge in a criminal case, after the evidence was
heard, relied on the technical assistance of a member of the police
investigation team as well as a witness for the prosecution to help
him to review the main evidence in the case in the absence of the
defence team.
-
Fifthly, it is not contested that officer M was a member of
the investigation team which had dealt with the applicant's case. He
was also a witness for the prosecution. While his role may have been
primarily technical and his statements uncontroversial, the fact
remains that he was a part of the prosecution and actively
participated in the investigation and presentation of the case. For
this reason alone a fair minded and objective observer would be
justified in fearing that there was a real risk that the jury lacked
impartiality.
-
Sixthly, the relevance of the role played by officer M should
not be underestimated. He was, in the absence of the trial judge and
counsel for the defence, entrusted with the task of assisting the
jurors in reviewing one of the most important pieces of evidence.
Furthermore, the relevance of the communication that took place is
not insignificant. In that context it should be pointed out that the
mere identification of the parts of the video footage in which the
jurors were interested is in itself a form of communication which
potentially was capable of revealing the jurors' thoughts on the
evidence and their deliberations as they identified those parts of
the evidence in which they were particularly interested. Furthermore,
it cannot be excluded that the very presence of officer M in the
“jury room” may unwittingly have inhibited or influenced
the jurors. Thus, I find that M's role was not as insignificant as
implied by the majority and that this situation certainly gives rise,
from an objective point of view, to justified fears that the jury may
have come under an improper and extraneous influence.
-
Finally, the majority relied on the fact that the barristers
for two of the defendants expressly agreed to the procedure
adopted and that initially no objection was voiced by the junior
counsel of the applicant (see § 14 of the judgment).
The Court of Appeal found that there was no doubt that all
concerned consented to the presence of officer M.
Nevertheless, the Court of Appeal clearly stated that the proposed
course of action ought not to be followed in the future “with
or without the consent of the parties”. This is not
surprising since nobody can waive his right to a fair trial. It is
this Court's function to ensure that the domestic courts comply with
the State's Convention obligations under Article 6 which establishes
the unqualified fundamental right of every person to a fair trial by
an independent and impartial tribunal.
-
For the reasons advanced above, I believe that the applicant's
fears as to the impartiality of the jury because of the presence and
role of officer M were both legitimate and objectively justified. I
therefore conclude that there has been a breach of Article 6 § 1
of the Convention.
- I
regret that the majority has accepted a “slippage” of the
sort found in the case to form a part of this Court's case law. We
are now in the unsatisfactory position that this Court finds
tolerable a course of action which the domestic court said ought
never to recur.
