PETER ARMSTRONG v. THE UNITED KINGDOM - 65282/09 - Chamber Judgment [2014] ECHR 1368 (09 December 2014)

In the case of Peter Armstrong v. the United Kingdom,

The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:

          Ineta Ziemele, President,
          Päivi Hirvelä,
          George Nicolaou,
          Ledi Bianku,
          Zdravka Kalaydjieva,
          Paul Mahoney,
          Krzysztof Wojtyczek, judges,
and Françoise Elens-Passos, Section Registrar,

Having deliberated in private on 18 November 2014,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 65282/09) 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 United States national, Mr Peter Charles Armstrong (“the applicant”), on 27 November 2009.

2. The United Kingdom Government (“the Government”) were represented by their Agent, Ms L. Dauban, of the Foreign and Commonwealth Office.

3. The applicant alleged that the presence of a retired police officer and a serving police officer on the jury at his trial for murder violated his right to a fair trial under Article 6 of the Convention.

4. On 10 July 2012 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1955 and is currently detained at HM Prison Long Lartin, Evesham.

A. The trial proceedings

6. On 3 August 2007, the applicant stabbed a man at his home in Liverpool. The man died of his injuries. When the police arrived at the house, they found the applicant sitting in a chair, and he told them, “He’s my best friend and I’ve stabbed him”. The applicant was arrested and taken to the police station. When interviewed, he claimed that the victim had entered the house and attacked him, and that he was acting in self-defence.

7. The applicant was charged with murder and his trial began in the Crown Court at Liverpool before a judge and a jury. The applicant’s defence to the charge was one of self-defence.

8. On the first day of trial, a member of the jury informed the court that he was a retired police officer. He had been retired for many years and had not served in any of the units involved in the case. He did not recognise the names of any of the police officers in the case. The judge brought the matter to the attention of counsel and invited observations. The applicant’s counsel explained that he had not had the opportunity to speak to the applicant about the matter and continued:

“...[B]ut can I say without having exercised that right that the advice which I will [be] giving him is that there is no objection on the face of it even for a serving police officer remaining on the jury in a case of this sort provided that the officer in question, or in this case the retired officer in question, has no knowledge of the case and the parties to the case or any of the police officers who may be concerned with it.”

9. He went on to refer to “obvious exceptions”, including where the police officer juror had some connection with the case or where there was a “significant challenge to police evidence as a necessary part of the conduct of the defence”, adding:

“That does not apply in this case, the police evidence is, I will not say it is completely agreed but there is no significant challenge to the police evidence which would have any realistic impact on the jury’s verdict in this case.”

10. A short adjournment took place to allow the applicant’s counsel to investigate whether the retired officer had any connection or contact with the case. Following the adjournment, defence counsel confirmed that he had no representations to make.

11. On the second day of the trial, another member of the jury informed the court that he was a serving police officer and that he recognised a man sitting at the back of the court as a police officer.

12. Prosecuting counsel confirmed that the man in question was the officer in charge of the case, but explained that they did not intend to call him as a witness. They had made inquiries with the man, who had clarified that when he was an inspector at St Helen’s, a town near Liverpool, around four years earlier the police officer juror had been serving there as a constable. The man had not been the juror’s line manager. He suggested that inquiries ought to be made into the juror’s knowledge of the man, but suggested that it would be sufficient if the man were to remain outside the courtroom, as the rest of the jury did not know who he was and none of the jurors knew why he was there.

13. Defence counsel said that he wanted to know how much the juror knew about the man and about other officers involved in the case. The judge sought confirmation of the precise information required by the defence and proposed to prepare a list of questions for the juror on that basis, which he would share with counsel before they were put to the juror. Defence counsel indicated that his “provisional reaction” was that provided the answers to the questions were satisfactory there would be no problem.

14. The judge rose and returned to read his proposed questions to counsel and to the applicant. The questions were:

- What is the extent of your knowledge of the police officer with the beard who you say you recognized sitting in court yesterday?

- What were the circumstances in which you came to know him?

- When and where prior to yesterday was your last contact with him?

- What is your present rank?

- Where are you currently based?

- Please look at the list of police officers who will give evidence. Have you any knowledge of them? If so, what is the extent of this knowledge?

15. Defence counsel made no comment on the proposed questions. They were duly put to the police officer juror. Following a short adjournment, the judge set out the result of the investigation:

“I say it in open court so there is no doubt about it. I understand that the juror in question knew the man with the beard, as I shall call him, at St Helen’s when the man with the beard was his inspector. This was a few years ago. He was able to give his name ... He has not, however, seen him since that inspector left St Helen’s, which he thinks was perhaps as long ago as four years. He makes clear that the inspector was his inspector for a few months but he did not see him socially or out of hours. The juror is currently a serving Police Constable at St Helen’s and he indicates he knows no-one on the list [of police officer witnesses]. Any observations?”

16. Defence counsel responded as follows:

“No, my Lord. I am quite happy that the juror may continue to serve. I understand that he does not wish other jurors to be told that he is a police officer and that is understandable, his occupation is irrelevant to his jury serving and his participation in these proceedings.”

17. On 22 January 2008 the applicant was convicted of murder. On 24 January 2008 he was sentenced to life imprisonment with a tariff of thirteen years.

B. The proceedings before the Court of Appeal

18. The applicant sought leave to appeal to the Court of Appeal on the ground that the presence of the serving police officer on his jury created a real possibility of actual or apparent bias which rendered his conviction unsafe.

19. On 28 November 2008 permission to appeal was refused on the papers. The judge considered that no fair-minded and informed observer with full knowledge of the relevant facts as disclosed in the discussions between counsel and the trial judge would conclude that there was a real possibility that the jury were biased. He further observed that the police evidence was not in dispute and that the applicant’s trial counsel, who was pre-eminently placed to assess the situation, had made no objection to either juror sitting on the jury after full inquiry had been concluded.

20. The applicant renewed his application for leave to appeal before the full court. He argued that bias in his case arose from the following factors: that police witnesses and other witnesses closely connected to the police were cross-examined; that the juror was an officer in the same police force as the police witnesses and the officer in charge of the case, although was not based at the same police station; and that the juror had served under the officer in charge of the case some four years earlier.

21. On 8 June 2009, following an oral hearing, the Court of Appeal refused permission to appeal. It noted the factors relied on by the applicant as suggesting bias, but considered that, against those factors, were the fact that the juror had no particular knowledge of the facts of the case; that he knew none of the police witnesses who were due to be called; and that he had had no contact with the officer in charge of the case for some four years. The court rejected the suggestion that the juror had worked out that the man at the back of the court was the officer in charge of the case, or indeed that he had any connection with the case. It concluded:

“1.20 It is apparent that the mere fact that a juror is a serving policeman is not sufficient to give rise to a real risk of bias. There must be some other factor connecting him to the case in order to give rise to that risk. This was not a case in which the police evidence was in any sense hotly contested, despite the fact that some of the witnesses were cross-examined. In the circumstances, in our view, the suggestion that there was some additional connection between this juror and the office in charge of the case could be little more than speculation.”

II. RELEVANT DOMESTIC LAW AND PRACTICE

22. For the relevant domestic law and practice, see the Court’s summary in its judgment in Hanif and Khan v. the United Kingdom, nos. 52999/08 and 61779/08, §§ 32-92, 20 December 2011.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION IN RESPECT OF THE LACK OF IMPARTIALITY OF THE JURY

23. The applicant complained that the presence of retired and serving police officers on the jury violated his right to a fair trial as provided in Article 6 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.”

24. The Government contested that argument.

A. Admissibility

25. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) 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

26. The applicant was granted permission by the President of the Section to represent himself in the proceedings before the Court.

27. In his written submissions, he claimed that the judge had given no explanation in writing of why the serving police officer juror had been permitted to continue as a jury member. He disputed the Government’s claim that a list of questions had been drawn up by the trial judge to be put to the police officer juror. He submitted that the police inspector sitting in court and the serving police officer juror ought, at the very least, to have been questioned on their connections pre-trial and on whether they had met outside the courtroom during trial and discussed the case.

28. The applicant also suggested that the jury process had been manipulated in order to ensure the presence of serving and retired police officers on the jury. He was not persuaded that this had happened by chance. He also contended that the retired officer had become the jury foreman.

29. The applicant further argued that in fact a dispute on the police evidence had subsequently arisen at trial.

30. Finally, he contended that no issue, including the question of whether he had acted in self-defence, could have been proven to a jury so influenced by two police officers from the investigating force who had physically assaulted him during police questioning.

(b) The Government

31. The Government referred to the general principles set out in Hanif and Khan, cited above, §§ 138-141. They emphasised that questions of subjective and objective partiality had to be determined on the facts of each individual case. Where there was familiarity between a juror and a witness, partiality could not be assumed: it had to be decided in each case whether the familiarity was of such a nature and degree as to indicate partiality. What was important was whether any fear of partiality was objectively justified. The mere fact that a juror was a serving police officer did not make his participation in a jury incompatible with Article 6.

32. They further pointed out that any investigation into the facts in a particular case was carried out in a transparent manner involving the accused. The accused was able to object to the presence of a particular juror, in which case the judge would rule on the matter, applying the principles of Article 6. The issues in the case itself were relevant to the assessment of fairness (citing Pullar v. the United Kingdom, 10 June 1996, § 39, Reports of Judgments and Decisions 1996-III).

33. The Government explained that police officers fulfilled a wide variety of roles in the United Kingdom and that there was nothing to support any suggestion that a juror police officer had a natural predisposition to find in favour of the prosecution or to accept police officer witness evidence. While the Government accepted that participation of police officers in juries required “particularly careful scrutiny”, the safeguards in place meant that the requirements of Article 6 § 1 were met.

34. Finally, in the specific circumstances of the applicant’s case, they argued that there was no reason to doubt the impartiality of the court. Neither police officer juror knew any of the police witnesses in the case. Although the serving police officer juror recognised the man in the court, he was not aware that the man was the officer in charge of the case, or that he had any connection with the case at all. There had been no significant challenge to the police evidence in the case; indeed, there was no dispute that the applicant had killed the victim, the only question being whether he had acted in self-defence. The presence of the police officers was drawn to the judge’s attention and investigated in a transparent way to determine whether they should continue to serve on the jury. Defence counsel was afforded an opportunity to make submissions and made no objection to the continued presence of the officers. There was nothing to suggest that any member of the juror had in fact acted inappropriately or in a biased or prejudiced manner. Finally, the matter was reviewed by the Court of Appeal which was satisfied that the applicant’s conviction was safe.

2. The Court’s assessment

(a) General principles

35. 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 the Court has constantly stressed that a tribunal, including a jury, must be impartial from an objective as well as a subjective point of view (Hanif and Khan, cited above, § 138)

36. The personal impartiality of a judge or a jury member must be presumed until there is proof to the contrary. As to whether the court was impartial from an objective point of view, this 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. While the need to ensure a fair trial may, in certain circumstances, require a judge to discharge an individual juror or an entire 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 (Hanif and Khan, cited above, §§ 139-140).

37. It does not necessarily follow from the fact that a member of a tribunal has some personal knowledge of one of the witnesses in a case that he will be prejudiced in favour of that person’s testimony. In each individual case it must be decided whether the familiarity in question is of such a nature and degree as to indicate a lack of impartiality on the part of the tribunal (Hanif and Khan, cited above, § 141). However, where there is an important conflict regarding police evidence in the case and a police officer who is personally acquainted with the police officer witness giving the relevant evidence is a member of the jury, jury directions and judicial warnings are insufficient to guard against the risk that the juror may, albeit subconsciously, favour the evidence of the police (Hanif and Khan, cited above, § 148).

38. Finally, it is also relevant to consider whether defence counsel, in the knowledge of the salient facts, objected to the continued presence of the juror in question at trial (see, mutatis mutandis, Adetoro v. the United Kingdom, no. 46834/06, § 55, 20 April 2010; and Boyle and Ford v. the United Kingdom (dec.), nos. 29949/07 and 33213/07, § 41, 22 June 2010; Welke and Białek v. Poland, no. 15924/05, § 77, 1 March 2011). In this respect, the Court will have regard to whether any course of conduct proposed by the trial judge to address any issue of procedural fairness was the subject of discussion between the judge and counsel prior to its being carried out (see, mutatis mutandis, Boyle and Ford, cited above, § 42).

(b) Application of the general principles to the facts of the case

39. As noted above, the personal impartiality of a jury member is presumed until there is proof to the contrary. The Court observes that there is no evidence of actual partiality on the part of either the retired or the serving police officer during the trial and it will accordingly examine whether there were sufficient guarantees to exclude any objectively justified doubts as to their impartiality.

40. As in Hanif and Khan, cited above, § 143, there were a number of safeguards present in the applicant’s case. First, the police officers were two of twelve jurors, selected at random from the local population. The applicant’s allegations that the jury composition was manipulated in his case are wholly unsubstantiated and must be rejected. Second, before commencing service, the jurors were required to swear an oath or to make a solemn affirmation that they would faithfully try the case and give a true verdict according to the evidence. Third, they would have been advised, in accordance with the standard jury guidance, to bring any concerns to the attention of the trial judge and not to discuss the case with anyone outside the jury. Fourth, in line with normal practice, they would have received directions from the trial judge as to how to approach the case and the evidence presented.

41. Both of the jurors in question drew to the attention of the trial judge at an early stage in the trial proceedings the fact that they were, or had been, police officers. In the case of the serving police officer, he also indicated that he recognised a police officer sitting in the courtroom. The trial judge promptly invited submissions from counsel and appropriate investigations were made. A list of questions was put to the serving police officer juror in order to identify the nature and extent of his knowledge of the officer in the courtroom and the police officer witnesses in the case. The applicant was fully involved in these proceedings and was informed of the proposed questions before they were put (see paragraphs 8-15 above).

42. Of some importance is the position of defence counsel throughout the proceedings. In respect of the retired police officer juror, counsel made it clear that he would advise the applicant that the presence of a police officer juror, even a serving one, did not raise concerns provided that the officer juror had no knowledge of the case, the parties or the police officer involved in it (see paragraph 8 above). He was given the opportunity to investigate the retired police officer’s connections with the case and following adjournment did not challenge the continued presence of the juror (see paragraph 10 above). As regards the serving police officer juror, defence counsel addressed the judge and was given the opportunity to clarify the exact nature of the information he required as to the juror’s connection with the case and the officer in the courtroom (see paragraph 13 above). He was informed of the list of questions then drawn up and did not seek to modify or add to them (see paragraph 15 above). Following the juror’s questioning, defence counsel confirmed that he was “quite happy that the juror may continue to serve” (see paragraph 16 above). It is clear from the transparent inquiries into the two police officer jurors that the defence had every opportunity to object to the continued presence of the men on the jury but chose not to do so.

43. Of further relevance is the nature of the connection between the jurors and other participants at trial. There was no suggestion at any stage that the retired police officer was acquainted with any other person involved in the trial proceedings or in the courtroom (see paragraph 8 above). The serving police officer recognised a man sitting in the courtroom, but did not know why he was present and was wholly unaware of his involvement as the officer in the case (see paragraph 12 above). He was shown a list of the police officer witnesses and confirmed that he knew none of them (see paragraphs 14-15 above). This is not a case where a police officer who was personally acquainted with a police officer witness giving relevant evidence was a member of the jury (compare and contrast Hanif and Khan, cited above).

44. Finally, it is noteworthy that the applicant’s defence did not depend to any significant extent - if at all - upon a challenge to the evidence of the police officer witnesses in his case (see the finding of the Court of Appeal at paragraph 21 above). Indeed, this was confirmed by his own counsel (see paragraph 9 above). He admitted that he had killed the victim and the only question for the jury was whether he had acted in self-defence (see paragraphs 6-7 above). In these circumstances, and despite the applicant’s claim to the contrary (see paragraph 29 above), it cannot be said that there was an important conflict or a clear dispute regarding police evidence in the case (compare and contrast Hanif and Khan, cited above, § 146).

45. Having regard to all of the above considerations, the safeguards present at the applicant’s trial were sufficient to ensure the impartiality of the jury which tried the applicant’s case. There has accordingly been no violation of Article 6 § 1 of the Convention.

II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

46. The applicant made various other complaints about his trial and alleged ill-treatment by the police.

47. In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds no appearance of a violation of the rights and freedoms set out in the Convention or its Protocols arising from these complaints. It follows that these complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the complaint concerning the alleged lack of impartiality of the jury admissible and the remainder of the application inadmissible;

2. Holds that there has been no violation of Article 6 § 1 of the Convention.

Done in English, and notified in writing on 9 December 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Françoise Elens-Passos Ineta Ziemele
Registrar President

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