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Judgments - R v. Abdroikof (Appellant) and another (On Appeal from the Court of Appeal (Criminal Division)) R v. Abdroikof and another (Appellant) (On Appeal from the Court of Appeal (Criminal Division)) Etc.

    HOUSE OF LORDS

    SESSION 2006-07

    [2007] UKHL 37

    on appeal from: [2005] EWCA Crim 1986

    

    OPINIONS

    OF THE LORDS OF APPEAL

    FOR JUDGMENT IN THE CAUSE

    R v. Abdroikof (Appellant) and another (On Appeal from the Court of Appeal (Criminal Division))

    R v. Abdroikof and another (Appellant) (On Appeal from the Court of Appeal (Criminal Division))

    R v. Williamson (Appellant) (On Appeal from the Court of Appeal (Criminal Division))

    (Conjoined Appeals)

    Appellate Committee

    Lord Bingham of Cornhill

    Lord Rodger of Earlsferry

    Baroness Hale of Richmond

    Lord Carswell

    Lord Mance

    Counsel

    Appellants:

    Richard Carey-Hughes QC

    Michael Maher

    Richard Hutchings

    Simon Berkson

    Instructed by:

    Appellant Abdroikof: Hayes Burcombe & Co

    Appellant Green: Macauley Smith & Co

    Appellant Williamson: Colin Watson & Co

    Respondents:

    David Perry QC

    Mark Heywood

    (Instructed by Crown Prosecution Service)

    Hearing date:

    26 July 2007

ON

    WEDNESDAY 17 OCTOBER 2007

HOUSE OF LORDS

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

IN THE CAUSE

R v. Abdroikof (Appellant) and another (On Appeal from the Court of Appeal (Criminal Division))

R v. Abdroikof and another (Appellant) (On Appeal from the Court of Appeal (Criminal Division))

R v. Williamson (Appellant) (On Appeal from the Court of Appeal (Criminal Division))

(Conjoined Appeals)

[2007] UKHL 37

LORD BINGHAM OF CORNHILL

My Lords,

    1.  These three appellants were tried on indictment in different courts on unrelated charges and were convicted. In the first two cases the trial jury included among its members a serving police officer, and in the third case it included a solicitor employed by the Crown Prosecuting Service. The common question raised by these three conjoined appeals is whether a fair-minded and informed observer, on the facts of the three cases, would conclude that there was a real possibility that the trial jury was biased.

    2.  The Court of Appeal (Lord Woolf CJ, Richards and Henriques JJ) which also heard the appeals together, held that the observer would not so conclude: [2005] EWCA Crim 1986, [2005] 1 WLR 3538. The appellants challenge that ruling.

    3.  The first appellant, Nurlon Abdroikof, faced counts of theft (to which he pleaded guilty) and attempted murder (to which he pleaded not guilty, but of which he was convicted). The trial last for six days in August 2004 before the Common Serjeant of London at the Central Criminal Court. There was a minor issue concerning one aspect of the evidence of a police witness. On Friday 27 August, when the jury were in retirement considering their verdicts, the foreman of the jury sent a note to the judge revealing that he was a serving police officer. He was concerned that if required to report for duty at the Notting Hill Carnival on the following Bank Holiday Monday, when the court was not sitting, he might meet one or more police officers who had been called to give evidence at the trial. With the acquiescence of defending counsel, who had not previously known of the foreman's occupation, the juror was directed not to report for duty on the Monday.

    4.  The second appellant, Richard John Green, was stopped by police officers on 18 March 2004. He was searched by one of the officers, Sergeant Burgess, and in the course of the search the sergeant put his hand into the appellant's pocket and pricked his finger on a used syringe. The appellant was charged with offences of assault occasioning actual bodily harm and having a bladed or pointed article. He pleaded not guilty and was tried before His Honour Judge Statman and a jury at Woolwich Crown Court. There was a dispute on the evidence between him and the police sergeant concerning the manner in which he was searched and what he and the sergeant respectively said. The appellant was convicted and sentenced. Some time after the trial, by chance, the appellant's solicitor discovered that a police officer, PC Mason, had been a member of the trial jury, a fact not known to the appellant at the time. PC Mason was at the time posted to Eltham Police Station, within an Operational Command Unit which committed its work to Woolwich Crown Court. PC Mason and Sergeant Burgess were both serving in the same borough at the time of the incident and had once served in the same police station at the same time, but the two officers were not known to one another.

    5.  The third appellant, Kenneth Joseph Williamson, was charged with two very serious offences of rape, of which he was convicted on 3 February 2005 after a trial before His Honour Judge Hale and a jury in the Crown Court at Warrington. The jury included among its members Mr McKay-Smith. Before the trial began he wrote to the court to say he had been summoned to serve as a member of the jury at Warrington. He recorded that he worked for the Crown Prosecution Service and had done so since its inception in 1986. He had previously worked for the Greater Manchester Council as a prosecuting solicitor, having been in private practice for five years before that. He was a Higher Court Advocate and had practised as such in many local courts including that at Warrington on behalf of the Crown, although he had not conducted a trial in the Crown Court. His current job was to advise the police on charging out of hours. He said that as a matter of policy the CPS had asked those summoned to ensure that the judge had all the necessary information to hand in order to exercise discretion as to the feasibility of an individual CPS employee serving. This letter was passed to defending counsel, who sought to challenge Mr McKay-Smith, contending that the court should not only do what is right but should be seen to have done what is right. He complained of potential bias and relied on the appellant's fair trial right under article 6 of the European Convention on Human Rights. The judge ruled that he had to operate within the law passed by Parliament and he could see no objection to this juror sitting in the light of the current legislation. Mr McKay-Smith duly sat, and became the foreman of the jury.

The criminal trial jury in England and Wales

    6.  The criminal trial jury has now, as it has had for centuries, the immense responsibility of deciding the all-important issue of guilt in the most serious criminal cases coming before the courts of England and Wales. Upon its integrity that of the trial process to a large extent depends. Upon its reputation for independence and impartiality public confidence in the integrity of the system also, to a large extent, depends.

    7.  Given the central importance of the trial jury in our system, it is not surprising that it has received much parliamentary and judicial attention. Before 1825, it had been the subject of 85 statutes. Since then it has been the subject of many more. Thus very detailed rules have been made governing the qualification and disqualification of jurors; the manner of selection; the right of the crown and the defence to challenge individual jurors, or the array; the procedural conduct of the trial; the evidence which the jury may be permitted to hear, and the evidence which it may not be permitted to hear; the terms in which the judge should (and should not) direct the jury on the law and the facts; the protection of the jury against exposure to extraneous materials which might sway its judgment; the conduct of jurors in and out of court, and even in the retiring room; the cloak of secrecy thrown over the jury's deliberations; the absolution of the jury from the duty, binding on almost other judicial decision makers, to give reasons; the immunity of jurors from all personal liability for their decisions. Most of these rules reflect a familiar truth, that if its metal be flawed a bell will not ring true. It is of the utmost importance that juries should ring true, and be generally recognised to do so.

    8.  The present questions arise as a result of changes made in the Criminal Justice Act 2003 to the rules formerly governing the qualification and disqualification of jurors. This, among other aspects of jury service, was earlier reviewed by a very distinguished departmental committee chaired by Lord Morris of Borth-y-Gest, which reported in 1965 (Cmnd 2627). At that time, pursuant to the Juries Act 1870 and a series of later statutes, a number of occupational groups were exempted from jury service, including the elected members of representative assemblies, ministers of religion, officers in the armed services, medical practitioners, various classes of public servants, holders of certain offices related to the sea and all who could not satisfy a threshold property qualification, a provision which continued in practice to debar many women from jury service although by section 1 of the Sex Disqualification (Removal) Act 1919 women were no longer exempt. The Morris Committee made valuable proposals to modernise and rationalise this anomalous patchwork of exemptions, which were given effect in the Juries Act.

    9.  The Morris Committee, however, considered that two occupational groups, exempt under the old law, should continue to be ineligible: those professionally concerned in the administration of the law, and the police. The committee was concerned that the trial jury should remain a lay tribunal, comprising ordinary, responsible members of the public, not dominated by lawyers; and it recognised problems of partiality, and perceived partiality if those professionally committed to the prosecution side of the adversarial trial process were to sit as members of trial juries. The committee's thinking is clear in paras 103 and 104 of their report:

    "103.  The present law exempts many of those who practise the law or are concerned with the business of the courts. It seems to us clearly right that such persons, and all others closely connected with the administration of law and justice, should be specifically excluded from juries. At present there is no statutory provision prohibiting a police officer, for example, whose name happens by mistake to be marked on the register as eligible for jury service, from actually serving. This is most unsatisfactory. If juries are to continue to command public confidence it is essential that they should manifestly represent an impartial and lay element in the workings of the courts. It follows that all those whose work is connected with the detection of crime and the enforcement of law and order must be excluded, as must those who professionally practise the law, or whose work is concerned with the functioning of the courts. It is impossible, whether desirable or not, to ensure that jurors have no previous knowledge of the law before they begin to hear a case. Many persons without formal legal training, for example, know enough about the way our courts function to be able to make a shrewd guess as to whether the accused has a previous criminal record; and one cannot entirely prevent by legislation the use of such knowledge in the jury room.

    104.  Nevertheless, it seems to us necessary to secure the exclusion from juries of any person who, in the words of one memorandum submitted to us, 'because of occupation or position, has knowledge or experience of a legal or quasi-legal nature which is likely to enable him to exercise undue influence over his fellow jurors'. If justice is not only to be done but to be seen to be done, such persons must not be allowed to serve on juries lest the specialist knowledge and prestige attaching to their occupations might cause them to be what has been described to us as 'built-in leaders'"

The committee accordingly recommended that those in widely-drawn categories of lawyers and police officers should be ineligible. One problem concerned civilian employees of the police, of whom the committee said:

    "110.  We have suggested that the description of the police who should be ineligible should be drawn rather more widely than under the present law relating to exemptions. The case for doing so is self-evident. A more difficult problem arises over civilian employees of police forces. The Commissioner of Police of the Metropolis expressed the view to us that civilian staff could, where appropriate, be dealt with by excusal as at present. We do not doubt that in practice this is so. But we think there is much force in the contention of the Association of Chief Police Officers that 'all civilian employees in the police service who have been employed for some length of time, no matter in what capacity, become identified with the service through their everyday contact with its members. As such they become influenced by the principles and attitudes of the police, and it would be difficult for them to bring to bear those qualities demanding a completely impartial approach to the problems confronting members of a jury'. We find this convincing, and we have little doubt that civilian employees in the police service, including traffic wardens, should be ineligible.

    111.  We are aware that any proposals dealing with such matters can be criticised on grounds of inconsistency. There is no wholly satisfactory line which can be drawn between those who in the interests of preserving the jury as an impartial lay element should be ineligible, and those whose connexion as a profession or occupation with the administration of law and order is sufficiently tenuous to justify their not being excluded. But our recommendations have been made after a detailed consideration of the claims of the various occupations concerned."

    10.  The issue of jurors' eligibility was next reviewed by the Rt Hon Lord Justice Auld in his comprehensive "Review of the Criminal Courts of England and Wales" (September 2001). In Chapter 5 he wrote, in para 30:

    "30  There is also the anxiety voiced by some that those closely connected with the criminal justice system, for example, a policeman or a prosecutor, would not approach the case with the same openness of mind as someone unconnected with the legal system. I do not know why the undoubted risk of prejudice of that sort should be any greater than in the case of many others who are not excluded from juries and who are trusted to put aside any prejudices they may have. Take, for example shopkeepers or house-owners who may have been burgled, or car owners whose cars may have been vandalised, many government and other employees concerned in one way or another with public welfare and people with strong views on various controversial issues, such as legalisation of drugs or euthanasia. I acknowledge that there may be Article 6 considerations in this. But it would be for the judge in each case to satisfy himself that the potential juror in question was not likely to engender any reasonable suspicion or apprehension of bias so as to distinguish him from other members of the public who would normally be expected to have an interest in upholding the law. Provided that the judge was so satisfied, the over-all fairness of the tribunal and of the trial should not be at risk."

Thus, acknowledging anxiety about what he recognised as an undoubted risk of prejudice, the Lord Justice recognised that all risk of prejudice or partiality could not be eradicated and appears to have envisaged that any question about the suspicion or apprehension of bias on the part of any particular juror could be resolved by the trial judge on the facts of the particular case. He recommended that everyone should be eligible for jury service save for the mentally ill. This recommendation was given effect by section 321 of and Schedule 33 to the 2003 Act.

    11.  The Metropolitan Police, by Notices 20-2004 Item 1, informed police officers and staff that they were no longer exempt from jury service. The notice advised that "Where possible, police officers should not attend the court where their Operational Command Unit commits its work".

    12.  The CPS notified its staff in June 2004 that in accordance with the Criminal Justice Act 2003 "CPS employees are now eligible to sit on a jury where the CPS is not the prosecuting authority". Employees summoned to attend court for jury service were required to notify the court in advance, alerting it to the fact that they were CPS employees and ascertaining where there were any cases to sit on where the CPS was not the prosecuting authority. Later guidance on 23 July 2004, following guidance issued by the Department for Constitutional Affairs, endorsed the practice of alerting the court. But it acknowledged that CPS employees were being asked to sit on cases where the CPS was the prosecuting authority. Having sought guidance from the DCA, the CPS advised that decisions on whether a CPS employee could sit where the CPS was the prosecuting authority rested ultimately with the judge, and CPS employees should follow the court's judgment as to whether it was appropriate to sit as a juror on a particular case. The June 2004 notification was re-published in November 2004.

    13.  Attention was drawn in argument to the DCA's publication on "Judicial Appointments in England and Wales". This addressed applications for part-time judicial employment by lawyers in the Government Legal Service, the CPS and the Serious Fraud Office. It reads:

    "Eligibility for judicial appointment of Government Legal Service (GLS), Crown Prosecution Service (CPS) and Serious Fraud Office (SFO) lawyers has been reviewed. In the past CPS, SFO and GLS lawyers were eligible to apply for appointments only in jurisdictions where the State is not habitually a party. In June 2003, the policy was revised so that:

    a.  CPS and SFO lawyers will be eligible to apply to sit in tribunals where the Government is a party.

    b.  CPS, SFO and GLS lawyers will be eligible to apply to sit as Recorders in civil work, except in civil matters that involve their own Department.

    c.  GLS lawyers will be eligible to apply to sit as Deputy District Judges in the Magistrates' Courts (but not to sit on their own Departmental prosecutions).

    d.  The practicalities of listing in the Magistrates' Courts will be considered so that CPS and SFO lawyers will be eligible to apply to sit on criminal matters as Deputy District Judges in cases not involving their own Department."

The rule appears to be that GLS, CPS or SFO lawyers are not to adjudicate in criminal cases where the authority to which they belong is the prosecutor.

Appearance of bias

    14.  In his extempore judgment in R v Sussex Justices, Ex p McCarthy [1924] 1 KB 256, 259, Lord Hewart CJ enunciated one of the best known principles of English law:

    ". . . it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done."

This principle was quoted with approval by the European Court of Human Rights in one of its very early decisions: Delcourt v Belgium (1970) 1 EHRR 355, 369, para 31. There is, as Lord Steyn on behalf of the House ruled in Lawal v Northern Spirit Ltd [2003] UKHL 35, [2003] ICR 856, para 14, now no difference between the common law test of bias and the requirement under article 6 of the European Convention of an independent and impartial tribunal. As Lord Hewart's aphorism recognises and later case law makes clear, justice is not done if the objective judgment of a judicial decision-maker (whether judge or juror) is shown to be vitiated by actual partiality or prejudice towards any of the parties. But actual bias, hard as it usually is to prove, is rarely alleged, and is not alleged in any of the cases before the House. Neither of the police officers, nor the Crown prosecutor, is alleged by the respective appellants to have leant in favour of the prosecution side for any improper reason. The appellants rely on the second part of Lord Hewart's aphorism: that justice should manifestly and undoubtedly be seen to be done. This condition, the appellants say, is not met where one of those charged to decide whether the appellant was guilty or not, is employed full-time by a body dedicated to promoting the success of one side in the adversarial trial process.

    15.  The test of apparent bias has been developed through a succession of cases. In R v Barnsley Licensing Justices, Ex p Barnsley and District Licensed Victuallers' Association [1960] 2 QB 167, 187, Devlin LJ recognised that "Bias is or may be an unconscious thing and a man may honestly say that he was not actually biased and did not allow his interest to affect his mind, although, nevertheless, he may have allowed it unconsciously to do so". Lord Denning MR, in Metropolitan Properties Co (FGC) Ltd v Lannon [1969] 1 QB 577, 599, said:

    "The court looks at the impression which would be given to other people. Even if he was as impartial as could be, nevertheless if right-minded persons would think that, in the circumstances, there was a real likelihood of bias on his part, then he should not sit. And if he does sit, his decision cannot stand . . . "

Lord Goff of Chieveley, in R v Gough [1993] AC 646, formulated the test of apparent bias in terms a little different from those now accepted, but echoed (at p 659) Devlin LJ's observation in the Barnsley Licensing Justices case in referring to "the simple fact that bias is such an insidious thing that, even though a person may in good faith believe that he was acting impartially, his mind may unconsciously be affected by bias . . .". Following the decision of the Court of Appeal in In re Medicaments and Related Classes of Goods (No 2) [2001] 1 WLR 700, the accepted test is that laid down in Porter v Magill [2001] UKHL 67, [2002] 2 AC 357, para 103: "whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased". As the House pointed out in Lawal v Northern Spirit Ltd, above, para 14, "Public perception of the possibility of unconscious bias is the key", an observation endorsed by the Privy Council in Meerabux v Attorney General of Belize [2005] UKPC 12, [2005] 2 AC 513, para 22. The characteristics of the fair-minded and informed observer are now well understood: he must adopt a balanced approach and will be taken to be a reasonable member of the public, neither unduly complacent or naïve nor unduly cynical or suspicious: see Lawal v Northern Spirit Ltd, above, para 14; Johnson v Johnson (2000) 201 CLR 488, 509, para 53.

    16.  The analysis of the European Court in Strasbourg has been to distinguish between a subjective test, directed to identification of actual bias, and what it calls an objective test, directed to what in this country would be called apparent bias: see, for instance, Hauschildt v Denmark (1989) 12 EHRR 266, 279, paras 46-49. The court has not regarded a defendant's perceptions as decisive, but has required that his suspicions of bias be objectively justified. By this is meant that there must be some demonstrable and rational basis for what he suspects. The court has accepted that appearances are not without importance (see, for instance, Hauschildt, above, para 48).

    17.  Since the Convention test of apparent bias is understood to be the same as the domestic test (see para 14 above), and certainly to impose no more rigorous a test, no detailed review of the Strasbourg case law is called for. But one authority should be mentioned: Pullar v United Kingdom (1996) 22 EHRR 391. The applicant P was an elected councillor charged with corruption. He was said to have offered, for reward, to support a planning application made by M, a partner in a firm of architects, and C, a partner in a firm of quantity surveyors. He was tried before a sheriff and a jury in July 1992. M and C were the leading prosecution witnesses. Among the jurors summoned to the trial was F, a junior employee of M's firm who had received notice of dismissal on grounds of redundancy shortly before the trial began. F informed the clerk of the court of his employment in M's firm, but the clerk, having ascertained that F did not know P and was ignorant of the facts, took no action and did not inform the sheriff or the procurator fiscal or defending lawyers. M, on later seeing F sitting as a juror, told the clerk of his connection with F, but the clerk again took no action and informed no one. P was convicted. His lawyers learned of the connection between F and M only after the trial, and appealed to the High Court of Justiciary. That court held that the clerk ought to have informed the sheriff, and if he had F would probably have been excused. But it held (as recorded by the Strasbourg court, para 16) that a mere suspicion of bias was insufficient to justify quashing a verdict, and it was necessary to prove that a miscarriage of justice had actually occurred. So the appeal failed. On application to Strasbourg the Commission unanimously found a breach of article 6(1) of the Convention: in the circumstances of the case the impartiality of the jury which convicted P was capable of appearing open to doubt and P's fears in this regard could be considered as objectively justified (p 400, para 42). The court, by a bare majority of 5-4, held that there had been no violation. It was pointed out (p 405, para 38) that knowledge of a person did not necessarily lead to prejudice in his favour, and that it had to be decided whether the familiarity in question was of such a nature and degree as to indicate a lack of impartiality on the part of the tribunal. F had not worked on the project giving rise to the prosecution (p 405, para 39), and it was not clear that an objective observer would conclude that F, having just received notice of redundancy, would be more inclined to believe M rather than the witnesses for the defence. This is at best a very borderline decision, perhaps sustainable on its special facts.

The Court of Appeal decision

 
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