HARDIMAN v. THE UNITED KINGDOM



                      AS TO THE ADMISSIBILITY OF

                      Application No. 25935/94

                      by Colin Mark HARDIMAN

                      against the United Kingdom

     The European Commission of Human Rights (First Chamber) sitting

in private on 28 February 1996, the following members being present:

           Mr.   C.L. ROZAKIS, President

           Mrs.  J. LIDDY

           MM.   E. BUSUTTIL

                 A.S. GÖZÜBÜYÜK

                 A. WEITZEL

                 M.P. PELLONPÄÄ

                 B. MARXER

                 N. BRATZA

                 I. BÉKÉS

                 E. KONSTANTINOV

                 G. RESS

                 A. PERENIC

                 C. BÎRSAN

                 K. HERNDL

           Mrs.  M.F. BUQUICCHIO, Secretary to the Chamber

     Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

     Having regard to the application introduced on 5 September 1994

by Colin HARDIMAN against the United Kingdom and registered on

14 December 1994 under file No. 25935/94;

     Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

     Having deliberated;

     Decides as follows:

THE FACTS

     The facts as submitted by the applicant may be summarised as

follows.

Particular circumstances of the case

     The applicant is a British citizen, born in 1967 and is currently

in prison in West Yorkshire.

     The applicant and two others ("G" and "S") were charged with the

murder and manslaughter of a vagrant on 20 February 1992. The joint

trial of all three defendants was lengthy and took place in or around

March 1993.

     The case put forward by the prosecution was that the three

defendants acted in concert in deciding to rob and then kill the

vagrant. G submitted in his defence that the jury could not be sure

that anything he had done had in fact killed the deceased, that G had

not intended to cause the victim serious harm when he stabbed him (six

times) and that he was, in any event, too drunk to form an intention

to kill or to cause serious bodily harm.

     The applicant contended that he only intended to rob the victim

and, because the applicant knew at the time that the victim was drunk,

he knew that only minimal force would have been necessary. The killing

was, according to the applicant, S's idea. S for his part said that he

was the innocent party and that the applicant and G were responsible

for the killing. The trial judge summed up the evidence to the jury

warning of the danger of relying on the evidence of one defendant when

it incriminated another.

     At 10.45 am on 10 March 1993 the jury retired to consider their

verdicts.  At 2.35 pm the jury returned to court having sent a note to

the trial judge indicating that they were unable to reach a unanimous

verdict in respect of G. The trial judge invited the jury to reach

unanimous verdicts and the jury again retired at 2.36 pm. At 3.50 pm

the jury returned indicating a lack of unanimity as regards G and

returning unanimous verdicts of guilty of murder in respect of the

applicant and not guilty of murder and manslaughter in relation to S.

The trial judge gave the jury a majority direction in relation to G and

the jury again retired at 3.53 pm.

     Immediately thereafter a female member of the jury handed a note,

addressed to leading counsel for S, to the jury usher. The usher and

that counsel gave the note to the court clerk who handed it to the

trial judge. The note was in a sealed envelope marked, in type, for the

attention of S's leading counsel and private and confidential. The

trial judge therefore met with all counsel in his chambers at 4.05 pm

and after hearing from all counsel opened the envelope. The note (which

was handwritten and signed by the juror) read as follows:

     "Dear ,

           I hope that you won't think me impertinent for writing. I

           mean no disrespect to you. I realise that it is highly

           irregular but I have a question I would like to ask. Would

           it be at all possible for you to consider an invitation for

           a drink with me either before leaving Norwich or may be if

           you return sometime in the future? Of course I do not wish

           to place you in an embarrassing situation and will quite

           understand if you decline. But just in case there is a

           slight possibility of you accepting,            telephone number>. I hope that I haven't offended you. I

           has taken a lot of courage writing this letter and I must

           admit to being somewhat embarrassed."

     All counsel subsequently read the juror's note and the trial

judge stated that he did not propose to say anything to the juror in

question subject to counsel's views. However, no counsel asked the

trial judge to take any further step with respect to the note. The jury

returned at 4.17 pm and convicted G of murder by a majority of 11 to

1. The applicant and G were sentenced on the same day to life

imprisonment.

     The applicant appealed to the Court of Appeal (Criminal Division)

on numerous grounds including that the contents and timing of the

submission of the juror's note constituted evidence that there existed

a "real danger of bias" on the part of the juror concerned arguing that

the envelope must have been typed the night before the juror came to

court (there being no typing facilities in the jury room) which was

before the start of the jury's deliberations. Given the direct conflict

existing between the evidence of S and the applicant, there was a real

likelihood that the applicant's received consideration which was biased

against him and in favour of S by the juror who wrote the note.

     The court delivered its judgment on 1 July 1994 and, in the first

place, described the applicable principles in cases of alleged jury

bias as follows. One does not enquire into the actual state of mind of

the jurors. There is an overriding public interest in there being

confidence in the administration of justice. If there was a real danger

of bias (meaning a possibility rather than a probability) then the

verdict could not stand and even one source of poison in the jury room

suffices in this respect. The court applied the test for bias as stated

by Lord Goff in the Gough case (Gough (1993) 97 Cr.App.R. 188), which

case also concerned a note from a female member of a jury to counsel.

     The court then indicated that having given thoughtful and earnest

consideration to the contents of the note and the circumstances

surrounding its creation and submission to the usher, the evidence in

the case, the verdicts returned by the jury in light of that evidence

and the female juror's actions, decided that there was no possibility

of a real danger that this jury was biased against the applicant and

participated in the guilty verdicts by reason of bias. In addition and

since one function of the Court of Appeal was to consider carefully the

evidence against the defendants who were convicted to see if it could

be said that the cases upon which they were convicted were slender or

weak, the court concluded that the evidence against G was overwhelming

and that against the applicant extremely strong. In addition, there was

evidence which could render S's acquittal strong.

     The Court of Appeal accepted that it appeared that the note was

prepared prior to the juror coming to court on 10 March 1993 but

considered it unlikely that the juror had communicated her liking for

S's counsel to other jurors, that it was still less likely that had she

done so that the other jurors would have allowed their judgments to be

swayed by her disclosure and that there was no real danger that the

juror allowed her liking for S's counsel to transfer itself to S and

his case and still less likely that she would have allowed such

feelings to prejudice her judgment against the applicant or G.

     Before the Court of Appeal the applicant also claimed that after

his conviction his representatives were informed, in confidence, that

prison psychiatric reports in relation to S existed and were couched

in terms that cast much doubt on S's credibility as a witness. The

applicant argued before the Court of Appeal that since these reports

were disclosed to the prosecution, were not disclosed to the

applicant's representatives during the trial (nor thereafter) and

affected the credibility of S (with whose evidence the applicant's

evidence was in conflict), they should have been furnished to the

applicant's representatives to allow the applicant's representatives

the opportunity to cross-examine S (on those reports) and the authors

of the reports.

     In its judgment the Court of Appeal described the general nature

of such reports (though did not read the reports on S available to

them). The court pointed out that prior to a hearing of serious

criminal charges, prison psychiatric reports on the defendant(s) are

obtained for the trial judge. A defendant will not be cautioned before,

or have his solicitor present during, an interview with the relevant

medical practitioner in order that the responses of the defendant will

be frank so that the conclusions in the subsequent report (as to a

defendant's mental competence, state of mind or as to any other

relevant disability) are reliable.

     Such reports are furnished to the trial judge to enable the judge

to ensure a fair trial on the basis of information which is as reliable

as possible. In this respect, the relevant matters considered by the

trial judge include the defendant's fitness to plead and stand trial

and, in murder cases, the issues of insanity and diminished

responsibility are also normally considered so that the court can raise

these matters if those acting for the defence do not raise them. The

Court of Appeal confirmed that the reports are the property of the

court and that they are not brought into existence by the prosecution

for the purposes of preparing a case against the defendant in question.

     The Court of Appeal noted that, in practice, the disclosure of

these reports varies. They are furnished in a serious case to the

prosecution counsel in order that such counsel, as a minister of

justice, may direct the judge's attention to anything in the report

which might indicate the need to take steps to ensure that a fair trial

occurs. In a trial involving one defendant neither the prosecution nor

the court can refer to the reports unless, for example, a medical issue

arises during the trial to which the report is relevant. The Court of

Appeal endorsed this practice stating that it was "sensible and fair"

in view of the manner in which the reports are obtained and the clear

public interest in ensuring the frankness of the responses and the

consequent reliability of the reports.

     The Court of Appeal concluded, on the basis of previous case-law,

that since the applicant had not made an application to the trial judge

for the report, it was too late to raise the matter of disclosure of

such reports in relation to S before the Court of Appeal. In any event,

the Court of Appeal being cognisant of the applicant's argument as to

the alleged benefit to him of being able to rely on them, indicated

that even if such an application had been made to the trial judge it

would and should have been refused.

     The applicant's appeal was therefore dismissed.

Relevant domestic law and practice

           The respective roles of the trial judge and jury

     The trial judge is the arbiter of issues of law and must ensure

that the trial is properly conducted according to the law. He is

required at the end of a trial, inter alia, to sum up the evidence, to

direct the jury to disregard evidence which is inadmissible, to remind

juries of their function, to explain any law which the jury is required

to apply and to ask the jury to reach a verdict on the evidence they

have heard. The jury, consisting of twelve members who have sworn to

"faithfully try the defendant and give a true verdict according to the

evidence", is the sole arbiter of fact.

     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.

                           The law on bias

     The case of R v. Gough ([1993] 2 All ER 673) re-stated and

clarified the law on bias. If the possibility of bias on the part of

a juror comes to the attention of the trial judge in the course of a

trial, the trial judge should consider whether there is actual bias or

not (a subjective test). If this has not been established, that trial

judge or appeal court must then consider whether there is a "real

danger of bias affecting the mind of the relevant juror or jurors" (an

objective test). In this latter respect Lord Goff, in the above-

mentioned Gough case, stated as follows:

     "... I think it is unnecessary, in formulating the appropriate

     test, to require that the court should look at the matter through

     the eyes of a reasonable man, because the court, in such cases

     as these, personifies the reasonable man; and in any event the

     court has first to ascertain the relevant circumstances from the

     available evidence, knowledge of which would not necessarily be

     available to an observer in court at the relevant time. ... I

     would prefer to state the test in terms of real danger rather

     than real likelihood, to ensure that the court is thinking in

     terms of possibility rather than probability of bias.

     Accordingly, having ascertained the relevant circumstances, the

     court should ask itself whether, having regard to those

     circumstances, there was a real danger of bias on the part of the

     relevant member of the tribunal in question, in the sense that

     he might unfairly regard (or have unfairly regarded) with favour,

     or disfavour, the case of a party to the issue under

     consideration by him;..."

COMPLAINTS

     The applicant complains that he did not get a fair hearing by an

independent and impartial tribunal in violation of Article 6 para. 1

of the Convention due to the lack of impartiality of the jury

demonstrated by the note submitted by the female juror. He also

complains under Article 6 paras. 1 and 3(d) in relation to his lack of

access (both during the trial and subsequently) to prison psychiatric

reports prepared in relation to a co-defendant and about his inability

to introduce the reports into evidence or cross-examine the co-

defendant and the relevant medical practitioners.

THE LAW

1.   The applicant complains, in the first place, that his hearing was

unfair due to the lack of impartiality of the jury demonstrated by the

note from the female juror. He invokes Article 6 para. 1 (Art. 6-1) of

the Convention which reads, insofar as relevant, as follows:

     "1. In the determination of ...  any criminal charge against him,

     everyone is entitled to a fair ...  hearing ... by an independent

     and impartial tribunal ..."

     The applicant submits in this respect that in view of the fact

that the juror in question was attracted to S's counsel and hoped he

would accept her invitation and of the fact that the applicant's and

S's evidence was in direct conflict, the juror would have been more

inclined to accept the position adopted by S, to advance arguments in

the jury room in S's favour in order to make a good impression on

counsel for S and be partisan in favour of S and against the applicant

leading to the applicant's inevitable conviction. Furthermore, since

there is an inhibition on inquiring into what takes place in the jury

room, the applicant was convicted and his appeals were rejected without

the courts being aware of the juror's actions and views due to her

attraction to S's counsel.

     The Commission recalls that, according to the constant case-law

of the Convention organs, the existence of impartiality must be

determined according to a subjective test namely, on the basis of a

personal conviction of a particular judge in a given case - personal

impartiality being assumed until there is proof to the contrary (see,

for example, Eur. Court H.R., Padovani judgment of 26 February 1993,

Series A no. 257-B, P. 20, paras. 25-26).

     In addition, an objective test must be applied. It must be

ascertained whether sufficient guarantees exist to exclude any

legitimate doubt in this respect. Even appearances may be important;

what is at stake is the confidence which the court must inspire in the

defendant in criminal proceedings and what is decisive is whether the

applicant's fear as to a lack of impartiality can be regarded as

objectively justifiable (Eur. Court H.R., De Cubber judgment of

26 October 1984, Series A no. 86, p. 14, para. 26 and Padovani

judgment, loc. cit., p. 20, paras. 25 and 27).

     Furthermore, the above principles apply equally to each juror as

the sole arbiters of fact (Eur. Court H.R., Holm judgment of

25 November 1993, Series A no. 279-A, p. 14, para. 30 and, mutatis

mutandis, No. 19874/92, Ferrantelli and Santangelo v. Italy, Comm.

Report 2.3.95, unpublished). Moreover, given that juries in the United

Kingdom deliberate in private, give no reasons for their decisions and

that there is, at the very least, a strong inhibition on enquiring

about the nature of juror discussions, it is not possible to adduce

evidence as to the subjective impartiality on the part of a juror. In

such  circumstances additional importance would therefore attach to

ensuring that the impartiality of the jury is, "by other means",

objectively guaranteed (No. 14191/88, Holm v. Sweden, Comm. Report

13.10.92, Series A no. 279-A, p. 26, para. 64 and No. 22399/93 and

Pullar v. the United Kingdom, Comm. Report 11.1.95, p. 7, para. 39).

     In the present case, the Commission finds no evidence of

subjective bias on the part of the relevant member of the jury and the

question to be determined is whether the applicant's fear as to a lack

of impartiality on the part of a member of the jury can be regarded as

objectively justifiable.

     On the one hand, the Commission notes the serious charges against

the applicant and the nature of the issue to which the jury note gave

rise. It appears that the juror in question prepared the note prior to

coming into court on 10 March 1993 on which date the jury retired to

deliberate on the charges. In addition, it is evident that the juror

had developed some feelings for counsel in question to the extent that

she risked embarrassment in order to sent a note to the relevant

counsel. Furthermore, the applicant's and S's accounts of what had

taken place were in direct conflict.

     However and on the other hand, the Commission notes the

following. The trial was complex and lengthy and the Commission

considers that the trial judge was well placed to evaluate the jurors

by his interaction with them during the trial. The trial judge warned

the jurors of the danger of relying on the evidence of one defendant

if it incriminated the other. Subsequently and having received the jury

note from the court clerk, the trial judge opened the note in chambers

namely, in the absence of the jury and with all counsel present. No

counsel (including the applicant's own counsel) requested the trial

judge to take the matter further. Having considered the matter, the

trial judge decided that the jury should not be informed of the

contents of the note.

     The Commission also notes the controlled and polite nature of the

jury note which made no reference at all to the case at hand (and

indeed expressed the wish not to offend or place S's counsel in an

embarrassing position) and contained no indication that the juror had

any difficulty in forming a view on the evidence or that she had voted

and encouraged others to vote in a particular way. In addition, the

argument that the juror would have acted in the jury room in a certain

manner in order to impress S's counsel does not appear to be realistic.

Due to the restriction on inquiring into juror deliberations and since

it appears that during the applicant's trial the note was the only

contact S's counsel had with the juror, it is difficult to see how the

juror could have felt that her actions in the jury room could have

positively influenced S's counsel.

     Furthermore, the Commission, while not drawing any specific

conclusions from the juror's vote finds the unanimous decisions in

favour of S and against the applicant striking.

     Moreover, the Commission finds it indicative of the weight to be

attached to the trial judge's assessment as to the most appropriate

response to the jury note that, in domestic law, the trial judge must

assess the presence of bias in the jury subjectively and must also be

satisfied that there is no real danger of bias. The question of jury

bias was also reviewed in detail by the Court of Appeal which tribunal

considered that a real danger of bias was not a possibility and that

it was unlikely that the applicant had communicated her liking for S's

counsel to other jurors, even less likely that the other jurors would

have been swayed by the applicant even if she had communicated her

feelings, that there was no real danger that the juror had allowed her

feelings for S's counsel to transfer to S's case and still less likely

again that she would have allowed her feelings to affect her judgment

of the case against the applicant.

     The Commission considers that the above factors suffice to dispel

any legitimate doubts as to the impartiality of the jury which

convicted the applicant and finds that the applicant's fears in this

respect are not objectively justified. Consequently, the Commission

considers that applicant's complaints as to the impartiality of the

jury manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

2.   Secondly, the applicant also complains that prison psychiatric

reports, which allegedly cast doubt on the credibility of S, were

disclosed to the prosecution and not to his representatives prior to,

during or subsequent to his trial. Together with  Article 6 para. 1

(Art. 6-1) (cited above), the applicant invokes Article 6 para. 3(d)

(Art. 6-3-d) of the Convention which reads as follows:

     "3. Everyone charged with a criminal offence has the following

     minimum rights:

           (d) to examine or have examined witnesses against him and

           to obtain the attendance and examination of witnesses on

           his behalf under the same conditions as witnesses against

           him."

     The applicant submits in this respect that, since his

representatives were unaware of the reports' existence during the

trial, it was unrealistic to require, as the Court of Appeal did, an

application on the applicant's behalf before the trial judge to be

allowed to obtain the reports, to introduce the reports in evidence and

to cross-examine S and the relevant medical practitioners on the

reports.

     The Commission recalls that according to its constant case-law

it is not for the Commission to re-assess the factual or legal elements

of a case before the domestic courts, given that the relevant decisions

of those courts had a basis in law and were based on relevant and

sufficient reasons (see, for example, Eur. Court H.R., Barbera,

Messegué and Jabardo judgment of 6 December 1988, Series A no. 146, p.

31, para. 68). It is also recalled that the term "witness" as referred

to in Article 6 para. 3(d) (Art. 6-3-d) of the Convention can be

understood as relating also to "experts" (see, for example, No.

10532/83, Dec. 15.12.87, D.R. 54, p. 19). However, Article 6 para 3(d)

(Art. 6-3-d) of the Convention does not give an absolute right to the

examination of every witness proposed by the defence (Eur. Court H.R.,

Engel and others judgment of 6 June 1976, Series A no. 22).

     Whether or not the applicant's legal representatives should have

known of the likely existence of such reports, the Commission notes the

following. S would not have been cautioned (for example, by being told

that any statements made by him in that context may be used against

him) or have been entitled to have a solicitor present at the time of

his examination by a psychiatrist - indeed that is deliberately done

so that the defendant's responses are frank and the resulting report

reliable (as regards issues such as a defendant's mental competence,

state of mind or as to any other relevant disability) so that the judge

can in turn ensure that such issues are addressed if necessary (in the

context of, for example, fitness to plead) in order to ensure a fair

trial for that defendant. The practice is that neither the prosecution

nor the judge can refer to such reports during the trial unless a

relevant medical issue arises. The Commission recalls that the jury

that found the applicant guilty would not have been aware of the

relevant reports, no such reference having been made to the reports

during the trial.

     The ultimate aim of this procedure is therefore the protection

of the rights of defendants by obtaining specific material about a

defendant (as to, for example, mental competence) in a particular

manner and by consequently ensuring that, unless necessary in certain

circumstances, such material is not referred to during the trial. The

Commission therefore considers that the fact that the application of

the practice in the applicant's case meant that he could not refer to

or rely on the reports against one of his co-defendants was not, in the

circumstances of the present case, unfair or arbitrary. Accordingly the

Commission does not find that this complaint discloses a violation of

Article 6 paras. 1 or 3(d) (Art. 6-1, 6-3-d) of the Convention. It is

therefore manifestly ill-founded within the meaning of Article 27 para.

2 (Art. 27-2) of the Convention.

     For these reasons, the Commission, unanimously,

     DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber         President of the First Chamber

     (M. F. BUQUICCHIO)                       (C. L. ROZAKIS)

 

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