MIAH v. THE UNITED KINGDOM



                      AS TO THE ADMISSIBILITY OF

                      Application No. 37401/97

                      by Badrul MIAH

                      against the United Kingdom

     The European Commission of Human Rights (First Chamber) sitting

in private on 1 July 1998, the following members being present:

           MM    M.P. PELLONPÄÄ, President

                 N. BRATZA

                 E. BUSUTTIL

                 A. WEITZEL

           Mrs   J. LIDDY

           MM    L. LOUCAIDES

                 B. MARXER

                 B. CONFORTI

                 I. BÉKÉS

                 G. RESS

                 A. PERENIC

                 C. BÎRSAN

                 K. HERNDL

                 M. VILA AMIGÓ

           Mrs   M. HION

           Mr    R. NICOLINI

           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 4 August 1997 by

Badrul MIAH against the United Kingdom and registered on 19 August 1997

under file No. 37401/97;

     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 applicant is a British citizen, born in 1976 and currently

detained in HM Prison Wormwood Scrubs, London. He is represented by

JR Jones & Co., solicitors, of Ealing, West London.

     The facts, as submitted by the applicant, can be summarised as

follows.

A.   Particular circumstances of the case

     On 13 August 1994, following a series of racial incidents between

white and Asian youths in the Somers Town area of North London, a 15

year old white boy, Richard Everitt, was stabbed and killed by a gang

of Asian youths.

     The prosecution case was that following an earlier dispute, a

gang of Asian youths left the Drummond Street area of London where they

lived and went to nearby Somers Town. Their intention was to find and

inflict serious bodily injury on a Liam Coyle. It was the prosecution

case that the group initially attacked Mark Andrew, inflicting minor

injury, before attacking Richard Everitt and two friends in York Way.

Richard Everitt was stabbed once and died from his injury. The

prosecution alleged that the applicant, though not necessarily the

knife wielder, was a prominent member of the gang when the knife was

used and further, that the attack was part of a joint enterprise to

inflict really serious harm and that the applicant was a party to the

joint enterprise.

     The applicant was charged with two others, Showkat Akbar and

Abdul Hai. Nine counts were brought against the applicant in total. The

applicant was charged with conspiracy to inflict grievous bodily harm

on Liam Coyle, violent disorder, conspiracy to pervert the course of

justice and the murder of Richard Everitt, with which Abdul Hai was

also charged.

     The trial took place from 5 October 1995 until 1 November 1995

before Mrs Justice Steel.

     After the close of the prosecution case, submissions of no case

to answer were made on behalf of all three accused. Mrs Justice Steel

rejected the submissions regarding Showkat Akbar and the applicant but

accepted the submissions in respect of Abdul Hai. Consequently, she

directed the jury to return verdicts of not guilty in respect of

Abdul Hai. The jury then sent her a letter asking why they had been

directed to give this verdict. The judge explained that as a matter of

law there was insufficient evidence to convict Abdul Hai.

     The applicant and Showkat Akbar both gave evidence. The

applicant's defence was that he had not been part of the group which

had attacked Richard Everitt but had come upon them by chance and had

started to talk to them. Richard Everitt had run past him, bleeding

profusely, after being stabbed.

     The applicant was convicted unanimously on 1 November 1995 of

conspiracy to inflict grievous bodily harm and violent disorder. He was

acquitted of conspiracy to pervert the course of justice. The jury was

at that stage unable to reach a verdict on the murder charge but did

ultimately come to a majority verdict of guilty by 10 to 2.

     The applicant was sentenced to imprisonment for life for murder

with 3 years concurrent on the counts alleging conspiracy to cause

grievous bodily harm and violent disorder.

     On 5 November 1995, after the trial, the applicant's solicitor

obtained a phone call from a man subsequently identified as V..

V. stated that he was the partner of one of the jurors and that his

partner had information which might interest the solicitor. The

solicitor ended the telephone call at that point and took the advice

of counsel who advised that it was a criminal offence to reveal the

contents of jury deliberations. The solicitor passed this information

to V. but added that his partner could reveal anything which fell

outside the realms of jury deliberation.

     The applicant appealed to the Court of Appeal. The grounds of

appeal concerned the joinder of the conspiracy count with the violent

disorder and murder counts, and the direction given to the jury by the

judge regarding any lies they found that the applicant had told, his

good character and the law as to joint enterprise and intent to murder.

     On 6 November 1996, two days before the applicant's appeal was

due to be heard, the applicant's solicitor telephoned V. to verify that

there was nothing V.'s partner wanted to tell him. V. told the

applicant's solicitor that his partner had produced a document shortly

after the trial. V. brought the document to the applicant's solicitors.

The document stated, in its original form:

     "That the majority of the jury made up their minds very

     early on in the prosecutions case.

     That there seemed to be a presumption of guilt rather than

     one of innocence and that it was left to the defence to

     prove innocence instead of the prosecution proving guilt.

     At the beginning of the jurors deliberations, after the

     summing up of the judge, the jurors requested the

     transcripts of certain witnesses evidence. These were not

     given and the response from the judge was that she would

     make clear any points but that the transcripts would not be

     made available. This was upsetting to certain members of

     the jury because earlier on in the trial the judge had

     suggested to the jury that they should not write down so

     much in their note pads. As a result many desisted as they

     were reassured that they would have full access to any

     details later if requested. The jury as a result did not

     have access during their deliberations to the exact words

     of the witnesses. Something that certain of them required

     in order to exactly clarify certain points, for example

     exact timings, places and wordings.

     This meant that very little discussion took place in the

     jury room because there was no factual evidence to relate

     to. Opinions became entrenched based on assumptions.

     Aware that it is not the jurors duty to concern themselves

     with sentencing, some of the jurors were rather naive on

     the implications of awarding a guilty verdict for murder.

     Some thought that because was only twenty

     years old and not yet twenty one, he would:

      "probably get away with seven years and a social worker".

     They seemed unaware of the mandatory life sentence for a

     murder conviction.

     One juror during the deliberations admitted that he

     believed that had actually been the

     murderer who administered the fatal stab wound. As he said

     this another four or five jurors said they agreed with him,

     even though no evidence was ever put forward to support

     this allegation and that the prosecution stated clearly at

     the outset of the trial that none of the defendants

     administered the blow.

     No direct racial prejudice was spoken of or obviously

     displayed by any member of the jury, however, there was an

     instant assumption of guilt by many jurors that indicates

     certain underlying prejudice of some description.

     There was an occasion on the day that the prosecutions case

     came to an end. The jury were not in court and legal

     matters were being discussed. That morning the jury were

     discussing the case around Abdul, the third defendant. To

     juror A it was clear that there was very little evidence

     supporting a verdict of guilty for Abdul, however it became

     clear during discussions with the other jurors that many of

     them were leaning towards a guilty verdict. Juror A

     contested this saying that there was absolutely no evidence

     to support this at all, but the other jurors continued to

     slant evidence in support of a guilty verdict.

     Had a verdict been asked for at that time then it would

     have been a majority guilty one.

     Later that day the judge called the jurors in and nominated

     one of the jurors to stand up as a foreman and pronounce a

     verdict of not guilty on Abdul. This was duly done and

     Abdul left the court. The jurors were angry and confused at

     this and wrote for an explanation from the judge. The

     explanation was that there was not enough evidence to

     support the case, quite contrary to the opinion of the

     jurors.

     A comment from one of the jurors in response to this was

     "we'll make sure we get the other one then".

     The appeal was heard on 8 November 1996. The applicant argued

that the Court of Appeal ought to permit the applicant to file amended

grounds of appeal, adjourn the hearing and investigate the allegations

made by V.'s partner. These submissions were rejected.

     The Court of Appeal gave its written judgment on 9 December 1996.

It stated that there were practical and legal reasons for dismissing

the appeal. The practical reasons were clarified as follows:

     "... the material placed before us lacks substance. We are

     by no means satisfied that any juror revealed anything and

     if they have not there is nothing to enquire into. Even if

     the document annexed to

     statement is what it is alleged to be, most of the

     allegations it contains cannot be investigated further

     without contravening section 8(1) of the 1981 Act and the

     rest amount to little more than assertions about views

     expressed by individual unidentified jurors before they

     began their formal deliberations. Furthermore in reality it

     is difficult to see how an investigation initiated more

     than 12 months later could possibly yield any meaningful

     result. No one is likely to remember whether such things

     were said. Still less are they likely to be able, without

     trespassing on the forbidden ground of the deliberations

     themselves, to say anything to assist in relation to

     whether or not views or attitudes expressed at an early

     stage had any effect on the result."

     The Court of Appeal then emphasised that there was a long line

of authority which precluded investigation of deliberations conducted

by the jury.

     "..it is a settled rule of long standing that an appellate

     court will not receive evidence from jurors about

     discussions or other matters that took place in the jury

     box or jury room concerning the cases in which they were

     acting".

     On 6 February 1997, the Court of Appeal refused leave to appeal

to the House of Lords in respect of the argument relating to the jury

deliberations. However, leave was granted to appeal to the House of

Lords in respect of the direction regarding joint enterprise and intent

to murder. This appeal was withdrawn in light of the House of Lords'

judgment in Powell and Daniels (1996 1 Cr. App.R. 14) on

30 October 1997, in which the House of Lords rejected essentially the

same grounds of appeal.

B.   Relevant domestic law and practice

     Section 8 of the Contempt of Court Act 1981 provides:

     "8(1) Subject to subsection (2) below, it is a contempt of

     court to obtain, disclose or solicit any particulars of

     statements made, opinions expressed or votes cast by

     members of a jury in the course of their deliberations in

     any legal proceedings

     (2)   this section does not apply to disclosure of any

     particulars-

     (a)   in the proceedings in question for the purpose of

     enabling the jury to arrive at their verdict, or in

     connection with the delivery of that verdict... or to the

     publication of any particulars so disclosed".

     It is a long-standing rule of English law that enquiries should

not be made as to what takes place in the jury room after the jury have

retired. Case law supports this principle.

     In  Ellis v. Deheer [1922] 2 KB 113, a civil case, Atkin LJ

propounded reasons for the prohibition on inquiries into the contents

of jury deliberations noting that "the court does not admit evidence

of a juryman as to what took place in the jury room.. The reason that

evidence is not admitted is twofold, on the one hand it is in order to

secure the finality of decisions arrived at by the jury, and on the

other to protect the jurymen themselves and prevent their being exposed

to pressure to explain the reasons which actuated them in arriving at

their verdict."

     In R v. Young [1995] 2 Cr App R 379 Lord Taylor CJ held stated

that "in our judgment the court cannot, after verdict, inquire into

what passed between the jurors during their deliberations in their

retiring room in the respects specified in section 8(1)".

COMPLAINTS

     The applicant invokes Article 6 paras. 1 and 2. He states that

he was denied a fair trial since he was not tried by an impartial

tribunal. He also alleges that the jury presumed that he was guilty

from the outset. The applicant further complains that the Court of

Appeal failed to verify whether the court which tried him was "an

impartial tribunal".

THE LAW

     The applicant complains that his trial was unfair and invokes

Article 6 paras. 1 and 2 (Art. 6-1, 6-2) of the Convention which

provide, insofar as relevant, as follows

     "1.   In the determination of his civil rights and

     obligations or of any criminal charge against him, everyone

     is entitled to a fair and public hearing within a

     reasonable time by an independent and impartial tribunal

     established by law...

     2.    Everyone charged with a criminal offence shall be

     presumed innocent until proved guilty according to law."

     The applicant submits that, as disclosed by the statement of V.'s

partner, the jury which convicted him was not impartial since members

of the jury acted with personal bias against him and presumed his

guilt. Even assuming there was no subjective bias, the information was

sufficient to raise  a legitimate doubt as to the jury's impartiality.

He points to the Court of Appeal's refusal and/or inability to order

an investigation of the jury and relies on the case of Remli v. France

(Eur. Court HR judgment of 23 April 1996, Reports 1996-II, p. 559) for

the proposition that if domestic courts fail to check whether a

tribunal is impartial, thereby depriving the accused of the possibility

of remedying the situation, there is a breach of Article 6 para. 1

(Art. 6-1).

     The Commission notes, first of all, that it is of fundamental

importance in a democratic society that courts inspire confidence in

the public and in the accused. Tribunals, including juries must,

therefore, be impartial from a subjective as well as from an objective

viewpoint (Eur. Court HR, Pullar v. the United Kingdom judgment of

10 June 1996, Reports 1996-III, p. 783 at pp. 793-4, paras. 32, 38).

     The Commission finds, on examination of the material in the file,

that there is no convincing evidence of actual or subjective bias on

the part of one or more jurors. The Commission notes the reservations

of the Court of Appeal as to the source and contents of the document

allegedly derived from a juror via V. more than a year after the events

in question.

     As regards whether there were in the circumstances sufficient

guarantees to exclude any objectively justified or legitimate doubts

as to the impartiality of the jury,  the standpoint of the accused,

though important, is not decisive (Eur. Court HR, Remli v. France, op.

cit., p. 309, para. 45). Moreover, the Commission considers that the

extent of the inquiry which the domestic courts must undertake into

allegations will be dependent upon the strength of the evidence of

alleged bias.

     The Commission acknowledges that the rule governing the secrecy

of the jury deliberations is a legitimate and crucial feature of

English jury trials 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 (Eur. Court HR

Gregory v. United Kingdom judgment of 25 February 1997, Reports 1997-I,

p. 296 at p. 309, para. 44). While the Court of Appeal considered

itself barred from investigating the jury deliberations, it did however

examine the document submitted. It was not satisfied that it was

derived from a juror but found that even if it was, due to the time

lapse, any investigation as to what was said by any juror and what role

it played in any verdict would be likely to be unhelpful. It also

assessed many of the passages as comments expressed by individual

jurors before their formal deliberations began. The Commission notes

that the jurors would at that later stage have heard the evidence as

a whole and would have been instructed by the judge as to their duties

in regard to assessing that evidence and heard the judge's summing-up

of the case.

     The Commission finds that the allegations contained in the

document were not of such a nature as to raise serious doubts as to the

impartiality of the jury. The note stated that "no direct racial

prejudice was spoken of or obviously displayed by any member of the

jury". Although the purported juror, V.'s partner, felt that the jury

members were prejudiced in favour of a guilty verdict from the outset,

this is subjective supposition. Indeed, the fact that the jury members

were concerned by the judge's refusal to provide a transcript of the

evidence suggests that the jury took their task of analysing evidence

seriously. It is noteworthy that none of jurors made any attempt to

write a note to the judge to convey any concerns about the manner in

which the jury were deliberating. Moreover, both juror A, who,

according to the note, was the most perspicacious about the weight of

evidence against Abdul Hai, and the juror who was V.'s partner, must

have voted in favour of guilty verdicts on the applicant in respect of

conspiracy to commit grievous bodily harm on Liam Coyle and violent

disorder.

      In the circumstances of the present case, the Commission

considers that the analysis undertaken by the Court of Appeal, in

assessing the strength of the allegations of alleged bias and therefore

the merits of the applicant's appeal regarding the jury, was sufficient

to dispel any objectively-held misgivings about the impartiality of the

jury and provide the applicant with a fair hearing complying with the

requirements of Article 6 para. 1 (Art. 6-1) of the Convention. Nor in

these circumstances does it appear that the principle of the

presumption of innocence was infringed during the proceedings.

     The Commission therefore finds that there was no appearance of

a violation of Article 6 paras. 1 or  2 (Art. 6-1, 6-2) of the

Convention. It follows that the application should be rejected as

manifestly ill-founded pursuant to Article 27 para. 2 (Art. 27-2) of

the Convention.

     For these reasons, the Commission, unanimously,

     DECLARES THE APPLICATION INADMISSIBLE.

  M.F. BUQUICCHIO                            M.P. PELLONPÄÄ

     Secretary                                  President

to the First Chamber                      of the First Chamber

 

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