ROBERTS v. THE UNITED KINGDOM

FIRST SECTION

DECISION

Application no. 59703/13
Lee Anthony ROBERTS
against the United Kingdom

The European Court of Human Rights (First Section), sitting on 5 January 2016 as a Chamber composed of:

Mirjana Lazarova Trajkovska, President,
Kristina Pardalos,
Linos-Alexandre Sicilianos,
Paul Mahoney,
Aleš Pejchal,
Robert Spano,
Armen Harutyunyan, judges
and André Wampach, Deputy Section Registrar,

Having regard to the above application lodged on 17 September 2013,

Having rega

rd to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Lee Anthony Roberts, is a British national, who was born in 1975 and is currently detained at HM Prison Grendon in Aylesbury. He was represented before the Court by B. Richardson of CM Solicitors, a firm of lawyers based in Manchester. The respondent Government were represented by their Agent, Ms A. McLeod, of the Foreign and Commonwealth Office.

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

The background facts

(a) The applicant’s trial in the Crown Court

2. On the afternoon of 15 March 2011 the applicant attacked D.W., stabbing him several times. He was charged with attempted murder and his trial took place in April 2011 in the Crown Court before a jury. Before the trial commenced, the jury were shown a video about their role as jurors, setting out what they should and should not do. At the start of the trial, the judge reiterated the instructions given in the video and expressly instructed the jury members that they should not look up information relevant to the case on the Internet.

3. The applicant’s defence at trial was that although he had intended to cause serious bodily injury to D.W. he had not intended to kill him. Whether he had intent to kill was therefore the only contested issue.

4. The trial judge’s summing-up and directions to the jury set out in detail the factors that the jury was required to take into account when deciding whether the prosecution had proved that the wounding was done with intent to kill. The jury then retired to consider its verdict. No verdict was reached that day and the jury was sent home for the evening.

5. The next morning the jury members sent the judge a note which read:

“Can the judge give the jury any guidance on the factors to be taken into account in deciding whether the defendant intended to murder D.W. with particular onus on the definition of intent?”

6. With the agreement of counsel for the prosecution and the defence, the judge gave the jury a written extract from the relevant section of her summing-up where she had discussed intent. The judge also read the passage out to the jury members. She gave additional details at some length as to the circumstances that needed to be considered.

7. On 19 April 2011 the applicant was convicted of attempted murder by a majority verdict of the jury (ten jurors to two). On 23 September 2011 he was sentenced to indefinite imprisonment for public protection with a minimum term of seven years’ imprisonment, less time spent on remand.

(b) The appeal to the Court of Appeal (Criminal Division)

8. Meanwhile, on 21 September 2011, A.O., who had been a juror at the trial, sent an email to the Crown Court alleging a number of shortcomings in the conduct of his fellow jurors. In particular, he alleged that information had been obtained from the Internet by three jurors and had been disclosed to fellow jurors. The trial judge informed counsel for the prosecution and the defence that allegations of jury irregularities had been made by a juror.

9. The applicant subsequently sought leave to appeal his conviction and sentence, alleging that his trial was unfair on account of significant jury irregularities. On 13 January 2012 the Court of Appeal directed that the Criminal Cases Review Commission (“CCRC”) be asked to investigate the allegations.

10. The CCRC interviewed the jurors in the case. A.O. claimed that Juror C, the foreman and a solicitor, had researched sentencing tariffs in similar cases and had shared the information he had discovered with his fellow jurors. In its report of 12 February 2013 the CCRC summarised statements from three other jurors alleging that the jury foreman had looked up the definition of “attempted murder”, had looked at information concerning the question of intent and had looked up the sentencing guidelines for attempted murder. Seven of the jurors had no recollection of the alleged improper conduct having taken place. None of the jurors supported the claim that two further jurors had undertaken Internet research.

11. The CCRC subsequently interviewed the jury foreman under caution. After receiving legal advice, the jury foreman gave a prepared statement and refused to answer questions. In his statement he confirmed that there had been some uncertainty as to the law on intent, for which further direction had been required from and provided by the trial judge; and that the issue of possible sentences had arisen. The statement neither confirmed nor denied that the foreman had conducted Internet searches relating to the case.

12. The CCRC report noted that A.O.’s allegations in interview appeared to be not “quite so stark” as those made in his initial email. It further noted that there was no support for the majority of his allegations. However, it accepted that there was some corroboration for the more general allegations that the jury foreman had conducted case-related research on either the question of the differing elements of intent as between the offences under consideration, or the different sentences which might arise, and had provided information to his fellow jurors.

13. On 1 July 2013 the Court of Appeal granted leave to appeal against conviction and refused leave to appeal against sentence.

14. In its judgment on the merits of the appeal against conviction, the court noted that the summing-up by the trial judge had been “impeccable” and had not been criticised by the applicant. The court referred to the jury’s question during deliberations regarding the law on intent and noted that the trial judge’s response was very thorough and that the jury could not have had any doubt as to the correct directions in law and the factors to which they were required to have regard.

15. The court agreed with the parties that it should proceed on the basis that an irregularity had occurred at trial. It considered that two matters had to be examined: first, the information introduced to the jury in relation to the requirements to establish the intent to kill; and second, the information introduced concerning applicable sentences.

16. As to the former, the Court of Appeal considered it inconceivable that the jury members would have paid any attention whatsoever to what had been said by the foreman after the judge had handed them the answers to the questions they posed. The court rejected the applicant’s submission that it could not be presumed in his case that the jurors would follow directions. Had the judge not handed a direction to the jury, there might have been some doubt but considering the timing, the probabilities and the care with which the judge provided a written document to the jury, the court had no doubt whatever that the jury followed the direction of the judge and ignored what the foreman of the jury had said.

17. On the question of what was said regarding sentencing guidelines, the Court of Appeal accepted that it should bear in mind the potential effect that a jury knowing the range of sentences could have on their attitude towards conviction. However, it continued:

“35. But we must look at the reality of this case. As we have explained, there was one narrow issue before the jury, namely whether the Crown had proved, in addition to the intent to cause really serious bodily injury ... an intent to kill. It must have been obvious to the jury that the reason why the Crown was proceeding with the trial was that they did not consider that a plea to wounding with intent was sufficient to enable the judge to pass a severe enough sentence. It must have been obvious to the jury that by proceeding to seek a verdict on the count of attempted murder, the Crown were interested in establishing the more serious offence, so that the punishment could be the more serious. Thus, the fact that the foreman explained to the jury that sentences for attempted murder were more serious than for wounding with intent cannot have any effect ...

36. It seems to us that it must have been obvious to the jury that they were tasked with deciding whether the Crown had proved the intent to kill, that if they did so the sentence would be more severe and therefore the introduction by the foreman of that further material can have had no material effect upon their decision to convict ...”

18. For these reasons, the court dismissed the appeal against conviction.

(c) Counsel’s advice on appeal

19. The applicant did not ask the Court of Appeal to certify a question of general public importance to enable him to apply for leave to appeal to the Supreme Court.

20. The applicant provided a copy of counsel’s advice dated 14 March 2014. The advice explained:

“At the hearing of the appeal it was accepted ... that extraneous material had been introduced into the jury’s deliberations, and that the material related at least in part to the ingredients of the offence of attempted murder. There was no dispute as to the relevant law. It was accepted that the introduction of such material prima facie constituted a material irregularity in the trial process. The issue to be determined on appeal was whether that irregularity affected the safety of the appellant’s conviction.

Following full argument, [the Court of Appeal] expressed the opinion that the appeal concerned the fact-specific issue of considering whether, in the light of the admitted irregularities, the appellant’s conviction was safe ...

The issue at appeal ... was wholly fact-specific ... As there was no dispute between the parties on any point of law it was not possible to request a certification of a point of law of general public importance, and I regret to inform Mr Roberts that there are no further domestic avenues of appeal.”

B. Relevant domestic law and practice

1. Instructions and directions to the jury

21. Upon responding to a summons, jury members are sent a leaflet called “Your Guide to Jury Service”. The leaflet explains that jurors’ discussions are private and that jurors should not discuss any aspects of the trial with anyone other than fellow jurors. It sets out that the verdict must be that of the jurors alone and reminds jurors that their role is to reach a verdict on the evidence presented in the court room at trial. The leaflet also notes that it is an offence for anyone outside the jury to try and influence them.

22. Once selected for jury duty, jurors must swear an oath or affirmation that they will:

“faithfully try the defendant and give a true verdict according to the evidence.”

23. At the outset of the trial, the jury are conventionally given a direction to the effect that they must try the case on the evidence alone, which is what they hear in court. They are instructed that they must not discuss the case with family, friends or anyone else or conduct their own research into the case.

2. Investigation of irregularities after a verdict has been given

24. The rule governing the secrecy of jury deliberations is set out in the Contempt of Court Act 1981. Section 8(1) of the Act 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.

25. Section 23A of the Criminal Appeals Act 1968 enables the Court of Appeal to direct the CCRC, in the context of an appeal against conviction, to investigate and report to the court on any matter deemed relevant to the resolution of the appeal.

26. In R. v Thompson and others [2010] EWCA Crim 1623, the Court of Appeal, addressing the matter of jury irregularities, explained:

“2. Much more difficult problems arise when after the verdict has been returned, attention is drawn to alleged irregularities. This may take the form of a complaint from a defendant, or his solicitors, or in a very few cases it may emerge from one or more jurors, or indeed from information revealed by the jury bailiff. It is then beyond the jurisdiction of the trial judge to intervene. Responsibility for investigating any irregularity must be assumed by this court. In performing its responsibilities, it is bound to apply the principle that the deliberations of the jury are confidential. Except with the authority of the trial judge during the trial, or this court after the verdict, inquiries into jury deliberations are “forbidden territory” ... If any complaint about jury deliberations is received by the trial court after verdict it is immediately referred to this court and whether the complaint has been received from the court of trial or by this court directly, the practice is to examine each case to see whether or not, exceptionally, further inquiries ought to be made, and if so, to invite the assistance of the Criminal Cases Review Commission to conduct the necessary inquiry.”

27. The court confirmed that the rule that jury deliberations were confidential was subject to two narrow exceptions. The first arose if it emerged that there might have been a complete repudiation of the oath taken by the jurors to try the case according to the evidence (for example, a decision arrived at by the toss of a coin). The second exception arose in cases where extraneous material had been introduced into the jury deliberations. Where the complaint was made that the jury had considered non-evidential material, the court was entitled to examine the evidence (possibly after investigation by the CCRC) to ascertain the facts.

3. Appeals in criminal cases

28. Section 1 of the Criminal Appeal Act 1968 (as amended) provides that a person convicted of an offence on indictment may appeal to the Court of Appeal against his conviction. An appeal can only proceed with the leave of the Court of Appeal or if the judge of the court of trial grants a certificate that the case is fit for appeal.

29. Section 2(1) of the 1968 Act provides that the Court of Appeal:

“(a) shall allow an appeal against conviction if they think that the conviction is unsafe; and

(b) shall dismiss such an appeal in any other case.”

30. Pursuant to section 33(1) of the 1968 Act, a defendant has the right to appeal to the Supreme Court against a decision of the Court of Appeal (Criminal Division). Section 33(2) clarifies that the leave of the Court of Appeal or the Supreme Court is required and that leave will not be granted unless it is certified by the Court of Appeal that a point of law of general public importance is involved in the decision and it appears to the Court of Appeal or the Supreme Court (as the case may be) that the point is one which ought to be considered by the latter court.

4. The Human Rights Act 1998

31. The Human Rights Act 1998 (“the 1998 Act”) incorporates the Convention into United Kingdom law. Under section 7(1) of the Act, a person who claims that a public authority has acted in a way which is incompatible with Convention rights may rely on the Convention right or rights concerned in any legal proceedings.

COMPLAINT

32. The applicant complained under Article 6 of the Convention that the introduction to the jury deliberations by the jury foreman of extraneous evidence obtained through Internet research rendered his trial unfair.

THE LAW

33. Article 35 § 1 of the Convention provides:

“The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law ...”

A. The parties’ submissions

34. The Government argued that the applicant had not exhausted all domestic remedies available to him because he had failed to seek a certificate from the Court of Appeal that a point of law of general public importance was involved in the decision. They pointed out that the applicants in K., F. and P. v. the United Kingdom, no. 10789/84, Commission decision of 11 October 1984, Decisions and Reports 40, p. 298, had failed to apply directly to the House of Lords for leave to appeal and had been advised that they had no substantial likelihood of success. The Commission had nonetheless concluded that the applicants had not exhausted available remedies under domestic law.

35. The Government refuted in particular the submission that the applicant’s appeal was too fact-specific to enable certification by the Court of Appeal. They explained that the Court of Appeal had applied the existing law, including the domestic safeguards, to the facts of the applicant’s case. If the applicant had wished to complain that the domestic safeguards were insufficient and produced a result incompatible with Article 6 § 1, he could have formulated an appropriate point of law and applied for it to be certified. The Government did not accept the applicant’s argument that the Court of Appeal was unable to examine a complaint under Article 6 of the Convention and pointed out that, under the Human Rights Act 1998, an individual could rely on Convention rights in any legal proceedings. The applicant had chosen not to frame his complaint in that way and had thus failed to exhaust a domestic remedy.

36. The applicant argued that he had exhausted all domestic remedies available to him. He contended that it had been accepted by all parties that the appeal before the Court of Appeal was held as a result of the irregularity in the trial process and that there was no argument arising as to a point of law. This prevented any application for leave to appeal to the Supreme Court or request for certification of a point of law of general public interest. He further submitted that the requirement for Article 6 to be examined by this Court arose after the decision not to quash the applicant’s conviction by the appeal courts. It was therefore not necessary to argue this point until the Court of Appeal had handed down its decision to dismiss the appeal.

B. The Court’s assessment

37. It is primordial that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights. This Court is concerned with the supervision of the implementation by Contracting States of their obligations under the Convention. It cannot, and must not, take on the role of Contracting States whose responsibility it is to ensure that the fundamental rights and freedoms enshrined therein are respected and protected on a domestic level. The rule of exhaustion of domestic remedies is therefore an indispensable part of the functioning of this system of protection. States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system and those who wish to invoke the supervisory jurisdiction of the Court as concerns complaints against a State are thus obliged to use first the remedies provided by the national legal system (see, amongst many authorities, Akdivar and Others v. Turkey, 16 September 1996, § 65, Reports of Judgments and Decisions 1996‑IV; Gough v. the United Kingdom, no. 49327/11, § 137, 28 October 2014; and and Vučković and Others v. Serbia (preliminary objection) [GC], no. 17153/11 and 29 other cases, §§ 69-70, 25 March 2014). However, the application of the rule must make due allowance for the fact that it is being applied in the context of machinery for the protection of human rights that the Contracting Parties have agreed to set up and that it must therefore be applied with some degree of flexibility and without excessive formalism (see Akdivar, cited above, § 69; Gough, cited above § 140; and Vučković and Others, cited above, § 76).

38. As stipulated in its Akdivar judgment (cited above, §§ 66-67), normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness (see also Gough, cited above § 138; and Vučković and Others, cited above, § 71).

39. As the Court also held in Akdivar (cited above, § 68), in the area of the exhaustion of domestic remedies there is a distribution of the burden of proof. It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one available in theory and in practice at the relevant time, that is to say, that it was accessible, was one which was capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success. Once this burden of proof has been satisfied, it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted or was for some reason inadequate and ineffective in the particular circumstances of the case or that there existed special circumstances absolving him from the requirement (see also Gough, cited above § 139; and Vučković and Others, cited above, § 77).

40. When deciding whether an applicant should be required to exhaust a particular remedy, the Court has held that mere doubts on his part as to its effectiveness will not absolve him from attempting it. However, an applicant is not required to use a remedy which, “according to settled legal opinion existing at the relevant time”, offers no reasonable prospects of providing redress for his complaint (see D. v. Ireland (dec.), no. 26499/02, §§ 89 and 91, 28 June 2006; and, more recently, Fox v. the United Kingdom (dec.) 61319/09, § 42 20 March 2012). The threshold for a “special circumstances” dispensation is high, and the rule has been applied in cases when legal aid was not available to bring potentially costly national proceedings (see D. v. Ireland, cited above; Cyprus v. Turkey [GC], no. 25781/94, § 352, ECHR 2001‑IV). It is an established principle, that in a legal system providing constitutional protection for fundamental rights, it is incumbent on the aggrieved individual to test the extent of that protection and, in a common law system, to allow the domestic courts to develop those rights by way of interpretation (see D. v. Ireland, cited above, § 85).

41. While it is true that the question whether a particular conviction is “safe” – the test for upholding a conviction under English law (see paragraph 29 above) – can be characterised as a “factual” question, underlying that is often a larger legal question concerning the fairness of the proceedings which might well be suitable for rehearing in the Supreme Court. It is sufficient to consider the recent case-law of this Court to find relevant examples. Thus in Hanif and Khan v. the United Kingdom, nos. 52999/08 and 61779/08, §§ 43-54, 20 December 2011, the legal issue for the Court’s consideration was whether the presence of policemen on a jury was fair, a matter which had been considered by the Supreme Court’s predecessor, the House of Lords, in R v. Abdroikof and Others [2007] UKHL 37. The question whether the denial of access to a lawyer during police interrogation rendered criminal proceedings unfair was addressed by the Supreme Court in Cadder v. HM Advocate [2010] UKSC 43, discussed in this Court’s decision in Lang and Hastie v. the United Kingdom (dec.), nos. 19/11 and 36395/11, §§ 15-17, 22 May 2012. In Horncastle and Others v. the United Kingdom, no. 4184/10, 16 December 2014, the applicants complained under Article 6 about the admission of the evidence of an absent witness (hearsay) evidence after their appeal had been dismissed by the Supreme Court in R. v. Horncastle and Others [2009] UKSC 14.

42. Before this Court, the applicant has argued that the introduction to the jury deliberations by the jury foreman of extraneous evidence obtained through Internet research rendered his trial unfair. There is no doubt that the question raised by the present application concerns a point of law under Article 6 of the Convention. The applicant has failed to provide any explanation why he did not frame his complaint in these terms before the domestic courts, invoking his Article 6 rights as he was entitled to do under the Human Rights Act 1998 (see paragraph 31 above). Counsel’s assertion that his case concerned the fact-specific issue whether, in the light of the admitted irregularities, his conviction was safe fails to recognise the larger legal question, subsequently identified by the applicant and his legal advisors, for the purposes of the application to this Court, which underlies that issue and which was potentially suitable at an earlier stage for examination by the Supreme Court. It cannot be said, on the basis of counsel’s advice, that it was “settled legal opinion” that an appeal to the Supreme Court was not capable of providing redress for the applicant’s complaint.

43. The rule of exhaustion of domestic remedies in Article 35 § 1 reflects the subsidiary role of the Convention mechanism. The Supreme Court, as the most senior court in most matters in the United Kingdom, holds a position of some responsibility in ensuring the application of the Convention in the respondent State. It would be incongruous and would undermine the principle of subsidiarity for this Court to interpret Article 35 § 1 in such a way as to render the Supreme Court legally irrelevant to the functioning of the Convention system.

44. In the circumstances, the Court is satisfied that the Government have demonstrated that the possibility for the applicant to seek certification of a point of law of general public importance in order to pursue an appeal to the Supreme Court was a remedy that was effective and available in theory and in practice at the relevant time, that is to say, that they was accessible, capable of providing redress in respect of his complaint and offered reasonable prospects of success. The applicant has failed to establish that the remedy was inadequate and ineffective in the particular circumstances of his case or that there existed special circumstances absolving him from the requirement to pursue it.

45. The Court therefore finds that the applicant has failed to exhaust domestic remedies, as required by Article 35 § 1 of the Convention and concludes that the application must be dismissed pursuant to Article 35 § 4.

For these reasons, the Court unanimously

Declares the application inadmissible.

Done in English and notified in writing on 28 January 2016.

              André WampachMirjana Lazarova Trajkovska
              Deputy RegistrarPresident

 

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