SIMSEK v. THE UNITED KINGDOM

FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 43471/98
by Muslum SIMSEK
against the United Kingdom

The European Court of Human Rights (First Section), sitting on 9 July 2002 as a Chamber composed of

MrC.L. Rozakis, President,
MrsF. Tulkens,
SirNicolas Bratza,
MrG. Bonello,
MrE. Levits,
MrA. Kovler,
MrsE. Steiner, judges,
and Mr E. Fribergh, Section Registrar,

Having regard to the above application lodged with the European Commission of Human Rights on 2 June 1998,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the Court’s decision of 4 May 2000 to communicate the application,

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

Having deliberated, decides as follows:

THE FACTS

The applicant is a Turkish national of Kurdish origin, born in 1964, and is currently in prison in Sutton, the United Kingdom. He is represented before the Court by Mr Rose-Smith, a lawyer practising in London.

A.  The circumstances of the case

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

In September 1995 the applicant was arrested by customs’ officers and charged with conspiracy to evade the prohibition on the importation of heroin (an estimated value of 14,000,000 pounds sterling) contrary to Section 1(1) of the Criminal Law Act 1977. At the time, this was the largest ever heroin haul by British customs’ officers. The applicant was remanded in custody as a standard Category A prisoner.

His trial and the trial of his co-accused began on 12 June 1996 in the Crown Court before a jury. After approximately two weeks, some jurors reported to the Court that they believed that they were being “observed” by men of “mediterranean appearance” and one juror reported receiving suspicious telephone calls. Fearing that this was attempted jury intimidation, the trial judge ordered twenty-four hour police protection for each juror. On 24 June 1996 the trial judge, pursuant to an application by counsel for the applicant who claimed that the protection order would prejudice the applicant, discharged the jury.

The new jury was sworn in on 1 July 1996. It had the same police protection and the trial judge cautioned the jurors at the outset that they should not hold the fact of the protection order against the accused. Subsequently, it emerged that one member of the jury ran a night club in which under-cover police protection officers had reported that drugs were being taken. After an enquiry by the trial judge, that juror was discharged and the trial continued. Subsequently, the trial judge’s enquiry confirmed the protection officers’ reports that a juror indulged in “inappropriate behaviour” and that that juror also admitted to not being able to concentrate on the evidence. He was discharged and the trial continued with the 10 remaining jurors.

On 2 August 1996 the applicant was convicted by a unanimous verdict of the jury. He was sentenced to 30 years’ imprisonment and recommended for deportation thereafter.

The applicant then discovered that a prison officer who worked with Category A prisoners in the prison where he had been detained on remand was the brother-in-law of one of the jurors.

On 11 December 1996 his solicitors wrote to the prison Governor indicating that they understood that the prison officer had drawn this matter to the attention of the court and that as a result he had been moved to another part of the prison. Confirmation was requested as to whether that prison officer had ever made a statement concerning the allegation. If so, disclosure of that statement was requested and, if not, they required details of the prison officer concerned in order that such a statement could be taken. The Governor replied on 16 December 1996 stating that he did not know who the relevant officer was and requesting further information to assist the identification of the officer in question.

By letter dated 6 January 1997, the applicant’s solicitors enquired of the chief clerk of the relevant Crown Court whether the trial judge had dealt with the matter during the trial in the presence of the prosecution and in the absence of the defence. On 13 January 1997 the clerk replied stating that he had received a telephone call from the prison after the start of the second trial informing the clerk that a prison officer’s “mother-in-law” was on the applicant’s jury, that the prison officer did not have direct dealings with the applicant but certainly “worked on the same wing” but that “as a precaution” it had been agreed on the telephone that the prison officer would be transferred to another wing of the prison for the duration of the applicant’s trial. The clerk stated that he thought he recalled having mentioned it to the trial judge, but that the trial judge had no recollection of the matter. He confirmed that the matter was not raised with the prosecution in the absence of the defence.

On 21 January 1997 the applicant’s solicitors wrote to the prison giving the name of the officer (Officer S) and requesting permission to interview him. The Governor informed the applicant’s solicitors by letter dated 21 January 1997 that Officer S had decided to take legal advice and would contact the applicant’s solicitors in due course. Since the applicant’s solicitors had not heard from Officer S, they wrote to Officer S at the prison asking him to contact them. No response was forthcoming. On 24 April 1997 the applicant’s solicitors wrote to the Governor again. On 30 April 1997 the Governor replied stating that he had spoken to Officer S who had become aware that someone he knew was on the jury of a case involving prisoners from the prison, that he had advised the relevant manager within the prison who had then notified the court. Officer S had informed the Governor that he had had no contact with the relevant juror during the case and that the chief clerk of the Crown Court had advised that the matter was one for the trial judge. Officer S had also made it clear that he had no wish to discuss the matter further with the applicant’s solicitors.

On 27 May 1997 the applicant applied to the Court of Appeal for leave to appeal against conviction alleging a danger of bias and requesting a full enquiry into the facts. The single judge of the Court of Appeal did not grant leave to appeal and the matter was listed before the full Court of Appeal for directions on 4 December 1997. On 1 December 1997 the applicant’s solicitors were served with a statement of Officer S taken by two customs’ officers and dated 26 November 1997. One of those customs’ officers was the applicant’s case officer and both officers were prosecution witnesses. A Security Information Report dated 5 July 1996 was annexed to the statement. Both the statement and the Report were before the Court of Appeal on 4 December 1997.

In the statement, Officer S pointed out that he had been a prison officer at the relevant prison since 1994. His statement continued as follows:

“I am a Discipline Officer on a Residential House Block which involves the supervision, security and welfare of the inmates within the House Block. Until 9 July 1996 I worked on House Block Number 1, a House Block containing three small wings, each wing containing approximately sixty inmates. From 9 July 1996 I was transferred to a Special Secure Unit which is ... for holding exceptional risk category A inmates. I was given three months notice of this transfer which is standard prison procedure.

I have been asked today by [a customs officer] if I know [the applicant and his co-accused] in relation to having been detained in [the relevant prison]. I can remember [the applicant and his co-accused] arriving as remand prisoners sometime in 1995. All four were on remand in my residential House Block, as standard category A prisoners. During their period of remand I had no knowledge as to what offences they had allegedly committed. I had no close contact with any of them apart from the necessary duties I had to perform as a Prison Officer.”

Officer S went on to explain that he had been driving home on 4 July 1996 and that he had overtaken his brother and his common-law wife. The following day his mother told him that he should not have done so, since his sister-in-law was on jury service and had policemen with her twenty-four hours a day. Officer S asked his mother at which court the trial was taking place and when the trial had started so that he could check whether any inmates on his House Block were involved in the trial. His statement continued:

“I went to work the next day [5 July 1996] and asked if any new trials had started at [the Crown Court] on Monday. I was told that no new trials had started. Later that day I went to the Special Secure Unit to pick up my new shift pattern as I was due to start there on the following Sunday. Whilst I was there I noticed that the personal files relating to [the applicant and his co-accused] were in the Special Secure Unit. When I asked another Officer why he had the files he told me they had been upgraded to high risk category A due to possible interference with the jury at [the relevant court]. At this point I became aware that my sister-in-law could possibly be on the jury. I immediately informed my line manager and filled in a Security Information Report. As a result of this report, in line with standard prison procedure, I had no further contact with any of the inmates. On 8 July 1996 I was informed by [a senior officer] that as long as I had no involvement with the escort or supervision of the inmates that it would not be a problem”.

The statement noted that, having filed the Security Information Report, Officer S had requested his mother to inform his brother and sister-in-law that it would be best if they had no contact until his sister-in-law had finished jury service. His statement continued:

“As a result of this I neither saw nor spoke to [my brother or sister-in-law] during the course of the trial. ... I have had no further contact with [the applicant and his co-accused]. At no point have I discussed details of this case with members of my family.”

The Security Information Report of 5 July 1996 was entitled “Family possibly on jury of Cat “A” Honz and co-defendants” and reads as follows:

“Sir. I have found out through my mother that my brother’s common law wife is on a police protected jury at ... Crown Court. This [is] possibly the case involving Cat “A” Honz and co-defendants. Although from 7 July I will be moving to the Cat “19” unit, while on Block House One I have not worked with the above inmates since the trial started. My future sister-in-law does not know about my work and I have not seen or spoken to her whilst she has been on jury service. I do not think it should affect her service but I will not contact her until the service is ended just in case.”

On 8 July 1996 a prison officer added the following to the report:

“08.07.96 I rang and spoke to the deputy chief clerk about the matter. He claims as long as [Officer S] is not placed on the escort or works in their residential areas there should not be a problem. I pointed out that perhaps the prosecution should be informed but [the clerk] said that it was a matter for the judge. He asked me to pass on his thanks for [Officer S]’s discretion, but concluded by stating that the trial would remain unaffected.”

At the hearing on 4 December 1997, the applicant contested the accuracy of Officer S’s statement. He requested a statement from the relevant juror, the trial judge’s confirmation as to whether he was informed by his clerk of the matter, the disclosure of his security information file relating to his category A status together with a copy of the rules governing access to such files by prison officers, the right to cross-examine Officer S and the number of prison officers on the relevant House Block at the time of his remand.

The Court of Appeal refused leave to appeal against conviction. Its judgment read, insofar as relevant, as follows:

“There is one ground ... that relates to a curious set of circumstances which came to light during the course of the trial. A prison officer from whom a statement has been obtained, [Officer S], had a brother and [Officer S’s] brother had a lady friend who was a member of the jury. That came to the notice of [Officer S] coincidentally one evening when [Officer S] was driving home and overtook his brother’s car. He then received a telephone call from his mother who said that he should not have overtaken the other car because the jury were being protected by the police and the brother’s car was under police protection. In those circumstances [Officer S] took the very proper step of reporting the matter to his line manager. There was no contact as far as one can see whatsoever between the prison officer and [the juror] and the case proceeded in the normal way to its conclusion. What is now suggested is that there should be further enquiries. Already there have been substantial enquiries: a statement has been obtained from [Officer S]; the matter was reported by the line manager to those above him; the matter went to [the] Crown Court at which the hearing was taking place; it was brought to the attention of [the Chief Clerk] and there is a letter from him which indicates to the best of his recollection he brought it to the attention of the judge. In our judgment there is not the slightest reason to grant leave to appeal in respect of that aspect of this matter because there is no reason whatever to think that there is anything further to enquire into and leave is therefore refused.”

The Court of Appeal confirmed there was no power to refer the matter to the House of Lords.

B.  Relevant domestic law and practice

1.  The respective roles of the trial judge and jury

The trial judge is the arbiter of matters of law. He must ensure that the trial is properly and fairly conducted according to law.  He is required at the end of a trial, inter alia, to sum up the evidence, to remind jurors of their duties and functions, to explain any law which the jury is required to apply, to direct the jury on the onus and burden of proof, to ask the jury to reach a verdict on the evidence they have heard and to direct them not to speculate about evidence they have not heard nor to allow matters which do not form part of the admissible evidence in the case to affect their decisions.

The jury is the sole arbiter of fact and it does not give reasons for its decisions.

All those registered on the electoral roll are eligible for jury service subject to the provisions of the Jury Act 1974. Potential jurors are selected at random from the electoral roll and once selected are required to attend for jury service. Of those potential jurors selected to attend a particular Crown Court, a number of those are again selected at random to form a panel of potential jurors (normally 15-20) at the beginning of each jury trial.

The clerk of the court then calls out (from cards, which have been shuffled, containing each potential juror’s name) the names of 12 jurors who then, in the presence of the defendants, each take an oath or affirm that they will “faithfully try the defendant/s and give a true verdict according to the evidence”. Challenges to one or all of the jurors can be made before they are sworn in on the grounds of presumed or actual partiality. In cases of exceptional public importance (involving national security or terrorist issues), “jury checks” can be carried out according to fixed guidelines. A trial judge may also, when it appears that the interests of justice require it to avoid bias or prejudice, ask the jury questions designed to ascertain whether they have any personal connection with, for example, the defendant’s occupation or the factual circumstances of the case.

Every Crown Court jury starts with twelve jurors. However, individual jurors may subsequently be discharged during the trial, but the number of jurors must not fall below nine. Where ten jurors remain, the verdict need not be unanimous: a verdict agreed by nine of those jurors will be sufficient.

2.  Secrecy of jury deliberations

Where an application to discharge a juror on the ground of misconduct or bias is made, it is established in English statute and common law that enquiries or investigations should not be made into what is said in the jury room after the jury have retired (R. v. Orgles [1994] 1 Weekly Law Reports 108).

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. In the case of R v. Youngs (S.) ([1995] 2 Cr.App.R 379), the Court of Appeal stated that section 8 prevented any court from investigating the deliberations of a jury, Lord Taylor C.J. considering that section 8 was drafted in the widest terms and contained no exceptions.

The Court of Appeal has confirmed that it will not enquire into what occurred in the jury room while the jury were considering their verdict. In R v. Miah and Akhbar ([1997] 2 Cr.App.R 12), the Court of Appeal were considering a submission by the appellants that an enquiry be ordered where a juror had indirectly approached the appellants alleging irregularities concerning other jurors. Kennedy L.J. stated that it was a settled rule of long standing that an appellate court would not receive evidence from jurors about their discussions in cases in which they were jurors. The reasons for this had been outlined in an older case (Ellis v. Deer (1992) 2 KB 113): on the one hand, it was to secure the finality of jury decisions and, on the other, to protect the jurors themselves and prevent them from being exposed to pressure to explain the reasons which led them to their verdict. It was a principle which it was of the highest importance to maintain in the interests of justice.

3.  Evidence in the Court of Appeal

Section 23 of the Criminal Appeal Act 1968 provides, in so far as relevant, as follows:

“(1) For the purposes of this part of this Act, the Court of Appeal may, if they think it necessary or expedient in the interests of justice –

(a)  order the production of documents, exhibits or other thing connected to the proceedings, the production of which appears necessary for the determination of the case;

(b)  order any witness who would have been a compellable witness in the proceedings from which the appeal lies to attend for examination and be examined before the Court whether or not he was called in active proceedings; and

(c)  receive any evidence which was not adduced in the proceedings from which the appeal lies.

(2)  The Court of Appeal shall, in considering whether to receive any evidence have regard in particular to:

(a)  whether the evidence appears to the Court to be capable of belief;

(b)  whether it appears to the Court that the evidence may afford any ground for allowing the appeal;

(c)  whether the evidence would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal;

(d)  whether there is reasonable explanation for the failure to adduce the evidence in these proceedings.

...

(4)  For the purposes of this part of the Act, the Court of Appeal may, if they think it necessary or expedient in the interests of justice, order the examination of any witness where attendance might be required under sub-section 1(b) above to be conducted in a manner provided by the rules of the Court, before any judge or officer of the Court or other person appointed by the Court for the purpose, and allow the admission of any deposition so taken as evidence before the Court.”

4.  The law on bias

In the case of R v. Gough ([1993] 2 All England Law Reports 724) the House of Lords re-stated and clarified the law on bias which was applicable at the time of the conviction of the applicant. 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, the trial judge 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 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.”

Lord Woolf added that:

“It must be remembered that except in the rare case where actual bias is alleged, the Court is not concerned to investigate whether or not bias has been established. Whether it is a Judge, a member of the jury, Justices or their clerk who is alleged to be biased, the Crown do not regard it as being desirable or useful to inquire into the individual’s state of mind. It is not desirable because of the confidential nature of the judicial decision-making process. It is not useful because the Court have long recognised that bias operates in such an individual manner that the person alleged to be biased may be quite unconscious of its effect. It is because the Court in the majority of cases does not inquire whether actual bias exists that the maxim that justice must not only be done but seen to be done applies.”     

In the case of R v. Wilson and Sprason (Court of Appeal judgment reported in the Times on 24 February 1995), it was held that there was a real danger of bias when one of the jurors was the wife of a prison officer who was employed at the prison where the defendants were on remand. That officer worked in close liaison with one of the defendants in the trial in the prison kitchen throughout the defendant’s remand and trial, the defendant knew the officer by his nickname and had given the officer a handmade wooden box which the officer had given to his wife, the juror. During the trial the officer had come to collect his wife on at least one occasion and during the trial they lived together. The Court of Appeal took evidence from the relevant juror and prison officer.

5.  Security categorisation of prisoners

Section 47 of the Prison Act 1952 allows the Secretary of State to make rules for the management of prisons and other penal institutions and the Prison Rules 1964 were made pursuant to those powers. Rule 3(1) of those Rules provides that prisoners shall be classified in accordance with any directions of the Secretary of State having regard to their age, temperament and record, and with a view to maintaining good order and facilitating training. Category A prisoners are defined as those whose escape would be highly dangerous to the public, or to the police, or to the security of the State, no matter how unlikely that escape might be and for whom the aim must be to make escape impossible.

Guidance for prison staff as to the categorisation procedure is set out in section 36 of the Prison Service Security Manual. On reception of a prisoner, prison staff are required to identify those prisoners charged with listed serious offences. They must then contact the police officer in charge of the case to obtain information about the offence with which the prisoner is charged, together with the prisoner’s dangerousness and escape potential. Having obtained this information, the staff are required to report to Prison Service Headquarters those prisoners charged with the aforesaid offences which meet any one or more of a list of specified criteria set out in section 36.5, which criteria can include indications by the arresting authorities, inter alia, that an offender is charged with serious drug importation offences. A decision is then taken on whether the prisoner will be provisionally categorised as category A, which categorisation is then subject to confirmation by the Custody Group of the Home Office Prison Department.

COMPLAINTS

The applicant complains under Article 6 of the Convention that he did not receive a fair trial by an impartial tribunal because of the fact that one of the jurors was the sister-in-law of a prison officer in the prison in which he had been remanded prior to and during his trial. Moreover, the statement of the officer before the Court of Appeal was not agreed evidence and could not be tested by the applicant in cross-examination or by the examination of other documents or witnesses.

THE LAW

A.  The parties’ submissions

The Government contend that there has been no breach of Article 6. They argue that domestic law provides adequate procedural safeguards to ensure fairness and prevent bias and, in this respect, the proceedings must be considered as a whole, including the appeal. In the present case, there was no evidence of subjective partiality nor circumstances raising objectively justifiable doubts as to the partiality of the juror.

In this latter respect, the Government rely on certain matters. There was no contact between Officer S and the juror, Officer S had not worked with the applicant since the beginning of the trial, he did not know with which offence the applicant had been charged, there was no suggestion that he knew why the applicant was a category A prisoner and the applicant was 1 of 180 prisoners in the relevant House Block. As soon as Officer S had discovered that his sister-in-law was a juror, he and his senior officers made every effort to ensure that there was no actual or perceived bias - he filed a Security Information Report, he was moved to another wing of the prison and a senior prison officer then raised the matter with the court clerk. The court clerk is sure that he passed the information on to the trial judge.

Furthermore, the trial itself had a number of safeguards: the juror was one of 10 jurors; each juror had sworn an oath; all were under police protection and were warned that that protection was not to prejudice them against the applicant; they were directed to reach a verdict on the evidence only; there was no reason to believe that they would have disregarded their oath or the judge’s direction; and the verdict was unanimous.

Moreover, the Government point out that the Court of Appeal had before it, inter alia, the Security Information Report, the consistent statement of November 1997 of Officer S and the letter of the court clerk of January 1997. That court concluded that there was clearly no evidence of bias (subjective or objective) or any reason whatsoever to investigate further. The applicant was represented and oral argument was heard.

Finally, there was no violation of Article 6 § 3(d) in respect of reliance by the Court of Appeal on the statement of Officer S. Article 6 does not prevent the taking of statements from witnesses to a potentially collateral issue in the case nor does it prevent the appellate court from considering such statements. The principle of the inviolability of jury deliberations is not inconsistent with that Article.

The applicant points out that he was a category A prisoner in the relevant prison both before and during the trial, that he was one of the accused in a notorious trial, that the jury was under 24-hour police protection, that the prison officers were aware that the first jury had been discharged even if the second jury were supposedly unaware of that fact and that a prison officer would have had access to security information concerning the reasons for his category A status which were likely to have been prejudicial. According to Officer S’s statement, his move to another wing of the prison had already been initiated three months prior to the date on which it was effected.

Despite this, the tests for subjective and objective bias, in domestic and the Convention law were not satisfied and the domestic safeguards were vitiated, by the failure to hold an enquiry at first instance and the inadequate enquiry carried out by the Court of Appeal, a review carried out contrary to the guarantee of equality of arms contained in Article 6 of the Convention.

As to subjective partiality, the mechanics of the jury system are such that a manifestation of subjective partiality is unlikely.

As to objective partiality, it was unlikely that the trial judge had been informed by his clerk of the matter: he had already held two enquiries which led to the withdrawal of two other jurors and would surely have raised the matter concerning the prison officer in court had he been appropriately informed by his clerk. The Court of Appeal relied heavily on the statement of Officer S. However, the veracity of that statement was and is disputed and has never been verified, it was taken by two prosecution witnesses (customs’ officers), it was not admitted under section 23 of the Criminal Appeal Act 1968 and the officer was not the subject of cross-examination. Indeed, Officer S refused to give a statement to the applicant and felt the need to take legal advice before making it. This process was fundamentally unequal and hardly therefore capable of allaying doubts as to the impartiality of a jury. Further, it is this disputed statement on which the Government rely to argue that there was no subjective or objective bias.

The applicant notes that in the Pullar case (Pullar v. the United Kingdom judgment of 10 September 1996, Reports of Judgments and Decisions, 1996-III, no. 11), the statement before the appellate court was not disputed.

B.  The Court’s assessment

The applicant initially complained under Article 6 §§ 1 and 3(d) of the Convention that he did not receive a fair trial by an impartial tribunal given the presence on the jury of the sister-in-law of Officer S. The Court notes that, the applicant now confirms that he does not maintain a separate complaint of a violation of Article 6 § 3(d) in respect of the Court of Appeal’s reliance on the statement of Officer S. Rather his argument about that matter forms part of complaint about a violation of the impartiality guarantees of Article 6 § 1 of the Convention.

Article 6 § 1, in so far as relevant, read as follows:

“1.  In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing ... by an independent and impartial tribunal ... .”

It is not disputed that the present case concerns the determination of a criminal charge and that Article 6 § 1 is therefore applicable. Similarly, it is common ground that the jury which convicted the applicant formed part of a “tribunal” within the meaning of that Article (Holm v. Sweden judgment of 25 November 1993, Series A no. 279-A). It therefore remains only to be decided whether the jury constituted an “independent and impartial” tribunal. The Court considers that the concepts of independence and impartiality are closely related, but that in this case it is more appropriate to examine the applicant’s complaints in relation to impartiality. Indeed it is in such terms that the applicant makes his complaint.

It is well established in the case-law of the Court that there are two aspects to the requirement of impartiality in Article 6 § 1.  In the first place, the tribunal must be subjectively impartial, that is, no member of the tribunal should hold any personal prejudice or bias. Personal impartiality is to be presumed unless there is evidence to the contrary. Secondly, the tribunal must also be impartial from an objective viewpoint, that is, it must offer sufficient guarantees to exclude any legitimate doubt in this respect (the above-cited Pullar judgment, § 30).

With regard to the first aspect, the applicant does not appear to suggest that there is evidence of personal partiality on the part of the juror in question. However, he does submit that the mechanics of the jury system in the United Kingdom are such that subjective impartiality can never be discovered or can only be discovered with difficulty. The Government maintain that the presumption of personal impartiality should apply.

The Court recalls that the principle that a tribunal shall be presumed to be free of personal prejudice or partiality is long established in the case-law of the Court (Le Compte, Van Leuven and De Meyere v. Belgium judgment of 23 June 1981, Series A no. 43, § 58 and, more recently, Sander v. the United Kingdom, no. 34129/96 (Sect. 3) (bil.), ECHR 2000-V). It reflects an important element of the rule of law, namely that the verdicts of a tribunal, including a jury, should be final and binding unless set aside by a superior court on the basis of irregularity or unfairness. It is also recalled that Mr Pullar, in his case cited above, made the same argument in respect of the Scottish jury system which applied the same principles of inviolability of jury deliberations and where the jury, as in the present case, did not give reasons for their findings. Mr Pullar argued that “there were no practicable or legal means open to him by which to adduce any evidence in rebuttal of the presumption.” In its judgment in that case, the Court responded (at § 32) that, although in some cases it may be difficult to procure evidence with which to rebut the presumption, the requirement of objective impartiality provides a further important guarantee. The Court does not find any reason to find differently in the present case and therefore turns to consider the requirement of objective partiality.

The applicant’s misgivings as to the impartiality of the tribunal were based on the fact that a juror was a sister-in-law of Officer S, the latter being a prison officer in the prison where the applicant had been detained as a Category A prisoner prior to and during his trial. Understandably, this type of connection might give rise to some anxiety on the part of an accused (see, mutatis mutandis, the Sramek v. Austria judgment of 22 October 1984, Series A no. 84, §§ 41-42). However, the view taken by the accused with regard to the impartiality of the tribunal cannot be regarded as conclusive.  What is decisive is whether, in the absence of any evidence of actual or subjective bias on the part of one or more jurors and given the impossibility of making an enquiry with the jury, there were, in the circumstances, sufficient guarantees to exclude any objectively justified or legitimate misgivings as to the impartiality of the jury bearing in mind that the standpoint of the accused, although important, cannot be decisive for its determination (Remli v. France judgment of 23 April 1996, Reports 1996-II, no. 8, p. 574, § 46, and the Gregory v. the United Kingdom judgment of 25 February 1997, Reports 1997-I, no. 31, p. 318, § 45).

While the principle of impartiality is an important element in support of the confidence which the courts must inspire in a democratic society (the above-mentioned Sramek judgment, § 42), it does not necessarily follow from the fact that a member of a tribunal, a juror, has a family connection with one of the prison officer’s in charge of the applicant while on remand that he will be prejudiced against the applicant. In each individual case it must be decided whether the familiarity in question is of such a nature and degree as to indicate a lack of impartiality on the part of the tribunal.

In this latter respect, Officer S worked in a House Block in which the applicant was placed as a standard Category A remand prisoner prior to and during his trial. While some prejudicial connections could in principle arise from events prior to a trial, the present applicant’s misgivings about that period are based on a number of weak suppositions – that, prior to the trial and importantly prior to the relevant juror’s appointment to the jury, Officer S had any specific and prejudicial knowledge of the applicant who was one of 180 prisoners on that House Block; and that he would have had a reason to mention that particular prisoner to his sister-in-law; and that she would have had a reason to retain any such information. Such suppositions are not, in the Court’s view, strong enough to constitute an objective risk to the impartiality of the jury.

As to events taking place during the trial period itself namely, after the relevant juror’s appointment to the jury, the Court notes the following matters can be gleaned solely from the Security Information Report of 5 July 1996, a report which, significantly, was contemporaneously prepared by Officer S and completed by his senior officer. In the first place, the very filing of this report by Officer S is demonstrative of a keen awareness on his part of the importance jury impartiality and of taking all essential and immediate steps in pursuit of that objective. Accordingly, as soon as Officer S discovered that his sister-in-law was a juror, he filed a relatively detailed Security Information Report with his line manager in the prison. Although he had been on a House Block when the applicant was detained as a remand prisoner, he stated that he had not worked with the applicant since the trial started or spoken to his sister. His senior officer then raised the matter with the relevant court clerk and the Security Information Report noted the clerk’s opinion that there should be no problem so long as Officer S did not escort or work in the prison with applicant. The clerk’s letter of 13 January 1997 clarified that it had been agreed between the clerk and the senior prison officer that Officer S would be moved to a wing of the prison different to that where the applicant was detained.

It is true that there had been sensitive jury issues which led to twenty-four hour juror protection and the discharge of two other jurors. However, those issues were totally unrelated to the matter raised by the applicant in the present case.

In addition, the Court in the above-cited Pullar judgment (at § 40) considered the following matters to constitute important safeguards: the juror in question was one of a number of jurors (in the Pullar case itself, fifteen); all jurors were selected at random from amongst the population; the jury were directed by the trial judge that they should make their decisions on the basis of the evidence before them; and all of the jurors took an oath to that effect.

The present applicant, however, considers that these safeguards were vitiated by the absence of any enquiry involving the parties during the trial. In the view of the Court it would by no means be decisive even if one could conclude that the trial judge would have conducted an enquiry had he been informed of the connection between Officer S and the juror. As also pointed out in the above-cited Pullar case (at § 36), it is natural that a trial judge should strive to ensure that the composition of the jury is beyond any reproach whatsoever, at a time when this is still possible, before or during the course of the trial. However, once the trial is over and a verdict is rendered, it is material to consider rather whether the juror’s continued presence on the jury constituted a defect grave enough to justify setting aside that verdict.

The applicant therefore argues that the review of the Court of Appeal was inadequate, thereby undermining its value as a safeguard and rendering his misgivings objectively justified. The Court disagrees. Domestic law may have permitted, on appeal, the admission into evidence of the documentation and information requested by the applicant and allowed the cross-examination of Officer S. Nevertheless, the factual matters outlined above and drawn from the contemporaneous Security Information Report were before the Court of Appeal. While the applicant contests the statement of Officer S on which the Court of Appeal relied, it is noted that that statement was perfectly consistent with the contents of the prior Security Information Report. In so far as the statement contained additional clarifying material (particularly concerning how he became aware of his sister-in-law’s presence on the jury and how he asked his mother to inform his sister-in-law that they should continue not to have any contact during the trial) those explanations are perfectly plausible, completely consistent with the officer’s actions on 5 July 1996 and are not of such a nature as to warrant further enquiry.

One factual issue was not clarified before the Court of Appeal or before this Court: it is not clear to where in the prison Officer S was transferred after filing the Security Information Report on 5 July 1996. The Government submit, without more, that Officer S was moved to “another wing” of the prison and, while the applicant notes that Officer S was due to move to the Special Secure Unit, Officer S’s statement of 26 November 1997 implies that the applicant was also due to be transferred to the same unit. However, given the precautionary steps spontaneously taken by Officer S and his superior in July 1996 and the consequent agreement with the Court clerk (outlined above) that Officer S would not thereafter work with the applicant, there was no reason why the Court of Appeal should look behind Officer S’s confirmation in his statement of November 1997 that he had no further contact with the applicant in the prison. Indeed, the Court notes that the applicant does not submit that Officer S worked with him after 5 July 1996.

In such circumstances, the Court does not consider that the Court of Appeal’s conclusion, that it was unnecessary to carry out a further enquiry as requested by the applicant, lends any support to his reservations about the impartiality of the jury or undermines the value of the Court of Appeal review.

Accordingly, the applicant’s misgivings about the impartiality of the tribunal which tried him cannot be regarded as being objectively justified. His complaint under Article 6 § 1 of the Convention must therefore be declared inadmissible as manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

  Erik FriberghChristos rozakis
RegistrarPresident

Full & Egal Universal Law Academy