Attorney General of the Cayman Islands v Tibbetts
| Jurisdiction | UK Non-devolved |
| Judge | LORD CLARKE |
| Judgment Date | 24 March 2010 |
| Neutral Citation | [2010] UKPC 8 |
| Date | 24 March 2010 |
| Docket Number | Appeal No 0058 of 2009 |
| Court | Privy Council |
[2010] UKPC 8
Lord Saville
Lord Rodger
Lord Brown
Lord Kerr
Lord Clarke
Privy Council
Appellant
Geoffrey Robertson QC
Lucy Corrin
(Instructed by Simmons Cooper Andrew LLP)
Respondent
David Perry QC
Duncan Penny
(Instructed by Treasury Solicitors)
INTRODUCTION
Between 11 May 2004 and 3 February 2005 the appellant, Patrick Tibbetts, was tried before Smellie CJ and a jury in the Grand Court of the Cayman Islands on two counts of assisting another person to retain the benefits of the proceeds of criminal conduct or, more colloquially, of money laundering. He was convicted on both counts. His co-defendant, Denton Rowe, was acquitted on two almost identical counts. On 28 February 2005 the appellant was sentenced to three years' imprisonment on each count to run concurrently. He was given bail pending an appeal to the Court of Appeal in the Cayman Islands. On 18 November 2005 the Court of Appeal (comprising Zacca P, Taylor JA and Forte JA) dismissed his appeal against conviction. They gave their reasons on 24 January 2006.
The appellant advanced a number of grounds of appeal against the decision of the Court of Appeal but has special leave on only one ground. On 11 February 2009 the Board granted special leave on the sole ground that the verdict was infected by apparent bias on the part of one of the jurors.
The principles
Subject to one point, the principles to be applied are not in dispute. The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the jury were biased: Porter v Magill [2001] UKHL 67, [2002] 2 AC 357, per Lord Hope at paras 102 and 103. The fair-minded and informed observer must adopt a balanced approach and is to be taken as a reasonable member of the public, neither unduly complacent or naïve nor unduly cynical or suspicious: R v Abdroikof [2007] UKHL 37, [2007] 1 WLR 2679 per Lord Bingham at para 15. The appellant's case is that there is a real possibility that one of the jurors was biased in favour of one of the witnesses. It is common ground that the question to ask is whether the fair-minded and informed observer ('the putative observer'), having considered the facts, would conclude that there was a real possibility that the juror was biased, such that he might have accepted the evidence of that witness as a result. It is accepted on behalf of the respondent that, if the answer to that question is yes, the putative observer would also conclude that there is a real possibility that the jury would have done the same.
In the respondent's written case it was further suggested that in a case of this kind, where the allegation is one of partiality towards a witness (by contrast with a party) there is a further question to be asked in the event that the first two questions are answered in the affirmative, namely whether the putative observer would consider that such partiality might have affected the outcome of the trial. That suggestion was based on R v Khan and Hanif [2008] EWCA Crim 531, [2008] 2 Cr App R 161. However, in the course of the argument Mr David Perry QC accepted on behalf of the respondent that, if the first two questions are answered in the affirmative, the conviction in this case should be quashed.
In the instant case the juror was Mr Justin Uzzell and the relevant witness was Mr Johan Bjuroe. The question is whether the putative observer would conclude that Mr Uzzell might have accepted Mr Bjuroe's evidence as a result of his previous relationship with and knowledge of him. This raises the question of what is the correct approach to the observer's knowledge of the facts. It was submitted during the argument that it was for the observer, as it were, to conclude what the facts were. The Board does not accept that submission. See for example the summary of the principles by Mummery LJ (with whom Latham and Carnwath LJJ agreed) in AWG Group Ltd v Morrison [2006] EWCA Civ 6, [2006] 1 WLR 1163. He put the test in this way at para 7:
"The test … is that, having ascertained all the circumstances bearing on the suggestion that the judge was (or would be) biased, the court must ask 'whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility … that the tribunal was biased'"
It is thus for the court to ascertain the circumstances. The court must approach the issues in two stages. First, it is for the court to find the facts on the balance of probabilities. It is then for the court to decide on the balance of probabilities whether, with knowledge of the facts so found, the putative observer would conclude that Mr Uzzell might accept Mr Bjuroe's evidence as a result of his previous relationship with and knowledge of him.
It follows from the above that in a case of this kind, where the allegation is that a juror might have accepted the evidence of the witness, not for what it was but because of his or her previous relationship with or knowledge of the witness, two aspects of the matter must be investigated. The first is the nature of the juror's relationship with, or knowledge of, the witness and the second is whether that relationship or knowledge would have led the putative observer to conclude that the juror might have accepted the evidence of the witness because of it. For example, if the evidence of the witness was unchallenged, the observer would no doubt not conclude that the juror might have accepted the evidence because of his relationship with or knowledge of the witness. All depends upon the circumstances of the particular case.
The dramatis personae
The issues in this appeal have focused on the relationship between four individuals: the juror, Mr Justin Uzzell, his previous girlfriend, Ms Jennifer Dillon, the witness, Mr Johan Bjuroe, and his wife, the witness Ms Susan Schaller. The Board notes that in the course of argument Mr Perry referred to the spelling of Mr Bjuroe's name without an 'e' but, since Mr Bjuroe said in evidence that it was spelt with an 'e', it seems right to spell it with an 'e' in this judgment. At the relevant time Mr Justin Uzzell worked as a financial journalist at Cayman Free Press. He met Ms Dillon in April 1994 and she moved in with him in March 1995. Their relationship lasted until 2001. Ms Schaller and Ms Dillon have been very good friends since 1994 and for a time shared a flat. They remain very good friends. At the relevant time Ms Dillon worked as an accountant for Quin & Hampson, the appellant's attorneys both at the trial and in the Court of Appeal. Ms Schaller also worked for Quin & Hampson as a corporate administrator, but only from 6 January 2005. Ms Schaller had known Mr Uzzell since she shared a flat with Ms Dillon. Ms Schaller and Mr Bjuroe started dating in September 1997 and got married in 2002. They are still married.
The appellant's case in summary
As summarised in his written case, the appellant's case is this. Mr Uzzell had been closely associated with Mr Bjuroe as a result of a close friendship between his wife Susan Schaller and Mr Uzzell's girlfriend, Ms Dillon. They had met as a foursome on many social occasions and had taken two holidays together, one to the USA and Canada for three weeks, and Mr Uzzell and Mr Bjuroe had discussed the investment that was the subject matter of the prosecution. In circumstances where the appellant's case called for the jury to disbelieve the evidence of Mr Bjuroe, who was a key witness, the putative observer would regard Mr Uzzell as likely to be biased in favour of his friend, or at least as likely to hold a preconceived opinion that Mr Bjuroe's evidence was more worthy of belief than that of the appellant.
That case is not dissimilar to the way the case was summarised by the Court of Appeal at page 10 of its judgment as follows:
"Counsel summarized the facts of significance, on which he relied as giving rise to apprehension of bias, as follows: (i) the juror failed to disclose that he knew the male Crown witness either in the questionnaire or when the witness testified at trial; (ii) the juror and the two witnesses socialized on an intermittent basis until three years before the trial; (iii) they discussed the investment of the witnesses in the Cash 4 Titles scheme on several occasions; (iv) the juror knew of the collapse of the scheme and that the witnesses had lost money as a result; (v) the male witness and juror had previously lost money in the failure of another business; and (vi) the evidence of the male witness assumed particular importance when it was referred to by the judge in his charge to the jury as potentially corroborative of that of the accomplice Gause.'
In the course of the argument Mr Geoffrey Robertson QC submitted on behalf of the appellant that the effect of what the juror Mr Uzzell said to the witness Mr Bjuroe would have led the putative observer to conclude that he had a preconception of the appellant's guilt. That depends upon the nature of facts which the observer must have in mind. The Board returns to this point below.
In considering the appellant's case in this appeal it is important to have in mind that it is not part of his case that Mr Uzzell acted otherwise than in good faith throughout. No criticism was made of his honesty, either as to his relationship with Mr Bjuroe or as to why he failed to disclose it either in the questionnaire or when he was called to give evidence.
The prosecution case against the appellant
The prosecution case is summarised in the judgment of the Court of Appeal. In short the appellant was convicted of money laundering arising out of the collapse of a United States car loan business known as...
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