R v Abdroikov
| Jurisdiction | UK Non-devolved |
| Judge | LORD BINGHAM OF CORNHILL,LORD RODGER OF EARLSFERRY,BARONESS HALE OF RICHMOND,LORD CARSWELL,LORD MANCE |
| Judgment Date | 17 October 2007 |
| Neutral Citation | [2007] UKHL 37 |
| Date | 17 October 2007 |
| Court | House of Lords |
and another (On Appeal from the Court of Appeal (Criminal Division))
and another
[2007] UKHL 37
Appellate Committee
Lord Bingham of Cornhill
Lord Rodger of Earlsferry
Baroness Hale of Richmond
Lord Carswell
Lord Mance
HOUSE OF LORDS
Appellants:
Richard Carey-Hughes QC
Michael Maher
Richard Hutchings
Simon Berkson
Instructed by:
Appellant Abdroikof: Hayes Burcombe & Co
Appellant Green: Macauley Smith & Co
Appellant Williamson: Colin Watson & Co
Respondents:
David Perry QC
Mark Heywood
(Instructed by Crown Prosecution Service)
My Lords,
These three appellants were tried on indictment in different courts on unrelated charges and were convicted. In the first two cases the trial jury included among its members a serving police officer, and in the third case it included a solicitor employed by the Crown Prosecuting Service. The common question raised by these three conjoined appeals is whether a fair-minded and informed observer, on the facts of the three cases, would conclude that there was a real possibility that the trial jury was biased.
The Court of Appeal (Lord Woolf CJ, Richards and Henriques JJ) which also heard the appeals together, held that the observer would not so conclude: [2005] EWCA Crim 1986, [2005] 1 WLR 3538. The appellants challenge that ruling.
The first appellant, Nurlon Abdroikof, faced counts of theft (to which he pleaded guilty) and attempted murder (to which he pleaded not guilty, but of which he was convicted). The trial last for six days in August 2004 before the Common Serjeant of London at the Central Criminal Court. There was a minor issue concerning one aspect of the evidence of a police witness. On Friday 27 August, when the jury were in retirement considering their verdicts, the foreman of the jury sent a note to the judge revealing that he was a serving police officer. He was concerned that if required to report for duty at the Notting Hill Carnival on the following Bank Holiday Monday, when the court was not sitting, he might meet one or more police officers who had been called to give evidence at the trial. With the acquiescence of defending counsel, who had not previously known of the foreman's occupation, the juror was directed not to report for duty on the Monday.
The second appellant, Richard John Green, was stopped by police officers on 18 March 2004. He was searched by one of the officers, Sergeant Burgess, and in the course of the search the sergeant put his hand into the appellant's pocket and pricked his finger on a used syringe. The appellant was charged with offences of assault occasioning actual bodily harm and having a bladed or pointed article. He pleaded not guilty and was tried before His Honour Judge Statman and a jury at Woolwich Crown Court. There was a dispute on the evidence between him and the police sergeant concerning the manner in which he was searched and what he and the sergeant respectively said. The appellant was convicted and sentenced. Some time after the trial, by chance, the appellant's solicitor discovered that a police officer, PC Mason, had been a member of the trial jury, a fact not known to the appellant at the time. PC Mason was at the time posted to Eltham Police Station, within an Operational Command Unit which committed its work to Woolwich Crown Court. PC Mason and Sergeant Burgess were both serving in the same borough at the time of the incident and had once served in the same police station at the same time, but the two officers were not known to one another.
The third appellant, Kenneth Joseph Williamson, was charged with two very serious offences of rape, of which he was convicted on 3 February 2005 after a trial before His Honour Judge Hale and a jury in the Crown Court at Warrington. The jury included among its members Mr McKay-Smith. Before the trial began he wrote to the court to say he had been summoned to serve as a member of the jury at Warrington. He recorded that he worked for the Crown Prosecution Service and had done so since its inception in 1986. He had previously worked for the Greater Manchester Council as a prosecuting solicitor, having been in private practice for five years before that. He was a Higher Court Advocate and had practised as such in many local courts including that at Warrington on behalf of the Crown, although he had not conducted a trial in the Crown Court. His current job was to advise the police on charging out of hours. He said that as a matter of policy the CPS had asked those summoned to ensure that the judge had all the necessary information to hand in order to exercise discretion as to the feasibility of an individual CPS employee serving. This letter was passed to defending counsel, who sought to challenge Mr McKay-Smith, contending that the court should not only do what is right but should be seen to have done what is right. He complained of potential bias and relied on the appellant's fair trial right under article 6 of the European Convention on Human Rights. The judge ruled that he had to operate within the law passed by Parliament and he could see no objection to this juror sitting in the light of the current legislation. Mr McKay-Smith duly sat, and became the foreman of the jury.
The criminal trial jury in England and Wales
The criminal trial jury has now, as it has had for centuries, the immense responsibility of deciding the all-important issue of guilt in the most serious criminal cases coming before the courts of England and Wales. Upon its integrity that of the trial process to a large extent depends. Upon its reputation for independence and impartiality public confidence in the integrity of the system also, to a large extent, depends.
Given the central importance of the trial jury in our system, it is not surprising that it has received much parliamentary and judicial attention. Before 1825, it had been the subject of 85 statutes. Since then it has been the subject of many more. Thus very detailed rules have been made governing the qualification and disqualification of jurors; the manner of selection; the right of the crown and the defence to challenge individual jurors, or the array; the procedural conduct of the trial; the evidence which the jury may be permitted to hear, and the evidence which it may not be permitted to hear; the terms in which the judge should (and should not) direct the jury on the law and the facts; the protection of the jury against exposure to extraneous materials which might sway its judgment; the conduct of jurors in and out of court, and even in the retiring room; the cloak of secrecy thrown over the jury's deliberations; the absolution of the jury from the duty, binding on almost other judicial decision makers, to give reasons; the immunity of jurors from all personal liability for their decisions. Most of these rules reflect a familiar truth, that if its metal be flawed a bell will not ring true. It is of the utmost importance that juries should ring true, and be generally recognised to do so.
The present questions arise as a result of changes made in the Criminal Justice Act 2003 to the rules formerly governing the qualification and disqualification of jurors. This, among other aspects of jury service, was earlier reviewed by a very distinguished departmental committee chaired by Lord Morris of Borth-y-Gest, which reported in 1965 (Cmnd 2627). At that time, pursuant to the Juries Act 1870 and a series of later statutes, a number of occupational groups were exempted from jury service, including the elected members of representative assemblies, ministers of religion, officers in the armed services, medical practitioners, various classes of public servants, holders of certain offices related to the sea and all who could not satisfy a threshold property qualification, a provision which continued in practice to debar many women from jury service although by section 1 of the Sex Disqualification (Removal) Act 1919 women were no longer exempt. The Morris Committee made valuable proposals to modernise and rationalise this anomalous patchwork of exemptions, which were given effect in the Juries Act.
The Morris Committee, however, considered that two occupational groups, exempt under the old law, should continue to be ineligible: those professionally concerned in the administration of the law, and the police. The committee was concerned that the trial jury should remain a lay tribunal, comprising ordinary, responsible members of the public, not dominated by lawyers; and it recognised problems of partiality, and perceived partiality if those professionally committed to the prosecution side of the adversarial trial process were to sit as members of trial juries. The committee's thinking is clear in paras 103 and 104 of their report:
"103. The present law exempts many of those who practise the law or are concerned with the business of the courts. It seems to us clearly right that such persons, and all others closely connected with the administration of law and justice, should be specifically excluded from juries. At present there is no statutory provision prohibiting a police officer, for example, whose name happens by mistake to be marked on the register as eligible for jury service, from actually serving. This is most unsatisfactory. If juries are to continue to command public confidence it is essential that they should manifestly represent an impartial and lay element in the workings of the courts. It follows that all those whose work is connected with the detection of crime and the enforcement of law and order must be...
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...(3) Porter v. Magill, [2002] 2 A.C. 357; [2002] 2 W.L.R. 37; [2002] 1 All E.R. 465; [2001] UKHL 67, referred to. (4) R. v. Abdroikov, [2007] 1 W.L.R. 2679; [2008] 1 All E.R. 315; [2008] 1 Cr. App. R. 21; [2007] UKHL 37, dicta of Lord Bingham applied. (5) R. v. Gough, [1993] A.C. 646; [1993]......
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Subject Index
.... . . . . . . .276Quinn vIreland (2001) 33EHRR 264 . . . . . . . . 216R v A (No. 2) [2001] UKHL 25, [2002] 1 AC 45 . 55,136R v Abdroikov [2007] UKHL 37, [2007] 1 WLR 2679. . . . . . . . . . . . . . . . . . . . . . . . . . . . 160,252, 253R vAccused [1991] 3NZLR 439 . . . . . . . . . . . . .......
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Judicial Management of Juror Impropriety
...14 and also its perceived fairness.15 The first of these 5 See, e.g., Hanif v United Kingdom [2012] Crim LR 295; R v Abdroikov [2007] UKHL 37, [2007] 1 WLR 2679; R v L [2011] EWCA Crim 65, [2011] 1 Cr App R 27. 6 [2004] UKHL 2, [2004] 1 AC 1118. 7 For example, see the major decisions in R ......
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Disqualification for bias and international tribunals: room for a common test?
...(153.) Id. (154.) Id. at 493. (155.) See supra Part III.B.4. (156.) Lawal v. N. Spirit Ltd., [2003] I.C.R.856 862 (H.L., U.K.). (157.) [2007] 1 W.L.R. 2679 at 2688 (U.K.) (citing Hauschildt v. Denmark, App. No. 10486/83, 12 Eur. H.R. Rep. 266, 279 (1990) (158.) [2005] 2 A.C. 513 at 526 (U.K......
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CLARITY AND COMPLEXITY IN THE BIAS RULE.
...and so on. The choice between one of each possibility is easier than some sort of blend of both. (95) Ibid 509 [53]. (96) R v Abdroikov [2007] 1 WLR 2679, 2706 [81] (97) Johnson (n 23) 494 [14] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ). (98) Almazeedi v Penner [2018] UKPC 3, [20] (......