R v Abdroikov; R v Green; R v Williamson
| Jurisdiction | England & Wales |
| Judgment Date | 28 July 2005 |
| Neutral Citation | [2005] EWCA Crim 1986 |
| Date | 28 July 2005 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | Case No: 2004/05463, 2005/01121, 2005/00211 |
[2005] EWCA Crim 1986
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(1) The Common Serjeant of London at the Central Criminal Court
(2) His Honour Judge Statman at the Woolwich Crown Court
(3) His Honour Judge Hale at the Warrington Crown Court
Royal Courts of Justice
Strand, London, WC2A 2LL
The Lord Chief Justice Of England And Wales
Mr Justice Richards and
Mr Justice Henriques
Case No: 2004/05463, 2005/01121, 2005/00211
Mr Richard Carey-Hughes QC and Mr Michael Maher for the Appellant Abdroikov
Mr Richard Carey-Hughes QC and Mr Richard Hutchings for the Appellant Green
Mr Richard Carey-Hughes QC and Mr Simon Berkson for the Appellant Williamson
Mr Mark Heywood and Miss Bobbie Cheema for the Respondent
Lord Woolf:
Introduction
This is a judgment of the Court to which all members of the Court have contributed:
The three appellants, Mr Abdroikov, Mr Green and Mr Williamson appeal to this Court against their convictions. There is no factual connection between the circumstances of the offences of which they were convicted. The only link between the appeals is the fact that in the case of each appellant there is a complaint as to the composition of the jury at their respective trials. The jurors to whom objection is taken in the cases of Green and Abdroikov were serving police officers. In the case of Williamson, the objection is taken to a juror who is employed as a prosecuting solicitor by the Crown Prosecution Service (the "CPS").
In the case of Abdroikov, the presence of the police officer on the jury was only revealed by a note from the jury which referred to the fact of the presence of the police officer. The note was handed to the judge during the jury's retirement.
In the case of Green, the presence of a police officer on the jury was discovered inadvertently by a solicitor acting for the defendant sometime after the trial was over.
In the case of Williamson, the solicitor sent a letter to the Court setting out his position. The letter was drawn to the attention of counsel appearing on behalf of Williamson. The counsel objected to the presence of that juror on the jury for cause because he was an employee of an agency which was bringing the prosecution. The trial judge ruled against the objection. Williamson contends that the ruling was wrong.
Before considering the merits of the individual appeals further, we will consider the issue of when those whose occupation is within the criminal justice system should be empanelled as members of juries.
The Statutory Provisions
Prior to the coming into force of the relevant provisions of the Criminal Justice Act 2003 ("the 2003 Act"), the presence of the two police officers and the employee of the CPS would have been unlawful under s.1 of the Juries Act 1974 (the 1974 Act) which provides:
"Subject to the provisions of this Act, every person shall be qualified to serve as a juror in the Crown Court, the High Court and county courts and be liable accordingly to attend for jury service when summoned under this Act, if-
(a.) he is for the time being registered as a parliamentary or local government elector and is not less than eighteen nor more than [seventy] years of age; and
(b.) he has been ordinarily resident in the United Kingdom, the Channel Islands or the Isle of Man for any period of at least five years since attaining the age of thirteen,
but not if he is for the time being ineligible or disqualified for jury service; and the persons who are ineligible, and those who are disqualified, are those respectively listed in Parts I and II of Schedule 1 to this Act."
Parts I and II of Schedule 1 contain 4 groups, (Groups A, B, C and D). Group A identified different members of the judiciary who are or had at any time been such a member of the judiciary as ineligible. Group B identified others concerned with the administration of justice including barristers and solicitors and "a member of any police force" and any person who at any time within the last 10 years has been a person falling within any description specified in this Group. Group C dealt with persons in holy orders and Group D dealt with the ineligibility of mentally disordered persons.
Part II sets out the persons who are disqualified, including those who had been sentenced to specified custodial sentences.
S.321 and Schedule 33 of the 2003 Act substituted a new Part I to Schedule 1 of the 1974 Act. This omitted all reference to those who were ineligible for jury service who fell within Groups A, B and C. Mentally disordered persons are, however, now not qualified to attend for jury service in consequence of an amendment to s.1 the 1974 Act. Part II of the new Schedule still disqualifies those who have received custodial sentences and in addition those on bail in criminal proceedings.
The parliamentary intention behind the legislative changes as to eligibility and liability to attend for jury service is clear. It is to widen significantly the range of those who are eligible and liable for jury service. This intention is supported by the limitations which are placed on the discretion of the appropriate officer to defer jury service. These are now contained in s.9A (2) of the 1974 Act and apply in particular where a deferral of the attendance of the person summoned has previously been made or refused under sub-section (1) or sub-section (1A) of the 1974 Act.
The Appellants' General Submissions
Mr Richard Carey-Hughes QC. on behalf of the appellants, contends that it is axiomatic that a trial must be fair and be seen to be fair and for this to be the situation, the tribunal conducting the trial must be free from actual or apparent bias. Furthermore, he relies upon Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) which provides;
"In the determination of…any criminal charges against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."
Mr Carey-Hughes relies on s.6 (1) and (3) of the Human Rights Act 1998. Those provisions of the Act provide:
"(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.
(3) In this section 'public authority' includes –
a) 'A court or tribunal, and…'"
These provisions have, however, to be read subject to s.6 (2) which provides:
"Sub-section (1) does not apply to an act if-
a) as the result of one or more provisions of primary legislation, the authority could not have acted differently or
b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way in which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions."
There is no doubt as to the obligation for a trial to not only be fair but appear to be fair and the need for an independent tribunal to conduct the trials. In addition, the test which is now to be applied is clearly established as being whether the fair minded and informed observer having considered the facts would conclude that there is a real possibility that the tribunal was biased. (See R v Gough [1993] AC 646, Re Medicaments and Related Classes of Goods No. 2 [2001] 1WLR 700 at p 727 and finally, the speech of Lord Hope of Craighead in Porter v Magill, Magill v Weeks [2002] 2 AC 357 (at para 103 on p 494)).
Reliance is also placed upon Pullar v United Kingdom (1996) 22 EHRR 391, in which it was observed that in situations in which juries do not give reasons for their verdicts and where there is a prohibition on investigating what transpired in the jury room "additional emphasis should be placed in the existence of objective guarantees [of impartiality]". Mr Carey-Hughes' concern was not with individuals being "closely connected" with the legal system but with their being "closely connected" with the prosecution. Here, he prays in aid the decision of the House of Lords in Lawal (Appellant) v Northern Spirited Ltd [2003] UK HL 35. In that case, the Appellate Committee of the House of Lords considered the position of a Queen's Counsel appearing on an appeal before the Employment Appeal Tribunal ("EAT"), who had sat as a part-time judge in the EAT with one or both of the lay members hearing that appeal. In giving its considered opinion, the Committee made it clear that "there is now no difference between the common law test of bias and the requirements under Article 6 of the Convention of an independent and impartial tribunal" (para 14). The Committee added that the "public perception of the possibility of unconscious bias is the key" (para 14). The Committee concluded that the practice in the EAT of part-time judges appearing as counsel before a panel of the EAT consisting of one or two lay members with whom they had previously sat should be discontinued. The basis for the Committee's conclusion was that a legally qualified judge when sitting judicially is likely to have particular influence upon lay members because of the role of the EAT, which is to determine questions of law.
This is an area where there has been no shortage of reports and reviews. In relation to the position as it existed before the 1974 Act we were referred to the report of the Departmental Committee on jury service (the Morris Report) Cmnd 2627 (HMSO 1965), and the report of the Royal Commission on Criminal Justice 1993 (the Runciman Commission). In addition we have considered the...
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