R v Bakish Alla Khan ; R v Lewthwaite
| Jurisdiction | England & Wales |
| Judgment Date | 14 March 2008 |
| Neutral Citation | [2008] EWCA Crim 531 |
| Docket Number | Case No: 200702726C2, 200702810C2, 200700811C2, 200700655C2, |
| Court | Court of Appeal (Criminal Division) |
| Date | 14 March 2008 |
[2008] EWCA Crim 531
The Lord Chief Justice of England and Wales
Sir Igor Judge President of the Queens Bench Division and
The Honourable Mr Justice Silber
Case No: 200702726C2, 200702810C2, 200700811C2, 200700655C2,
200706245B3, 200705902B4, 200704358D2, 200702269B3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM
His Honour Judge Keen QC at Sheffield Crown Court
(Khan T20067477, Hanif T2006 7398 and Younas T20067477)
His Honour Judge Thorn at Hull Crown Court (Michael Arshad Khan) T20060430
His Honour Judge Darwall-Smith at Bristol Crown Court (Lewthwaite) T20077206
His Honour Judge Roberts at Liverpool Crown Court (Hill)T20067853 and T20061512
His Honour Judge Mott at Worcester Crown Court (Cross) T20057171
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr P. Mitchell (in the appeal of Bakish Alla Khan, Hanif and the application of Younas), Mr S. Uttley (in the application of Michael Arshad Khan), Mr C.Smyth (in the application of Lewthwaite), Mr M. Scholes (in the application of Stanley James Hill) and Mr T. Hannam (in the application of Roy Andrew Cross) for the Respondent
Mr D.F Hughes for the appellant Bakish Alla Khan
Mr M. George for the appellant Hanif
Mr H. Spooner for the applicant Younas
Mr S. Green for the applicant Michael Arshad Khan
Mr I. Halliday for the applicant Lewthwaite
Mr W. Rickarby for the applicant Cross
Mr A. Vollenweider for the applicant Hill
Hearing dates : 29 and 30 January 2008
Lord Phillips of Worth Matravers CJ :
Introduction
The appeals and applications that we have heard together advance or seek to advance one common ground of appeal against conviction: that one member of the jury had, by reason of his or her occupation, an appearance of bias.
Article 6 of the European Convention on Human Rights provides:
“1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”
Independence and impartiality are not the same, albeit that lack of independence will often carry with it lack of impartiality. Lack of independence involves a connection between the tribunal and one of the parties, or between the tribunal and the executive.
Lack of impartiality is usually described as bias. It is important to define bias in this context. Lord Goff did so in R v Gough [1993] AC 646. He described bias as unfairly regarding “with favour or disfavour the case of a party to the issue under consideration”.
Not merely must a judicial tribunal be impartial it must be seen to be impartial. This is a requirement of both European and our domestic law.
“40…according to the constant case law of the Convention organs, the existence of impartiality must be determined according to a subjective test, namely, on the basis of a personal conviction of a particular judge in a given case – personal impartiality being assumed until there is proof to the contrary.
41. In addition, an objective test must be applied. It must be ascertained whether sufficient guarantees exist to exclude any legitimate doubt in this respect. Even appearances may be important: what is at stake is the confidence which the court must inspire in the accused in criminal proceedings and what is decisive is whether the applicant's fear as to lack of impartiality can be regarded as objectively justifiable.” Gregory v United Kingdom (1997) 25 EHRR 577 at p. 587.”
In English law the requirement that the tribunal should be seen to be impartial results from the principle that
“…it is not merely of some importance but it is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done” R v Sussex Justices, ex p. McCarthy [1924] 1KB 256 at p. 259 per Lord Hewart CJ.”
Thus, the question of whether a jury is independent and impartial falls to be determined by an objective test: “whether the fair-minded and informed observer, having considered the facts, would consider that there was a real possibility that the tribunal was biased”: Porter v Magill [2001] UKHL 67, [2002] 2 AC 357 at para 103.
The requirement of both impartiality and the appearance of impartiality applies to every juror —see the comment of the Commission in Gregory v UK at paragraph 42. At the stage of jury selection precautions must be taken in order to ensure that each juror is impartial. If, in the course of the trial it becomes apparent that a juror is partial to the case of the parties, that juror must be discharged and consideration given as to whether the trial can fairly proceed with the remaining jurors. If, after verdict, it is established that a juror was, or has the appearance of having been partial to the case of one of the parties, the conviction must be quashed.
“Even a guilty defendant is entitled to be tried by an impartial tribunal and the consequence is inescapable” per Lord Bingham of Cornhill in R v Abdrokof and another; R v Williamson [2007] UKHL 37 at paragraph 27.
“…we are unable to envisage any circumstance in which, an Article 8 breach having arisen from want of independence and impartiality in the tribunal, it would be possible to conclude that the conviction is safe” per Rose LJ, Vice-President in R v Dundon [2004] EWCA Crim 621.
It is important to distinguish between partiality towards the case of one of the parties and partiality towards a witness. Each can be describes as 'bias' but they are different in kind and can have different consequences. Association with or partiality towards a witness will not necessarily result in the appearance of bias, as defined by Lord Goff. Just because a juror feels partial to a particular witness does not mean that the juror will be partial to the case in support of which that witness is called. It may do so if the witness is so closely associated with the prosecution that partiality to the witness is equated with partiality towards the party calling the witness. Such a case was In re Medicaments [2001] 1 WLR 700 where an appearance of bias resulted from the fact that a member of the tribunal had applied for a job to the experts whose evidence was the foundation of the case of one of the parties. In many cases, however, the witness will not be associated with the prosecution in this way.
Where an impartial juror is shown to have had reason to favour a particular witness, this will not necessarily result in the quashing of a conviction. It will only do so if this has rendered the trial unfair, or given it an appearance of unfairness. To decide this it is necessary to consider two questions:
i) Would the fair minded observer consider that partiality of the juror to the witness may have caused the jury to accept the evidence of that witness? If so
ii) Would the fair minded observer consider that this may have affected the outcome of the trial?”
If the answer to both questions is in the affirmative, then the trial will not have the appearance of fairness. If the answer to the first or the second question is in the negative, then the partiality of the juror to the witness will not have affected the safety of the verdict and there will be no reason to consider the trial unfair.
In considering the first question one must have regard to the possibility that the individual juror may have influenced his or her fellow jurors when evaluating the evidence of the witness in question. None the less the Strasbourg court has recognised the obvious fact that the existence of a body of jurors selected at random provides some safeguard against the disposition of one of them to accept the evidence of a particular witness – Pullar v UK (1996) 22 EHRR 391 at paragraph 40.
Another situation, also sometimes loosely described as bias, occurs where the jury or a juror knows or learns of some matter prejudicial to the defendant – typically that he has a criminal record when this fact has not be admitted in evidence. This does not constitute partiality to the case of one of the parties and therefore does not have the automatic effect that the jury or the juror is considered to be biased against the defendant, requiring the discharge of the jury or juror, or the quashing of a conviction if it comes to light after the trial. – R v Box [1964] 1 QB 430; R v Docherty [1999] 1 Cr App R 274. In the latter case Roch LJ, giving judgment of the court, after referring to R v Gough, said that the ultimate question for the court was whether or not the conviction was safe. If the verdict is unsafe it will be quashed. If it is not, then it will be left undisturbed.
The difference in effect between partiality to a party and partiality to a witness may perhaps explain the contrast between the following judicial statements:
“…the question of impartiality, actual or perceived, has to be judged from the very moment when the judge or tribunal becomes first seized of the case. It is a question which, at least in the case of perceived impartiality, stands apart from any question that may be raised about the character, quality of effect of any decision which he takes or acts which he performs in the proceedings.” Per Lord Hope of Craighead in Millar v Dickson [2002] 1 WLR 1615 at paragraph 63
“A final decision in any given case about the fairness of the trial where unfairness consisting of bias is alleged can only be made on examination of the facts of the trial as a whole after its conclusion…” per Lord Carswell in Abdroikof at paragraph 69.
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