West Law Report

R v ABDROIKOV & OTHERS

Posted in Criminal Justice Act, House of Lords (case), Jury, Westlaw Reports by mrkooenglish on May 2, 2008

Last Updated: 7:01pm BST 24/10/2007

House of Lords
Lord Bingham of Cornhill, Lord Rodger of Earlsferry, Baroness Hale of Richmond, Lord Carswell, Lord Mance
October 17, 2007

Bias – Crown Prosecution Service – Juries – Jurors – Police officers – Right to fair trial – Juries comprising serving police officers and CPS solicitors – Appearance of bias – s. 321 Criminal Justice Act 2003

FACTS

The appellants (N, G and W) appealed against a decision ([2005] EWCA Crim 1986, [2005] 1 WLR 3538) that the fact that serving police officers and a CPS solicitor were members of the juries which had convicted them did not mean they had been deprived of a fair trial. One of the jurors in N’s trial was a police officer. There was no evidence that he knew any of the police witnesses, although they served in the same force. A juror in G’s case was also a police officer. The victim of the alleged offence was a police officer who shared the same local service background as the juror. Furthermore, the juror was posted to a police station which committed its cases to the Crown Court where G’s case was tried. In W’s case one of the jurors was a solicitor employed by the CPS. N, G and W relied on the principle that justice should not only be done, but should manifestly and undoubtedly be seen to be done. They argued that that condition was not met where one of the jurors was employed full-time by a body dedicated to promoting the success of one side in the adversarial trial process.

ISSUE

Whether a fair-minded and informed observer would conclude that there was a real possibility that a jury trial was biased where a juror was a serving police officer who shared the same local service background as the police officer who was the victim of the alleged offence, or where a juror was a full-time, salaried, long-serving employee of the prosecuting authority.

HELD (appeals allowed in part) (Lords Rodger and Carswell dissenting)

(i) In 1965 a committee chaired by Lord Morris of Borth-y-Gest made proposals to modernise the rules on eligibility for jury service. The committee considered that the police and those professionally concerned in the administration of the law should continue to be ineligible. The committee was concerned that the trial jury should remain a lay tribunal, and it recognised problems of partiality and perceived partiality if those professionally committed to the prosecution side of the trial process were to sit as jurors. In 2001, Auld LJ reviewed the issue and recommended that everyone should be eligible for jury service save for the mentally ill. He recognised that the risk of bias could not be totally eradicated and envisaged that any question about the risk of bias on the part of any juror could be resolved by the trial judge on the facts of the case. His recommendation was given effect by the Criminal Justice Act 2003 s. 321.

(ii) Most people harboured certain prejudices and predilections, consciously or unconsciously. The institutional safeguards established to protect the impartiality of the jury, when properly operated, did all that could reasonably be done to neutralise those ordinary prejudices. However, the instant cases did not involve the ordinary prejudices and predilections to which people were prone, but the possibility of bias, possibly unconscious, which flowed from the presence on the jury of persons professionally committed to one side of the adversarial trial process. Auld LJ’s expectation that each doubtful case would be resolved by the trial judge was not met if neither the judge nor counsel knew that the juror was a police officer or CPS solicitor, as appeared to be the practice.

(iii) N’s case was not one which turned on a contest between the evidence of the police and of N, and it would have been difficult to suggest that unconscious prejudice, if present, would have been likely to operate to N’s disadvantage. The Court of Appeal had reached the right conclusion in N’s case. However, in G’s case, there was a crucial dispute on the evidence between G and the police officer who was the alleged victim. The victim and the police officer on the jury shared the same local service background. In those circumstances the instinct of a police officer juror to prefer the evidence of a brother officer to that of a drug-addicted defendant would be judged by the fair-minded and informed observer to be a real and possible source of unfairness, beyond the reach of standard judicial warnings and directions. G was not tried by a tribunal which was and appeared to be impartial, and his appeal was allowed. In W’s case, it was clear that justice was not seen to be done where one of the jurors was a full-time, salaried, long-serving employee of the prosecutor, Pullar v United Kingdom [1996] SCCR 755 considered. W’s convictions were quashed, R v Sussex Justices Ex p McCarthy [1924] 1 KB 256, Porter v Magill [2001] UKHL 67, [2002] 2 AC 357 and Lawal v Northern Spirit Ltd (2003) UKHL 35, [2004] 1 All ER 187 applied.

(iv) There were situations where police officers and CPS solicitors would meet the tests of impartiality in Porter and Lawal. However, that did not mean they would always do so. The indications were that Parliament appreciated that there were some cases in which such people should not serve.

(v) (Per Lords Rodger and Carswell) Parliament had endorsed the view that universal eligibility for jury service was to be regarded as appropriate. In reaching that conclusion it must be taken to have been aware of the test for apparent bias. Parliament must have considered that the risk of bias in the case of serving police officers or CPS solicitors was manageable within the system of jury trial. Many jurors would harbour prejudices of various kinds when they entered the jury box. There was no reason why the fair-minded and informed observer should single out juries with police officers and CPS solicitors as being constitutionally incapable of following the judge’s directions and reaching an impartial verdict. All three appeals should be dismissed.

Richard Carey-Hughes QC, Michael Maher, Richard Hutchings and Simon Berkson (instructed by Hayes Burcombe & Co) for Abdroikov. David Perry QC and Mark Heywood (instructed by Macauley Smith & Co) for the respondents.

R v LOWE

Posted in character, Jury, Res Gestae, s101 Criminal Justice Act, Westlaw Reports by mrkooenglish on May 2, 2008

Last Updated: 12:01am GMT 03/01/2008

Divisional Court
Dyson LJ, Henriques J
December 14, 2007

Bad character – Jury directions – Res Gestae – Unsafe convictions – Failure to direct jury – Appropriate bad character direction – s. 101(1)(c) Criminal Justice Act 2003 – s. 101(1)(d) Criminal Justice Act 2003

FACTS

The appellant (L) appealed against a conviction following trial by jury for rape. L had been in a relationship with his victim (V) and they had a young child together. V alleged that L had twice forced her to have sexual intercourse. At trial the Crown applied for leave to adduce bad character evidence and attached to the application a copy of an earlier statement made by L.

The judge granted the application pursuant to the Criminal Justice Act 2003 s. 101(1)(c) and s. 101(1)(d). Evidence was allowed concerning four alleged examples of L’s previous violent and aggressive behaviour. L addressed all four allegations, mainly by way of denial. In his summing up the judge included the incidents in his narrative of the evidence together with L’s responses.

However he decided not to bring the jury back for a further specific direction as to how to approach and utilise the evidence adduced pursuant to the bad-character ruling as the ruling had served simply to add to the evidence as to the history of the relationship. L submitted that the judge wrongly regarded each of the incidents as in effect part of the res gestae so that their admission did not call for specific directions. He further contended that the failure to give a direction to the jury as to their approach to the bad character evidence amounted to a material irregularity imperilling the safety of the conviction.

ISSUE

Whether the judge’s failure to give an appropriate direction to the jury in relation to the approach that should be adopted when considering evidence adduced of L’s bad character rendered the resulting conviction unsafe.

HELD (appeal allowed)

The judge was in error and there should have been

  1. a bad-character direction encompassing particular elements such as identification of the incidents, evidence of which had been adduced pursuant to L’s bad character ruling;
  2. a direction that, with respect to each incident, the jury should decide whether the facts as alleged by the Crown had been proved so that they were sure of them to the criminal standard of proof;
  3. a direction that, with respect to any incident not so proved, the evidence should be put aside and accorded no significance;
  4. a direction as to the potential significance of any incident that had been proved, in the instant case that the incidents might throw light on the relationship between V and L and thus bear upon the potential for consent on her part to his sexual advances;
  5. a warning against necessarily according the incidents any significance if an alternative construction served to cast doubt on the construction contended for by the Crown and also against attaching too much weight to the evidence.

The original application was unspecific and of a “scattershot” nature invoking the full, long witness statement without condescending to the specifics. The ruling was similarly non-specific. Had the identification of the bad character evidence been specific from the outset, then minds would more readily have been focused on what was required by way of jury direction and the matter would not have been for consideration as an afterthought. The bad character direction rendered the conviction unsafe and the conviction was quashed.

Julia Smart (instructed by Criminal Appeal Office) for the appellant. J Dawes (instructed by Crown Prosecution Service) for the respondent.