Case No: 2004/05463, 2005/01121, 2005/00211
Neutral Citation Number:
[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
Thursday, 28 July 2005
Before :
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
MR JUSTICE RICHARDS
and
MR JUSTICE HENRIQUES
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Between :
R
- and -
(1) Nurlon Abdroikov
(2) Richard John Green
(3) Kenneth Joseph Williamson
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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
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Woolf :
Introduction
1.
This is a judgment of the Court to which all members of the Court have contributed:
2.
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”).
3.
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.
4.
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.
5.
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.
6.
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
7.
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.”
8.
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.
9.
Part II sets out the persons who are disqualified, including those who had been sentenced to specified custodial sentences.
10.
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.
11.
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
12.
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.”
13.
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…’”
14.
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.”
15.
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)).
16.
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.
17.
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 Review by Lord Justice Auld of the Criminal Courts and the response of the Criminal Bar Association to that Review. The Auld Review was almost certainly the catalyst for the change in the law. Lord Justice Auld deals with ineligibility in his Review at para. 27 of chapter 5. The whole of his remarks on the subject is highly relevant but we draw particular attention to paras 30 and 31 of chapter 5 which are in these terms:
30.
“There is also the anxiety voiced by some that those closely connected with the criminal justice system, for example, a policeman or a prosecutor, would not approach the case with the same openness of mind as someone unconnected with the legal system. I do not know why the undoubted risk of prejudice of that sort should be any greater than in the case of many others who are not excluded from juries and who are trusted to put aside any prejudices they may have. Take, for example shopkeepers or house-owners who may have been burgled, or car owners whose cars may have been vandalised, many government and other employees concerned in one way or another with public welfare and people with strong views on various controversial issues, such as legalisation of drugs or euthanasia. I acknowledge that there may be Article 6 considerations in this. But it would be for the judge in each case to satisfy himself that the potential juror in question was not likely to engender any reasonable suspicion or apprehension of bias so as to distinguish him from other members of the public who would normally be expected to have an interest in upholding the law. Provided that the judge was so satisfied, the over-all fairness of the tribunal and of the trial should not be at risk.”
31.
“As I have said, I consider that there is a strong case for removal of all the categories of ineligibility based on occupation. My one reservation has been as to judges. I say that, not because I consider that they are too grand for the task or that their work is so important that they could not be spared for it. On the contrary, I consider that it would be good for them and the system of jury trial if they could experience at first hand what jurors have to put up with. In particular, it would surely help them see how well or badly they and all those concerned in the process assist jurors in their task. And I have been heartened by the knowledge that judges have sat on juries or been potential jurors in the USA. A number have spoken warmly of the experience. They include Judith S Kaye, the Chief Judge of the State of New York, Shirley Abrahamson, Chief Justice of the Wisconsin Supreme Court and Justice Breyer, of the Supreme Court of the USA who gave an account at the American Bar Association Meeting in London in July 2000 of his jury service.”
The Case for the Crown
18.
In his submission on behalf of the Crown, not surprisingly, Mr Heywood relied on the clear language of the amendments made by the 2003 Act. He submits that these were changes made by the democratically elected legislature for the legitimate purpose of maximising the pool of responsible and professional people available to perform the important civic function of serving on a jury. He submits that a fair trial is best achieved by random selection, provided that safeguards exist to guarantee objective impartiality. It is his contention that there is no objection in principle to either a police officer or a crown prosecution service employee serving on a jury in a criminal trial. Furthermore, there is no actual partiality established in the case of any of the three jurors, who are the subject of these appeals. Their impartiality should therefore be assumed.
19.
Mr Heywood also points to the power of the Lord Chancellor to issue guidance as to the manner in which the functions of the appropriate officer (summoning officer) under s.9 and 9A of the 1974 Act as amended are to be exercised. Mr Heywood relies in particular on para 4 and para 18 of the guidance which was issued. The guidance is in these terms:
“4.
The normal expectation is that everyone summoned for jury service will serve at the time for which they are summoned. It is recognised that there will be occasions where it is not reasonable for a person summoned to serve at the time for which they are summoned, in such circumstances, the summoning officer should use his or her discretion to defer the individual to a time more appropriate. Only in extreme circumstances, should a person be excused from jury service.
The summoning officer exercising his discretion should
observe the following principles…
18.
Members of the judiciary or those involved in the administration of justice who apply for excusal or deferral on grounds that they may be known to a party or parties involved in the trial should normally be deferred or moved to an alternative court where the excusal grounds may not exist. If this is not possible, then they should be excused. Paragraph 4 (above) applies”
20.
Mr Heywood relies on s.12 of the 1974 Act. S.12 (1) gives the judge the right to determine any challenge for cause of a juror. He also refers to the residual discretion of the judge at common law which was explained by Lord Lane CJ in
R v Ford
(1989) 89 Cr App Rep 278 at 280:
“At common law the Judge has a residual discretion to discharge a particular juror who ought not to be serving on the jury. This is part of the judge’s duty to ensure that there is a fair trial. It is based on the duty of the judge expressed by Lord Campbell C.J., in
Mansell
(8857) 8 E. & B. 54.”
21.
As Mr Heywood points out, the common law power to challenge is clearly restricted. However, it is to be remembered that Lord Lane’s judgment was given in a case decided before the Human Rights Act 1998 came into force.
22.
Having referred to ss.3 and 6 of the Human Rights Act 1998 and Article 6 of the ECHR, Mr Heywood contends that the case law of the ECtHR does not provide grounds for the conclusion that in the absence of evidence of subjective partiality and an established connection between a juror and a party an involvement in the administration of justice will, of itself, give rise to a finding of objective impartiality, still less that the holding of an office or occupation connected to the administration of justice will do so. In this connection, he refers to
Crummock (Scotland) Ltd v HM Advocate
The Times 9 May 2000 and
Pullar v United Kingdom
(1996) 22 EHRR 391
. He also refers to Lord Rodger of Earlsferry’s speech in
R v Mirza
[2004] 1 AC 1118
at p.1174 para 152 where he said:
“The risk that those chosen as jurors may be prejudiced in various ways is, and always has been, inherent in trial by jury. Indeed, only the most foolish would deny that judges too may be prejudiced, whether, for example, in favour of a pretty woman or a handsome man, or against one whose dress, general demeanour or lifestyle offends. The legal system does not ignore these risks: indeed it constantly guards against them. It works, however, on the basis that, in general, the training of professional judges and the judicial oath that they take mean that they can and do set their prejudices on one side when judging a case. Similarly, the law supposes that, when called upon to exercise judgment in the special circumstances of a trial, in general, jurors can and do set their prejudices aside and act impartially. The recognised starting-point is, therefore, that all the individual members of a jury are presumed to be impartial until there is proof to the contrary.”
23.
The safeguards that Mr Heywood relies on also include:
a)
The random selection process to which we have already referred;
b)
The guidance given to prospective jurors from a number of sources making clear the juror’s responsibility to draw to the attention of a judge where, during a trial, a juror recognises the defendant or witness or the judge, an advocate or solicitor.
In addition Mr Heywood refers to the guidance contained in a video recording shown to jurors on the first day of their service and the guidance which was issued by the Metropolitan Police’s Assistant Commissioner on 10 May 2004, the effect of which is that, where possible, police officers should not “attend a court where their operational command unit is situated”.
Our General Conclusions
24.
No complaint can be made as to the manner of selecting the members of the jury thought to be eligible based on the literal meaning of the legislation. The panel was selected to be summoned randomly by a computer system installed at the Jury Central Summoning Bureau. This was about the most random method of selection that could be devised. The original summoning is then followed by ballot from among those summoned to attend the court.
25.
We emphasise that it is necessary to draw a distinction between the eligibility of a person to serve on a jury and the issue of whether a particular eligible person should be prevented from sitting on a particular jury at a particular place. As to eligibility, we reject a suggestion that police officers, members of the prosecution service or other persons involved in the administration of justice, including judges, should, because this is their occupation, be automatically regarded as being disqualified from a jury. Our initial view that their service on the jury could be undesirable is conditioned by the fact that traditionally, the holders of these occupations have not been eligible for jury service. But approaching the question of their eligibility from first principle, there appear to be few reasons why, in general, they should be excluded from the obligation of the public generally to shoulder the important responsibility of sitting on a jury.
26.
The first reason for exclusion is that the juror’s involvement in the justice system means the juror would know more about the workings of the court systems than would a normal citizen. In particular, they might be in a position to draw inferences that other members of the jury who did not share the same occupation would not be able to draw. For example, they might be able to infer that a defendant had previous convictions when a less well informed member of the jury would not be able to draw that inference. The other reason is that, because of their occupation, they may be able to play an unduly dominant role in the jury’s deliberations. The third reason is that, because of their close connection with the criminal justice system, they might not approach the case with the same open-mindedness of someone unconnected with the legal system.
27.
As to these reasons, we share the same view as Lord Justice Auld in his report. They do not in themselves justify concluding that individuals should be disqualified from being among the members of the jury by reason of their occupation alone. The starting point for our conclusion is that, when they become members of the jury, they are not becoming members of the jury in their capacity as policeman or a prosecuting solicitor. Having been randomly selected, they serve on the jury in the same way as any other member of the public in their capacity as a citizen eligible for jury service. They then take the jury oath which makes it clear that it is their solemn duty to determine the case on the evidence. Furthermore, like other juries, they will hear the judge direct them clearly as to what is their role and that they must decide the case only on the evidence. If they have no personal knowledge of the defendant or others involved in the trial process, above that of their fellow jurors, they can be expected to comply with the terms of their oath and the directions which the judge will give them. They will have to disregard matters which are irrelevant, but that is the requirement for any juror.
28.
Their special knowledge of the criminal justice system could mean that they could draw inferences, but the guidance which they receive both before they become members of the jury and after they have become members of the jury should avoid their using their knowledge of the system in a way which is unfair to the defendant.
29.
We, of course, accept the danger of a juror being unconsciously prejudiced. However, with any juror, there is a danger of having prejudices. The variety of prejudices that jurors can have are almost unlimited
30.
The fact that there are 12 members of the jury of which at least 10 must be agreed is a real protection against the prejudices of an individual juror resulting in unfairness to a defendant. In addition, it is to be hoped and expected, that those who are employed in the administration of justice will be particularly careful not to act in a manner which is inconsistent with their duty as members of the jury and in particular, to exercise the independence of mind which is required of all jurors and to be on their guard to reach their verdict only on the evidence in accordance with the directions from the trial judge. It is our view that a fair minded and informed observer would not conclude that there was a real possibility that a juror was biased merely because his occupation was one which meant that he was involved in some capacity or other in the administration of justice.
31.
As to an individual because of his occupation unduly dominating a jury, again our view is the same as that of Lord Justice Auld for the reasons he gives. We do not believe that today, a juror would or might have an unacceptable influence on his fellow jurors because of his occupation. In some cases were the jury to become aware of the occupation of a juror as a policeman or some other occupation involved in the administration of justice, it could reduce rather than increase his influence on his fellow jurors. It is to be remembered that a trial judge usually appreciates that there is at least a risk that the jury might draw an inference as to the judge’s view on the innocence or guilt of the accused and for that reason, he warns the jury that if they draw any such inference, they should put it out of their mind if they disagree with it because their decision on the facts is the critical decision.
32.
Of course, there will always be risks that any juror will depart from his or her solemn duty, but the system cannot work on the basis that this risk can be excluded. Justice systems can only strive for perfect fairness but it would be foolish not to recognise there will be occasions when it is actually not achieved. Despite this shortcoming, which is inherent in any system dependent upon individuals’ decision, in this jurisdiction, the view of the public generally is that normally, the jury trial is the fairest form of trial available. We have great faith in the ability of 12 persons randomly selected, and properly directed, to provide justice in the generality of cases.
33.
The position is, however, different if the juror has a special knowledge either of individuals involved in the case or as to the facts of the case apart from that provided by the evidence. If this is the situation, it is now clearly recognised that the juror must draw the matter to the attention of the judge. Here, we commend the fact that the recorded video shown to jurors immediately before their service commences contains under the sub-title “The Trial”, the following words:
“Once the jury has been selected the court clerk will read out the charges made against the defendant. If you realise that you know anyone or have any other connection with the trial on which you are serving, please tell the usher immediately.”
This is followed by the presenter stating:
“It is vital that your opinion is based purely on what you see and hear both within the courtroom and you are not influenced by any outside factors. Please don’t discuss any details of the trial with anyone other than your fellow jurors, not even members of your family and please don’t remove any items of evidence or notes from the courtroom. It is very important that if anyone approaches you about the trial or tries to influence you in any way, you do not discuss it with any member of your jury and tell the jury officer or usher immediately.”
34.
This recording was introduced in June 2005 and would not have been used at the time of the trials which are the subject of these appeals. The earlier form of video which would have been in use at the time of the trial was not significantly different. In particular, it concluded by saying “Remember, if you know anyone involved in the case, tell a court official immediately”.
35.
It is our view that the general advice provided to jurors should be adequate to draw to their attention the need to alert the court if they have any special knowledge. Further guidance is, however, desirable and has been provided for those involved in the administration of justice to avoid them being summoned to appear at courts where the likelihood of their being well known to those conducted with the trial is undesirably high.
36.
It is obviously good sense to try and avoid situations where the suitability of a juror to sit on a particular trial will be likely to be questioned. If despite this a situation does arise where a juror knows those taking part in the proceedings, then the judge in the normal way should exercise the discretion he has to decide whether that juror should become or remain part of the jury.
37.
If an issue arises as to whether, despite the precautions that are taken, a member of the jury has knowledge which makes him or her unsuitable to sit on that jury, the usual test as indicated by Lord Hope in the
Porter
case has to be applied in all the circumstances to determine whether the requirements of fairness have been met or not. In making that determination, there is no need to distinguish between the position under Article 6 and the position at common law. In our understanding, the approach is now the same in both, at least in the great majority of cases.
38.
We turn now first to the case of Abdroikov and then to the appeals of Green and Williamson.
Nurlon Abdroikov
39.
The indictment against the appellant Nurlon Abdroikov charged him with offences against two separate victims. Counts 1 to 4 related to an incident on 14 April 2002 when a man called Nicholas Faulkner met him and invited him back home. The appellant attacked Mr Faulkner in the bedroom and tied him up on the bed. Mr Faulkner fell to the floor while attempting to escape. The appellant then pushed a duvet into his face and smothered him, at the same saying "I am going to kill you". Mr Faulkner lost consciousness. When he woke up, the appellant punched him about the head and body, repeating the threat "I am going to kill you". He took Mr Faulkner's belt and used this to strangle him, while asking him to hand over his credit cards and threatening to kill him. He stood on Mr Faulkner's shoulders to tighten the belt. Mr Faulkner lost consciousness again. Upon regaining consciousness he discovered that personal property from his flat had been stolen. The attack on Mr Faulkner was charged as attempted murder (count 1), with alternative counts of attempting to choke (count 2) and making a threat to kill (count 3). There was a separate count of theft in relation to the personal property (count 4).
40.
Counts 5 to 7 related to an incident on 31 August 2002 when a woman called Samantha Pettit was walking home at about 5 a.m. The appellant grabbed her from behind, took hold of her neck and punched her about the face, while threatening her by saying "I will kill you, I want to rape you". He dragged her into the next road. Although still forcibly holding her, he then entered into a conversation with her and offered her a cigarette. He said that if she allowed him to have sex with her he would let her go. When she refused, he continued to talk to her. She attempted to escape but was punched again around the neck. A passer-by then walked up to them and the appellant left the scene. The attack on Mrs Pettit was charged as an offence contrary to section 21 of the Offences Against the Person Act 1861, namely an attempt to choke, suffocate or strangle with intent to enable an indecent assault (count 5), with alternative counts of indecent assault (count 6) and making a threat to kill (count 7).
41.
The proceedings took a somewhat complex course. First, in February 2003, the appellant pleaded guilty to the count of theft (count 4). Then, in February 2004, he pleaded guilty to making a threat to kill Mr Faulkner (count 3) and attempted choking of Mrs Pettit (count 5). The Crown decided to accept those pleas and not to pursue the other matters to trial. When the appellant was seen by a probation officer for the purpose of preparing a pre-sentence report, however, the account he gave to her made it clear that his pleas to counts 3 and 5 were equivocal. He was subsequently allowed to change those pleas and the case was listed for trial. It was ordered that counts 1 to 3 be tried first.
42.
Following a trial at the Central Criminal Court before the Common Serjeant of London (His Honour Judge Beaumont) and a jury, on 31 August 2004 the appellant was convicted on count 1. Verdicts of not guilty were returned on the alternative counts 2 and 3. The appellant then entered a plea of guilty to count 5, making a further trial unnecessary. Counts 6 and 7 were ordered to lie on the file.
43.
On 19 November 2004 the appellant was sentenced to a term of 11 years' imprisonment on count 1 and a consecutive term of 5 years' imprisonment on count 5, making a total term of 16 years. No separate penalty was imposed on count 4. He was also recommended for deportation.
44.
The matter came before this court by way of a renewed application for leave to appeal against conviction, following refusal of leave by the single judge, and an appeal against sentence by leave of the single judge. At the hearing we granted leave to appeal against conviction on the one ground that the presence of a serving police officer on the jury deprived the appellant of a fair trial. We refused leave on the remaining grounds.
45.
The fact that there was a police officer on the jury came to light because, while the jury were in retirement and immediately before they were sent home over a bank holiday weekend, the foreman sent the judge a note in which he explained that he was a serving police officer and was due to report for duty on the bank holiday Monday, during the course of which he might come into contact with officers in the case. He sought guidance. The judge directed him not to report for duty on that day. The matter was drawn to the attention of counsel at the time and no objection was raised concerning the police officer’s presence on the jury.
46.
In contending before us that the presence of the police officer on the jury made the trial unfair, Mr Carey-Hughes relied on the general arguments that we have already considered. He accepted that the officer concerned had behaved responsibly in sending the note he did to the judge. He also accepted that the case did not involve any major issue between the appellant and the police. He drew our attention, however, to one matter of dispute. The appellant admitted having tied up Mr Faulkner by the hands, but denied having also tied him by the feet. A woman police officer gave evidence that she had seen indentations around Mr Faulkner's lower legs as if he had been bound there. The defence case was that those markings were not visible in the photographs and the officer had exaggerated her account.
47.
In our judgment there was nothing in the particular circumstances of the case to give rise to any cause for concern with regard to the presence of a police officer on the jury. The case falls squarely within the general issues of principle discussed above. Accordingly, our conclusion that the presence of a police officer on a jury does not in itself offend the principles of fairness leads us to dismiss Mr Abdroikof's appeal against conviction.
48.
We should also mention briefly the grounds of appeal in respect of which we refused the renewed application for leave.
49.
First, the probation officer who saw the appellant for the purpose of preparing a pre-sentence report following the original (subsequently vacated) pleas of guilty was called as a prosecution witness at trial to give evidence that the appellant had given her an account that was inconsistent with his case at trial. There was no dispute about the admissibility of her evidence. But as a result of her cross-examination and of evidence then given by the appellant, the jury came to learn of the appellant’s previous pleas of guilty. The appellant himself told the jury that he had pleaded guilty to making threats to kill Mr Faulkner, seeking to explain it away as part of a “deal” with the prosecution whereby the more serious allegations in counts 1 and 2 were not proceeded with.
50.
The judge ruled that it would be unfair to Mr Faulkner to leave matters as they were, owing to the risk that the jury might think that in agreeing to a deal at the time of the appellant’s original pleas the prosecution had been making a judgment about the credibility of Mr Faulkner. The judge dealt with this by explaining to the jury, both at the time when the matter arose and in his summing up, that in February 2004 the appellant had been facing two sets of charges, one in relation to Mr Faulkner and one in relation to another person; he had pleaded guilty to one charge in relation to each; the prosecution had to decide whether it was in the public interest in those circumstances to proceed with jury trials; it had then become clear in the probation officer’s interview of the appellant that he was saying to her that he was not guilty of either offence; and the judge had therefore allowed the pleas to be withdrawn, so that the charges in relation to Mr Faulkner were now before this jury and the charges in relation to the other person would have to be considered by another jury at another time. The judge emphasised to the jury that they should regard the appellant as innocent of those other charges and should not speculate about them.
51.
Mr Carey-Hughes submitted that the way in which the judge dealt with the matter was unfair and prejudicial to the appellant and rendered his conviction on count 1 unsafe. The jury should not have been told that the prosecution had decided on the earlier occasion not to proceed with counts 1 and 2 only because the appellant had pleaded guilty to something else. The jury should either have been directed to ignore the evidence about the deal or should have been discharged.
52.
We reject those submissions. We are satisfied that the situation that arose, unfortunate and difficult though it was, did not call for the discharge of the jury. In dealing with it by the directions he gave the jury, the judge struck a fair balance between the interests of the prosecution and the interests of the defence. He ensured that the jury were not misled, but equally ensured that they did not speculate about the other charges or hold them against the appellant.
53.
The other ground of appeal against conviction was that the judge was wrong to reject a submission of no case to answer on count 1. It was submitted that there was no evidence upon which the jury could find an intention to kill, as opposed to an intention to frighten the victim. We disagree. In our judgment there was plainly sufficient evidence for the issue to be left to the jury.
54.
That brings us to the appeal against sentence. Although points were made about the individual components of the sentence, the main thrust of the submissions on the appellant’s behalf was that an overall term of 16 years’ imprisonment did not properly reflect the principle of totality.
55.
On that one issue we find ourselves in agreement with the case advanced for the appellant. This was not an easy matter for the judge, given the seriousness of each of the separate offences for which the appellant fell to be sentenced. If either sentence had stood alone, we do not think that there would be any basis for interfering with it. We have reached the conclusion, however, that an overall term of 16 years for the two offences together was somewhat too long. In our judgment an appropriate overall term would have been 14 years. In order to produce that outcome, we allow the appeal against sentence to the extent of substituting a sentence of 9 years’ imprisonment for the sentence of 11 years on count 1, leaving in place the consecutive sentence of 5 years’ imprisonment on count 5.
Richard John Green
56.
Richard Green was convicted on two Counts at the Woolwich Crown Court on the 5
th
of October 2004. He was sentenced to concurrent sentences of 7 weeks’ imprisonment for offences of Assault Occasioning Actual Bodily Harm and Having a Bladed or Pointed Article. We granted leave to appeal at the outset of the hearing. The appeal raises the same point as that in Abdroikov, namely whether the presence of a police officer on the Jury made the trial fair.
57.
The two counts arose from the same incident, which took place on the 18
th
of March 2004. Richard Green was seen in a public area by two police officers one of whom was Police Sergeant Burgess who suspected that Mr Green might be intending to steal a wheel from a wrecked car. He informed Mr Green that he was to be searched for articles for use in committing theft.
58.
Police Sergeant Burgess then asked Mr Green if he had anything he should not have on his person. Mr Green handed over a plastic bag full of sterilized needles. Police Sergeant Burgess again asked if Mr Green had anything ‘he should know about’ to which Mr Green replied ‘no’. When Police Sergeant Burgess went to put his hand into one of Mr Green’s pockets the Sergeant pricked himself on a needle causing him to bleed.
59.
Mr Green’s defence to having a pointed article was that he did so ‘for good reason’. He was a drug addict and had obtained all the needles, including the one in his pocket, for a project run by an NHS Trust. He had used the needle in his pocket to inject himself with heroin – something he would normally do in private as he had felt ill.
60.
As regards the assault occasioning actual bodily harm, Mr Green’s case was that he had completely forgotten the needle was in his pocket. When he had been asked by the Sergeant whether there was anything further he had on him that the Sergeant should know about he had replied ‘No’. Sergeant Burgess then immediately went towards Mr Green to search him denying Mr Green the opportunity to search himself as he would have done, which would have obviated the danger of Sergeant Burgess pricking himself.
61.
There was thus a factual issue to be determined as between the Police Sergeant and the appellant Richard Green. Unbeknown to the appellant and his legal advisors there was serving upon the jury a Police Officer, one Police Constable Mason. This fact only came to the notice of the appellant’s solicitors several weeks after the conviction when by accident his solicitor learned of the fact whilst visiting a Police Station.
62.
The sole ground of appeal was that the convictions were unsafe by reason of the fact that a police officer was serving on the jury, that he was a serving police officer in the same Borough as Sergeant Burgess and that there was a real danger of bias. Mr Carey-Hughes submitted that there was a significant issue between Mr Green and Sergeant Burgess crucial to the element of recklessness and foresight, which lay at the heart of the appellant’s case. The crux of the case as it impacted upon the subjective element of recklessness was whether Mr Green was aware that he had the needle in his pocket. Evidence was received from the officer as to what Mr Green said, which was contradicted by Mr Green’s own account. The credibility of Sergeant Burgess was therefore of the utmost importance, as was the credibility of Mr Green. Mr Heywood for his part, whilst acknowledging the existence of such an issue, chose to describe it as a narrow issue.
63.
The following are agreed facts:
(i)
Sergeant Burgess served at Thamesmead Police Station in the Royal Borough of Greenwich from February 2000 until his transfer to the Borough of Sutton in April 2004. PC Mason completed his initial training at Hendon in 2003. He was transferred to the Royal Borough of Greenwich and undertook his Street Duties Course, which entailed his spending some time at each of the Police Stations in the Borough. In June 2003, after completing his course, PC Mason was posted to Eltham Police Station and has worked there since.
(ii)
We have read a statement from Sergeant Burgess indicating that he did not recognise any juror as being a police officer and a further statement indicating that he did not know a police officer by the name of James Mason and had never met anyone by that name in the police service.
64.
In contending before us that the presence of the police officer on the jury made the trial unfair, Mr Carey-Hughes stressed the issue between the appellant and Sergeant Burgess and pointed to the fact that both PC Mason and Sergeant Burgess had served in the same Borough at the same time. He submitted that a fair minded and informed observer would conclude that there was a real possibility or real danger that the jury were or would be biased.
65.
Mr Heywood was not able to tell us how it came about that PC Mason served in a jury hearing such a case having regard to the written guidance issued to the Metropolitan Police Service by the Assistant Commissioner (Human Resources) indicating that ‘where possible, police officers should not attend the Court where their Operational Command Unit commits its work’. However Mr Heywood invited us to conclude that since neither had met or knew one another there was no evidence whatsoever of any personal partiality and thus the impartiality of PC Mason was therefore to be presumed. There was no evidence that the juror ignored instructions or improperly failed to alert the Court to any relevant matter. The jury was directed to decide the case only according to the evidence they had heard, to put aside sympathies and to treat the Defendant’s evidence in no different way. Mr Heywood submitted there was no sufficient basis upon which to conclude that the applicant’s fears as to impartiality were objectively justified.
66.
In our judgment there was nothing in the particular circumstances of this case to give any continuing cause for concern with regard to the presence of PC Mason on the jury. Having satisfied ourselves that the two police officers were not known to one another, we fall back on the conclusion discussed above, namely that the presence of a police officer on a jury does not in itself offend the principles of fairness and thus we dismiss Mr Green’s appeal against conviction.
Kenneth Joseph Williamson
67.
The facts can be stated quite briefly. We granted leave to appeal against conviction. On the 3
rd
of February 2005 in the Crown Court of Warrington the appellant was convicted of 2 counts of Rape and sentenced to 10 years’ detention in a Young Offender Institution.
68.
The allegation was that the appellant, having obtained a key to the complainant’s home, lay in wait and entered her home late at night shortly after the complainant had returned. He entered her bedroom, threatened her with a knife and raped her vaginally and anally. When interviewed the appellant denied having intercourse with the complainant and denied going to the house that night. Subsequently a full DNA profile obtained from semen from the complainant’s underwear matched the appellant’s. At trial he admitted lying in interview, saying it was attributable to shock at being arrested, and alleged consent.
69.
Summonsed for Jury Service was a solicitor serving in the Crown Prosecution Service by the name of Martin McKay-Smith. He wrote a letter addressed to HH the Judge sitting at Warrington Crown Court. It reads:
“Your Honour,
I have been summonsed as a member of the jury to serve at Warrington from 31st January. I am eligible to do so following the changes brought about by the Criminal Justice Act 2003.
I work for the Crown Prosecution Service and have done so since its inception in 1986. Prior to that I worked for the Greater Manchester Council as a prosecuting solicitor, having been in private practice as a solicitor for five years in Nottingham and Chester before that.
I am a Higher Court Advocate and have practised as such in many local courts including this one since 1998, on behalf of the Crown. I have not however conducted a trial in the Crown Court, despite preparation for two, which were not able to proceed.
At present I work for the arm of the service, which advises police on charging out of office hours. On 30
th
of January I was so engaged and will be doing so again from 1700 on the 31
st
January.
As a matter of policy, the CPS has asked those summoned to ensure the Judge has all the necessary information to hand in order to exercise discretion as to the feasibility of the individual serving.
Hence this letter, which can be amplified if your Honour requires it.
Yours faithfully
Martin McKay-Smith, Solicitor, Crown Prosecution Service”
70.
When Mr McKay-Smith was called to sit on the jury the trial Judge handed the letter to Defence Counsel who took instructions from his lay client and thereafter upon instructions he sought to challenge the juror for cause asserting that there would be some presumed or actual partiality in the juror by reason of his employment. The challenge was rejected by the learned Judge on the basis that there was nothing to prevent the juror from sitting by law. He did not know any particular member of the CPS connected with the case. If this juror was not allowed to sit then no member of the CPS could sit on any jury and that was not what Parliament had clearly intended. Apart from Mr McKay-Smith’s sitting on the jury no other complaint is made.
71.
Mr Carey-Hughes submitted that in the case of a prosecution brought by the Crown Prosecution Service the presence on a jury of a person employed by the Service itself evidently causes the case to fail the test in relation to bias.
72.
Mr Heywood submitted that there was no basis at all for a claim of personal partiality (as was conceded). The issue in the case was a stark dispute of fact between complainant and defendant. The juror properly raised the matter according to the issued guidance thereby permitting the Defendant to make submissions and the trial judge to rule on all of the facts then known.
73.
In the circumstances there was no basis upon which to allege objective impartiality and no basis upon which to contend that fears as to impartiality could be objectively justified. Having concluded that the presence of a CPS employee on a jury does not itself offend the principle of fairness we dismiss Mr Williamson’s appeal against conviction.