PROCEDURE

The case originated in an application (no. 8400/07) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a British national, Mr Simeon Szypusz (“the applicant”), on 19 February 2007.

The applicant was represented by Mr R. Kovalevsky Q.C., a barrister practising in London. The United Kingdom Government (“the Government”) were represented by their Agent, Ms E. Willmott, of the Foreign and Commonwealth Office.

The applicant, relying on Article 6 § 1 of the Convention, alleged that he had not had a fair trial as there were insufficient guarantees to exclude legitimate doubt regarding the independence and impartiality of the tribunal which tried him on criminal charges.

On 26 May 2009 the President of the Chamber decided to give notice of the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 1).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1985 and is currently detained in HMP Lowdham Grange, Nottingham.

On 30 May 2004, at around lunch time, an argument broke out between the applicant and D.M. in a residential street. The applicant had been trying to park a car he was driving and had collided with a parked car which belonged to D.M. Within about half an hour of the dispute, a third man, D.G., arrived at the scene equipped with a loaded shotgun and shot D.M. in the back of the head. D.M. survived but suffered permanent brain damage.

The Crown case was that D.G. had been summoned to the scene by the applicant and another co-accused, M.H., using a mobile telephone belonging to M.H. The applicant was charged with attempted murder and making threats to kill. The applicant denied the charges, alleging that he had left the scene at an early stage and gone to a neighbouring house. He disputed allegations that he had played any part in summoning D.G.

The Crown's evidence regarding the alleged phone calls came from a number of sources. They pointed to the fact that the applicant was the party involved in the original dispute and that, according to witnesses, he had made threats of violence and of death. An important part of the Crown case involved video recordings from closed circuit television (CCTV) cameras near the scene. From a combination of video recordings and mobile telephone records for M.H.'s telephone, the Crown contended that the applicant could be seen making certain calls. There was also eye witness evidence of him making at least one of the critical calls. In total, the Crown case was that six relevant calls were made from M.H.'s mobile telephone to D.G. or one of his associates.

The applicant's case at trial was that he had made no calls on M.H.'s mobile telephone. He accepted that eye witness evidence and CCTV recordings demonstrated that he had used a telephone at certain points. However, he said that he was a drug dealer using his own telephone and that the calls were made for his own criminal purposes and were nothing to do with the summoning of D.G. As regards one part of the CCTV footage, the applicant denied the Crown contention that it showed him making a call at a relevant time.

A compilation of the CCTV footage was shown a number of times during the trial. It was played on specialist digital equipment, which was more sophisticated than an ordinary video recorder, specially installed for the trial. It had a number of facilities, including a better capacity to freeze frames, to step forwards and backwards from frame to frame and to coordinate views of different cameras at any particular moment. The machine was operated by a detective constable, Officer M, who had been specially instructed how to use it. Officer M was a member of the investigating team of police officers which had conducted the inquiry into the applicant's case. He was, formally speaking, a witness in the case in the sense that he had made two single paragraph statements recording taking possession of some of the CCTV tapes and had made an uncontroversial statement relating to the taking of a mouth swab sample for DNA analysis from one of the other accused in the applicant's case. Over the period of the trial, which lasted around a month, he had made his services available not only at the trial itself but also to the Crown and the defendants outside the court.

There was some early discussion about the possibility that the jury would wish to view the recordings after they retired. Leading counsel for the applicant directed the judge's attention to short notes in Archbold's Criminal Pleading, Evidence and Practice, an authoritative text on Crown Court practice and procedure, on the replaying of various different kinds of recording which may figure in trials. The matter was left that there was no reason why the recordings could not be taken into the jury room and played there by the jury if required.

At the conclusion of his summing-up, the judge told the jury that should they wish to view the recordings again, they only had to ask. The following dialogue took place: “Judge: 'Ladies and gentlemen, it may be that you will want to see the videos again. Have arrangements been made for the jury to see them in their room?' Counsel for the prosecution: '...It is impossible, as I understand it, in fact, to take this into the jury's room. There are, therefore, either two options: either to watch a VHS video on the normal equipment in their room, or alternatively, there is the higher quality–' Judge: 'The jury must watch what has been shown in court.' Counsel for the prosecution: 'In that case, I am afraid the position must be that as and when the jury require it, they will have to come back and see it in court.' Judge: 'There you are. Any time you want to see the video, you can pass a note ...'”

The jury subsequently retired. On the second day of their deliberations, they indicated their wish to start reviewing the video evidence in the afternoon. Counsel were advised of the jury's request and the court convened with junior counsel for the applicant among those attending. The following discussion ensued: “Counsel for the prosecution: '... the only issue that arises as a result of the CCTV request is who exactly is present in court when they view the material. It is a matter that we have discussed between counsel, and of course, subject to your Lordship's view, I think the general view is that if they are able to watch it on their own, it would be much more constructive – if counsel and your Lordship were not present. In other words, if this was an extension of their jury room–' Judge: 'And then we would have – what – just the officer working the machine?' Counsel for the prosecution: My Lord, that is the only outstanding issue, and I am afraid I have not had an opportunity to speak to [Officer M] – who, as your Lordship knows, is the man in charge of the machinery – as to whether it would be possible for the jury to be shown very briefly how to operate the machinery, or whether that is unrealistic.' Judge: 'I should imagine that it is unrealistic–' Counsel for the prosecution: 'In which case I understand–' Judge: 'I mean, you have to go backwards and forwards, and you have to catch particular frames, and I think you will probably need [Officer M] –' Counsel for the prosecution: 'My Lord, I am inclined to agree, in which case it would be my suggestion, on behalf of the Crown, that he remains, and at their instruction operates the machinery–' Judge: 'And does nothing else but to operate the machinery–' Counsel for the prosecution: 'Indeed – and, of course, makes no communication to them or to anyone else –' Counsel for M.H.: 'Except where they will want to go backwards or forwards –' Counsel for the prosecution: 'Except, of course, to talk to them about operating the machinery.' Judge: 'Does anyone have any objections to the court being cleared, along with the defendants and the public gallery, and simply leaving [Officer M] there – and in that case, I do not think I need ask the jury what they want to see.' Counsel for the prosecution: 'My Lord, no.' Judge: 'That is probably much better.' Counsel for the prosecution: 'Indeed. Thank you very much.' Judge: 'Thank you. Does everybody agree?' Counsel for the prosecution: 'My Lord, yes.' Counsel for D.G.: 'My Lord, yes.' Counsel for M.H.: 'My Lord, yes.'

No assent was recorded from junior counsel for the applicant but no objections were raised to the course of action proposed.

The judge instructed the jury to return and directed them as follows: “Ladies and gentlemen, having discussed this matter with counsel, what we are going to do is this: we are going to leave [Officer M] in this court with you, and he will play any part of the video that you have seen, and he will play it as you think fit. Remember that there is more than one camera that operates – that sometimes you are viewing camera no. 1, and I think at other times camera no. 2. [Officer M] cannot do anything other than operate the video machine, and there is to be no other communication with him – or any communication from him – than simply asking him to play you what you want to see – and I think it is probably better, because he was in court – and apart from discussing among yourselves, perhaps, what you want to see, any other discussion is in your jury room ...”

The jury was left alone in the court room with Officer M at 2.05 p.m. to begin reviewing the video evidence.

As soon as leading counsel for the applicant, who had been engaged elsewhere during the earlier discussions with counsel regarding the viewing of the video recordings as the applicant's trial had overrun, was informed of the course of action adopted, a request was made to reconvene the court at 3.30 p.m. The judge agreed to reconvene at 4 p.m. as he did not wish to interrupt the jury's viewing of the video evidence. The jury spent almost two hours viewing the video recordings in the presence of Officer M.

When the court reconvened, leading counsel for the applicant directed the judge's attention to various authorities, including Archbold's Criminal Pleading, Evidence and Practice, and the following discussion took place: “Counsel for the applicant: 'The court has, for all purposes, during this afternoon, whilst the jury have been reviewing the material, really been an extension of the jury room –' ... Counsel for the applicant: 'And what has happened, in reality, is that an individual – he happens to be a police officer – an individual has, in fact, been within that jury room –' Judge: 'There was instructions –' Counsel for the applicant: 'I know that, but the difficulty with that is that the person who would normally be supervising “the sanctity”, if I can put it that way, of the jury – because, of course, normally there is no problem; they are in their jury retiring room, and there is no individual who can come near them –' Judge: 'No –' Counsel for the applicant: 'Because the jury bailiff acts in accordance with their oath, as one expects, to prevent that – by my understanding is that this afternoon there has been no such person present.' Judge: 'But are you saying that if one of the jury bailiffs had been present, that would be all right? That would have caused other problems.' Counsel for the applicant: 'My Lord, I am trying to see a way through it. This is a very unusual circumstance. Judge: 'The unusual circumstance is this ...: we cannot put the equipment in the jury room'. Counsel for the applicant: 'Yes, I understand that'. Judge: 'And that is the first problem ... The second problem is that the jury could not work the equipment.' ... Counsel for the applicant: '...we understand that [Officer M] was able, in fact, to instruct another officer how to use this machine in pretty short order.' Judge: 'Perhaps, but that is how it was presented to me –' ... Counsel for the applicant: 'I am merely looking at the peculiar situation that arises here, and the simple fact of the matter, if we boil it down to first principles, is quite simply this: throughout this afternoon, there has, in fact, been an outsider in the jury retiring room. Your Lordship, of course, has given directions, and so be it. In fact, we cannot inquire – certainly from the jury – as to whether that was followed, because we have no right –' Judge: 'No, I agree –' Counsel for the applicant: 'And the problem is this: that those who sit behind the dock are essentially put on trust in relation to the police officer's lack of communication, and as soon as one recognises that, that, essentially, cannot be right, because there is no reason why they should, as it were, feel that they can trust the police officer to that extent ...'

Counsel for the applicant then suggested that the police officer could continue to operate the equipment but that the presence of a jury bailiff in the jury room would ensure that there was no communication between the parties in light of the oath sworn by the jury bailiff to prevent any communication with the jury. The following exchange took place: “Counsel for the applicant: 'If the jury bailiff's oath is that they are to stop any approach by any outsider to the jury, then any communication as to which section of tape the jury wish to see should, in fact, go through that conduit, and that can be in the same room, but the jury bailiff can ensure that there is no communication directly between the parties.' Judge: '... You are suggesting that the police officer could operate the machinery – that is obviously the most convenient way to do it, even if there could possibly be other ways ... – but the jury bailiff has to be present?' Counsel for the applicant: 'Yes, because the jury bailiff, consistent with his or her oath, is duty bound to stop all communication, and essentially, that communication can only be complained of if it came from the officer. I am not saying for one instant – for one instant – that I have reason to believe that that has happened.' Judge: 'No.' Counsel for the applicant: 'I am merely looking at it from a point of principle ... The system ... has a safeguard within it, and normally that is the jury bailiff, who essentially guards the sanctity of the jury once they have retired.”

The judge observed that there was a need to protect the privacy of the jury while preserving the integrity of the situation. However, he pointed out that “the die had been cast” and that: “... either the procedure in the circumstances of this particular case is acceptable, or it is not. I am not sure I would want to change it now. I mean, counsel can consider all of this overnight –”

He later continued: “... I think I ought to state for the record – and I will – precisely what has happened, so that there can be no doubt about it. I will give counsel a chance to consider this matter ... it may be that it is just not sensible to do anything different, and if something has gone wrong, it has gone wrong – but I will give counsel a chance to consider the matter overnight, and if they want to suggest to me anything – alternative procedures – not very different than what we are doing – but any modified procedures, tomorrow I will listen to them.”

It was then suggested by counsel for M.H. that either the jury themselves be instructed how to use the equipment or that the video be played in open court in the presence of the judge. The following morning, a solution was agreed which would allow the jury to operate the equipment themselves, with information provided to assist them in locating the part of the recordings that they wished to view. The judge subsequently advised the jury as follows: “We have reconsidered the procedure for your viewing [the CCTV] footage, and in order to give you complete freedom for discussion amongst yourselves as you view that footage, we propose to give you the opportunity to do so in the absence of any other person. What we propose is this: that you should be shown in a moment or two in open court, with everybody present, how that equipment works, and you will then be left to it, and you will decide exactly who is to operate it, and what you wish to see. Can I remind you that the tape is a composite tape containing footage from three cameras. You will be given a sheet of paper – this one – containing an index of counter times, which show where footage from each camera begins, and what each camera is focused on ... If you have any problems in working the equipment, let me know, and I will reconsider the position ...”

The jury subsequently viewed the video recordings alone for about an hour. They continued their deliberations for the rest of the day and into the following morning.

On 25 February 2005, the jury found the applicant guilty of attempted murder and making threats to kill. He was sentenced to 25 years in prison for attempted murder and three years, to be served concurrently, for making threats to kill. His co-accused, M.H., was found not guilty.

The applicant appealed, arguing that the approach taken to the viewing of the video recordings amounted to a fundamental infringement of the integrity of the jury's deliberations.

On 20 June 2006, the Court of Appeal dismissed the applicant's appeal. The court summarised the matter before it as follows: “[Counsel for the applicant] contends now, as foreshadowed in his submissions to the judge on his return to court, that the course taken amounted, however unwittingly, to a fundamental infringement of the integrity of the jury's deliberations. He takes his stand on the point of principle. He contends that when somebody has retired, in effect, with the jury for a substantial period the conviction is, for that reason alone, unsafe. He adds, of course, that in this particular case it was a policeman who was in that position.”

Discussing the role of Officer M, the court noted that: “The officer in question was a serving police officer. He was a member of the investigating team of police officers which had conducted the enquiry into this case. That was a team which had assembled the evidence, taken the statements, and no doubt planned the investigation. He was, formally speaking, a witness in the case, in the sense that he had made two single paragraph statements recording taking possession of some of the close circuit television tapes and he had also made an entirely uncontroversial statement relating to the taking of a mouth swab sample for DNA analysis from one of the other accused ... There was no hint of question about the formal statements that he had made. He had not been called as a witness. His credibility was not in any sense in issue. He was a member of the investigating team, but this was not a case in which there was any challenge to the credibility or propriety of any of the police officers. This was not that kind of a case. There was no challenge whatever to the manner of investigation. The issue at the trial was what the evidence, which the police were accepted properly to have gathered, did or did not prove.”

During the proceedings, the Court of Appeal had been invited to receive a witness statement from Officer M which had not been seen by the applicant or his lawyers. However, it concluded on this matter (at paragraph 28) that: “...we do not think that we should be invited to receive partial evidence of what occurred. We are certainly satisfied that no further enquiry, for example of jurors, would in a case of this kind be proper”.

The court examined the trial transcript and, despite the absence of any recorded assent from the applicant's junior counsel to the jury's viewing of the CCTV footage in the presence of Officer M, stated that it had absolutely no doubt that assent to the presence of Officer M while the jury viewed the CCTV footage was given by all counsel concerned, referring to the various, non-verbal manners of expressing assent in such situations.

The court agreed that a fair trial required that a jury should not be improperly influenced during its deliberations. The Court observed that this was not a case where any bias, or apparent bias, was in question. The question was whether the conviction was safe, and in particular whether the unusual course taken meant that there was an unacceptable risk that the jury may have come under improper extraneous influence after the close of evidence in the case. The court accepted that this would include an inquiry into whether there was such appearance of that possibility that a fair minded, independent observer would conclude that there was a real danger or a real possibility of the jury's decision being compromised by external influence.

The court found (at paragraphs 44-45): “In the modern era our system proceeds upon the basis that jurors can be trusted to heed the very careful injunctions which are given to them throughout the trial process, to try the case upon the evidence heard in court alone and to be scrupulous in not discussing the case with anybody outside their number. Such directions are conventionally given by judges at the outset of the trial. They will have been foreshadowed before that by the instruction given to jurors on attending court. They are always repeated at later stages of the trial and they are invariably endorsed at time of separation, if that necessity arises. Quite apart from that, some jurors need transport for various reasons; sometimes, but not always, of security. Drivers who are not operating under a bailiff's oath, hotel staff where appropriate, and many others have dealings with jurors who are in retirement. Once again, the system proceeds on the basis that the jurors treat their task conscientiously and can be trusted to obey the oath that they have taken and not to allow any possibility of extraneous influence to compromise the integrity of their discussions as a group of 12. The experience of trial judges up and down the country demonstrates that in all but a tiny handful of cases that trust is well placed. Jurors approach what is a difficult and often anxious task with a remarkable sense of duty. Now to accept the risk which thus arises of influence from someone unknown and unconnected with the case is not, of course, the same as positively to permit a 13th person to be present with the jury after it has retired and whilst it is reviewing part of the evidence in the case. If, therefore, there were in this case an unacceptable risk of compromise to the integrity of the jury's discussions, the modern practice as to the separation of juries during retirement would not necessarily save it. What the modern practice does, however, is to demonstrate the recognition of the fact that the safeguard of the integrity of the jury system lies in the respect that jurors have for the serious oath that they have taken, reinforced by the directions and warnings that they are given by trial judges, rather than in requiring formal rules attempting to insulate them from contact with the outside world.”

The court noted that the approach adopted in the present case occurred with the authority of the judge and with the consent of all parties, although it emphasised that no question arose as to the applicant's right to a fair trial being waived. Such a right could only be waived after a full investigation of the facts, in particular as to whether the applicant was fully apprised of the options available. However, the court considered that the agreement of the judge and counsel to the approach adopted was relevant when assessing whether a fair minded observer would have been of the view that there was, as a result of the decision, an unacceptable risk of the jury's discussions being compromised.

The court further referred to the “careful direction” given to the jury that there was to be no communication between them and the officer operating the equipment except for the purposes of finding the correct place on the video. The court noted (at paragraph 50): “He directed them, as we have recorded, that they were to preserve their own discussions of what they had seen until they were in private. That direction came on top of, we are quite sure, conventional directions to the jury of the kind which we have already mentioned that is to say as to the necessity to try the case on the evidence, and, on many occasions, to be scrupulous to avoid discussing the case with anybody outside their number. For the reasons which we have explained, the modern practice is to trust jurors to obey injunctions of this kind.”

The court noted that the suggestion mooted before the trial judge of having a jury bailiff present demonstrated that there could be no absolute prohibition on contact with the jury. It further observed that there was no indication that the jury had been in any way inhibited by the presence of the police officer: they spent considerable time viewing the recordings. In any event, they continued to view the recordings alone the following morning and clearly gave further consideration to them.

Finally, the court considered it significant that the jury had convicted the applicant of attempted murder but acquitted of attempted murder his co‑accused, M.H., who was also directly affected by the CCTV evidence. The significance was that: “... the jury arrived, after prolonged deliberation, at discriminating verdicts.”

The court concluded (at paragraph 55): “We are satisfied that on the facts of this case, whether or not what occurred should have happened – and we will come to that in a moment – the hypothetical informed and fair minded observer would be aware of all the factors to which we have called attention and he would, we are satisfied, on the facts of this case not believe that there was a real danger, or a real possibility, that the jury's deliberations had been improperly influenced by an external individual.”

As to the approach adopted to the viewing of the video evidence as a matter of principle, the court stated (at paragraphs 56-57) that: “We add this. Although in this case we are satisfied that no harm was done, we firmly suggest that this is a course which is not followed in future with or without the consent of the parties. We are alive to two considerations which troubled those who were concerned in this case and we understand how it came about that they resulted in the judge doing what he did with the consent of all the parties. We do not, however, think that anybody needed to be concerned that a jury would betray its thinking by identifying a piece of recording that it wanted to see again. Jurors commonly ask questions on all manner of topics. Some of them call for the jury to be reminded of a particular area of evidence. We do not believe that anybody who has any experience of jury trials supposes that anything can be read into the questions which a jury asks. Such a question may come from all jurors or from one. It may come because the evidence is regarded by someone as of great importance or it may come because the jury collectively thinks it is irrelevant but wants to be sure. The second concern, however, namely that the jury ought to be able to view real evidence of this kind, and discuss it as it views it, is of much greater significance. The breadth of close circuit television coverage in places public and private is nowadays so extensive that juries are more and more presented with evidence of this kind. They also have recorded evidence very often in cases of recorded surveillance. There are other examples, of course, as well. It seems to us that it should be regarded as the plain duty of any party, Crown or defence, which is proposing to rely on such recorded evidence to ensure that there is provided equipment not only to play the recording in court, but also such as the jury can use in its retiring room during its retirement. They must, we are quite satisfied, as jurors be entitled to review precisely the same material as has been put in evidence in court. The judge in this case, we are satisfied, was absolutely right not to permit them to be given a substitute poorer quality VHS recording. If the necessary equipment can be provided in any particular court by agreement as to compatibility of machinery between parties and the court, then so much the better. The ultimate responsibility, however, for the presentation of evidence lies not with the court, but with the parties seeking to adduce it. It is not desirable that equipment should be provided which can only be used in open court, because although it may turn out to be possible to proceed as was done here on the second day of viewing, that will often not be possible, and in many courts the courtroom will by then be in use in the next trial. If in the last resort it really is the case that the recorded material simply is incapable of being played on any machinery which the jury can take into the retiring room -- and we take leave to doubt that that will ever be so with a little forethought -- then we think that the normal course should be followed and in that exceptional case any replaying for the jury during retirement ought to take place in open court.”

On 22 August 2008, the applicant was denied leave to appeal to the House of Lords.