PROCEDURE

The case was referred to the Court by the European Commission of Human Rights (“the Commission“) on 2 December 1995, within the three-month period laid down by Article 32 para. 1 and Article 47 of the Convention (art. 32-1, art. 47). It originated in an application (no. 22299/93) against the United Kingdom of Great Britain and Northern Ireland lodged with the Commission under Article 25 (art. 25) by Mr David Gregory, a British citizen, on 7 July 1993. The Commission’s request referred to Articles 44 and 48 (art. 44, art. 48) and to the declaration whereby the United Kingdom recognised the compulsory jurisdiction of the Court (Article 46) (art. 46). The object of the request was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Articles 6 and 14 of the Convention (art. 6, art. 14).

In response to the enquiry made in accordance with Rule 33 para. 3 (d) of Rules of Court A, the applicant stated that he wished to take part in the proceedings and designated the lawyer who would represent him (Rule 30).

The Chamber to be constituted included ex officio Sir John Freeland, the elected judge of British nationality (Article 43 of the Convention) (art. 43), and Mr R. Bernhardt, the Vice-President of the Court (Rule 21 para. 4 (b)). On 8 February 1996, in the presence of the Registrar, the President of the Court, Mr R. Ryssdal, drew by lot the names of the other seven members, namely Mr Thór Vilhjálmsson, Mr F. Gölcüklü, Mr F. Matscher, Mr R. Macdonald, Mr N. Valticos, Mr I. Foighel and Mr A.B. Baka (Article 43 in fine of the Convention and Rule 21 para. 5) (art. 43). Subsequently, Mr Bernhardt and Mr Macdonald were prevented from taking part in the consideration of the case and were replaced respectively by Mr Ryssdal as President of the Chamber and by Mr A. Spielmann, first substitute judge.

As President of the Chamber at that time (Rule 21 para. 6), Mr Bernhardt, acting through the Registrar, consulted the Agent of the United Kingdom Government (“the Government“), the applicant’s representative and the Delegate of the Commission on the organisation of the proceedings (Rules 37 para. 1 and 38). Pursuant to the order made in consequence, the Registrar received the applicant’s memorial on 28 June 1996 and the Government’s memorial on 2 July 1996. Following enquiries conducted through the Registrar no objection was raised as to making accessible the applicant’s submissions in the proceedings before the Commission, dated 24 June 1994 and 10 March 1995. These submissions were subsequently appended to the applicant’s memorial.

On 13 June 1996 the President of the Chamber at the time, Mr Bernhardt, granted leave to Rights International, a non-governmental human rights organisation based in New York, to submit written comments (Rule 37 para. 2). These were received on 28 August 1996 and forwarded on 3 September 1996 to the Delegate of the Commission, the applicant’s representative and the Agent of the Government for comment. No comments were received.

In accordance with a decision of the then President of the Chamber, the hearing took place in public in the Human Rights Building, Strasbourg, on 21 October 1996. The Court had held a preparatory meeting beforehand. There appeared before the Court: (a) for the Government Ms S. Dickson, Agent, Mr N. Garnham, Counsel, Mr S. Bramley, Mrs B. Moxon, Advisers; (b) for the Commission Mr G. Ress, Delegate; (c) for the applicant Mr M. Mansfield QC, Mr P. Herbert, Counsel, Mr E. Abrahamson, Solicitor. The Court heard addresses by Mr Ress, Mr Mansfield and Mr Garnham.

AS TO THE FACTS

I. Particular circumstances of the case

The applicant, who is black, is a British citizen born in 1966 and currently living in Manchester, England.

A. The trial

The applicant was tried for robbery at Manchester Crown Court between 26 and 28 November 1991. He was legally represented at the trial.

On the final day of the trial, at 10.46 a.m., the jury retired to consider their verdict. An hour and three quarters later a note was passed by the jury to the judge. It read: “JURY SHOWING RACIAL OVERTONES. 1 MEMBER TO BE EXCUSED.“

In the absence of the jury, the trial judge showed the note to counsel for the prosecution and defence and consulted them on the appropriate response to it.

There is some uncertainty as to the stance taken by defence counsel with regard to the follow-up to be given to the note. Prosecution counsel recalls that defence counsel did not raise strong objections to the approach which the judge indicated he intended to pursue, namely to recall the jury and give clear directions on their duty to return a verdict on the basis of the evidence alone. However, defence counsel seems to recall that he did in fact ask the trial judge to discharge the jury in the circumstances, but his application was refused. Defence counsel based his recollection on the grounds of appeal and advice on appeal which he drafted shortly after the trial on 10 December 1991. However, neither of these documents suggests that defence counsel made an express request to the judge to discharge the jury. Under point 4 of his grounds of appeal, defence counsel concluded: “It is submitted that, in the circumstances aforesaid, some enquiries should have taken place with a view to acceding to the request of the jury that one of their numbers be discharged.“ In the accompanying advice on appeal, defence counsel stated: “It seems to me that it is at least arguable that the trial judge should have enquired further into the matter with a view to acceding to the request that the jury were making.“

The judge’s recollection is that both counsel agreed to his proposed course of action (see paragraph 11 above).

The jury were recalled at 12.47 p.m. Pausing at appropriate junctures to ensure that his statement was being understood, the judge redirected the jury in the following terms: “You are brought here as twelve people from your various walks of life, your various backgrounds. Everybody has preconceived ideas and thoughts but you are brought here from twelve different backgrounds expecting to apply your twelve different minds to the problems that are put before you ... you decide this case according to the evidence and nothing else in the case. Any thoughts or prejudice of one form or another, for or against anybody, must be put out of your minds. You decide this case on evidence. It is the evidence alone which decides the case. Do you understand that, members of the jury? You are the judges and you decide it on the evidence, and weighing the individuals as you saw them and allowing no other factor to influence your decision, but your decision about the quality of the evidence and the way in which a particular individual you are considering, treating them all alike and making no distinction whether a person is a defendant or otherwise, where he lives, where he comes from. Do you understand that? I am certainly not going to discharge any member of the jury because he or she may wish [me] to do so because they dislike certain overtones in the conversation. Decide this case according to the evidence. Members of the jury, I am not saying you should be biased in favour or against it. Look at the way it was given. Decide the case that way and no other. That is your sworn duty. I expect you to abide by your sworn duty.“

The jury then retired at 12.50 p.m. At 2.21 p.m. the jury, being unable to reach a unanimous verdict, were recalled by the judge. He informed them that the time had come when he could accept a verdict of at least a majority of ten. The jury retired again at 2.24 p.m. At 3.27 p.m. the jury were still undecided and they were called back again. The judge further directed the jury as follows: “Members of the jury, each of you has taken an oath to reach a true verdict according to the evidence. Remember that is the oath you took two days ago. Not one of you must be false to that oath. You do have a duty, not only as individuals but collectively as a jury. That, of course, is the strength of the jury system. So each of you when you go into your jury room take with you your individual experience and wisdom ... Your task is to pool that experience and wisdom. You must do that by giving your views and listening to the views of other people. Of necessity there will be discussion ... There has got to be argument and there has got to be give and take within the scope of the oath that each of you has taken. That is the way you achieve agreement.“

At 4.06 p.m. the jury returned and delivered a ten to two majority verdict finding the applicant guilty. The applicant was sentenced to six years’ imprisonment.

B. The appeal proceedings

The applicant sought leave from the Court of Appeal to appeal against conviction. He submitted that in the circumstances the trial judge had wrongly failed to make any enquiry into the note with a view to determining whether one of the members of the jury should be discharged on the grounds of racial prejudice and that this failure gave rise to a material irregularity at the trial (see paragraph 11 above). Leave to appeal was refused by the single judge on 28 February 1992. He stated that: “The learned judge dealt with the novel and delicate situation presented by the jury note with tact and sensitivity. It would have been entirely inappropriate for him to have conducted some sort of enquiry. There was no material irregularity at your trial.“

The applicant renewed his application to the full Court of Appeal. On 19 January 1993 the application was dismissed. The Court of Appeal noted that the trial judge “... took the view and this Court agrees with it, that the nature of the jury’s anxiety was that one member of the jury felt that there was a general overtone of racial comment which was unacceptable and not, as the applicant is suggesting, one member of the jury being so racially prejudiced as to be unable to give proper consideration to the matters before him“. The court continued: “Matters of this kind raise delicate issues. The jury system does require an element of give and take after proper directions from the judge. In our judgment His Honour Judge Hammond dealt with this matter sensitively, sensibly and correctly, and cannot be faulted for a conclusion that the jury should continue the deliberations which they had given their oath to undertake. We, therefore, find no ground for complaint and we dismiss this application.“