PROCEDURE

The case originated in an application (no. 34129/96) against the United Kingdom of Great Britain and Northern Ireland lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a United Kingdom national, Mr Kudlip S. Sander (“the applicant”), on 22 July 1996.

The applicant was represented by Mr G. Henson, a barrister practising in London. The Government of the United Kingdom (“the Government”) were represented by their Agent, Ms S. Langrish, of the Foreign and Commonwealth Office.

The applicant complained that his case had not been heard by an impartial tribunal because, allegedly, the jury had been racially prejudiced.

The application was transmitted to the Court on 1 November 1998, when Protocol No. 11 to the Convention came into force (Article 5 § 2 of Protocol No. 11).

The application was allocated to the Third Section of the Court (Rule 52 § 1 of the Rules of Court).

By a decision of 29 June 1999, the Chamber declared the application partly admissible.

The applicant and the Government each filed written observations on the merits (Rule 59 § 1).

THE FACTS

THE CIRCUMSTANCES OF THE CASE

In March 1995 the applicant, an Asian, appeared together with J.B. and G.C. before the Birmingham Crown Court, composed of a judge and a jury, to be tried for conspiracy to defraud.

After the defence had stated its case, the judge started his summing‑up, which he had almost completed by Friday evening when he adjourned.

On Monday morning a juror arrived at the court and handed an envelope to the court usher containing the following complaint: “I have decided I cannot remain silent any longer. For some time during the trial I have been concerned that fellow jurors are not taking their duties seriously. At least two have been making openly racist remarks and jokes and I fear are going to convict the defendants not on the evidence but because they are Asian. My concern is the defendants will not therefore receive a fair verdict. Please could you advise me what I can do in this situation.”

The juror who had written the complaint was asked not to join the other jurors. The judge discussed the complaint with counsel in chambers and then adjourned and listened to submissions in open court. The defence asked the judge to dismiss the jury on the ground that there was a real danger of bias. The judge, however, decided to call the jury back into court, at which stage the juror who had written the complaint joined the others. The judge read out the complaint to them and told them the following: “Members of the jury, this morning I received a note from one of your number expressing extreme concern that some of your number are not taking your duties seriously, are making openly racist remarks and jokes about Asians and may not reach your verdicts upon the evidence but because of some racial prejudice. I am not able to conduct an inquiry into the validity of those contentions and I do not propose to do so. This case has cost an enormous amount of money and I am not anxious to halt it at the moment, but I shall have no compunction in doing so if the situation demands. When you took the oath or affirmed as jurors it was, you will remember, to bring in true verdicts according to the evidence. That is solemn and binding and means what it says. I am going to adjourn now and I am going to ask you all to search your conscience overnight and if you feel that you are not able to try this case solely on the evidence and find that you cannot put aside any prejudices you may have will you please indicate that fact by writing a personal note to that effect and giving it to the jury bailiff on your arrival at court tomorrow morning. I will then review the position. Thank you very much.”

The next morning the judge received two letters from the jury. The first letter, which was signed by all the jurors including the juror who had sent the complaint, stated the following: “We, the undersigned members of the jury, wish to put on record to the Court our response to yesterday's note from a juror implying possible racial bias.

We utterly refute the allegation.

We are deeply offended by the allegation.

We assure the Court that we intend to reach a verdict solely according to the evidence and without racial bias.”

The second letter, which the judge commended, was written by a juror who appeared to have thought himself to have been the one who had been making the jokes. The juror in question explained at length that he might have done so, that he was sorry if he had given any offence, that he was somebody who had many connections with people from ethnic minorities and that he was in no way racially biased.

The judge decided that he would not discharge the jury and told them the following: “Ladies and gentlemen, the events of yesterday afternoon were clearly distressing for you, but I am sure you will see and realise that when a judge receives a note from one of your number raising those sort of issues it is the judge's duty to bring it to the attention of the whole jury. Whether the suggestions were well or ill-founded is not something I or any judge can decide, nor is it something that can be investigated by the judge. It would be an improper activity. I took the course I did in the exercise of my discretion and I am sorry you were offended and upset. However, all twelve of you have this morning utterly refuted the allegation, expressed your deep offence at it and assured the Court that you intend to reach a verdict or verdicts solely according to the evidence and without racial bias. One of your number has also written at length a most cogent and balanced letter, and it is quite clear to me that each and every one of you are conscious of the oath or affirmation that you have taken and are dutifully prepared to abide by.”

On 8 March 1995 the jury found the applicant guilty, but acquitted G.C., who was also Asian. On 20 April 1995 the judge imposed on the applicant a sentence of five years' imprisonment.

The applicant was given leave to appeal against conviction. In his appeal he raised, inter alia, the following ground: The judge should have reacted to the juror's complaint by dismissing the jury; in any event, the juror who had written the complaint should not have been segregated from the other members of the jury in the early stages and the judge should not have disclosed to the jurors the contents of the complaint.

On 1 March 1996 the Court of Appeal dismissed the applicant's appeal. As regards the above-mentioned ground it considered the following: The court had regard to the letter signed by all the members of the jury, and the letter of the juror who was probably responsible for the remarks that had given offence, and found that the trial judge did not err in reaching the conclusion that there was no real risk of bias. Moreover, the judge was right to confront the jury with the problem and ask them to consider it. It was perhaps unfortunate that the juror who had written the complaint was for a time segregated from the other members of the jury, as this led to his identification. However, it would be unrealistic to suppose that the jury would not have wanted to know who the author of the complaint was and the judge dealt with the possibility of tensions among the jurors perfectly sensibly in the direction he gave to them.