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Cite as: [2009] ECHR 1426

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22 September 2009

FOURTH SECTION

Application nos. 52999/08 and 61779/08
by Ilyas HANIF and Bakish Allah KHAN
against the United Kingdom
lodged on 13 October 2008 and 15 December 2008

STATEMENT OF FACTS

THE FACTS

The first applicant, Ilyas Hanif, is a British national who was born in 1967 and is currently detained in HM Prison Moorlands. He is represented before the Court by Howells, a firm of lawyers based in Sheffield. The second applicant, Bakish Allah Khan, is a British national who was born in 1978 and is currently detained in HM Prison Dovegate. He is represented before the Court by Favell Smith and Lawson, a firm of lawyers also based in Sheffield.

A. The circumstances of the case

The facts of the case, as submitted by the applicants, may be summarised as follows.

The first applicant is a taxi driver. On 31 August 2006, he drove from Sheffield to Luton. On his way back to Sheffield from Luton, he was arrested in the context of a police investigation into the supply of unlawful drugs. He had been followed on his journey in both directions by police officers. Six kilograms of heroin were found in the boot of his car. The case against him was that he had collected the consignment of drugs in Luton and was transporting it back to Sheffield when he was arrested.

The first applicant’s defence was that he did not know anything about the drugs found in his car. He said that he had taken a passenger named Paul with him on the journey from Sheffield to Luton at the request of Mr Younas, one of the alleged members of the conspiracy to supply unlawful drugs. Paul had used the first applicant’s mobile telephone while in the car and the calls to another of the individuals in the alleged conspiracy, Mr Rasul, had been made by Paul. Calls to Mr Younas and a third member of the alleged conspiracy, Mr Niaz Khan, were made by the first applicant: calls to Mr Younas were to check directions and calls to Mr Niaz Khan related to a dispute about an unpaid taxi fare. Paul had left the car shortly after arrival in Luton. The first applicant argued that he must have left the drugs in the car when he left the vehicle.

In August 2006, the second applicant was charged with conspiracy to supply heroin. The case against him was that he was involved in making arrangements for the payment of the drugs to be transported from Luton to Sheffield. The prosecution relied on telephone analysis to establish a link between the second applicant and the other alleged conspirators. Cash amounting to GBP 18,955 was found in the second applicant’s cellar. The money had been in contact with heroin.

The second applicant’s defence was that he was a cousin of Mr Niaz Khan and a friend of Mr Younas and was therefore in close contact with them. However, he had not taken part in the conspiracy. His telephone contacts with them on the relevant days had been innocent. The cash found at his home derived partly from the sale of a car and partly from former heroin dealings for which he had been convicted in 2003.

The applicants were subsequently tried together. The trial commenced on 3 January 2007 and the jury was sworn. On the following day the court heard evidence from the police officers who had followed the first applicant from Sheffield to Luton and back, one of whom was M.B. The police officers testified that the first applicant did not have a passenger with him at any point during that journey and that no-one had alighted from the vehicle in Luton. During the evidence of M.B., the first of the officers to testify, one of the jurors, A.T., sent a note to the judge indicating that he, A.T., was a serving police officer and that he knew M.B., although he had not worked with him for two years. The judge read the note to counsel and agreed with them a series of questions to be put to A.T. The judge then questioned A.T. in the absence of the other jurors but in the presence of the applicants. A.T. confirmed that he was a police dog handler near Doncaster, some distance from Sheffield. He said that he had known M.B. for approximately ten years and that on three occasions, they had worked on the same incident. They had never worked at the same station and did not know each other socially. He was asked if he knew anything about M.B. which would affect his ability to judge M.B.’s evidence impartially or his ability to judge the case in accordance with the oath he had sworn. He replied that he did not.

The defence made an application to the judge to discharge A.T. on the grounds that there was a conflict of evidence between the police and the first applicant which the jury would have to resolve, that it would therefore be unfair for the jury to include a police officer and that justice would not be seen to be done if the police officer continued to serve on the jury. They also argued that there was a risk that A.T. knew of the second applicant’s previous conviction for dealing in heroin. On 4 January 2007, setting out his decision on the application, the judge concluded that:

“Jurors are entitled, when called, to try the cases before them, and are not to be asked to withdraw ... unless there is a proper reason, one of which clearly concerns prejudice to an accused, or the appearance of any prejudice. I am wholly satisfied in this case that there is no prejudice to either defendant if this juror remains, nor indeed, if anyone were to hear his questioning, any appearance of unfairness. This is a juror who honestly and frankly has brought to the court’s attention his knowledge of a witness and, in answering the questions posed to him as he has, has clearly indicated that his knowledge is slight and, no matter what the extent of his knowledge, not something that will in any way adversely affect his judgment of this particular case.

...I appreciate that there is a conflict between the witness and the defendant, and that that is a conflict of some importance within the case but, in my judgment, this juror is well capable of dealing with the matter in a proper and impartial way.”

The application to discharge A.T. was rejected. A.T. subsequently became the jury foreman.

In the trial proceedings before the court, the prosecution relied on the fact that the other co-accused in the conspiracy had pleaded guilty in order to establish the existence of a conspiracy. They also relied on evidence of the second applicant’s bad character and previous conviction for dealing in heroin.

The first applicant, in his defence, called a witness who testified that she had seen him leave Sheffield at the start of his journey with a passenger in the car.

On 12 January 2007, the applicants were convicted. The first applicant was sentenced to eight years’ imprisonment. The second applicant was sentenced to 17 years’ imprisonment. This was to take place consecutively to a period of two years and five months’ imprisonment, the period outstanding under a previous conviction for supplying heroin in respect of which he had been released on licence.

After the trial, the applicants’ counsel discovered that A.T. had been involved in recent drugs operations in the area and had given evidence at other drugs trials in which counsel for the second applicant had appeared.

The applicants applied for leave to appeal against their convictions on the ground that the presence of the police officer on the jury, and in particular his role as foreman, led to an appearance of bias in the trial proceedings. Leave to appeal was granted and the appeal was heard on 29 January 2008.

Giving judgment for the Court of Appeal on 14 March 2008, Lord Phillips of Worth Matravers CJ set out (at paragraph 7) the test for bias established in the House of Lords case of Porter v Magill [2001] UKHL 67:

“whether the fair-minded and informed observer, having considered the facts, would consider that there was a real possibility that the tribunal was biased.”

In the present case, where impartiality on the part of a juror towards a particular witness was concerned, Lord Phillips indicated (at paragraph 10) as follows:

“Where an impartial juror is shown to have had reason to favour a particular witness, this will not necessarily result in the quashing of a conviction. It will only do so if this has rendered the trial unfair, or given it an appearance of unfairness. To decide this it is necessary to consider two questions:

i) Would the fair minded observer consider that partiality of the juror to the witness may have caused the jury to accept the evidence of that witness? If so

ii) Would the fair minded observer consider that this may have affected the outcome of the trial?

If the answer to both questions is in the affirmative, then the trial will not have the appearance of fairness. If the answer to the first or the second question is in the negative, then the partiality of the juror to the witness will not have affected the safety of the verdict and there will be no reason to consider the trial unfair.”

Lord Phillips referred to the change in the law which had allowed persons previously ineligible for jury duty, including police officers, to sit on juries. However, he noted that the change simply removed the automatic disqualification of such persons: disqualification was still possible on a case-by-case basis where the particular circumstances of the case were such as to suggest apparent bias.

Considering the effect of the judgment of the House of Lords in R v. Abdroikof (Appellant) and another [2007] UKHL 37 (see further “Relevant domestic law and practice below”) on the compatibility of police officer jurors with Article 6 of the Convention, Lord Phillips concluded:

“... the fact that a police juror may seem likely to favour the evidence of a fellow police officer will not, automatically, lead to the appearance that he favours the prosecution. If the police evidence is not challenged or does not form an important part of the prosecution case, we do not consider that it will normally do so. None the less it will be appropriate to quash the conviction if, but only if, the effect of the juror’s partiality towards a brother officer puts in doubt the safety of the conviction and thus renders the trial unfair.”

As to the applicants’ appeals, Lord Phillips emphasised that there was no question of the juror having any connection with those responsible for the prosecution of the case. The investigation had been carried out by the Serious Organised Crime Agency without the involvement of local police forces. The prosecution was conducted by the Organised Crime Division of the Crown Prosecution Central Casework Directorate without contact with the local Crown Prosecution Service branch.

Lord Phillips set out (at paragraph 48) the starting point for consideration of the applicants’ appeals as follows:

“If one starts, as one must, from the premise that police officers are not, by reason simply of their occupations, considered to be biased in favour of the prosecution, we do not consider that the fact that a police officer has taken part in operations involving the type of offence with which a defendant is charged, gives rise, of itself, to an appearance of bias on the part of the police officer. Most police officers are likely to have had experience of most of the common types of criminal offence, not least drug dealing. We do not consider that familiarity with the particular offence charged against an offender would lead the objective observer to suspect a police juror of bias.”

As regards the first applicant, Lord Phillips found (at paragraphs 52 to 57):

“Hanif has an additional point. His defence depended critically on the allegation that, in accordance with arrangements made with him by Younas, he had driven a passenger, Paul, from Sheffield to Luton, that this passenger had borrowed his mobile phone to speak to Rasul in conversations or attempted conversations, that were interspersed with other conversations that Hanif was having, on the same phone, with Younas and Niaz Khan who had both pleaded guilty to conspiracy at the start of the trial. His evidence was that his conversations with them related to his taxi business, including conversations with Niaz about an unpaid taxi bill and conversations with Younis about the charge to be made for carrying Paul. His evidence was that, when Paul left his car in Luton he left behind in the back two bags containing 6 kilos of heroin.

Three police officers gave evidence of keeping Hanif under observation at different stages of his journey from Sheffield to Luton. One of these witnesses was [M.B.]. Each said that he saw no passenger in the car. Each of them said that he was alone in the car. In cross-examination it was not suggested to these witnesses that their evidence was untruthful. Such a suggestion would not have been likely to be fruitful as their accounts were no doubt supported by contemporary records made at time when they would have attached no significance to the fact that Hanif had no passenger in the car. It was put to them, however, that their evidence that Hanif had no passenger was inaccurate. Hanif called a witness who spoke to glimpsing a passenger in the back of his car as it passed her in Sheffield. She was not a witness of good character and it was the prosecution case that she was not to be believed.

Hanif’s explanation for the records of the use of his mobile phone and for being found with the heroin in the back of his car bordered on the farcical. The mobile phone records showed that, if his explanation was true, his phone must have been being passed to and from between himself and his passenger like a yo-yo. Equally unlikely was the suggestion that the conspirators, Younas and Niaz, would have been having repeated telephone conversations with him about his taxi charges at a time when they were busy arranging for a drug delivery. Finally it is hard to believe that, if his passenger had been carrying a valuable consignment of heroin, he would have left it in the back of the taxi.

Quite apart from these matters, Hanif’s evidence had significant inconsistencies with earlier statements made to the police. It was the prosecution’s case that his evidence had been tailored to accommodate the police evidence.

In the light of these facts we turn to consider the two questions set out at paragraph 10 above. The material evidence of the three police witnesses was that they had seen no passenger in Hanif’s car. Insofar as there was an issue in relation to this evidence it was whether it was possible that there might have been a passenger unobserved by the police. As to that issue, the jury plainly concluded that it was not. No fair minded observer would believe, however, that this conclusion might have been brought about as a result of partiality on the part of the police juror to his fellow officers and, in particular, to [M.B.] who was known to him. Thus the question is answered in the negative and the second question does not arise.

For these reasons Hanif’s conviction is not rendered unsafe by the fact that the foreman of the jury was a police officer who was acquainted with [M.B.] and Hanif’s appeal against conviction is dismissed.”

As regards the second applicant, he concluded (at paragraphs 49 to 51) as follows:

“A further point was advanced on behalf of Bakish Alla Khan. This was that, because of the juror’s involvement in drug operations, he might have become aware of Bakish Alla Khan’s previous conviction for dealing in heroin. As to this there was nothing to support this surmise. Had the juror known anything about any of the defendants we think that he would clearly have made this fact known to the judge, as he did his knowledge of [M.B.]. Furthermore, Bakish Alla Khan’s previous conviction was placed before the jury.

No other submissions were made in support of Bakish Alla Khan’s appeal against conviction. At his trial there was no challenge to the prosecution evidence. No police witnesses were called. The issue was whether the jury were satisfied that the explanations he advanced for the undisputed evidence were untrue and that this evidence demonstrated his guilt. The jury’s verdict shows that they were satisfied of this.

In these circumstances, the allegation of jury bias made on behalf of Bakish Alla Khan is not made out and his appeal against conviction is dismissed.”

The second applicant’s appeal against sentence was successful and the sentence of 17 years was reduced to 15 years.

The applicants were refused leave to appeal to the House of Lords on 17 June 2008.

B. Relevant domestic law and practice

1. Ineligibility for jury service

It used to be the case that many who, by occupation, were involved in the administration of justice were ineligible to sit on a jury. These occupations were set out in Part 1 of Schedule 1 to the Juries Act 1974. They included judges, barristers and solicitors, the Director of Public Prosecutions and his staff, officers of penal establishments and members of any police force. One reason for the ineligibility of these persons was that they might have, or be thought to have, a tendency to favour the prosecution in a criminal trial.

In September 2001, the issue of jurors’ eligibility was reviewed by the Rt Hon Lord Justice Auld in the context of his “Review of the Criminal Courts of England and Wales”. At paragraph 30, he considered the concerns arising where individuals connected in a professional capacity with the criminal justice system were permitted to serve on juries:

“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.”

He concluded, at paragraph 34:

“Thus, in my view, there is a strong case for removing all the present categories of ineligibility based upon occupation, that is, those in Groups A – the Judiciary, B – others concerned with the administration of justice and C – the clergy, in Part I of Schedule 1 to the 1974 Act. Any difficulty or embarrassment that the holding of any such office may pose in a particular case can be dealt with under the courts’ discretionary power of excusal.”

Accordingly, he recommended that everyone should be eligible for jury service, save for the mentally ill.

Following this recommendation, section 321 and schedule 33 to the Criminal Justice Act 2003 (“the 2003 Act”) removed the automatic disqualification of those involved in the administration of justice from jury duty.

2. Discretionary excusal or deferral of jury service and challenges to jury composition

The 1974 Act provides a power for the excusal or deferral of attendance where a person summoned to serve on a jury shows that there is good reason why he should be excused from attending or why his attendance should be deferred. There is also provision for a challenge to be made to any or all of the members of a jury.

3. Police officers serving on juries and bias

The Metropolitan Police, by Notices 20-2004 Item 1, informed police officers and staff that they were no longer exempt from jury service. The notice advised that “Where possible, police officers should not attend the court where their Operational Command Unit commits its work”.

The compatibility of the change in the law introduced by the 2003 Act with Article 6 of the Convention was considered prior to the applicants’ appeal hearing by the House of Lords in R v. Abdroikof (Appellant) and another [2007] UKHL 37, which concerned three appeals. The first two involved trials in which serving police officers had sat as jurors; the third concerned a trial where an employee of the Crown Prosecution Service was a juror. Lord Bingham of Cornhill confirmed that the test of bias under the common law was no different from the requirement under Article 6 of the Convention for an independent and impartial tribunal. In relation to the first appeal, he found as follows:

“In the case of the first appellant, it was unfortunate that the identity of the officer became known at such a late stage in the trial, and on very short notice to the judge and defence counsel. But had the matter been ventilated at the outset of the trial, it is difficult to see what argument defence counsel could have urged other than the general undesirability of police officers serving on juries, a difficult argument to advance in face of the parliamentary enactment. It was not a case which turned on a contest between the evidence of the police and that of the appellant, and it would have been hard to suggest that the case was one in which unconscious prejudice, even if present, would have been likely to operate to the disadvantage of the appellant, and it makes no difference that the officer was the foreman of the jury. In the event, confronted with this question at very short notice, defence counsel raised no objection. I conclude, not without unease, that having regard to the parliamentary enactment the Court of Appeal reached the right conclusion in this case, and I would dismiss the appeal.”

As regards the second appeal, however, Lord Bingham considered:

“The second appellant’s case is different. Here, there was a crucial dispute on the evidence between the appellant and the police sergeant, and the sergeant and the juror, although not personally known to each other, shared the same local service background. In this context the instinct (however unconscious) of a police officer on the jury to prefer the evidence of a brother officer to that of a drug-addicted defendant would be judged by the fair-minded and informed observer to be a real and possible source of unfairness, beyond the reach of standard judicial warnings and directions. The second appellant was not tried by a tribunal which was and appeared to be impartial. It cannot be supposed that Parliament intended to infringe the rule in the Sussex Justices case [that justice should not only be done, but should manifestly and undoubtedly be seen to be done], still less to do so without express language. I would allow this appeal, and quash the second appellant’s conviction.”

As to the first appeal, Baroness Hale concluded:

“The Abdroikof case was tried at the Old Bailey, which hears cases from all over London and sometimes further afield. There was no particular link between the court and the station where the police juror served. No important issue turned on a conflict between police and defence evidence and there was no closer link between the police witnesses and the police juror than that they all served in the Metropolitan Police. It would be possible, perhaps, to conclude that Parliament had intended that no police officer should serve on a jury involving police witnesses from the same police force as that in which he served. Given the independence of each police force, that would have the attraction of consistency with the approach adopted earlier in relation to the CPS and other prosecuting bodies. With some hesitation, however, but because of the greater distance between the police and the prosecution process, I feel able to agree with my noble and learned friend, Lord Bingham of Cornhill, that there is not sufficient to raise the appearance of bias in this case. Hence this appeal should be dismissed ...”

She identified further considerations arising in the second appeal which required the conviction to be quashed, noting as follows:

“In the Green case there are two factors which make the connection between the police and prosecution too close for comfort. One is that the victim of the alleged crime was himself a police officer and the case depended to some extent on his evidence of how the accused was searched and what was said at the time. The officers were serving in the same borough at the time of the trial although not in the same police station. Another is that the juror was posted to a police station which committed its cases to the Crown Court where the case was tried. Officers in his station will have had regular dealings with the CPS conducting prosecutions in the same court.”

Lord Mance concluded, in allowing the appeal of the second appellant:

“With regard to the case of the second appellant, as Lord Bingham and Baroness Hale point out ..., the police sergeant who was the alleged victim and whose evidence was relevant shared the same local service background as, and was as a result the ‘brother officer’ of, the policeman on the jury. Further, the juror was posted to a station which committed its cases to the Crown Court of trial – a factor which Metropolitan Police Notice 20-2004 Item 1 identified as one to be avoided ... Absent such considerations, I do not agree that it follows automatically that a police officer is disqualified as a juror, even in a case of significant conflict of evidence between a police witness and a defendant.”

COMPLAINT

The applicants complain under Article 6 of the Convention that they did not receive a fair trial by an independent and impartial tribunal as a result of the presence of the police officer on the jury.

QUESTIONS TO THE PARTIES

Is the participation of police officers in juries compatible with the right to an independent and impartial tribunal, as required by Article 6 § 1 of the Convention?

If so, was the participation of A.T. in the jury in the applicants’ case compatible with their right to an independent and impartial tribunal, as required by Article 6 § 1 of the Convention?

(See Pullar v. the United Kingdom, 10 June 1996, Reports of Judgments and Decisions 1996 III)