2 June 2009
by Simeon SZYPUSZ
against the United Kingdom
lodged on 19 February 2007
STATEMENT OF FACTS
The applicant, Mr Simeon Szypusz, is a British national who was born in 1985 and is currently detained in HMP Lowdham Grange. He is represented before the Court by Mr Kovalevsky, a barrister practising in London.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
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 his car and had collided with a parked car which belonged to D.M. Within about half an hour of the dispute, a third man, Mr Gaynor, 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 Mr Gaynor was summoned to the scene by the applicant and another co-accused, Mr Hamilton, using a mobile telephone belonging to Mr Hamilton. 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 refuted allegations that he had played any part in summoning Mr Gaynor.
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 Mr Hamilton’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 Mr Hamilton’s mobile telephone to Mr Gaynor or one of his associates.
The applicant’s case at trial was that he had made no calls on Mr Hamilton’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 Mr Gaynor. 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 who had been specially instructed how to use it. The officer in question was a member of the investigating team of police officers which had conducted the inquiry into the applicant’s case. That was a team that had assembled the evidence, taken the statements and planned the investigation. The officer 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 Mr McShane – 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 Mr McShane–’
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 Mr Hamilton: ‘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 Mr McShane 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 Mr Gaynor: ‘My Lord, yes.’
Counsel for Mr Hamilton: ‘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 Mr McShane 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. Mr McShane 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 with Mr McShane 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 Mr McShane.
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 Mr McShane 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. He pointed out that:
“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.”
It was then suggested by counsel for Mr Hamilton 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.
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. He contended that where someone had retired with the jury for a substantial period, the conviction was unsafe for that reason alone.
On 20 June 2006, the Court of Appeal dismissed the applicant’s appeal. During the proceedings, the Court of Appeal had been invited to receive a witness statement from the officer in question which had not been seen by the applicant or his lawyers. However, it concluded on this matter 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”.
As to the appeal ground itself, the court agreed that a fair trial required that a jury should not be improperly influenced during its deliberations. It 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 discussion 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 his co-accused, Mr Hamilton, 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 added (at paragraphs 56-57) that:
“Although 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 ...
... 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 it in its retiring room during retirement ... If in the last resort it is really the case that the recorded material simply is incapable of being played on any machinery which the jury can take into the retiring room ... 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.
Relevant domestic law and practice
In a judgment of the House of Lords in Magill v Porter  UKHL 67, Lord Hope of Craighead endorsed a judgment of the Court of Appeal, which took into consideration the jurisprudence of this Court, on the question of apparent bias and concluded that:
“The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.”
2. The presence of an unauthorised person in the jury room
In Goby v Wetherill  2 KB 674, a civil case, the town sergeant, acting as an usher in the county court, had, through what was described as an excess of zeal, retired into the retiring room with the jury and remained there for about 20 minutes whilst they were considering their verdict. The High Court held that the action vitiated the verdict, which could not stand.
In R v McNeil  Crim LR 540, a criminal case, two uniformed police officers acting as jury bailiffs had retired with the jury and remained there throughout the time when the verdict was being arrived at, apparently in ignorance of the fact that it was something that they ought not to do. The Court of Appeal allowed an appeal against conviction, holding that the retirement of strangers with the jury during their deliberations was an irregularity which was difficult to cure, even if, as in that case, an assurance had been received from the foreman that the bailiffs had taken no part in the deliberations and had not influenced the members of the jury in their decision.
3. Communication with the jury when retired
In R v Furlong (1950) Cr App R 79, the Court of Appeal upheld a conviction where the clerk of court had been instructed to go to the jury room and ask them to put a question in writing. The court concluded that it was satisfied that the clerk had not, himself, entered the jury room but:
“Even if he had, we do not think that that would have been in itself an irregularity, because the court always has power to allow somebody to make a communication to the jury, if it is a communication proper to be made, and if it is made by the direction of the court. Everybody knows that the oath that is given to a jury bailiff is that he ‘shall suffer no person to speak to them nor speak to them [himself] unless it be to ask whether they are agreed upon a verdict, without leave of the court’.”
In the subsequent case of R v Dempster (1980) 71 Cr App R 302, an important part of the evidence was in the form of audio recordings. With the authority of the judge and by consent of counsel, a scheme was devised to enable the jury to hear the tapes in their jury room. The jury were supplied with a loudspeaker in their room which was connected to the recording and transmitting equipment in the courtroom. Anyone from the defence or prosecution could sit in the courtroom and observe the proceedings. The technician in the courtroom who was in charge of the equipment had been sworn as a jury bailiff and when the jury required some part of the tapes to be played, the foreman of the jury would instruct the technician by two-way radio. The court, dismissing the appeal against conviction, concluded that:
“... in the special circumstances of this case what was done was done by order of the court and with the consent of the parties. As matters exist at the moment we do not see what other method could easily, properly and practically have been adopted to overcome the difficulties which obviously existed.”
4. Secrecy of jury deliberations
Section 8(1) of the Contempt of Court Act 1981 states that it is a contempt of court to obtain, disclose or solicit any particulars of any statements made, opinions expressed, arguments advanced or votes cast by members of the jury in the course of their deliberations.
The applicant complains under Article 6 § 1 of the Convention that there were insufficient guarantees to exclude legitimate doubt regarding the independence and impartiality of the tribunal in light of the fact that the police officer responsible for operating the video equipment was permitted to remain alone with the jury for almost two hours while they viewed important video evidence in his case.
QUESTIONS TO THE PARTIES
the judge’s direction to the jury before they retired to view the video evidence, to the effect that there was to be no communication with the operator of the video equipment except to indicate which part of the video recordings they wished to view (see Gregory v. the United Kingdom, 25 February 1997, § 47, Reports of Judgments and Decisions 1997 I);
the fact that the course of action was adopted with the authorisation of the judge and in the absence of any objection from counsel (Gregory, cited above, § 46);
the fact that the operator of the equipment was a police officer who had been involved in the applicant’s case;
the availability of alternatives to the course of action originally pursued by the court and the later instruction of the jury to operate the video equipment themselves; and
the fact that it was not possible to make inquiries into whether any inappropriate communication had in fact occurred and thus gauge what was the impact of the course of action on the jury (Condron v. the United Kingdom, no. 35718/97, § 64, ECHR 2000 V)?