England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT WOOD GREEN
H.H.J. Ansell

		Royal Courts of Justice Strand, London, WC2A 2LL
		13/07/2007

Lord Justice Dyson of the court (giving the judgment of the court):

1. On 5 July 2006, the appellant was convicted at Wood Green Crown Court of possession of a class A drug (heroin). On 17 July, he was sentenced to a community order with a requirement to perform 100 hours unpaid work by 16 July 2007 and a requirement of supervision for 18 months. He appeals against conviction with the leave of the Full Court.
2. The appellant lived in a flat at 138 Tiverton Road, Tottenham London N15. He was a drug addict. At 6 am on 7 October 2005 the police carried out a raid at his flat. They found 1.2 grams of heroin in a chest of drawers. In interview, the appellant said that he had been on holiday and that a friend had stayed in his flat.
3. At the trial, the police evidence was that 6 or 7 uniformed officers broke into the flat. PS Hallas (who did not give evidence) was at the front with an enforcer or ram and the other officers were behind him. The officers who gave evidence said that they shouted words to the effect "Police! Get away from the door." The door was not opened so they had to break their way in and the appellant was put in the bedroom.
4. PC Brackley gave evidence that she was fourth in line behind PS Hallas. She said that there was an interval of 45 seconds after they had shouted "Police!" before the door was broken down. PC Karakas said that he was third in line behind PS Hallas. He said that the door was broken down almost immediately after they had shouted "Police!". PC Nicholls said that he was second in line behind PS Hallas.
5. The appellant gave evidence and amplified the account he had given in interview. On 7 October, he heard a commotion outside and opened the door. He saw some police officers who told him to close the door. They then broke open the door throwing him against the wall thereby injuring his face. He said that the drugs were not his.
6. On 10 May 2006, one of the jurors was working in the Operation Monitor room at the Central Communications Command Centre, Bow when PS Cooze walked in. The officer knew that she had been on jury service. According to a statement he made on 12 July 2006, he asked her how she was and how her jury service had been. She told him that she had been on a case, but was not sure that she had done the correct thing. She had known some of the officers who gave evidence and was not sure whether she should have said anything to the court staff. They were from her old shift at Islington police station. She started to laugh and said: "I knew them and because I am in this job, I just found him guilty." The officer said in his statement that at first he thought that she may have been joking due to the flippant manner in which she was talking. He told her to be quiet. A short time later, however, he felt uncomfortable about the conversation. He reported the matter to his chief inspector.
7. Later that day, PS Cooze said that he spoke to the juror again. He told her that she should have mentioned the matter to the court staff and that he had reported it "as it seemed to be a matter of integrity". He asked her how many of the officers she had known. She said that she had worked with three of them at Islington in her old team, but did not know them socially. She only knew them through her work as communications officer. She also said that by chance she had met another officer involved in the case in a local takeaway shop. This officer had not given evidence. She told PS Cooze that this officer had been the "enforcer officer". She had asked him how the enforcer worked. The enforcer is a tool used by police officers to force entry into property. The officer was in fact PS Hallas.
8. The statement of PS Cooze was shown to the judge on 17 July before he passed sentence. The judge said that his only power was to grant a certificate of fitness to appeal if he thought that this was appropriate. He said that he was not inclined to do so since there was no dispute that the drugs had been found in the property and the core of the case had been whether the jury believed the appellant's explanation that others may have left the drugs there.
9. The single ground of appeal is that there is a real possibility that the juror and therefore the whole jury was biased against the appellant.
10. In giving leave to appeal, the Full Court directed that the Registrar request a representative of the Criminal Cases Review Commission to interview and take a statement from the juror by asking a number of questions.
11. The questions and answers were as follows:

"Q. What type of job were you doing as a civilian employee of the police service, at the time of your jury service?

A. Communications officer which entails taking calls from members of the public and radio dispatch.

Q. How long had you held the job?

A. Since 18^th November 2002.

Q. How long had you known the following officers, who were called as witnesses at the trial?

A. PC Nicholls:

I recognised one of the male officers. I believe it was PC Nicholls although I could not recall or cannot now be certain of his surname. I worked in Haringey Borough from 18 November 2002 until November 2004 when I moved to Metcall at Lambeth. I worked at both Tottenham High Road and Hornsey Police Stations. I believe this officer had the shoulder number 535 or 538 YR. Whilst I was in Haringey Borough this officer would sometimes call into the control room or I might see him in the police station. I knew him just to say 'Hello' to. I didn't know him personally.

PC Karakas:

I assume from his surname that this was the officer who had the Asian or Turkish appearance. I did not know this officer at all.

PC Brackley:

If that is a female officer then I knew her in the same way as I knew the officer I believe was PC Nicholls. I only recognised these two from the officers who gave evidence.

Q. How long had you known PS Hallas?

A. I remember them saying at the trial that PS 145YR Hallas used the enforcer. He did not give evidence as far as I recall. I knew PS Hallas from my time in Haringey Borough. I would have spoken to him over the radio and sometimes face to face when he came into the control room. He was just someone I worked with. I did not know him personally.

Q. Did you say to the other jurors that you knew any of the three police witnesses?

A. I can't remember.

Q. Did you say to the other jurors that you knew PS Hallas?

A. No.

Q. Did you say to the other jurors that you were employed as a civilian by the police service?

A. I might have done. I was only involved in one case and this was during my second week of jury service. There was a lot of hanging around and we spoke to each other over coffee and people spoke about themselves and some mentioned what they did for a living.

Q. Acting Inspector John Cooze has made a statement detailing a conversation with you on 10 July 2006. He states that he asked you about your jury service. He records the following conversation:

She replied that she was fine, and said that she had been on a case but she wasn't sure if she had done the correct thing. She went on to elaborate that she had been a juror on a case and she had known some of the police officers giving evidence. She stated that she was not sure if she should have said anything to the court staff. She continued that the officers involved in this case were from her old shift at Islington Police Station. She then started to laugh and said, 'I knew them, and because I am in this job, I just found him guilty.'

Did you make this statement? If not, did you say anything to Mr Cooze on this occasion? What did you say to him?

A. I am shocked that he said this. I did have a conversation with him. He approached me and said, 'Hi Ameeta. How did your jury service go?' I remember telling that I recognised two of the officers. I definitely did not say 'I knew them and because I am in this job, I just found him guilty.' The fact of my job had no relevance to the trial or the view I took as a juror. I cannot believe that he said that I had said this."

12. On behalf of the Crown, Mr Charlton does not concede that the juror said "I knew them and because I am in this job, I just found him guilty". But he agrees that the appeal should be conducted on the basis that she did make this statement. We shall refer to this as "the juror's statement". In our view, there is no reason to doubt the accuracy of any part of PS Cooze's statement and we proceed on the basis that it is true.

Discussion

13. There is no doubt as to the test for bias. It has been authoritatively stated by the House of Lords in Porter v Magill [2001] UKHL 67, [2002] 2 AC 357 para 103 in the speech of Lord Hope of Craighead: "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."
14. It is also a clearly established rule of the common law that evidence of the jury's deliberations is generally inadmissible. This has been authoritatively stated by the House of Lords in R v Mirza [2004] UKHL 2, [2004] 1 AC 1118. An exception to this rule is that what has been referred to as "extrinsic" evidence may be admitted. As Lord Steyn stated at para 11, "The only exception is that where there has been, or may have been, an irregular occurrence of an extraneous nature, which may have compromised the impartiality of the jury, the evidence may be admitted." Much of the argument before us was directed to the question whether the evidence of the juror's statement was admissible as being evidence of an occurrence of an extrinsic nature or whether it was inadmissible as being intrinsic to the jury's deliberations.
15. Lord Slynn of Hadley referred to this exception at paras 43-49. He gave examples which included R v Brandon (1969) 53 Cr App R 466, where the jury bailiff had told the jury of the accused's previous convictions. This was held to be a grave irregularity and the conviction was quashed. At para 45 he said that it is not always easy to draw the distinction between what is extrinsic and what is intrinsic.
16. Lord Hope discussed the exceptions to the general common law rule at paras 102-107. At para 106 he gave examples of cases where the argument was that the jurors' deliberations were affected by extraneous influences. In R v Hood [1968] 1 WLR 773, the juror was acquainted with one of the witnesses and may have known of the appellant's record. In R v Young (Stephen) [1995] QB 324, 331C-D (the Ouija board case) the Court of Appeal held that it could consider an alleged irregularity which related to something other than the jurors' deliberations in the jury room. In the cases before the House of Lords in Mirza, none of these exceptions applied, since the allegations were directed to what took place during the jury's deliberations in the jury room. Lord Hope continued at para 107:

"There is no suggestion that the comments which were made were extrinsic to those deliberations. It is obvious that we are not dealing here with events that took place outside the jury room. Nor are we dealing with irregularities which may have led to the jury being provided with information which they should not have had, or with the possession by a juror of knowledge or characteristics which made it inappropriate for that person to serve on the jury. The question which these cases raise is whether the boundary between what is admissible and what is inadmissible, between what is extrinsic and what is intrinsic to the deliberations, has been drawn in the right place."

17. Finally, Lord Rodger of Earlsferry also referred to the general rule and said at para 162:

"Where, on the other hand, the allegation is that the jury has been subjected to some improper influence from outside, such as bribery or intimidation, appeal courts have been prepared to admit evidence relating to that allegation, investigate the matter and set aside the jury's verdict if the allegation is made out. Since proof of improper extrinsic influence will be sufficient by itself to make the jury's verdict unsafe, no question of admitting evidence as to actual deliberations of the jurors need arise. For the most part at least, such cases are relatively easy to deal with."

18. There is an illuminating discussion of the issue of the ambit of the general common law rule in R v Pan [2001] 2 SCR 344 in the judgment of the Supreme Court of Canada given by Arbour J. As is there explained, "the rule seeks to preserve the secrecy of the jury's deliberations, while ensuring that those deliberations remain untainted by contact with information or individuals from outside the jury. As a result, where the evidence establishes that the jury has been exposed to outside information or influences, it will generally be admissible" (para 55). The court added at para 60 that the distinction between intrinsic and extrinsic matters "is not always self-evident and it is not possible to articulate with complete precision what is contemplated by the idea of a matter "extrinsic" to the jury deliberation process." It is a distinction which is at times "difficult to discern" (para 62).
19. If it were necessary to decide the point, we would hold that this jury was, or may have been, exposed to extrinsic influences so that the entirety of the juror's statement is admissible. That is because, to use the language of Lord Hope, one of the jurors had "knowledge or characteristics which made it inappropriate for that person to serve on the jury". We give our reasons for this conclusion at paras 21-24 below. The general rule is that evidence of the jury's deliberations is inadmissible and it seems to us that this must extend to evidence not only of the jury's discussions but also to evidence of how and why a particular juror reached his or her verdict. But on any view, the evidence of the juror's employment and the extent of her knowledge of the officers in the case was admissible. In our judgment, it is those features of the case which determine this appeal.
20. We turn, therefore, to consider whether, in the light of this evidence, a fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the jury was biased. The first question is whether the observer would conclude that there was such a possibility that the person who made the juror's statement was biased.
21. We have no doubt that he or she would reach this conclusion. The juror knew at least three of the officers in the case reasonably well. She had worked in Haringey for 2 years and knew PC Nicholls well enough to recall his shoulder number. The impression her answer to the CCRC gives is that she saw him regularly. She knew PC Brackley to the same extent (although she said nothing about her shoulder number). She recognised both of them when they gave evidence. She knew PS Hallas (who did not give evidence) well enough to initiate a conversation with him in the local takeaway after the trial and ask him how a ram works. Of particular significance is the fact that she told P.S. Cooze that she worked with the officers on the same shift at Islington Police station and that she told PS Cooze that she worked with three of them "in her old team". This was no mere casual acquaintanceship. The juror knew the officers in the case well and worked with them as a team. In our view, this knowledge alone would have led the fair-minded and informed observer to conclude that there was a real possibility of bias on her part.
22. Mr Charlton submits that there was no such possibility because there was no significant evidential issue as between the officers and the appellant. The case did not turn on whether the jury preferred the evidence of the police to that of the appellant. The real issue in the case was whether the appellant knew that the drugs were secreted in his drawers. We accept that this was the real issue in the case. But there was a subsidiary issue of fact relating to the circumstances of the police entry into the appellant's flat. If the jury preferred the evidence of the police officers on this issue, that might have influenced them in reaching a conclusion as to his credibility generally and therefore in deciding the central issue in the case.
23. But more fundamentally, the fair-minded observer would have concluded that there was a real possibility that the juror was disposed to find the appellant guilty simply because she knew the officers, had worked with them and therefore wished (consciously or subconsciously) to support them in this prosecution. In R v Abdroikov and others [2005] EWCA Crim 1986, this court rejected the suggestion that police officers should, because of their occupation, be automatically regarded as being disqualified from serving on a jury (para 25). This was because a fair-minded and informed observer would not conclude that there was a real possibility that a juror was biased merely because his occupation was one which meant that he was involved in some capacity or other in the administration of justice (para 30). At para 33, however, the court said: "The position is, however, different if the juror has a special knowledge either of individuals involved in the case or as to the facts of the case part from that provided by the evidence." We agree with this observation, which has particular application to the present case.
24. It seems to us that the fact that the juror knew the officers in the case reasonably well and had worked with them is enough to satisfy the bias test as regards the individual juror. There was a real possibility that she would be influenced by these factors in reaching her verdict
25. The next and final question is whether the fair-minded informed observer would conclude that there was a real possibility that the juror's bias affected the other members of the jury. The juror was asked whether she told the other members of the jury that she knew any of the officers or that she had been employed as a civilian by the police service. Whether such questions should have been asked has not been debated before us. But she had no recollection of discussing either matter with them. More importantly, we (rightly) have no evidence as to what part, if any, the juror played in the deliberations and therefore to what extent she influenced the other jurors in reaching their verdict. We have no doubt that the fair-minded informed observed would conclude that there is a real possibility that the biased juror did influence her fellow jurors. The risk of contamination cannot safely be excluded.
26. In the result, the appellant did not have a fair trial because, for the reasons that we have given, there is a real possibility that the jury were biased. It follows that this appeal must be allowed.