|[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]|
England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Alexander & Anor, R v  EWCA Crim 2341 (28th July 2004)
Cite as:  EWCA Crim 2341
[New search] [Context] [View without highlighting] [Printable RTF version] [Help]
Wednesday, 28th July 2004
B e f o r e :
(Vice President of the Court of Appeal, Criminal Division)
MR JUSTICE TREACY
SIR EDWIN JOWITT
|R E G I N A|
|DENNIS RAYMOND ALEXANDER AND GEORGE STEEN|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
THE APPLICANT STEEN appeared In Person
MR R LATHAM QC AND MR G POUNDER appeared on behalf of the Crown
Crown Copyright ©
"The court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased. It must then ask whether those circumstances would lead a fair minded and informed observer to conclude that there was a real possibility, or a real danger, the two being the same, that the tribunal was biased."
"You are required to attend: a dinner date.
Date: On or around 26th of July 2003.
Time: 7.30 p.m. onwards.
Prosecutor: [the name of the juror was given].
Case outline: To answer the following question:
What does a lady need to do to attract your attention?
1. Attend court.
2. Give sustained eye contact.
3. Be patient (5.5 months).
4. Wait until the case has finished.
5. Let the man know that she's interested.
To start deliberations ring: [and a telephone number is given]
Or e-mail: [and an e-mail address, starting with the word 'champagne', is given]."
I really enjoyed the past five and a half months. Your delivery was superb -- really outstanding. You deserve to crack open a bottle of champagne -- hope you enjoy it!"
And it was signed in the first name of the woman foreman.
"I was unaware of the Bar code of conduct -- sending and receiving gifts even after the trial has ended. I appreciate that acceptance of a gift could have the potential to be misconstrued by others. Sincere apologises. You can return the champagne to the following address."
"Perhaps the first thing to be observed is that this court is invariably reluctant to interfere with the verdict of any jury in circumstances which either directly or implicitly involve speculating on the course or nature of the jury's deliberations, the secrecy of the jury room having been a jealously guarded principle of our law for centuries."
We interpose there, that that principle is, of course, maintained by the recent decision of the House of Lords in Mirza to which we have already referred.
"A relatively modern expression of that principle is to be found in section 8 of the Contempt of Court Act 1981."
"It is an associated principle of our law that, while jurors may be challenged for cause prior to being sworn if bias or other suitability is reasonably suspected, and may be discharged by the judge at any time before verdict if misconduct or bias become apparent, after verdict no judgment in any trial by jury in any court may be reversed on the grounds that any juror was unfit to serve. That is a provision of section 18(1) of is the Jurors act 1974.
This subsection, together with its proviso that it does not apply to any objection to a verdict on grounds of impersonation of a juror, embodies another longstanding principle of common law. Such principle has, for instance, led this court to refuse to set aside a verdict on subsequent discovery that a juror was too deaf to have heard more than half the evidence (see Chapman (1976) 63 Cr App R 75).
It is apparent from decided cases that the statutory rule concerning unfit jurors is not applied so as to exclude this court from considering questions of bias when reviewing the exercise of a trial judge's discretion in deciding whether or not to discharge a juror or jury for alleged bias in respect of matters emerging in the course of trial. However, where knowledge of circumstances giving rise to suggestions of possible bias have only arisen, after verdict and are raised for the first time on appeal, the ability and willingness of the court to interfere are more circumscribed."
"Thus, allegations, suspicion and inference of bias on the part of a juror without more cannot be enough, at least in a case where the matter of which complaint is made is raised only after verdict and has not been the subject of the judge's discretion in relation to an application for discharge of the juror in the course of the trial."
"The matter seems to us quite clear. The note concerned, from which an inference of bias is invited to be drawn, did not and could not have come to the attention of anyone before verdict because it was not written until a week after. Again it does not and cannot indicate bias in the sense of a determination to come to a particular result from the outset of the trial because it can scarcely be suggested that, even before he rose to his feet to open the case, the qualities of prosecuting counsel had so impressed themselves upon the juror that they were likely to influence her in her task, regardless of the weight of the evidence.
But that is to put the matter on too limited a basis. Both observations presuppose, as counsel for the appellant has submitted, that the terms of the note itself are to be properly regarded as indicative, or at least raise an inference, of prejudice in favour of the prosecution.
We do not accept that submission. The terms of the note itself were not such as to suggest that the juror concerned did not adequately or conscientiously perform her task from start to finish in the context of the jury room, nor do we think, as counsel submits, that it is an indication that she would have allowed her attention unduly to wander in court, or to seek to influence her fellow jurors to any view based on other than the evidence.
To suggest the contrary is to attribute to the author of the note an inability to distinguish between the personal characteristics of the prosecutor and the weight of the evidence, as well as willingness to ignore the terms of her juror's oath. That is not an inference we consider can or should be drawn from a note written several days after the verdict with a view to social contact quite independent of the courtroom and the case."
"Would it be at all possible for you to consider an invitation for a drink with me ... I do not wish to place you in an embarrassing situation ... but just in case there is a slight possibility of you accepting ..."
The juror's home telephone number was appended.
"In our judgment, in the circumstances of this case, a real danger that this juror was biased against the appellants and participated in guilty verdicts against them by reason of bias is not a possibility."
"There is no need to postulate that a juror must have been biased in [the acquitted defendant's] favour.
We consider it must unlikely that this juror communicated her liking for leading counsel [for the acquitted defendant] to other jurors, and still less likely that had she done so the other jurors would have allowed their judgments to be swayed by that disclosure. In the circumstances of this case, we think that there is no real danger that this juror allowed her liking for [the acquitted defendant's] counsel to transfer itself to [the defendant] and his case, and still less that she would have allowed such feeling to prejudice her judgment against [the other defendants], and lead her to disregard her oath and the judge's direction."
The Court pointed out that the different verdicts in that case were entirely explicable, having regard to the evidence, without postulating any sort of bias.
"... after the verdict had been returned and whilst the jury were in the process of dispersing a woman juror asked the usher if prosecuting counsel was married. The usher did not know. The juror then asked the usher to hand to prosecuting counsel a note. The usher accepted the note but was concerned as to the propriety of the request and read the note. The note contained an invitation to dinner and information to enable prosecuting counsel to identify the author of the note and accept the invitation if he so chose. He did not."
"It is apparent that the test to be applied here is ... Do the facts here give rise to a legitimate fear that the judge might not have been impartial? The word 'judge' includes, of course, juror in this context.
17. Any fact finding tribunal may find one advocate more or less attractive than another. It does not follow that he or she will allow that factor to influence their decision. Jurors take an oath to try the defendant on the evidence and to give true verdicts. It is the experience of the courts that jurors take both the oath and duty with great seriousness."
The judgment then went on to refer to Nickerson and to Godfrey and Hardiman.
"We recognise that the decisions of the Court in Nickerson and Godfrey and Hardiman must be read in the light of the test set out by the Master of the Rolls in the Medicament case, which we have referred above, a test described as a slightly amended Gough test.
20. We are quite satisfied that on an objective appraisal of the facts here there is no legitimate fear that the juror would not have been impartial. Of course, the test that we have to apply is whether the conviction is shown to be unsafe. An alternative approach to the problem is to ask: had this happened during trial would the judge have discharged the whole jury?
21. In our judgment, whilst she may have thought it prudent to discharge the author of the note, she would not been persuaded to discharge the whole jury. Inevitably, the verdict that would have been returned would have been one of guilty but by 11 rather than 12. It follows that we reject this ground of appeal also. We regard the conviction as safe, and the appeal is dismissed."
"Since jurors are drawn from a cross-section of the population, we must therefore suppose that in their everyday lives some may indeed be racially prejudiced, whether against black people or against white people, or against particular racial groups. But, unhappily too, this is just one of many prejudices which may be found, we must also suppose, in the pool of people summoned for jury service. Some may be affected by religious bias, others may make it a rule always to believe an Irishman but never to trust a Scotsman, others again will never trust a man in a suit or a woman in trousers, while still others may be predisposed to believe anything -- or nothing -- that a police officer says. Except to the extent that the law forbids it, people are free to hold, and to run their lives by, such prejudices -- however irrational, unattractive or downright pernicious. Not so, however, when the same people deliberate as jurors since, if given free rein, any of these prejudices might make for a partial verdict. The point goes deeper. Even jurors who harbour no such particular antecedent prejudices will usually identify more readily with people whose way of life is similar to their own and, correspondingly, look askance at those with very different, and apparently inferior, lifestyles. Yet, more than often than not, jurors from ordinary respectable backgrounds have to judge those who, the evidence in the trial shows, lead very different lives -- not working, ruthlessly exploiting the social security system, taking drugs, regularly drinking to gross excess and generally acting in an antisocial fashion. There is an obvious risk that, hearing this kind of evidence, jurors may be biased against such a defendant. What matters therefore is not the particular type or source of prejudice but the risk that it may result in a partial verdict.
152. The risk that those chosen as jurors may be prejudiced in various ways is, and always has been, inherent in trial by jury. Indeed, only the most foolish would deny that judges too may be prejudiced, whether, for example, in favour of a pretty woman or a handsome man, or against one whose dress, general demeanour or lifestyle offends. The legal system does not ignore these risks: indeed it constantly guards against them. It works, however, on the basis that, in general, the training of professional judges and the judicial oath that they take mean that they can and do set their prejudices on one side when judging a case. Similarly, the law supposes that, when called upon to exercise judgment in the special circumstances of a trial, in general, jurors can and do set their prejudices aside and act impartially. The recognised starting-point is, therefore, that all the individual members of a jury are presumed to be impartial until there is proof to the contrary."