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Cite as: [2006] EWCA Crim 1904

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Neutral Citation Number: [2006] EWCA Crim 1904
Case No. 2004/05763/C3, 2004/05828/C3


Royal Courts of Justice
The Strand
9 June 2006

B e f o r e :



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Computer Aided Transcription by
Smith Bernal, 190 Fleet Street, London EC4
Telephone 020-7421 4040
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MR J FARMER appeared on behalf of THE CROWN



Crown Copyright ©

    Friday 9 June 2006

    LORD JUSTICE KEENE: I will ask Mr Justice Aikens to give the judgment of the court.


  1. This is an appeal against conviction, with leave of the single judge, by Bakri Sadek Siraj-Eldin and his son, Karl Eldin. They were convicted on 10 September 2004, following a trial in the Crown Court at Norwich, sitting at King's Lynn, during August and early September 2004. The trial was conducted by His Honour Judge Jacobs. We shall call the two appellants Mr Eldin Senior and Karl Eldin, respectively.
  2. Karl Eldin also appeals, with leave of the single judge, against the sentences imposed following his convictions. Mr Eldin Senior does not renew his application for leave to appeal against sentence, which application was refused by the single judge.
  3. Mr Eldin Senior was convicted of the following offences: (i) causing grievous bodily harm with intent to Alexander Lloyd, contrary to section 18 of the Offences against the Persons Act 1861; (ii) wounding Ian Watters with intent, also contrary to section 18; and (iii) violent disorder, contrary to section 2 of the Public Order Act 1986. The jury convicted Mr Eldin Senior by a majority of the first two offences and unanimously of the violent disorder offence. Mr Eldin Senior was acquitted of the attempted murder of Alexander Lloyd and Ian Watters.
  4. Karl Eldin was convicted of causing grievous bodily harm to Ian Watters with intent. He was also convicted of violent disorder. He, too, was acquitted of the attempted murder of Alexander Lloyd and Ian Watters. He was also acquitted of a further count of causing grievous bodily harm to Alexander Lloyd with intent.
  5. On 10 November 2004, Judge Jacobs sentenced Mr Eldin Senior to ten years' imprisonment for causing grievous bodily harm with intent to Alexander Lloyd, to 7 years 6 months' imprisonment, concurrent, for the offence of wounding Ian Watters with intent, and to four years' imprisonment, concurrent, for the offence of violent disorder.
  6. On the same day Judge Jacobs sentenced Karl Eldin to five years' detention in a young offender institution for the offence against Ian watters and three years' detention in a young offender institution, concurrent, for the offence of violent disorder.
  7. The single ground of the two appeals against conviction is based on a meeting between the two officers in the case and four members of the jury at a hotel in King's Lynn shortly after the conclusion of the trial hearing on 10 September 2004. This meeting took place after the jury's verdicts had been delivered and after the jury had been discharged. In order to understand the way that the appeal is argued, it is necessary to outline the background to the offences and to say a little bit about the trial itself, although there is no need to go into detail.
  8. Mr Eldin Senior, his wife, his son, Karl Eldin, and Karl's elder brother and sister lived in Cambridge. Mr Eldin Senior was born in Syria. He had had a successful career as a professional engineer in the oil industry, which had taken him to many countries. Eventually, he settled in London and then moved to Cambridge. He had married his second wife in 1976. By 2001 he had retired.
  9. In the summer of 2001 Karl Eldin was studying at a sixth form college in Cambridge. Whilst there, he alleged that a man called Lynch had subjected him to racial abuse and threats. Karl Eldin said that the abuse and threats continued and that on 15 April 2002 four men, including Lynch and Alexander Lloyd, had assaulted him in a pub in Cambridge. Lynch and Lloyd were charged with assault occasioning actual bodily harm, but they were acquitted at Cambridge Magistrates' Court on 17 January 2003. However, Lynch was convicted of criminal damage. There were other allegations that the Eldin family made against Lloyd.
  10. After the acquittal in the magistrates' court, the appellants' family home was attacked. There were other incidents, but none involved Lloyd or Karl Eldin specifically. At the trial in August 2004, the appellants suggested in evidence that these incidents were not taken seriously or investigated properly by the police. However, no particular matters were put in cross-examination to the two officers in the case. Prior to the trial, Mr Eldin Senior had lodged a formal complaint about the police's failure to investigate and deal with these various incidents.
  11. In his summing-up at the trial the judge said that the prosecution's case had been that there were two sides to many of the incidents that had occurred prior to the one that gave rise to the offences of which the appellants were convicted. He also noted that it was the defence case that there was a history of racial abuse and harassment against the Eldin family.
  12. On 3 September 2003, there was a confrontation between Lloyd and Karl Eldin in Cambridge. However, the incident which gave rise to the charges occurred the next day, ie on 4 September, at a garage in Hills Road, Cambridge. There was another confrontation between Alexander Lloyd and Karl Eldin, in which it seems that Lloyd challenged Eldin to a fist fight. They began fighting on the forecourt of the garage. At some stage Karl Eldin had telephoned his father. Mr Eldin Senior arrived at the garage in his car. Alexander Lloyd's friend, Watters, was present at this time, but not taking part in the fight.
  13. Mr Eldin Senior joined in the fight. He stabbed Lloyd several times with a Swiss Army knife that he had brought with him from his home, together with a drill bit. Watters, seeing his friend in trouble, retaliated. At some point he was stabbed by Mr Eldin Senior. Watters kicked Mr Eldin Senior to the ground. Seeing this, Karl Eldin picked up the knife which his father had dropped and stabbed Watters.
  14. Alexander Lloyd was very seriously wounded. The most serious injury was a stab wound to the left of his lower rib cage, penetrating the left ventricle of his heart. This led to massive bleeding and then severe brain damage. Alexander Lloyd was only saved from death because the incident took place close to Addenbroke's Hospital. Nevertheless, Mr Lloyd has been left in a persistent vegetative state. He has a very poor quality of life and a much reduced life expectancy.
  15. Watters was also admitted to hospital, having suffered stab wounds which were serious but caused no injury to vital organs.
  16. Mr Eldin Senior was treated at hospital for a skull fracture and bleeding beneath the outermost skull membrane. Those injuries were caused by stamping and kicking whist he was on the ground.
  17. Karl Eldin had a small facial laceration above the left eye, a nosebleed and a superficial laceration to the left hand.
  18. At the trial, the prosecution case was that Karl Eldin went to fight Lloyd and that Mr Eldin Senior came to support him by arming himself with a knife. The prosecution said that the appellants attacked the two complainants, Lloyd and Watters, who suffered their injuries in the course of this attack.
  19. The defence case was that the violence was started by Lloyd and that Mr Eldin Senior only used the knife after he had been attacked, knocked to the ground and saw Lloyd advancing on him with a knife.
  20. The central issue on the counts on which the appellants were convicted was, therefore, self-defence.
  21. During the trial the two appellants were on bail. In the course of the hearing, Mr Eldin Senior made statements to the two officers in the case, Detective Sergeant Steward and Detective Constable Reece, to the effect that they were corrupt and liars. In the trial itself, Mr Eldin Senior alleged that the police were corrupt and racist.
  22. Given the background and the allegations that the appellants and their family were making against the police, it is not surprising to learn that emotions ran high during the trial.
  23. The appellants and the Eldin family stayed in the Globe Hotel, King's Lynn, throughout most of the duration of the trial, which had started on 16 August 2004. The family ate at the hotel most evenings during the trial. The Globe Hotel is between five and ten minutes walk from the Crown Court at King's Lynn.
  24. The two officers in the case, DS Steward and DC Reece, were members of the Cambridge Constabulary, based at Parkside Police Station in the centre of Cambridge. They attended court every day, travelling the 40 odd miles from Cambridge to King's Lynn for each day of the hearing.
  25. For the purposes of this appeal, the trial judge has provided this court with a statement. In that he states that at the outset of the trial the jurors and all parties to the trial were given very strict instructions indeed about not discussing the case with others. It is also clear from remarks made by the judge after the sentencing hearing on 10 November 2004 that at the start of the trial he also told the jurors that if any of them had any concerns at all about anything which prevented them from reaching a fair and proper verdict, they were to tell him (the judge) straightaway: (see volume 4 of the transcripts at pages 7H-8A).
  26. On 10 September 2004, at about 11.30am, the jury returned a not guilty verdict in respect of the two charges against Karl Eldin of the attempted murder of Lloyd and Watters. They also returned not guilty verdicts on the charge against Karl Eldin of causing grievous bodily harm with intent against Lloyd. At the same time the jury returned a unanimous verdict of guilty against Karl Eldin on the charge of wounding Ian Watters with intent.
  27. The judge then gave a majority verdict direction. The jury returned with the remaining verdicts at about 1pm. The appellants were remanded in custody pending the preparation of reports for sentence. The judge discharged the jury.
  28. Some time later, at or just after 3pm, the Eldin family returned from the Crown Court to the Globe Hotel. The family group consisted of Mrs Eldin, her daughter Tabitha, her other sone Fraser, her son-in-law Mr Mitchell, her sister Margaret Riordan, her brother-in-law Tony Riordan, and a family friend, Mr Moore. The group went into Lloyds Bar in the hotel and sat down together.
  29. The court has before it statements from the two officers in the case, DS Steward and DC Reece, about what happened that afternoon. It also has statements from the various members of the Eldin family. In addition, it has from ten out of the twelve jurors, answers to a questionnaire that was prepared for them to answer if they wished to do so. This questionnaire was sent to all the jurors following a directions hearing before another division of this court on 18 January 2006. The form of the questionnaire had been prepared by Mr Bennathan, counsel for Mr Eldin Senior, and approved by this court. We will return to this point.
  30. At the hearing today Mr Bennathan has sought a direction that the two officers in the case should give oral evidence about the events at the hotel that afternoon. We ruled that there was no point for this. We held that we would receive in evidence the statements of the officers, the Eldin family and the statement from the trial judge, together with the completed questionnaires of ten jurors which we have mentioned and which we will further explain in a moment. We receive all this evidence under section 23 of the Criminal Appeal Act 1968. We saw no point in the officers being cross-examined by Mr Bennathan or Mr Moloney for the appellants. The only matter which could have been addressed in cross-examination would only arise if it could be said that the meeting between the officers and the jurors (which undoubtedly took place that afternoon) was pre-arranged in some way. But there was simply no material upon which that suggestion could properly be put to the officers in cross-examination. Accordingly, we refused Mr Bennathan's application.
  31. According to the witness statements of the two officers in the case, they decided, after the hearing had finished, that they would have a meal in King's Lynn before returning to Cambridge. They also went into the Globe Hotel. They ordered a meal at the bar and then sat in the beer garden at the rear of the hotel. DC Steward subsequently went back into the hotel to buy further drinks for DC Reece and himself. He says that, as he approached the bar area, he saw Mrs Eldin, Fraser Eldin and other members of the Eldin family sitting at a table nearby. He did not speak to them and they did not speak to him. He went to the lavatory and thereafter returned to the bar. At the bar he saw someone whom he recognised as being a member of the jury that had just been discharged. They began speaking. They were joined by another jury member and then further jury members. Altogether there were four jury members, two male and two female.
  32. In his statement, DC Reece says that he wondered where DS Steward had got to and went into the hotel bar to look for him. He found DS Steward talking to various people whom DC Reece recognised as being members of the former jury. DC Reece then returned to the beer garden. Shortly afterwards he was joined by DS Steward.
  33. The officers' account is that a short while later two male members of the jury came to the table where they were sitting and asked if they could sit with the officers. The two officers agreed, and the two former jury members sat down. There was a conversation between the four men about the trial. It is clear that the two officers said something to the effect that the trial was difficult and that the jury had "done well" or had "done well to reach a verdict", or words to that effect. The tenor of these remarks is clear from answers made by the jurors to the questionnaire. DC Reece recognised one of the former men as having been the foreman of the jury.
  34. This group was then joined by two ladies, who had also been members of the jury. They joined in the conversation.
  35. Mr Mitchell (Mrs Eldin's son-in-law) says in his statement that at some stage he recognised DS Steward. It seems likely that this was when DS Steward came into the bar to buy more drinks for himself and DC Reece. Mr Mitchell says in his statement, which we accept, that he had not seen DC Steward in the hotel before that day, even though he (Mr Mitchell) and other family members had stayed in the hotel for most of the four weeks that the case had lasted and that they had eaten in the bar almost every evening. Mr Mitchell said that he was surprised to see DS Steward there. Mr Mitchell looked to see if DC Reece was also present. He said that he saw DC Reece sitting in the beer garden with two men. Mr Mitchell recognised them as being members of the former jury, one of them being the jury foreman.
  36. Mr Bennathan says that there is a significant difference between the accounts of DS Steward and DC Reece and Mr Mitchell. He submits that the accounts of the officers are implausible. He submits that the account of Mr Mitchell, which suggests that the police and the jurors were caught unawares, is more plausible.
  37. We cannot resolve the differences in the accounts that have been given. We do not see any need to do so. We are absolutely satisfied that any suggestion that there was a pre-meditated meeting between the officers and members of the former jury is entirely unfounded. We think it possible that Mr Mitchell may not have seen the two officers before he did simply because he and the rest of the Eldin family was at the bar and that the police were in the beer garden. We reject the suggestion that Mr Bennathan makes that there was any kind of pre-arranged meeting.
  38. Mr Mitchell's reaction to seeing the officers drinking with members of the former jury was that he was "totally shocked". In his statement he says that he remembered thinking, "Why on earth are those police officers drinking with members of the jury?" as he could not think of a single valid reason. Mr Mitchell told Fraser Eldin what he had seen. He also told Mrs Eldin. They all saw the two officers and the two male jurors sitting together in the beer garden and engaging in conversation. Mrs Eldin and her son Fraser, and Mr Mitchell then walked into the beer garden. Fraser Eldin used his mobile phone to take some pictures of the group. At the same time Fraser Eldin asked the police why they were drinking with jury members. DC Reece commented to the effect that they were not jury members any longer. There were some further exchanges between Fraser Eldin and DC Reece.
  39. In the end the Eldin family moved back into the hotel. After that, from their position within the hotel, the Eldin family saw the two female jury members go to and sit with the others in the beer garden. The Eldin family group left the bar area at about 4.15pm and went their various ways.
  40. In their statements, both police officers say that they subsequently returned to the Crown Court at King's Lynn, spoke to Judge Jacobs and informed him of what had happened.
  41. We are quite satisfied that neither of the two officers in the case did, in fact, speak to the judge directly. We are satisfied, both from what the judge said after the sentencing hearing on 10 November 2004 and what he has said in his statement dated 31 January 2005, that the two officers returned to court and spoke, not to the judge, but to the court usher. They informed the usher that they had been at the Globe Hotel and had had a conversation with jurors, and that members of the Eldin family had taken one or more photographs and had used words to the effect "We have got you now" whilst doing so.
  42. The usher informed the judge of what she had been told by the two police officers. The judge said in his statement that on the information given to him, he was not concerned about collusion between jurors and the prosecution. He said that he was concerned about possible intimidation of the former jurors, but he concluded that the matter did not go that far and it would be better not to take any action because "emotions often ran high after such cases".
  43. As we have mentioned, after the sentencing hearing on 10 November 2004, the judge held a hearing in chambers at which counsel then acting for Mr Eldin Senior, Mr Price, raised the matter of the events in the Globe Hotel. By that time counsel had already written an advice on appeal, raising the issue concerning the contact between the officers in the case and the members of the jury after the verdict had been delivered. The judge said that it was a matter for the Court of Appeal, if anyone.
  44. After the single judge had granted leave to appeal against conviction to both appellants, there were two directions hearings before this court. At the first, on Thursday 21 August 2005, there was an application that the jurors be interviewed. That application was refused.
  45. There was a second application before a differently constituted court on Wednesday 18 January 2006. At that hearing Mr Bennathan, who had by now been instructed on behalf of Mr Eldin Senior, applied for a direction that a standard form of letter should be sent to each juror in the case. Mr Bennathan had prepared a draft. The draft letter stated that, after the verdicts, four members of the jury were seen in the company of two police officers in the case in a pub in King's Lynn. The letter asked the respondent to answer six questions on whether the juror had been present or had heard of the meeting. There were no questions about whether there had been any contact with the officers in the case at any time before the end of the trial. Mr Bennathan told the court that it was anticipated that the letter would be sent by an official in the Criminal Appeal Office.
  46. The court directed that a letter in the agreed form be sent by the Appeal Office to the twelve former jurors, inviting the jurors to reply within 21 days.
  47. Letters were then sent to all twelve jurors. Eventually, ten out of the twelve jurors responded. Two respondents stated that they had spoken to the police officers; a third said that he had heard of the conversation but had not taken part in it; and a fourth stated that he did not speak to the officers. It is thus possible that the two jurors who did not reply may have been amongst the four jurors who did speak to the officers on 10 September 2004. But that fact cannot reliably be inferred from the answers received and those not received.
  48. One of the two jurors who spoke to the police officers gave full answers to the questions posed. This juror stated that he (or she) and another member of the jury went to the Globe Hotel for a drink after the case was over, and waited there for two other members of the jury to meet them. This juror and the other were at the bar when they saw the police officers also at the bar. This juror states that the police officers approached the jurors at the bar and greeted them. The juror said that the officers "told us we had done well because it was a very hard case to come to a verdict". The other two jurors arrived and they all took a seat outside. Whilst there, members of the Eldin family took photographs of them and shouted, making the respondent juror "feel very uneasy and intimidated". Subsequently this respondent received a telephone call from the usher in the case who assured the juror not to worry because the juror had been discharged from jury duties.
  49. the other respondent, who accepted that he had been part of the conversation, did not give any details of the meetings with the officers.
  50. The argument in support of the appeals against conviction was conducted by counsel for Mr Eldin Senior, Mr Bennathan. He provided the court in advance with a very clear, concise and helpful written Outline Argument, together with a convenient bundle of the key materials on which he wished to rely in support of his submissions. We are most grateful both for that assistance and for his argument in court today.
  51. Mr Bennathan has two arguments, both of which are based on the possibility of injustice having occurred as a result of bias on the part of the jury in this case. Mr Bennathan founds his argument on the statements of principle set out by Lord Phillips of Worth Matravers MR when giving the judgment of the Court of Appeal, Civil Division in In re Medicaments and Related Classes of Goods (No 2) [2001] 1 WLR 700. Mr Bennathan relies particularly on statements made by Lord Phillips at paragraphs 61 and 85. In that case the Court of Appeal was concerned with the issue of whether or not a lay member of the Restrictive Practices Court should recuse herself because she had applied for a job with an economic consultancy firm, a director of which was one of the expert witnesses for a party in the case. The Court of Appeal, overturning the ruling of the presiding judge of the Restrictive Practices Court that was hearing the case, held that the lay member should recuse herself. The Court of Appeal also stated that, in the circumstances, the other two members of the court should also recuse themselves.
  52. The Court of Appeal conducted a comprehensive review of the English, Commonwealth and Strasbourg case law on the question of when a court's decision or a judge's or juror's ability to sit on a case might be affected by bias. The Court of Appeal concluded that there was a difference of approach, albeit not great, between the Strasbourg jurisprudence and the English cases, of which the leading one at he time was the House of Lords' decision in R v Gough [1993] AC 646. Lord Phillips MR summarised the principles to be derived from the Strasbourg jurisprudence at paragraph 83, as follows:
  53. "(1) If a judge is shown to have been influenced by actual bias, his decision must be set aside. (2) Where actual bias has not been established the personal impartiality of the judge is to be presumed. (3) The court then has to decide whether, on an objective appraisal, the material facts give rise to a legitimate fear that the judge might not have been impartial. If they do the decision of the judge must be set aside. (4) The material facts are not limited to those which were apparent to the applicant. There are those which are ascertained upon investigation by the court. (5) An important consideration in making an objective appraisal of the facts is the desirability that the public should remain confident in the administration of justice."

  54. Lord Phillips then stated, at paragraph 85 of the judgment, that when this strasbourg jurisprudence was taken into account a "modest adjustment" of the test set out by Lord Goff of Chievely in R v Gough was required. Lord Phillips continued:
  55. "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."

  56. In the following paragraph of the judgment Lord Phillips elaborated on what he meant by "the material circumstances". He said:
  57. "The material circumstances will include any explanation given by the judge under review as to his knowledge or appreciation of those circumstances. Where that explanation is accepted by the applicant for review, it can be treated as accurate. Where it is not accepted, it becomes one further matter to be considered from the viewpoint of the fair-minded observer. The court does not have to rule whether the explanation should be accepted or rejected. Rather it has to decide whether or not the fair-minded observer would consider that there was a real danger of bias notwithstanding the explanation advanced. Thus in R v Gough, had the truth of the juror's explanation not been accepted by the defendant, the Court of Appeal would correctly have approached the question of bias on the premise that the fair-minded onlooker would not necessarily find the juror's explanation credible."

  58. In the subsequent case of Porter v McGill [2002] 2 AC 357, Lord Hope of Craighead approved the test as set out by Lord Phillips, but with one small alteration. Lord Hope stated (at paragraph 103, at page 494 of the report) that the phrase "or a real danger" should be removed from the formulation of Lord Phillips, as it no longer served a useful purpose.
  59. In In Re Medicaments the court had to consider the question of whether a lay member of a tribunal was biased. In this case we are concerned with whether or not one or more members of the jury might have been biased. As Lord Steyn reminds us, in the two criminal appeals of R v Mirza and R v Connor and Rollock [2004] 1 AC 1118, which were heard together by the House of Lords, a jury is a judicial tribunal. (See also "Trial by Jury" Ch 3 by Lord Devlin). A jury is expected to conform to judicial standards: see R v Mirza [2004] 1 AC 1118, at paragraph 6 on page 1131. These standards include independence and impartiality. If, in a particular case, a fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that a juror was biased in the course of carrying out his functions as a judicial tribunal, then this may require the Court of Appeal to quash the conviction. It depends on whether the situation, as found by the Court of Appeal, makes the conviction unsafe.
  60. A jury is engaged in its function as a judicial tribunal up until the time that it renders its verdicts and is discharged by the judge from further duties in the trial. The time when a real possibility of bias in a juror is relevant to the jury's function as a judicial tribunal is, therefore, the period between the juror being sworn in and when the juror is discharged.
  61. Cases involving allegations of bias by a jury are difficult to deal with because of the long-standing rule that juries operate in secret. That rule will not be broken, save in exceptional cases that are discussed in R v Mirza: see, for example, the speech of Lord Hope of Craighead at paragraphs 117-128 at pages 1163-1166.
  62. No one has suggested in this case that the workings of the jury during the trial should be investigated. This is because no one has suggested, at least directly, that there is any evidence of bias in the workings of the jury during the trial until the time the jury was discharged. As we have noted, a division of this court rejected a proposal that the jurors should be interviewed. With that conclusion we entirely agree. There was no basis on which such an investigation might have been ordered.
  63. In order to consider the argument put forward by Mr Bennathan, this court must carry out two exercises. First, it must ascertain all the circumstances which have a bearing on the suggestion that one or more jurors was biased in relation to this case at a time before the verdicts were delivered. Secondly, this court must decide whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility that the jury was biased in this case. In carrying out this exercise we have the benefit of the statements from the two officers in the case, the statements of the Eldin family members, the answers of the ten out of the twelve jurors to the court's questionnaire, and the statements of the judge in the case. We have also borne in mind the background to this case and the allegations of the defence at the trial that there had been a campaign of racist abuse before the incident on 4 September 2003.
  64. We have considered all this evidence and information very carefully. We are satisfied, beyond reasonable doubt, that there was no contact whatsoever between either of the officers in the case and any of the members of the jury before the chance meeting in the Globe Hotel some two hours after the verdicts had been delivered and the jury discharged.
  65. Mr Bennathan argued with force that there were circumstances which should lead us to the conclusion that, in the mind of a fair-minded and informed observer, there was a real possibility that there had been an earlier contact between the officers in the case and one or more members of the jury. He relied on four particular factors: (i) the location of the hotel which is further away from the court than many other food and drink establishments in King's Lynn; (ii) the failure of two former members of the jury to reply to the letter sent out by the Court of Appeal Office; (iii) alleged implausibilities in the police officers' account of the circumstances in which they met the jurors; and (iv) the police officers' statements that they spoke to the judge after the incident, whereas it is clear that they did not.
  66. Even if we accept all these points, in our view they do not, either singly or cumulatively, lead to the conclusion that a fair-minded and informed observer would conclude that there was a real possibility that the two officers in the case had had an earlier contact with one or more members of the jury that would have led to a real possibility of bias by one or more jurors in the course of the case. In short, there is simply no evidence for such a conclusion by a fair-minded and informed observer. In these circumstances R v Udowich and Others (CA, 12.06.2000), to which Mr Bennathan referred us, is not relevant. We note in passing that, in any event, it was decided before In re Medicaments.
  67. The fact that the police officers met and talked to former members of the jury at the Globe Hotel after the verdicts and after the jury were discharged was most unfortunate. We must return to that later in our judgment.
  68. However, as we have said, to the fair-minded and informed observer, who looks at and carefully considers all the evidence, the answer must be: there was no possibility of any contact between the police and the jurors before the verdict. Therefore there was no possibility at all of any bias by the jury by being infected by contact with these officers. We therefore must reject the first of Mr Bennathan's arguments.
  69. Mr Bennathan's second argument in support of the appeal is made on the assumption that the court concludes that there was no contact between the officers in the case and one or more jurors before the verdict. First, Mr Bennathan reminds the court that, during the trial, it was the case for the defence that there had been a campaign of racial harassment by a group of people which included Alexander Lloyd. This was, it is said, relevant to a number of issues at the trial and, in particular, the state of mind of both appellants when faced with the circumstances of the confrontation on 4 September 2003.
  70. Mr Bennathan then points out that in recent years there have been authoritative statements by respected organisations, such as the Runnymede Trust, that there is a perception in certain communities in Britain, including the Asian, Black and Irish communities that the Criminal Justice System is not just and that there is a resistance to recognising and dealing with racism within the Criminal Justice System as a whole, not just in the police. Mr Bennathan has reminded us of a part of a report of the Runnymede Trust 2000, which is quoted in paragraph 2.1.2 of the Equal Treatment Bench Book of the Judicial Studies Board. In that paragraph it is stated that this perception embraces various elements. Thus it is said that there is a perception amongst these communities that there is a failure by the Criminal Justice System to investigate complaints, and a failure to widen the social and ethnic basis of those in authority in the Criminal Justice System so as to embrace Asian, Black and Irish communities. Mr Bennathan quotes part of the comment of the Runnymede Trust Report, which includes the statement:
  71. ".... distrust of the [Criminal Justice System] is founded in the growing body of data which shows that Black and Irish people are differently treated at all stages of the Criminal Justice process and they are disproportionately likely to be imprisoned."

  72. Mr Bennathan submits that the court should bear in mind these perceptions. He submits that the actions of the two officers in the case, in talking to jurors in the Globe Hotel after the verdict, showed a total lack of judgment and much insensitivity, particularly after it became apparent to DC Steward that members of the appellant's family were in the bar of the hotel. Mr Bennathan suggests that this cavalier attitude on the part of the officers in the case is evidence that the judgment and attitude of the officers was deeply flawed and that this somehow reflected a wrong attitude and approach on the part of the prosecution as a whole towards the case. As we understand Mr Bennathan's argument, he submits that, in these circumstances, a fair-minded and properly informed observer would conclude that this somehow resulted in the prosecution being biased in such a way as to taint the decision of the jury.
  73. We cannot accept this argument for one moment. There is simply no evidence to suggest that the officers in the case conducted themselves in the trial in any way that was improper or in dereliction of duty. We note that in the trial, when the two officers in the case were cross-examined, no allegation of racism or similar impropriety was put to them at all. The prosecution case was conducted by counsel who is a senior junior of great experience. We reject entirely any suggestion that the officers in the case or any of the legal team for the prosecution mishandled the case in any way, or took a wrong attitude towards the history of the case or acted during the trial itself in any way that was improper or inappropriate. Therefore we must reject this second argument.
  74. Accordingly, the appeal against conviction must be dismissed.
  75. Although we dismiss these appeals against conviction without hesitation, we also feel compelled to state publicly in open court that in our view the two officers in the case were extremely foolish to act as they did on that afternoon of 10 September 2004. Given the history of the case, which they knew perfectly well, in our view the officers acted with gross insensitivity and a total lack of judgment. We suggest that the proper reaction to the situation to any approach by a former member of the jury shortly after the trial had concluded, would have been to indicate, politely but firmly, that they must not talk or socialise together. We take this view whether or not the appellant's family were known to be present in the building by anyone. We note that the officers have been the subject of some "words of advice" (as Mr Farmer put it) in relation to this incident and that the matter has gone on their record. We also note that this matter has been taken fully on board by the Cambridge Constabulary. We are pleased to note those facts.
  76. We consider next Karl Eldin's appeal against sentence. In passing sentence the trial judge noted that Karl Eldin attacked Watters after his father had done so. The judge accepted that this action by Karl Eldin was spontaneous. The judge took note of Karl Eldin's good character, his excellent references and reports, the fact that he was only 19, and that he had won a place and was attending London University on a full-time undergraduate course. The judge had read for himself a large number of authorities before the sentencing hearing.
  77. We have been provided with a supplementary report on Karl Eldin by the Probation Service. It is dated 27 June 2005. It indicates that he has adapted to life in detention and is carrying on his education there. The report concludes that the risk of re-offending is very low. However, the report also states that, in his own mind, Karl Eldin feels that he was not guilty of the offences of which he was convicted.
  78. We have also seen a report from Her Majesty's Prison Hollesley Bay, where Karl Eldin is currently in custody. This is very positive. So, too, is the reference from The Willows, a mental health resource centre, where Karl Eldin has done valuable work. We also understand that London University is prepared to keep open his place to continue his degree course until September 2006.
  79. We have considered this matter anxiously. The attack on Ian Watters was very serious and led to severe injuries. It took place in a public area. Many innocent people had to witness a horrific scene. It was inevitable that Karl Eldin should receive a substantial custodial sentence. But we are impressed with two points in particular. First, the attack on Ian Watters was a spontaneous reaction to seeing his father on the ground being kicked severely by Ian Watters. Karl Eldin thought that his father's life was in danger. What he did in reaction was to commit a serious offence, but we think that we must take full account of the precise circumstances in which that offences was committed. The second factor that we take into account (which was not available to the trial judge) is the very good progress that Karl Eldin has made since being in custody.
  80. In all the circumstances, including the new information that is now available to this court, we think that the sentence that was imposed was too long and should be reduced to three-and-a-half years.
  81. Accordingly, we quash the sentence of five years' detention in a young offender institution that was originally imposed and replace that with a sentence of three-and-a-half years. To that extent this appeal against sentence will be allowed.
  82. LORD JUSTICE KEENE: That reduction applies to the section 18 offence. The three years' detention for violent disorder, which was imposed to run concurrently, still stands. It makes no difference to the total which is three-and-a-half years.
  83. _________________________________

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