R v. Abdroikof (Appellant) and another (On Appeal from the Court of Appeal (Criminal Division))
R v. Abdroikof and another (Appellant) (On Appeal from the Court of Appeal (Criminal Division))
18. In its judgment the Court of Appeal  1 WLR 3538 reviewed most of the materials canvassed in this opinion. It recognised (para 15) that a trial must not only be fair but appear to be so, and recognised the test laid down in Porter v Magill. It shared (paras 27, 31) the opinions expressed by Lord Justice Auld in his report, and in paragraph 29 observed:
In paragraph 30 the court concluded:
The court acknowledged (para 32) the risk that a juror might depart from his solemn duty, but the system could not work on the basis that that risk could be excluded. Perfect fairness was unattainable. If a juror had special knowledge of a case or individuals involved in it, that should be drawn to the attention of the judge (paras 33-35), and jurors were fully instructed on their duty.
19. Dismissing the appeal of the first appellant, the court said (para 47):
20. In the case of the second appellant, the court noted (para 65) that, contrary to the practice recommended in Notices 20-2004, PC Mason had attended a court to which his Operational Command Unit committed its work. But having satisfied itself that PC Mason and Sergeant Burgess were not known to each other it fell back on its conclusion already expressed, that the presence of a police officer on a jury does not in itself offend the principles of fairness.
21. In the case of the third appellant, the court found (para 73) no basis upon which to allege objective partiality and no basis upon which to contend that his fears as to impartiality could be objectively justified.
22. In argument for the Crown Mr David Perry QC supported the Court of Appeal's decisions for the reasons which it gave. But he laid more emphasis than the court had done on the institutional safeguards established to protect the independence and impartiality of the jury. He instanced the requirement of random selection; the power to excuse for good reason; the selection of individual jurors by ballot in open court; the power, albeit exercised only exceptionally, to question jurors; the right of challenge; the oath sworn or affirmation made by each juror in the presence of the defendant; the judge's power to discharge an unsuitable juror; the pre-trial guidance given to jurors; the constant reminders and warnings given to jurors during the trial and in the summing-up; the availability of a majority verdict; the right of jurors to report the misconduct of other jurors to the judge; the return of the verdict in open court. These safeguards, it was submitted, do all that can be done to exclude the possibility of actual bias, and to dispel the appearance of it to the fair-minded and informed observer.
23. It must in my view be accepted that most adult human beings, as a result of their background, education and experience, harbour certain prejudices and predilections of which they may be conscious or unconscious. I would also, for my part, accept that the safeguards established to protect the impartiality of the jury, when properly operated, do all that can reasonably be done to neutralise the ordinary prejudices and predilections to which we are all prone. But this does not meet the central thrust of the case made by Mr Richard Carey-Hughes QC for the appellants: that these cases do not involve the ordinary prejudices and predilections to which we are all prone but the possibility of bias (possibly unconscious) which, as he submits, inevitably flows from the presence on a jury of persons professionally committed to one side only of an adversarial trial process, not merely (as the Court of Appeal put it) "involved in some capacity or other in the administration of justice". Lord Justice Auld's expectation that each doubtful case would be resolved by the judge on a case by case basis is not, he pointed out, met if neither the judge nor counsel know of the identity of a police officer or the juror, as appears to be the present practice.
24. This is not an argument I feel able, in principle, to dismiss. It is not a criticism of the police service, but a tribute to its greatest strength, that officers belong to a disciplined force, bound to each other by strong bonds of loyalty, mutual support, shared danger and responsibility, culture and tradition. The Morris Committee thought it self-evident that officers could not be, or be seen to be, impartial participants in the prosecution process, a disqualification which in the judgment of ACPO (accepted by the committee) extended to civilian employees of the police. The facts revealed in the recent case of R v Pintori ( EWCA Crim 1700, 13 July 2007, unreported) perhaps suggest that this is not an out-dated perception. Serving police officers remain ineligible for jury service in Scotland, Northern Ireland, Australia, New Zealand, Canada, Hong Kong, Gibraltar and a number of states in the United States, the remainder of the states providing a procedure to question jurors on their occupations and allegiances. But Parliament has declared that in England and Wales police officers are eligible to sit, perhaps envisaging that their identity would be known and any objection would be the subject of judicial decision.
25. In the case of the first appellant, it was unfortunate that the identity of the officer became known at such a late stage in the trial, and on very short notice to the judge and defence counsel. But had the matter been ventilated at the outset of the trial, it is difficult to see what argument defence counsel could have urged other than the general undesirability of police officers serving on juries, a difficult argument to advance in face of the parliamentary enactment. It was not a case which turned on a contest between the evidence of the police and that of the appellant, and it would have been hard to suggest that the case was one in which unconscious prejudice, even if present, would have been likely to operate to the disadvantage of the appellant, and it makes no difference that the officer was the foreman of the jury. In the event, confronted with this question at very short notice, defence counsel raised no objection. I conclude, not without unease, that having regard to the parliamentary enactment the Court of Appeal reached the right conclusion in this case, and I would dismiss the appeal.
26. The second appellant's case is different. Here, there was a crucial dispute on the evidence between the appellant and the police sergeant, and the sergeant and the juror, although not personally known to each other, shared the same local service background. In this context the instinct (however unconscious) of a police officer on the jury to prefer the evidence of a brother officer to that of a drug-addicted defendant would be judged by the fair-minded and informed observer to be a real and possible source of unfairness, beyond the reach of standard judicial warnings and directions. The second appellant was not tried by a tribunal which was and appeared to be impartial. It cannot be supposed that Parliament intended to infringe the rule in the Sussex Justices case, still less to do so without express language. I would allow this appeal, and quash the second appellant's conviction.
27. In the case of the third appellant, no possible criticism is to be made of Mr McKay-Smith, who acted in strict compliance with the guidance given to him and left the matter to the judge. But the judge gave no serious consideration to the objection of defence counsel, who himself had little opportunity to review the law on this subject. It must, perhaps, be doubted whether Lord Justice Auld or Parliament contemplated that employed Crown prosecutors would sit as jurors in prosecutions brought by their own authority. It is in my opinion clear that justice is not seen to be done if one discharging the very important neutral role of juror is a full-time, salaried, long-serving employee of the prosecutor. This is a much stronger case than Pullar (see para 17 above): it is as if, on the facts of that case, F had been employed in the department of the procurator fiscal. Had that been so, one may be sure the court would have agreed with the commission. The third appellant was entitled to be tried by a tribunal that was and appeared to be impartial, and in my opinion he was not. The consequence is that his convictions must be quashed. This is a most unfortunate outcome, since the third appellant was accused of very grave crimes, of which he may have been guilty. But even a guilty defendant is entitled to be tried by an impartial tribunal and the consequence is inescapable. I would allow the appeal and remit the case to the Court of Appeal with an invitation to quash the convictions and rule on any application which may be made for a retrial.
LORD RODGER OF EARLSFERRY
28. I would dismiss all three appeals. In explaining my reasons, I gratefully adopt the accounts of the facts and issues given by my noble and learned friends, Lord Bingham of Cornhill and Lord Carswell.
29. In accordance with Porter v McGill  2 AC 357, 494H, para 103, the question for the fair-minded and informed observer in these cases would be: "Having considered the facts, do I consider that there is a real possibility that the jury that included a serving police officer or a lawyer who worked for the Crown Prosecution Service was biased?" That test must be taken to incorporate the well-known idea that justice must not only be done, but should manifestly and undoubtedly be seen to be done: R v Sussex Justices, Ex pte McCarthy  1 KB 256, 259, per Lord Hewart LCJ.
30. The notional observer may well be surprised to discover that, as a result of the Criminal Justice Act 2003, police officers can now serve on juries in England and Wales. His reaction to learning about lawyers in the Crown Prosecution Service ("CPS") now being able to serve as jurors may be slightly different. Surprise, in the first place, that lawyers can serve at all. Then, when he finds out that CPS lawyers are responsible for decisions to prosecute, the observer will realise that the lawyer employed by the CPS will be sitting on a jury in a case where the decision to prosecute was taken by some other lawyer in the same service. That again may surprise the observer. He may well have assumed that juries were meant to be made up of lay people who had nothing to do with the police or the law. But now he knows that Parliament has decided that police officers and lawyers, including CPS lawyers, are eligible to be jurors.
31. When he digests this information, the observer's first reaction may well be that it is indeed possible that, consciously or subconsciously, the police officer on the jury would have tended to prefer the evidence of any police witnesses, or indeed of any prosecution witnesses, to the defence evidence. After all, the officer may himself have given evidence for the Crown in a criminal trial and he spends his working life with other police officers fighting crime. Similarly, the observer may suspect that there is a risk that the CPS lawyer, who spends his professional life prosecuting crime, will have proceeded on the basis that the prosecution case was sound. In other words, the observer may think it possible that these members of the jury were not impartial, but were, consciously or subconsciously, biased in favour of the prosecution.
32. But then, being fair-minded and informed, the observer will think a little more about the matter. He will reflect that, up and down the land, day in day out, we take risks when we hand the critical decisions on guilt or innocence to juries. We take the risk that, consciously or subconsciously, men on juries may be unduly sympathetic to a man charged with rape who claims that he and the woman just got carried away by their physical urges. We take the risk that, consciously or subconsciously, a juror who has herself been the victim of sexual abuse may tend to side with the woman who claims that she was sexually assaulted by the defendant. We take the risk that, consciously or subconsciously, a gay juror may tend to believe the gay man who says that he was assaulted by the defendant in a homophobic attack. We take the risk that, consciously or subconsciously, a homophobic juror may just reject the gay man's evidence. We take the risk that, consciously or subconsciously, a juror who is an undergraduate may sympathise with a victim who is an undergraduate at the same university. We take the risk that, consciously or subconsciously, a black juror may tend to believe the evidence of a black witness as opposed to the account given by an Asian defendant. We take the risk that, consciously or subconsciously, a juror who was convicted of drug dealing and was sentenced to four years in prison in the early 1990s may sympathise with a defendant accused of supplying drugs. Having reflected on these and similar situations, the observer will realise that, in effect, Parliament has now added two to the long list of situations where there is indeed a risk, where it is indeed possible, that, consciously or subconsciously, a juror may be partial. But he will also realise that Parliament must have considered that in these two situations, like so many others, the risk is manageable within the system of jury trial as we know it.
33. It would, after all, be wrong to pretend that in these various situations there is not a real, as opposed to a fanciful, possibility that the jurors in question may be biased. For instance, there is plainly a real possibility, in the sense of it being something that could well happen, that a homophobic juror may just reject the gay man's evidence. But the law regards that risk as being manageable and, so, acceptable. The law caters for the risk. It takes steps to minimise it by making jurors take an oath or affirm that they will "faithfully try the defendant and give a true verdict according to the evidence". It makes them sit and listen to the evidence in a solemn setting. It requires the judge to give them a direction that they must assess the evidence impartially. Of course, it would be naïve to suppose that these safeguards will always work with every juror. The law is not naïve: it stipulates that there should be 12 men and women on a jury. The assumption is that, among them, the twelve will be able to neutralise any bias on the part of one or more members and so reach an impartial verdict - by a majority, if necessary. If any of the jurors consider that the jury will be unable to do so, then they must tell the judge, who can then deal with the matter - by discharging the jury, if necessary. So the mere fact that there is a real possibility that a juror may be biased does not mean that there is a real possibility that the jury will be incapable of returning an impartial verdict.
34. The reality therefore is that the jury system operates, not because those who serve are free from prejudice, but despite the fact that many of them will harbour prejudices of various kinds when they enter the jury box. In the United States a voir dire is held to try to select jurors who are free from relevant prejudices. In Britain, with its very different history, such a procedure has not been adopted - indeed it has been specifically rejected. If experience had shown that British juries, made up of people drawn at random from all kinds of backgrounds, could not act impartially, the system would long since have lost all credibility. But Parliament must consider that it works, since it has not abolished it or introduced a new procedure for selecting jurors, even though it has had opportunities to do so. Juries also seem to enjoy the confidence of the general public. The fair-minded and informed observer will be well aware of this.
35. Of course, success is not left to chance. The informed observer would rightly consider that there would be an unacceptable risk of a juror going wrong if he was a friend of the defendant or of the victim or of one of the witnesses. The same would apply if a juror was having an affair with one of the defendants or was related to the victim or to one of the witnesses, or if she worked alongside one of the witnesses, or had signed a petition calling for the defendant to be prosecuted. Adopting the stance of the fair-minded observer, the law would hold that such a person should be discharged from sitting on the jury.
36. Depending on the facts, an appeal court might also consider that the undetected presence of such a person on the jury meant that there was a real possibility that the jury had not reached an impartial verdict. In Pullar v United Kingdom 1993 SCCR 514; (1996) 22 EHRR 391, where a juror was employed by the firm in which one of the prosecution witnesses was a partner, the applicant was convicted. His appeal was dismissed and, by a majority, the European Court of Human Rights concluded that there had been no breach of article 6(1). The Court may have given weight to the fact that the juror had been made redundant three days before the trial and so might not have been particularly well disposed towards the witness. By contrast, in R v Pintori  EWCA Crim 1700, the Court of Appeal quashed a conviction where a juror had worked alongside three police officers who gave evidence and knew them reasonably well. The court considered that in these circumstances there was a real possibility that the jury's verdict had been affected by bias.
37. In the cases under appeal the jurors had no particular contacts of these kinds. The police officers did not know the police witnesses or work in the same police station or know anything about the cases. Though he had prosecuted in the courts of the area, the CPS lawyer did not know the prosecutor and knew nothing about the case. The objection is simply to the verdict of a jury which included a police officer or CPS lawyer: that alone is said to mean that there is a real possibility that the jury was biased. In my view, while recognising that there was a possibility of bias on the part of the juror concerned, the informed observer would also realise that the risk was actually no greater than in many of the other situations that occur every day. Like all other jurors, be they clergymen, defence lawyers, butchers, estate agents, prostitutes, petty crooks or judges, police officers and CPS lawyers sit as private individuals. Each brings his or her own particular experience to bear on the case they have to try. They are repeatedly reminded by counsel and the judge both of their solemn undertaking to faithfully try the defendant and give a true verdict according to the evidence and of the need for them to put aside their prejudices. Unless the contrary is shown, the law presumes that the jury will comply with those directions and that their verdict will be impartial.
38. In these circumstances I can see no reason why the fair-minded and informed observer should single out juries with police officers and CPS lawyers as being constitutionally incapable of following the judge's directions and reaching an impartial verdict. It must be assumed, for instance, that the observer considers that there is no real possibility that a jury containing a gay man trying a man accused of a homophobic attack will, for that reason alone, be incapable of reaching an unbiased verdict, even though the juror might readily identify with a fellow gay man. Despite this - if Mr Green's appeal is to be allowed - the observer must be supposed to consider that there is, inevitably, a real possibility that a jury will have been biased in a case involving a significant conflict of evidence between a police witness and the defendant, just because the witness and a police officer juror serve in the same borough or the juror serves in a force which commits its work to the trial court in question. Similarly, if Mr Williamson's appeal is allowed, the observer must be taken to consider that the same applies to any jury containing a CPS lawyer whenever the prosecution is brought by the CPS. In my view, an observer who singled out juries with these two types of members would be applying a different standard from the one that is usually applied.
39. For no good reason, the observer would be virtually ignoring the other 11 jurors. Moreover, he would be ignoring the fact that Parliament must have been just as well aware as this House of the bonds of loyalty and of the esprit de corps uniting police officers on the side of law and order. After all, these were precisely the reasons for the previous bar on them serving as jurors. The fair-minded observer could not disregard the fact that, knowing this, Parliament has none the less judged it proper in today's world to remove the bar and to rely on the officers' commitment to uphold the law, in these circumstances by complying with their oath or affirmation and following the judge's directions, like any other juror.
40. Equally, if he singled out the jury with the CPS lawyer, the observer would be looking only at that lawyer's formal employment relationship with the large CPS organisation. At the same time he would be choosing to ignore the obvious reality that one of the qualities required of any CPS lawyer is an ability to assess evidence and to take proper decisions based on his assessment of the evidence, regardless of any pressure from the investigating police officers or from the media. Quite routinely, he may have to differ from colleagues in the same service. He will be well aware that in many cases that are prosecuted, for various reasons the evidence turns out to be less cogent than anticipated and an acquittal is the proper verdict. A fair-minded and rational observer might just think that such a person would be capable of bringing his realism, objectivity and skills to bear when acting as a juror. Why, at the very least, should the observer assume that they would desert him?
41. On the other hand, if the observer did take the view that police officers are inherently and irredeemably biased in assessing the evidence of a police witness from the same borough, it is hard indeed to imagine him considering that they could act impartially in weighing the evidence of other prosecution witnesses against someone whom they would regard as the kind of villain they were fighting every day. Drawing distinctions of that kind among the verdicts of the juries in the three cases under appeal strikes me as not very realistic and as being likely to produce fine distinctions which should have no place in this area of the law.
42. In short, the observer who concluded that there was no real possibility that, after giving his high-profile press conference, the auditor in Porter v Magill  2 AC 357 was biased would be straining at a gnat if he found that there was a real possibility of bias just because a jury contained a police officer or CPS lawyer.
43. As Mr Carey-Hughes QC candidly admitted in the course of his careful submissions, your Lordships' decision to allow two of the appeals will drive a coach and horses through Parliament's legislation and will go far to reverse its reform of the law, even though the statutory provisions themselves are not said to be incompatible with Convention rights. Moreover, any requirement for police officers and CPS lawyers balloted to serve on a jury to identify themselves routinely to the judge would discriminate against them by introducing a process of vetting for them and them alone. Parliament cannot have considered that such a requirement was necessary since it did not impose it. The rational policy of the legislature is to decide who are eligible to serve as jurors and then to treat them all alike.
44. For my part, I consider that, although the fair-minded and informed observer would see that it was possible that a police officer or CPS lawyer would be biased, he would also see that the possibility of the jury's verdict being biased as a result was no greater than in many other cases. In other words, the mere presence of these individuals, without more, would not give rise to a real possibility that the jury had been unable to assess the evidence impartially and reach an unbiased verdict. In respectful agreement with the Court of Appeal and Lord Carswell, I therefore see no reason to conclude that any of the appellants had an unfair trial or that the verdicts should be quashed.
BARONESS HALE OF RICHMOND
45. I agree that, for the reasons given by my noble and learned friend, Lord Bingham of Cornhill, the appeal of Abdroikof should be dismissed and the appeals of Green and Williamson allowed. I add a few words only because I have not found this an easy case. The simple question is whether, on the particular facts of each of these cases, a fair-minded and informed observer would conclude that there was a real possibility that the jury was biased. Like many simple questions, it is by no means easy to answer.