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)) Etc.
46. There is no attack upon the legislation itself. Such an attack could only be mounted through the Human Rights Act 1998. It is not suggested that allowing police officers or solicitors employed by the Crown Prosecution Service to serve on juries is in itself incompatible with the right of an accused person, under article 6(1) of the European Convention on Human Rights, to a fair trial before an independent and impartial tribunal. It is accepted that there are situations in which these newly qualified jurors will meet the tests of impartiality set out in Porter v Magill  UKHL 67,  2 AC 357, para 103 and Lawal v Northern Spirit Ltd  UKHL 35,  ICR 856, para 14. Equally, it is accepted that the fact that there are such situations does not mean that they will always do so. The fact that Parliament has said that they are eligible to serve does not mean that Parliament intended that they should do so in any case to which they were summoned. All the indications are that Parliament appreciated that there were some cases in which they should not serve. There is no indication that Parliament intended to abrogate the common law and Convention rules upon what constitutes a fair trial.
47. The purpose of the legislation was to do away with the large number of blanket exclusions which meant, it was said, that as many as four million people were excluded from jury service. The policy was that everyone should be included unless there was a very good reason why they should not sit in a particular case. The jury would then become a much more representative body, drawn from all sections of society, including those involved in the administration of justice and committed to the rule of law. There is much to be said for such a policy. The whole point of a jury is that 12 different people bring their different backgrounds, experiences and views to the business of deciding the case. Their various individual view-points (or biases as some might call them) are brought to bear upon the discussion of the evidence and out of that discussion a consensus is forged.
48. The question remains, however, in which cases may these newly qualified jurors sit and in which cases may they not? Current guidance requires jurors to disclose any personal acquaintance with the facts or the people involved in a particular case. But, unlike the case of R v Pintori  EWCA Crim 1700, 13 July 2007, unreported, where the officers in the case were personally known to the civilian police employee serving on the jury, that does not arise here. Neither of the police officers who served on the juries in the Abdroikof and Green cases knew the officers involved personally. The CPS solicitor advocate who served on the jury in the Williamson case knew none of the people involved in that prosecution personally.
49. But that cannot to my mind be the only criterion by which the impartial and informed observer should judge the issue of apparent bias. We are here concerned, not only with justice being done, but with justice being "manifestly and undoubtedly seen to be done". There must be circumstances in which an individual should not serve even though he or she has no personal acquaintance with the case or the people involved. A general predilection towards law and order is one thing. A close personal or professional association with one side in an adversarial trial is quite another. Counsel did not seek to rely upon the decision of this House in R v Bow Street Metropolitan Stipendiary Magistrate, Ex p Pinochet Ugarte (No 2)  1 AC 119; but this was because of the observations of Lord Hope of Craighead in Meerabux v Attorney General of Belize  UKPC 12,  2 AC 513. At para 22, Lord Hope commented that, had the House in the Pinochet case felt able to apply the "real possibility" test of apparent bias laid down in Porter v Magill, rather than the "real danger" test adopted in R v Gough  AC 646, they might well have decided the case on that ground rather than on the ground of automatic disqualification as judge in his own cause. In fact that strengthens the appellant's argument, especially in the Williamson case. The Pinochet case turned on the closeness of Lord Hoffmann's links, as one of two unpaid directors of Amnesty International Charity Ltd, a charity incorporated to undertake those aspects of the work of Amnesty International which are charitable under UK law, with the unincorporated body, Amnesty International, which had intervened in the case in order to support the extradition of Senator Pinochet. Lord Hoffmann was not a member of Amnesty International, had no connection with the decision to intervene in the case, nor was there any suggestion that he was unable to bring his usual judicial mind to the authorities and the arguments in the case; he was nonetheless automatically disqualified because of his involvement "in promoting the same causes in the same organisation" as was a party to the suit (see Lord Browne-Wilkinson, at p 135).
50. The fair-minded and informed observer, in deciding whether there was a real possibility of unconscious bias, would draw a distinction between this and the sort of conscious or unconscious biases to which we are all subject. She would understand that a CPS solicitor has a particular expertise in weighing up the evidence and deciding whether it is sufficient to justify prosecution, let alone conviction. She would understand that a police officer has a particular expertise, among other things, in evaluating the truth and accuracy of what he has been told. But she would also understand why a person cannot be a judge in a case to which he is a party and so she would consider the closeness of the identification between the juror and the prosecutor.
51. It is inconceivable that the Director of Public Prosecutions could sit as a juror in a case prosecuted by the CPS, irrespective of whether or not he had been personally involved in the decision to prosecute. There would be no objection to his sitting in a case prosecuted by some other person or authority. The same must apply to a CPS lawyer, who is employed to decide upon whether or not to prosecute and to conduct the prosecutions decided upon. Whether the same would apply to other CPS employees, whose role in the prosecution process or whose connection with the organisation is rather more peripheral, is a separate question which does not arise here. One could imagine that it might not apply to temporary or short term employees in junior positions unless the prosecution were brought by the office in which they served. There would, of course, be no objection to CPS lawyers or other employees serving on juries in prosecutions brought by other persons or authorities. This view is consistent with Parliament's lifting the ban upon members of the DPP's staff serving on juries, while leaving intact the common law and Convention rules against bias.
52. Police officers are in a rather different position. Their professional role is the prevention of crime and the apprehension of criminals and persons suspected of crime. They arrest, question and charge people but they do not prosecute. These may seem like technical distinctions when the police are so closely associated in the public mind with the fight against crime. If one asked a member of the public whether he would rather be tried by a jury containing one or more police officers or a jury containing one or more CPS employees, his preference might well be for the CPS over the police. But we are here talking of identification with the prosecution process and the police are further removed from that than are the CPS. Furthermore, while it is consistent with the legislation to distinguish between CPS and other prosecutions the objection to the police is their identification with the fight against crime generally rather than with the prosecution process in particular. Parliament obviously intended that police officers should be eligible to serve on juries in some cases (although they may well have contemplated a rather closer inquiry into the circumstances of each individual police juror than in fact takes place). The difficulty therefore is to identify a criterion by which to judge when they can and when they cannot do so.
53. In the Green case there are two factors which make the connection between the police and prosecution too close for comfort. One is that the victim of the alleged crime was himself a police officer and the case depended to some extent on his evidence of how the accused was searched and what was said at the time. The officers were serving in the same borough at the time of the trial although not in the same police station. Another is that the juror was posted to a police station which committed its cases to the Crown Court where the case was tried. Officers in his station will have had regular dealings with the CPS conducting prosecutions in the same court.
54. The Abdroikof case was tried at the Old Bailey, which hears cases from all over London and sometimes further afield. There was no particular link between the court and the station where the police juror served. No important issue turned on a conflict between police and defence evidence and there was no closer link between the police witnesses and the police juror than that they all served in the Metropolitan Police. It would be possible, perhaps, to conclude that Parliament had intended that no police officer should serve on a jury involving police witnesses from the same police force as that in which he served. Given the independence of each police force, that would have the attraction of consistency with the approach adopted earlier in relation to the CPS and other prosecuting bodies. With some hesitation, however, but because of the greater distance between the police and the prosecution process, I feel able to agree with my noble and learned friend, Lord Bingham of Cornhill, that there is not sufficient to raise the appearance of bias in this case. Hence this appeal should be dismissed, while the appeals of Green and Williamson should be allowed and the case of Williamson remitted to the Court of Appeal as Lord Bingham suggests.
55. The changes relating to jury service enacted in the Criminal Justice Act 2003 ("the 2003 Act") reflect the changes in the sophistication of jurors and in the willingness of Parliament to trust in their impartiality and ability to recognise and put aside their prejudices. This is mirrored in the evolution of the style of advocacy in criminal trials from that caricatured in Pickwick Papers. It also may be seen in the statutory changes in the admissibility of hearsay evidence. One of the basic reasons underlying the development and maintenance of the rule against hearsay has long been thought to be distrust of the capacity of juries to evaluate it: see the discussion in R v Hayter  UKHL 6,  1 WLR 605, 629-30, para 70. The increased willingness to allow the admission of hearsay evidence is a reflection of the lessening of that distrust.
56. Against this background the appeals now before the House have been brought. The three appellants were all convicted of offences after a jury trials and each has complained that his trial was unfair, because the jury contained, in two cases a serving police officer and in the third a member of the staff of the Crown Prosecution Service ("CPS"). Each appellant appealed against his conviction to the Court of Appeal, Criminal Division. The appeals were heard together and the court dismissed all three, holding that the presence of these persons on the juries did not make the trials unfair.
57. The history of the selection of jurors was helpfully summarised in the respondent's written case and may be found in extenso in Forsyth, History of Trial by Jury (1852). For present purposes it is sufficient to commence with the Juries Act 1825, in which the composition of the jury was first placed on a systematic statutory basis. A property qualification was required for jury service, and Schedule 1 to the Act set out an extensive list of persons exempt from service, which included police officers, practising barristers, attorneys and others concerned with the administration of justice.
58. A comparable list was contained in the Schedule to the Juries Act 1870 and various piecemeal exclusions were incorporated in other enactments. Apart from the inclusion of women in 1919, however, the qualification for jury service remained broadly the same until the passing of the Juries Act 1974. This Act was passed following the report published in 1965 of the Departmental Committee on Jury Service, Cmnd 2627, chaired by Lord Morris of Borth-y-Gest. The committee considered the basis of exemptions from service and stated at para 99 of its report:
59. The committee went on at paras 103-4:
60. It is evident from these passages that the committee's focus was mainly on the lay nature of juries and the possibly distorting influence which might be exercised on their deliberations by persons acquainted with the legal system, a preoccupation which appears again in paragraphs 112-5, dealing with ineligibility of such persons after retirement. It is right to say, however, that in its discussion of civilian police employees the committee cast doubt upon their ability to be impartial. At para 110 it referred with approval to the submission of the Association of Chief Police Officers that
61. The Morris Committee accordingly recommended the exemption of judges and lawyers in general, police officers and civilian employees in police forces. The terms of the 1974 Act followed the recommendations, and a list of this group of persons exempted was included in Schedule 1 to the Act, forming Group B under the heading "Others concerned with administration of justice". A number of additions and amendments to the list of persons exempted was made over the next 30 years, among them the exemption of the Director of Public Prosecutions and his staff.
62. In its report published in 1993 the Royal Commission on Criminal Justice (the Runciman Commission) stated in para 57 that it did not feel that it had any strong basis to recommend any changes concerning eligibility to serve on juries, except in one area, that of clergymen and members of religious orders.
63. The issue then received fuller consideration in chapter 5 of Sir Robin Auld's Review of the Criminal Courts in England and Wales, published in 2001. In para 29 he dismissed the objection commonly advanced that those connected with the courts and the administration of justice would be too well able to deduce when a defendant had previous convictions, for he considered that that was widely known among jurors. Secondly, he placed much less weight on the possibility of such persons influencing the jury. In the same paragraph he said:
64. Sir Robin went on in para 30 to consider the possibility of bias on the part of such persons:
He accordingly recommended that everyone should be eligible for jury service, save for the mentally ill. The Government accepted his recommendation and the 2003 Act amended section 1 of the 1974 Act, to the effect that every person between 18 and 70 years of age registered as a parliamentary or local government elector is now liable for jury service.
65. Parliament has therefore endorsed the view that universal eligibility for jury service is now to be regarded as appropriate. In reaching this conclusion it must be taken to have been aware of the test for apparent bias laid down by the House in Porter v Magill  UKHL 67,  2 AC 357, para 103, whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased. To that one should add the much-repeated observation of Lord Steyn in Lawal v Northern Spirit Ltd  UKHL 35,  ICR 856, para 14 (the judgment being given before the 2003 Act was passed), that "Public perception of the possibility of unconscious bias is the key."
66. There was no suggestion in the case of any of the appellants that the person serving on the jury which tried him was actually biased or that there were particular circumstances which could call his impartiality into question. The appellants' case was based squarely on the proposition that if a police officer or a member of the CPS staff were a member of a jury, that fact in itself would cause such an observer to conclude that there was a real possibility that the tribunal was biased. The foundation for the proposition must be that such a juror will inevitably have a predisposition to resolve disputes of fact in favour of the prosecution or to be more ready than other impartially minded jurors to reach a conclusion of guilt. This brings one back to Lord Steyn's observation about unconscious bias, for it was accepted on behalf of the appellants that jurors will be instructed to put aside prejudices of which they may be aware and should make a conscious effort to do so. The certified questions referred to the presence of a serving police officer or a member of the CPS staff on a jury.
67. Unconscious prejudices and bias can be insidious in their operation on people's minds, but the number and diversity of people on a criminal jury constitute a safeguard against such prejudice or bias on the part of any one juror exercising sufficient influence to determine the outcome of the trial. To a certain extent they are inescapable in human society, but it is generally reckoned that they are balanced out in the jury's deliberation and subsumed in the general attempt to reach a consensus. My noble and learned friend, Lord Rodger of Earlsferry, has drawn attention in paragraphs 32 to 34 of his opinion to the multiplicity of possible causes of bias or partiality and comes to the conclusion, with which I agree, that Parliament has taken the view that the risk is manageable within the system of jury trial.
68. I accordingly consider that the fair-minded and informed observer would not necessarily conclude that the mere presence on a jury of a police officer or CPS staff member would create such a possibility of bias as to deny the defendant a fair trial. Such an observer would in my view wish to know more about the circumstances of the case, the issues to be decided, the background of the juror in question and the closeness of any connection which he or she might have to the case to be tried. I think that it is for this reason that the Metropolitan Police has instructed its officers that, where possible, they should not serve as jurors in a court where their Operational Command Unit carries out its work. Similarly, the CPS has advised members of its staff called for jury service to inform the court of their employment, so that the judge may decide if it is appropriate that they may sit as jurors on particular cases. These are in my view sensible instructions designed to reduce the possibility that particular circumstances may tip the balance against the individual juror serving on a case. They do not, as the appellants suggest, indicate that the police authority or CPS have misgivings about the presence of their officers on a jury.
69. A final decision in any given case about the fairness of the trial where unfairness consisting of bias is alleged can only be made on examination of the facts of the trial as a whole after its conclusion, the standard approach of the European Court of Human Rights to claims that defendants have not received a fair trial. One must therefore look at the circumstances of each of the cases before the House.
70. Nurlon Abdroikof was convicted on a number of counts on 31 August 2004 after a trial before the Common Serjeant of London, Judge Beaumont, and a jury. The gravest of these charges was the attempted murder of Nicholas Faulkner, for which he was sentenced to eleven years' imprisonment, and a consecutive term of five years was imposed for the attempted choking of Samantha Pettit with intent to enable himself to commit an indecent assault, contrary to section 21 of the Offences Against the Person Act 1861.
71. The presence of a police officer on the jury emerged when the officer in question sent a note to the judge, explaining that he was due to report for duty on the following Monday, which was a bank holiday and on which the court was not sitting. He stated that if he did so he might come into contact with officers who were on the case at hearing and asked the judge for directions. The judge directed that he should not report for duty on that day. Counsel were made aware that the officer was a member of the jury and raised no objection at the time to his serving. Abdroikof subsequently appealed to the Court of Appeal on the ground that the presence of the police officer on the jury meant that he did not receive a fair trial.
72. Counsel for the appellant accepted that the case did not involve any major issue between the appellant and the police. One factual matter was disputed by the appellant, whether he had bound his victim Faulkner's feet as well as his hands, but this appears to have been a peripheral issue with little relevance to those on which the question of guilt turned. There was no evidence that the police officer knew any of the witnesses in the trial or had any knowledge of the case outside the evidence given in court. The Court of Appeal held that there was nothing in the particular circumstances of the case to give rise to any cause for concern with regard to the presence of a police officer on the jury (para 47). The case accordingly fell squarely within the general issues of principle concerning the service of police offices as jurors. In my view the decision of the Court of Appeal was correct and it cannot be said that Abdroikof failed to receive a fair trial.