Court of Appeal allows appeal in “police officer on jury case” after reference by CCRC

9 February 2016

The judgment in R v Hanif and Bakish Allah Khan (No 2) [2014] EWCA Crim 1678 (31 July 2014) has finally been published. Publication had been prohibited because when the Court of Appeal allowed the appeal on 31 st July 2014 they ordered a re-trial. That has now taken place and the proceedings have therefore concluded.

As long ago as 3 January 2007 the trial of the two defendants and others began at Sheffield Crown Court.  On the second day just as the first police officer was about to give evidence a juror indicated that he was also a police officer and knew the witness.   In the absence of his fellow jurors the police officer juror provided more information about his knowledge of the witness.  The judge (HHJ Keen QC) refused to discharge the juror despite acknowledging that the evidence of the police officer and a colleague were important to the Crown’s case and were the subject of substantial challenge.

Following conviction an appeal was lodged. The appeal was heard in March 2008 and was rejected.  Despite the eminence of the bench, which included the then LCJ Lord Phillips, as well as his successor Lord Judge, then President of the QBD, the rationale for refusing the appeal always seemed legally dubious.  In paras 9 and 10 of their judgment [2008] EWCA Crim 532, [2008] 2 Cr. App. R. 13, they came up with the notion that there was a distinction between bias towards a witness and bias towards a party to the proceedings.  Apparently it was possible for a juror (a police officer) to be biased towards a witness (also a police officer) but not to be biased towards the prosecution!  Bearing in mind that day in and day out police officers assist the prosecution in the pursuit of criminals and are professional committed to such work, that notion always seemed highly suspect.  Leave to appeal to what was then the House of Lords was refused.

Sure enough when the case was dealt with in the European Court of Human Rights, that Court held that there had been a breach of the Article 6 right to a fair trial by reason of the presence of the police officer juror known to the witness in the circumstances where the evidence of the officer was in significant dispute.

On application the CCRC referred the case back to the Court of Appeal.  The judgment is significant because the Court disagreed with the reasoning of the 2008 Court of Appeal as above.  On this occasion the Court of Appeal held that the correct test was that set out in Porter v Magill [2002] 2 A.C. 357, namely “whether the fair-minded and informed observer, having considered the facts, would conclude that there was real possibility that the tribunal was biased.”  Judged against that criteria and on these facts, the CA held that the appeal should be allowed.

Whilst the judgment may assist any in a similar predicament it is a lot easier to remember that if you don’t think it is appropriate for a police officer to serve as a juror you should ensure they do not get on the jury in the first place.

Mark George QC is a barrister and Head of Chambers at Garden Court North Chambers.

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