Lord Thomas of Cwmgiedd, CJ:
This judgment must not be published until after the conclusion of the re-trial the court has ordered:
- In this appeal by way of reference from the Criminal Cases Review Commission we have to consider whether the convictions of the appellants are unsafe by reason of the decision of the fourth section of the Strasbourg Court that the presence of a police officer on the jury violated the provisions of Article 6 of the European Convention on Human Rights (Cases of Hanif and Khan v UK 52999/08, 61779/08, 20 December 2011).
- It is necessary to set out the background.
The proceedings
- On 21 August 2006 the appellant Hanif, a taxi driver, travelled from Luton to Sheffield. His journey was under the observation of the police. At Sheffield he met Rasul. On his return journey the car was stopped and six kilograms of heroin were discovered in the boot of the car. Hanif denied that he knew anything about the drugs in his car. He was charged with the appellant Khan, Niaz Khan, Younas and Rasul with conspiracy to supply heroin.
- The appellants' trial commenced on 3 January 2007 in the Crown Court at Sheffield before HH Judge Keen QC and a jury; Niaz Khan, Younas and Rasul pleaded guilty; the Crown relied on their pleas. On the second day of the trial the court heard evidence from police officers including an officer, Mark Blackburn. In the course of his evidence a juror sent a note to the judge which read:
"I am a serving police officer. I know Mark Blackburn but I haven't worked with him for over two years."
- Counsel were informed and agreed questions were put to the juror who provided the following information:
i) He worked in the South Yorkshire Police Force as a dog handler; he was based at Maltby near Rotherham.
ii) He had known Mark Blackburn for 10 years. He had worked with him on three occasions connected with the same incident but not in the same team. They undertook different roles.
iii) They had never worked at the same station. He had been based at Maltby whereas Mark Blackburn worked at the Rotherham Central Police Station. They would greet each other in passing, for example at the police station or football match. They had never seen each other socially. He did not know that Mark Blackburn had left South Yorkshire police.
iv) He did not think he knew anything about Mark Blackburn which would affect his ability to judge Mark Blackburn's evidence impartially. He would judge the case in accordance with the oath he had sworn.
- Counsel for Hanif and Khan applied for the juror to be discharged. HH Judge Keen QC in a short and clear ruling determined that the juror should not be discharged. At the conclusion of the trial, Khan and Hanif were convicted; Khan was sentenced to 17 years imprisonment and Hanif to eight years imprisonment.
- An appeal was made to this court which was heard by Lord Phillips CJ, Sir Igor Judge P and Silber J. In a judgment given on 14 March 2008, the court dismissed the appeal. See [2008] EWCA Crim 531, [2008] 2 Cr App R 13. Khan's appeal against sentence was allowed and the term of the imprisonment was reduced to 15 years. Leave to appeal to the House of Lords was refused on 17 June 2008.
- Hanif and Khan applied in October and December 2008 to the Strasbourg Court. In a judgment given on 20 December 2011 the court concluded that there had been a violation of Article 6.1. The Fourth Section of the Strasbourg Court said in respect of Hanif at paragraph 148:
"The Court is of the view that, leaving aside the question whether the presence of a police officer on a juror could ever be compatible with Article 6, where there is an important conflict regarding police evidence in the case and a police officer who is personally acquainted with the police officer witness giving the relevant evidence is a member of the jury, jury directions and judicial warnings are insufficient to guard against the risk that the juror may, albeit subconsciously, favour the evidence of the police. In the present case, [the juror] had known Mark Blackburn for ten years and although not from the same station, had on three occasions worked with him in the investigation of the same incident (…). Further, the other witnesses who supported Mark Blackburn's account of events were also police officers (…). The Court recalls the conclusion of the Court of Appeal that the first applicant's defence witness was not a witness of good character and that his explanation for the records of the use of his mobile phone and the discovery of heroin in his car "bordered on the farcical" (…). However, it is not for this Court to make its own assessment of the evidence presented at trial and, in particular, of the first applicant's explanation for the evidence against him. Such assessment was for the members of the jury, who were required pursuant to Article 6 to be impartial."
- In respect of Khan, the court concluded at paragraph 150:
"The Court recalls the applicants were co-defendants in one set of criminal proceedings and that they were convicted by the same jury. In these circumstances, the Court considers that, having found in its examination of the first applicant's complaint that the jury in the case could not be considered to constitute an "impartial tribunal" in light [the juror]'s presence, it would be artificial to reach a different conclusion regarding the "tribunal" which tried the second applicant. Thus, notwithstanding the fact that the jury was required to try the case against each applicant separately and was permitted to come to different verdicts in respect of each applicant, the Court considers that there has also been a violation of Article 6 § 1 in respect of the second applicant."
- On 16 July 2012 Hanif applied for a review by the Criminal Cases Review Commission; Khan made a similar application on 20 June 2012. The Commission has referred both convictions to this court.
- It is necessary first to refer to the issues and evidence at the trial.
The issues and evidence at the trial
(a) The issue as regards Hanif
- It was the Crown's case that Younas, the appellant Khan and Niaz Khan were involved in the supply of heroin in Sheffield. Towards the end of August 2006 these men needed more heroin. They made contact with Rasul who lived in Luton but had connections with Sheffield. It was also the Crown's case that Rasul had access to bulk quantities of heroin and that he had agreed to supply 6 kilograms of heroin to Younas, Khan and Niaz Khan. On 30 August 2006 Rasul had travelled to Sheffield and met Younas, Khan and Niaz Khan.
- It was the Crown's case that Hanif was recruited to drive to Luton to pick up the heroin and bring it back to Sheffield. The Crown's case was based upon the finding of the heroin in the boot of Hanif's car on the return journey, observations during the journey and the regular telephone contact between the conspirators.
- There were detailed telephone logs of conversations between Hanif and Younas and Khan on 29 and 30 August 2006. On 31 August 2006 there was telephone contact before noon between Younas and Hanif. At 12:03 Hanif left a house in Sheffield and eventually joined the M1, ringing first his taxi firm and then Younas and also Niaz Khan. After the call with Younas, Hanif telephoned Rasul. It was the Crown's case that he had been given Rasul's name as the person from whom he was to collect the drugs, as there had been no contact between Hanif and Rasul before that call. That call was not successful and there was then significant telephone traffic between Hanif, Khan and Younas. Hanif and Rasul first spoke at 12:31. The telephone traffic then abated although Hanif spoke to Rasul twice and spoke to Younas on several occasions.
- Hanif came off the M1 at Junction 11 at 13:55 and arrived in the Dunstable Road area of Luton at about 14:00. He immediately called Rasul. He then rang Niaz Khan and had a further series of calls with Rasul. Hanif then drove his car to Newark Road, Luton and parked outside Rasul's home. He was seen there at 14:34 and at the same time made a phone call to Younas.
- Hanif then left to make his return journey, telephone calls being made by Rasul to him at 14:46 and 15:11. At 16:30 Hanif's car was stopped by police.
- In addition to the telephone evidence the Crown relied on observations from police officers. The first officer was Mark Short who was observing the house in Sheffield from which Hanif had left. The second officer was Mark Blackburn. He had been on observation with a colleague in the Luton area on Dunstable Road so that he could see the junction with the M1. He saw Hanif's taxi coming off the M1 at Junction 11. He said there was no-one else in the car. They followed it for the entire journey taken by Hanif in the Luton area until it parked in Newark Road near Rasul's house. The officer with Mark Blackburn was Graham Bulmer. He gave similar evidence.
- In his evidence to the jury Hanif's evidence was that he had been asked by Younas to pick up a passenger named Paul to take to Heathrow; he had two bags with him. After giving an account of what he did in the morning on 31 August 2006 he said he picked up Paul at 12:04. He had called Niaz Khan on several occasions as the result of a message from his company that Niaz Khan had failed to pay a fare. He explained his phone calls with Younas as discussing the amount of the fare to be paid by Paul. He also said that during the course of the journey he lent his phone to Paul who made a number of telephone calls.
- He had come off the motorway at Junction 11 as Paul wanted to stop and see a friend. Paul had got out and he believed he had taken the two bags with him which he had brought with him to the taxi. He had then gone to see Rasul. Apart from his own evidence he also relied on the evidence of someone he said he had seen during the course of the journey, Victoria Thomas. She was called. Her evidence was that she noticed that he had a passenger in the back of the taxi. She could not describe the passenger.
- It is apparent that an important issue in the case was whether Hanif had with him someone in the car. If he did not, then the telephone traffic could not be explained and his evidence would in other respects have been untrue. The conflict in the evidence between that of Hanif and Victoria Thomas and that of the three police officers was therefore of some significance. Although it was not suggested to any of the police officers that the evidence they had given was untruthful (as their observations had been recorded on logs before the account of Hanif was known), the accuracy and reliability of the police officers' evidence was very much in dispute.
(b) The issue as regards Khan
- The case against Khan did not in any way depend upon the evidence of the police officers. The Crown's case relied upon the observations of the meetings on 31 August 2006 with Rasul (to which we have referred) and the telephone and cell site evidence. The Crown also relied on the large quantities of cash found at Khan's home and scientific evidence which showed that the money found had been in contact with heroin, as had the cars driven by Khan and clothes worn by him. The Crown also relied upon his previous conviction in 2003 for dealing in heroin and a confiscation order made against him for £64,202 for that offence and his admitted lies.
- Khan's defence was that he was no longer involved in dealing in heroin and had learnt his lesson from his previous conviction. He gave evidence in his own defence that his contact with the co-accused was not related to drugs. He also called his brother, Bakish Khan, to give evidence that cash found at the appellant's home related to the sale of a motor car.
The issue on this reference
- It was common ground before us that if the police officer juror was not impartial and independent then, even if in every other respect the convictions were safe, the conviction could not be upheld. The court had made this clear on a number of occasions, for example in R v Dundon [2004] EWCA Crim 621 Rose LJ said at paragraph 16:
"We are unable to envisage any circumstance in which, an Article 6 breach having arisen from want of independence and impartiality in the tribunal, it would be possible to conclude that the conviction is safe."
Similar statements are to be found in Millar v Dickson [2002] 1 WLR 1615 at paragraph 85, R v Spear [2003] 1 AC 734 and R v Abdroikov, R v Green, R v Williamson [2007] UKHL 37. In the last case Lord Bingham said at paragraph 27:
"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."
- Thus in the case of Hanif, if the decision of the Fourth Section of the Strasbourg Court which we have set out at paragraph 8 above, was a decision which we should apply and the presence of the policeman juror meant that the tribunal was not independent and impartial in the sense described, then the conviction could not stand. It was unsafe, notwithstanding the very strong evidence against him. If, on the other hand, the presence of the policeman juror on the jury did not affect the independence and impartiality of the jury and thus the decision of the Strasbourg court was a decision which we should not apply, then there was no basis on which the verdict in respect of Hanif could be challenged. In the case of Khan, the same principle applied, but the factual circumstances differed considerably.
The impartiality of the policeman juror in respect of Hanif
(a) The decision of this court in 2008
- The essence of the decision of this court in 2008, given in the judgment of Lord Phillips CJ, is set out in three paragraphs of the judgment which it is necessary to set out in full:
"9. It is important to distinguish between partiality towards the case of one of the parties and partiality towards a witness. Each can be describes as 'bias' but they are different in kind and can have different consequences. Association with or partiality towards a witness will not necessarily result in the appearance of bias, as defined by Lord Goff [in R v Gough]. Just because a juror feels partial to a particular witness does not mean that the juror will be partial to the case in support of which that witness is called. It may do so if the witness is so closely associated with the prosecution that partiality to the witness is equated with partiality towards the party calling the witness. Such a case was In re Medicaments [2001] 1 WLR 700 where an appearance of bias resulted from the fact that a member of the tribunal had applied for a job to the experts whose evidence was the foundation of the case of one of the parties. In many cases, however, the witness will not be associated with the prosecution in this way.
10. Where an impartial juror is shown to have had reason to favour a particular witness, this will not necessarily result in the quashing of a conviction. It will only do so if this has rendered the trial unfair, or given it an appearance of unfairness. To decide this it is necessary to consider two questions:
i) Would the fair minded observer consider that partiality of the juror to the witness may have caused the jury to accept the evidence of that witness? If so
ii) Would the fair minded observer consider that this may have affected the outcome of the trial?
If the answer to both questions is in the affirmative, then the trial will not have the appearance of fairness. If the answer to the first or the second question is in the negative, then the partiality of the juror to the witness will not have affected the safety of the verdict and there will be no reason to consider the trial unfair.
….
29. Our conclusion is, as already expressed, that the fact that a police juror may seem likely to favour the evidence of a fellow police officer will not, automatically, lead to the appearance that he favours the prosecution. If the police evidence is not challenged or does not form an important part of the prosecution case, we do not consider that it will normally do so. None the less it will be appropriate to quash the conviction if, but only if, the effect of the juror's partiality towards a brother officer puts in doubt the safety of the conviction and thus renders the trial unfair."
- When the court came to apply the principle to the facts in relation to Hanif, the court observed at paragraph 54 that Hanif's explanation for the records of the use of his mobile phone and for being found with heroin in the back of the car bordered on the farcical. The court turned to examine the two questions which we have set out in the citation from paragraph 10 of the judgment. The court continued at paragraph 56:
"The material evidence of the three police witnesses was that they had seen no passenger in Hanif's car. Insofar as there was an issue in relation to this evidence it was whether it was possible that there might have been a passenger unobserved by the police. As to that issue, the jury plainly concluded that it was not. No fair minded observer would believe, however, that this conclusion might have been brought about as a result of partiality on the part of the police juror to his fellow officers and, in particular, to Police Officer Blackburn who was known to him. Thus the question is answered in the negative and the second question does not arise."
(b) The argument of Hanif on this appeal
- Mr George QC on behalf of Hanif submitted that this court had erred in developing the approach set out at paragraphs 9 and 10 of its judgment and should simply have applied the principles set out at paragraph 103 of the judgment of Lord Hope in Porter v Magill [2001] UKHL 67, [2002] 2 AC 357 by asking the question:
"Whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased."
This court had been wrong in finding a distinction should be made between partiality towards the case of one of the parties and partiality towards a witness. This court had then been wrong to conclude that in the case of a juror favouring a particular witness, an appellate court would not quash the conviction unless the partiality towards a particular witness had rendered the trial unfair or given it an appearance of unfairness.
(c) The submission of the Crown
- In answer to that submission, the Crown contended that what this court had done in the earlier appeal was to state in slightly different language the approach that was evident from the decision in Abdroikov. At paragraphs 25 to 27, Lord Bingham had drawn a careful distinction between the case which turned on a contest between the evidence of the police and that of the appellant and a case where there was no such contest. The questions in paragraph 10 had merely elucidated that distinction.
(d) Our conclusion
- It is clear to us from the decision in Abdroikov that the presence of a police officer on a jury where there is no challenge to the evidence of the police or the evidence is called and then not challenged, will not affect the impartiality and independence of the jury. However, if the evidence of the police is in dispute, then it is a matter of judgment in each case, applying the principle in Porter v Magill to which we have referred, as to whether the relationship between the police officers giving evidence and the police officer on the jury is such that the fair-minded and informed observer would consider there was a real possibility the tribunal was biased. As Lord Bingham pointed out at paragraph 26 of the judgment, in assessing that issue it is necessary to have regard to matters such as whether the officers knew each other, whether they had worked together, whether they shared the same local service background and other matters of that kind.
- In R v Burdett & Smith [2009] EWCA Crim 543, this court summarised the questions that arose as follows:
"First of all, whether, if the police evidence is challenged, it forms an important part of the prosecution case, and secondly, any possibility of bias that might result from the closeness of the connection between the policeman on the jury and the police officer giving evidence."
- The evidence of Mark Blackburn was challenged for its reliability and accuracy. It formed an important part of the Crown's case. Although the juror and Mark Blackburn were based at different police stations, they had known each other for 10 years and had worked on a case together. In our judgment, the fair minded and informed observer would conclude that there was a real possibility that the tribunal was biased.
- In the circumstances and in the light of the position taken by the parties to the appeal as set out at paragraphs 23 and 24 above, it matters not whether the defence of Hanif boarded on the farcical.
- We therefore follow and apply the decision of the Fourth Section in the appeal of Hanif.
The position in respect of Khan
- The simple issue in the case of Khan is whether the Strasbourg Court was correct in the approach it adopted at paragraph 150. The court did not set out its reasoning as to why it would be artificial to reach a different conclusion.
- It seems to us that the court could not have reached that conclusion if it had properly understood the procedure in the criminal courts of England and Wales. Although two defendants might be tried together, the jury is always directed (as it was in this case) to consider the case of each and the evidence against each separately. As we have set out, the case against Khan did not depend in any way upon the evidence of the police. Nor did it in any way depend on the guilt or innocence of Hanif. The case against Khan was based on entirely separate evidence. We can see no basis on which the informed observer could conclude that there was any possibility, let alone any real possibility, that the tribunal was biased in determining Khan's case. In our view which is based on a full understanding of the trial and the procedure in England and Wales, the Fourth Section was wrong in the conclusion it reached.
- We therefore neither follow nor apply the decision of the Fourth Section of the Strasbourg Court in the case of Khan. His conviction is safe.
Conclusion
- In the result, therefore, it follows that we must set aside the conviction of Hanif and dismiss the appeal against the reference in the case of Khan.
- The Crown applied that in the event that we allowed the appeal and quashed the conviction against Hanif there should be a retrial. In our judgment, bearing in mind the gravity of the charge against Hanif, the fact that, as far as we can ascertain, all the evidence is still extant, it seems to us right and just that there should be a retrial. We therefore order a retrial on terms that the indictment against Hanif should be served within 56 days and that a hearing take place at the Sheffield Crown Court for directions as soon as practicable thereafter.
