Gregory v. The United Kingdom

EUROPEAN COURT OF HUMAN RIGHTS

CASE OF GREGORY v. THE UNITED KINGDOM

(111/1995/617/707)

JUDGMENT

STRASBOURG

25 February 1997

  The present judgment is subject to editorial revision before its reproduction in final form in the Reports of Judgments and Decisions for 1997. These reports are obtainable from the publisher Carl Heymanns Verlag KG (Luxemburger Straße 449, D-50939 Köln), who will also arrange for their distribution in association with the agents for certain countries as listed below. List of Agents Belgique/Belgium: Etablissements Emile Bruylant (rue de la Régence 67, B - 1000 Bruxelles) Luxembourg: Librairie Promoculture (14, rue Duchscher (place de Paris), B.P. 1142, L - 1011 Luxembourg-Gare) Pays-Bas/The Netherlands: B.V. Juridische Boekhandel & Antiquariaat A. Jongbloed & Zoon (Noordeinde 39, NL - 2514 GC LaHaye/'s-Gravenhage) SUMMARY Judgment delivered by a Chamber (*This summary by the registry does not bind the Court) United Kingdom - judge's decision to deal with an allegation of racial bias in a jury trying a black defendant, by means of a redirection rather than a discharge; allegation made in a note passed to the judge following the jury's retirement I. Article 6 1 of the Convention Reiteration of the importance of securing the impartiality of a tribunal including a jury from a subjective as well as an objective point of view. Subjective bias: the jury note did not constitute proof of actual or subjective bias. Objective bias: judge's redirection was clear, detailed and firmly worded - jury instructed to put out of their minds any thoughts of prejudice of any form and to try the case on the evidence alone - no further allegations of racial bias - could be concluded that the judge had offered sufficient guarantees in the circumstances to dispel any objective doubts about the jury's impartiality - a discharge of a jury not always required to achieve this aim. Conclusion: no violation (eight votes to one) II. Article 14 of the Convention in conjunction with Article 6 No separate issue arises under this head. Conclusion: no violation (unanimously) Court's case-law referred to 26.2.1993, Padovani v. Italy; 23.4.1996, Remli v. France; 10.6.1996, Pullar v. the United Kingdom In the case of Gregory v. the United Kingdom[fn1] , The European Court of Human Rights, sitting, in accordance with Article43 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") and the relevant provisions of Rules of Court A[fn2] as a Chamber composed of the following judges: Mr R. Ryssdal, President, Mr Thór Vilhjálmsson, Mr F. Gölcüklü, Mr F. Matscher, Mr A. Spielmann, Mr N. Valticos, Mr I. Foighel, Sir John Freeland, Mr A.B. Baka, and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy Registrar, Having deliberated in private on 29 October 1996 and 25 January 1997, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1. The case was referred to the Court on 2 December 1995 by the European Commission of Human Rights ("the Commission") within the three-month period laid down by Articles 32 1 and 47 of the Convention. It originated in an application (no. 22299/93) against the United Kingdom of Great Britain and Northern Ireland lodged with the Commission under Article 25 of the Convention on 7 July 1993 by MrDavid Gregory, a British citizen. The Commission's request referred to Articles44 and 48 of the Convention and to the declaration whereby the United Kingdom recognised the compulsory jurisdiction of the Court in accordance with Article46. The object of the request was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Articles 6 and 14 of the Convention. 2. In response to the enquiry made in accordance with Rule33 3(d) of Rules of Court A, the applicant stated that he wished to take part in the proceedings and designated the lawyer who would represent him (Rule30). 3. The Chamber to be constituted included ex officio Sir John Freeland, the elected judge of British nationality (Article43 of the Convention), and MrR. Bernhardt, the Vice-President of the Court (Rule21 4(b)). On8 February 1996, in the presence of the Registrar, the President of the Court, Mr R. Ryssdal, drew by lot the names of the other seven members, namely Mr Thór Vilhjálmsson, MrF.Gölcüklü, Mr F. Matscher, Mr R. Macdonald, Mr N. Valticos, MrI.Foighel and Mr A.B. Baka (Article 43 in fineof the Convention and Rule 21 5). Subsequently, Mr Bernhardt and Mr Macdonald were prevented from taking part in the consideration of the case and were replaced respectively by Mr Ryssdal as President of the Chamber and by Mr A. Spielmann, first substitute judge. 4. As President of the Chamber at that time (Rule21 6), MrBernhardt, acting through the Registrar, consulted the Agent of the Government, the applicant's representative and the Delegate of the Commission on the organisation of the proceedings (Rules37§1 and 38). Pursuant to the order made in consequence, the Registrar received the applicant's memorial on 28 June 1996 and the Government's memorial on 2 July 1996. Following enquiries conducted through the Registrar no objection was raised as to making accessible the applicant's submissions in the proceedings before the Commission, dated 24 June 1994 and 10 March 1995. These submissions were subsequently appended to the applicant's memorial. 5. On 13 June 1996 the President of the Chamber at the time, MrBernhardt, granted leave to Rights International, a non-governmental human rights organisation based in New York, to submit written comments (Rule 37 2). These were received on 28 August 1996 and forwarded on 3 September 1996 to the Delegate of the Commission, the applicant's representative and the Agent of the Government for comment. No comments were received. 6. In accordance with a decision of the then President of the Chamber, the hearing took place in public in the Human Rights Building, Strasbourg, on 21 October 1996. The Court had held a preparatory meeting beforehand. There appeared before the(a) for the Government Ms S. Dickson, Agent, Mr N. Garnham, Counsel, Mr S. Bramley, Mrs B. Moxon, Advisers. (b) for the Commission Mr G. Ress, Delegate; (c) for the applicant Mr M. Mansfield Q.C., Mr P. Herbert, Counsel, Mr E. Abrahamson, Solicitor. The Court heard addresses by Mr Ress, Mr Mansfield and MrGarnham. AS TO THE FACTS I. The particular circumstances of the case 7. The applicant, who is black, is a British citizen born in 1966 and currently living in Manchester, England. 1. The trial 8. The applicant was tried for robbery at Manchester Crown Court between 26 and 28 November 1991. He was legally represented at the trial. 9. On the final day of the trial, at 10.46 a.m., the jury retired to consider their verdict. An hour and three quarters later a note was passed by the jury to the judge. It read:

"JURY SHOWING RACIAL OVERTONES. 1 MEMBER TO BE EXCUSED."

10. In the absence of the jury, the trial judge showed the note to counsel for the prosecution and defence and consulted them on the appropriate response to it. 11. There is some uncertainty as to the stance taken by defence counsel with regard to the follow-up to be given to the note. Prosecution counsel recalls that defence counsel did not raise strong objections to the approach which the judge indicated he intended to pursue, namely to recall the jury and give clear directions on their duty to return a verdict on the basis of the evidence alone. However defence counsel seems to recall that he did in fact ask the trial judge to discharge the jury in the circumstances, but his application wasrefused. Defence counsel based his recollection on the grounds of appeal and advice on appeal which he drafted shortly after the trial on 10 December 1991. However, neither of these documents suggests that defence counsel made an express request to the judge to discharge the jury. Under point 4 of his grounds of appeal, defence counsel concluded:

"It is submitted that, in the circumstances aforesaid, some enquiries should have taken place with a view to acceding to the request of the jury that one of their numbers be discharged."

In the accompanying advice on appeal, defence counsel stated:

"It seems to me that it is at least arguable that the trial Judge should have enquired further into the matter with a view to acceding to the request that the jury were making."

12. The judge's recollection is that both counsel agreed to his proposed course of action (see paragraph 11 above). 13. The jury were recalled at 12.47 p.m. Pausing at appropriate junctures to ensure that his statement was being understood, the judge redirected the jury in the following terms:

"You are brought here as twelve people from your various walks of life, your various backgrounds. Everybody has preconceived ideas and thoughts but you are brought here from twelve different backgrounds expecting to apply your twelve different minds to the problems that are put before you. ... you decide this case according to the evidence and nothing else in the case. Any thoughts or prejudice of one form or another, for or against anybody, must be put out of your minds. You decide this case on evidence. It is the evidence alone which decides the case. Do you understand that, members of the jury? You are the judges and you decide it on the evidence, and weighing the individuals as you saw them and allowing no other factor to influence your decision, but your decision about the quality of the evidence and the way in which a particular individual you are considering, treating them all alike and making no distinction whether a person is a defendant or otherwise, where he lives, where he comes from. Do you understand that? I am certainly not going to discharge any member of the jury because he or she may wish to do so because they dislike certain overtones in the conversation. Decide this case according to the evidence. Members of the jury, I am not saying you should be biased in favour or against it. Look at the way it was given. Decide the case that way and no other. That is your sworn duty. I expect you to abide by your sworn duty."

14. The jury then retired at 12.50 p.m. At 2.21 p.m. the jury, being unable to reach a unanimous verdict, were recalled by the judge. He informed them that the time had come when he could accept a verdict of at least a majority of ten. The jury retired again at 2.24p.m. At 3.27 p.m. the jury were still undecided and they were called back again. The judge further directed the jury as follows:

"Members of the jury, each of you has taken an oath to reach a true verdict according to the evidence. Remember that is the oath you took two days ago. Not one of you must be false to that oath. You do have a duty, not only as individuals but collectively as a jury. That, of course, is the strength of the jury system. So each of you when you go into your jury room take with you your individual experience and wisdom. ... Your task is to pool that experience and wisdom. You must do that by giving your views and listening to the views of other people. Of necessity there will be discussion. ... There has got to be argument and there has got to be give and take within the scope of the oath that each of you have taken. That is the way you achieve agreement."

15. At 4.06 p.m. the jury returned and delivered a 10 to 2 majority verdict finding the applicant guilty. The applicant was sentenced to six years' imprisonment. 2. Appeal proceedings 16. The applicant sought leave from the Court of Appeal to appeal against conviction. He submitted that in the circumstances the trial judge had wrongly failed to make any enquiry into the note with a view to determining whether one of the members of the jury should be discharged on the grounds of racial prejudice and that this failure gave rise to a material irregularity at the trial (see paragraph 11 above). Leave to appeal was refused by the single judge on 28 February 1992. He stated that:

"The learned judge dealt with the novel and delicate situation presented by the jury note with tact and sensitivity. It would have been entirely inappropriate for him to have conducted some sort of enquiry. There was no material irregularity at your trial."

17. The applicant renewed his application to the full Court of Appeal. On 19 January 1993 the application was dismissed. The Court of Appeal noted that the trial judge:

"took the view and this Court agrees with it, that the nature of the jury's anxiety was that one member of the jury felt that there was a general overtone of racial comment which was unacceptable and not, as the Applicant is suggesting, one member of the jury being so racially prejudiced as to be unable to give proper consideration to the matters before him."

The Court continued:

"Matters of this kind raise delicate issues. The jury system does require an element of give and take after proper directions from the judge. In our judgment His Honour Judge Hammond dealt with this matter sensitively, sensibly and correctly, and cannot be faulted for a conclusion that the jury should continue the deliberations which they had given their oath to undertake. We, therefore, find no ground for complaint and we dismiss this application."

II. Relevant domestic law and practice on jury trials in the Crown Court 1. The respective roles of the trial judge and jury 18. The trial judge is the arbiter of issues of law. He must ensure that the trial is properly conducted according to law. He is required at the end of a trial, inter alia, to sum up the evidence, to direct the jury to disregard evidence which is inadmissible, to remind juries of their duties and functions, to explain any law which the jury is required to apply, to direct the jury on the onus and burden of proof and to ask the jury to reach a verdict on the evidence they have heard. 19. The jury in Crown Court trials consists of twelve members who have taken an oath or affirmed to "faithfully try the defendant and give a true verdict according to the evidence." The jury is the arbiter of fact. 2. Jury service 20. Jury service is regarded as an important civic duty. The Juries Act 1974, as amended, governs qualification for jury service, ineligibility, disqualification, excusal, discharge and other relevant matters. 21. Every person between eighteen and seventy who satisfies the requirements set out in section 1 of the Juries Act is qualified to serve on a jury and liable to do so if summoned under section 2 of that Act. The electoral register serves as the basis of jury selection. 22. Random selection of potential jurors is regarded as a key safeguard against corruption or bias in a sworn jury. There are a number of other guarantees, including: (a) Jury checks 23. It is lawful for inquiries to be made as to whether potential jurors were disqualified by reason of previous convictions. For this purpose a search may be made of criminal records in order to ascertain whether or not a jury panel includes a disqualified person. Furthermore, in cases involving national security or terrorism additional steps may be taken to test the integrity of a potential juror. The Attorney-General has laid down guidelines on the conduct of jury checks. (b) Challenges 24. On the trial of an indictment, and before the jurors are sworn, the accused and the prosecution may object to the jurors who are called to serve. Challenges are of two kinds: (1) to the array, that is to say to the whole number of persons in the panel and (2) to the polls, that is to say to individual jurors. 25. Challenges to the polls must be for cause. evidence of good cause for this purpose. If the challenge for cause is allowed, the juror is ordered to stand down anda fresh juror is called. Challenges for cause are unlimited. 26. The prosecution alone are entitled to require a juror "to stand by" in which case he returns to the panel from which jurors are selected. The Attorney-General issued Guidelines in November 1988 on the exercise of the prosecution's right to ask jurors to stand by. The Guidelines indicate, inter alia, that the right should be asserted only on the basis of clearly defined and restrictive criteria. (c) Pre-emptive questioning of the panel of jurors 27. In certain types of criminal proceedings it is also the practice for the trial judge to put questions to the panel of jurors before the trial begins in order to pre-empt any risk of partiality. This practice is typically used in terrorist cases as well as in cases involving allegations of police misconduct or fraud against companies or government departments. The judge's questions are designed to establish whether, for example, a potential juror is related to or is a close friend of police officers or members of the armed forces, or is employed by the company or government department involved in the criminal proceedings. 3. Majority verdicts 28. Section 17 of the Juries Act 1974 states that the verdict of a jury in proceedings in the Crown Court need not be unanimous if (a) in a case where there are not less than eleven jurors, ten of them agree on the verdict, and (b) in a case where there are ten jurors, nine of them agree on the verdict. The jury must spend at least two hours in deliberations before a majority verdict can be accepted. 4. Communications between judge and jury after the retirement of the jury 29. At any time during their deliberations the jurors may send a note to the trial judge asking for further assistance or clarification. On receipt of a jury note the established practice is for the trial judge to show the note to counsel for the prosecution and defence in the absence of the jury and to invite their submissions on a suitable response. Where a judge receives a note from a jury, including one alleging misconduct or bias within the jury, the following options are available to the judge: (a) To give the jury a further direction; or (b) To discharge up to three jurors and to allow the trial to continue with the remaining jurors (section 16 of the Juries Act 1974); or (c) To discharge the entire jury and order a retrial before a fresh jury, if the judge considers there is a high degree of need for this course of action; or (d) To enquire of the jury as a whole whether they are capable of continuing and returning a verdict. 30. Where an application to discharge a juror on the ground of misconduct or bias is made, it is established in English statute law (see paragraph 31 below) and common law that enquiries or investigations should not be made into what is said in the jury room after the jury have retired (R. v. Orgles [1994] 1 Weekly Law Reports108). 5. Secrecy of jury deliberations 31. The rule governing the secrecy of jury deliberations is set out in section 8(1) of the Contempt of Court Act 1981. Section 8 (1) states that it is a contempt of court to obtain, disclose or solicit any particulars of any statements made, opinions expressed, arguments advanced or votes cast by members of the jury in the course of their deliberations. 6. The law on bias 32. In the case of R v. Gough ([1993] 2 All England Law Reports 724) the House of Lords re-stated and clarified the law on bias which was applicable at the time of the conviction of the applicant. If the possibility of bias on the part of a juror comes to the attention of the trial judge in the course of a trial, the trial judge should consider whether there is actual bias or not (a subjective test). If this has not been established, the trial judge must then consider whether there is a "real danger of bias affecting the mind of the relevant juror or jurors" (an objective test). In this latter respect Lord Goff, in the Gough case, stated as follows:

"... I think it is unnecessary, in formulating the appropriate test, to require that the court should look at the matter through the eyes of a reasonable man, because the court, in such cases as these personifies the reasonable man; and in any event the court has first to ascertain the relevant circumstances from the available evidence, knowledge of which would not necessarily be available to an observer in court at the relevant time. ... I would prefer to state the test in terms of real danger rather than real likelihood, to ensure that the court is thinking in terms of possibility rather than probability of bias."

7. Race-awareness training initiatives 33. Section 95 of the Criminal Justice Act 1991 came into force on 31October 1991. The Secretary of State is obliged under section 95 to publish each year such information as he considers necessary for the purpose of, inter alia, facilitating the performance by persons, engaged in the administration of criminal justice, of their duty to avoid discriminating against any persons on the ground of race. 34. In March 1991 the Lord Chancellor announced the formation of an Ethnic Minorities Advisory Committee as a sub-committee of the Judicial Training Board. By 10November 1993 this sub-committee had initiated its first seminar on ethnic minority issues for members of the senior judiciary. Race-awareness training for full and part time members of the judiciary began in early 1994 and is the largest single judicial training exercise ever conducted in the United Kingdom. PROCEEDINGS BEFORE THE COMMISSION 35. In his application of 7 July 1993 (no. 22299/93) to the Commission, the applicant complained, inter alia, that he not been given a fair trial by an independent and impartial tribunal contrary to Article 6 of the Convention and that he had been discriminated against on grounds of his race and/or colour contrary to Article 14. The Commission (First Chamber) declared the application admissible as regards these two complaints on 5 April 1995. In its report of 18October 1995 (Article31), it expressed the opinion by 8 votes to 3 that there had been no violation of Article 6 of the Convention and, unanimously, that the applicant's complaint under Article 14 in conjunction with Article6 did not give rise to any separate issue. The full text of the Commission's opinion together with the dissenting opinion contained in the report are reproduced as an annex to this judgment[fn3] . FINAL SUBMISSIONS TO THE COURT 36. As in their memorial the Government requested the Court to declare that there had been no violation of Article 6§1 of the Convention and no violation of Article 14 in conjunction with Article6 1 in the case of the applicant. 37. The applicant asked the Court, as in his memorial, to find that there had been a breach of Article 6 1 as well as a breach of Article14 in conjunction with Article 6§1, and to award him just satisfaction under Article 50. AS TO THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 1 OF THE CONVENTION 38. The applicant contended that he was denied a fair trial in breach of Article 6 1 of the Convention, which, in so far as relevant, states:

"In the determination of....any criminal charge against him, everyone is entitled to a fair....hearing...by an independent and impartial tribunal established by law...."

39. The Government requested the Court to find, like the majority of the Commission, that the facts of the case disclosed no breach of this provision. A. The arguments before the Court 1. The applicant 40. The applicant accepted that the note passed by the jury to the judge did not amount to proof of actual or subjective bias and that under English law the trial judge could not have enquired into the possible existence of such bias by questioning jurors or the jury as a whole about the nature of the allegations contained in the note. Before the Court he conceded that defence counsel had erred in basing his grounds of appeal on the judge's failure to conduct an enquiry into the note (see paragraph 11 above). The applicant contended that even in the absence of proof of actual bias the trial judge should in the circumstances have discharged the jury. At the very least he should have asked the jury in open court whether they were capable of continuing and returning a verdict on the evidence. These were the only two safeguards which would have guaranteed the applicant a fair trial. He maintained that the trial judge, who had not been trained in how to deal with race issues, underestimated the seriousness of the allegation in the note (see paragraphs 33 and 34 above). He pointed to what he claimed to be the conclusion of the Court of Appeal, namely that the note clearly indicated that the jury as a whole were displaying racial prejudice and that one juror wished therefore to be discharged from further consideration of the case (see paragraph 17 above). A redirection was an entirely inadequate safeguard to counteract the proven pernicious effects o>