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The Times Law Report
EUROPEAN COURT OF HUMAN RIGHTS
May 12 2000
Fear of jury race bias prejudices fair trial
Sander v United Kingdom (Application No 34129/96)Before J-P.Costa, President, and Judges Sir Nicolas Bratza, L. Loucaides, P. Kuris, W. Fuhrmann, H. S. Greve and K. Traja.
Section Registrar S. Dollé
Judgment May 9, 2000
A judge's decision to deal with an allegation of racial bias in a jury trying an Asian defendant by means of a redirection rather than a discharge did, in the circumstances, constitute an infringement of the right to a fair trial as guaranteed by article 6.1 of the European Convention on Human Rights.
The European Court of Human Rights held by four votes to three that allegations contained in a note which a juror had transmitted to the judge, indicating that another juror had made racist comments during deliberations, which the latter had admitted to have made, were capable of causing the applicant and any objective observer legitimate doubts as to the impartiality of the court.
A subsequent collective letter by the jurors and the redirection of the jury by the judge did not dispel that doubt that the jury had been racially prejudiced.
In March 1995 the applicant, an Asian, appeared together with J. B. and G. C. before Birmingham Crown Court, composed of a judge and a jury, to be tried for conspiracy to defraud. After the defence had stated its case, the judge started his summing-up, which he had almost completed by Friday evening when he adjourned.
On Monday morning a juror arrived at the court and handed an envelope to the court usher containing the following complaint:
"I have decided I cannot remain silent any longer. For some time during the trial I have been concerned that fellow jurors are not taking their duties seriously. At least two have been making openly racist remarks and jokes and I fear are going to convict the defendants not on the evidence but because they are Asian. My concern is the defendants will not therefore receive a fair verdict. Please could you advise me what I can do in this situation."
The juror who had written the complaint was asked not to join the other jurors. The judge discussed the complaint with counsel in chambers and then adjourned and listened to submissions in open court.
The defence asked the judge to dismiss the jury on the ground that there was a real danger of bias. The judge, however, decided to call the jury back into court, at which stage the juror who had written the complaint joined the others.
The judge read out the complaint and said:
"Members of the jury, this morning I received a note from one of your number expressing extreme concern that some of your number are not taking your duties seriously, are making openly racist remarks and jokes about Asians and may not reach your verdicts upon the evidence but because of some racial prejudice.
"I am not able to conduct an inquiry into the validity of those contentions and I do not propose to do so. This case has cost an enormous amount of money and I am not anxious to halt it at the moment, but I shall have no compunction in doing so if the situation demands.
"When you took the oath or affirmed as jurors it was, you will remember, to bring in true verdicts according to the evidence. That is solemn and binding and means what it says.
"I am going to adjourn now and I am going to ask you all to search your conscience overnight and if you feel that you are not able to try this case solely on the evidence and find that you cannot put aside any prejudices you may have will you please indicate that fact by writing a personal note to that effect and giving it to the jury bailiff on your arrival at court tomorrow morning. I will then review the position. Thank you very much."
The next morning the judge received two letters. The first letter, which was signed by all the jurors including the one who had sent the complaint, stated:
"We, the undersigned members of the jury, wish to put on record to the court our response to yesterday's note from a juror implying possible racial bias.
"1 We utterly refute the allegation.
"2 We are deeply offended by the allegation.
"3 We assure the court that we intend to reach a verdict solely according to the evidence and without racial bias."
The second letter was written by a juror who appeared to have thought himself to have been the one who had been making the jokes. He explained at length that he might have done so, that he was sorry if he had given any offence, that he was somebody who had many connections with people from ethnic minorities and that he was in no way racially biased.
The judge decided that he would not discharge the jury and told them:
"Ladies and gentlemen, the events of yesterday afternoon were clearly distressing for you, but I am sure you will see and realise that when a judge receives a note from one of your number raising those sort of issues it is the judge's duty to bring it to the attention of the whole jury.
"Whether the suggestions were well or ill-founded is not something I or any judge can decide, nor is it something that can be investigated by the judge. It would be an improper activity. I took the course I did in the exercise of my discretion and I am sorry you were offended and upset.
"However, all twelve of you have this morning utterly refuted the allegation, expressed your deep offence at it and assured the court that you intend to reach a verdict or verdicts solely according to the evidence and without racial bias.
"One of your number has also written at length a most cogent and balanced letter, and it is quite clear to me that each and every one of you are conscious of the oath or affirmation that you have taken and are dutifully prepared to abide by."
On March 8, 1995 the jury found the applicant guilty, but acquitted G. C. who was also Asian. On April 20, 1995 the judge imposed on the applicant a sentence of five years imprisonment.
The applicant was given leave to appeal against conviction. In his appeal he raised, inter alia, the following grounds:
The judge should have reacted to the juror's complaint by dismissing the jury; in any event, the juror who had written the complaint should not have been segregated from the other members of the jury in the early stages and the judge should not have disclosed to the jurors the contents of the complaint.
On March 1, 1996 the Court of Appeal dismissed the applicant's appeal. It said it had regard to the letter signed by all the members of the jury, and the letter of the juror who was probably responsible for the remarks that had given offence, and found that the trial judge did not err in reaching the conclusion that there was no real risk of bias. Moreover, the judge was right to confront the jury with the problem and ask them to consider it.
It was perhaps unfortunate that the juror who had written the complaint was for a time segregated from the other members of the jury, as that led to his identification.
However, it would be unrealistic to suppose that the jury would not have wanted to know who the author of the complaint was and the judge dealt with the possibility of tensions among the jurors perfectly sensibly in the direction he gave to them.
In its judgment, the European Court of Human Rights held:
I Alleged violation of article 6.1
The applicant complained that he was not tried by an impartial tribunal, contrary to article 6.1 of the Convention.
The applicant submitted that his case was different from Gregory v United Kingdom (The Times February 27, 1997; Reports of Judgments and Decisions 1997-I) in which the Court did not find a violation of article 6.1.
In nthe instant case, the other jurors knew who the complaining juror was. Obviously the latter was forced to withdraw his complaint. The disclosure of his identity must have prejudiced his position and inhibited him in the further discussion of the case.
Moreover, one juror admitted to making racist remarks. The other juror about whom the complaint had been made remained silent.
Those developments should have alerted the judge to the fact that there was something fundamentally wrong with the jury and the judge should have discharged them.
The judge did not react in that manner and, as a result, there was a violation of article 6.1.
The fact that the same jury acquitted G. C., who was also Asian, was irrelevant because the case against him was completely different. There was practically no evidence against him.
The Government submitted that the facts of the applicant's case were very similar to those in Gregory. In both cases the judge received a note alleging racial bias. The judge addressed the jury in accordance with domestic case-law and practice.
Both applicants' appeals were dismissed by the Court of Appeal, which applied principles similar to those under article 6.1.
Although it was not expressly stated, the applicant's case appeared to be, like Gregory, one of alleged objective bias. In both cases there existed a number of factors such as to dispel any doubts as to the impartiality of the jury. The judge redirected the jury in a clear, detailed and forceful manner.
There were no other suggestions of racial comments in the trial. The other verdicts of the jury did not show any racial bias. The judge had ample time to evaluate the jurors.
Moreover, in the present case, the judge adjourned the proceedings after addressing the jurors and sought and received an unequivocally positive assurance from them as to their impartiality.
The judge also made it absolutely clear that he would have no compunction in discharging the jury and halting the trial if necessary. Given all the above, the Government submitted that there had been no violation of article 6.1.
The Government also submitted that the Court should not engage in speculation as to how the jurors behaved following the action taken by the judge.
The judge was best placed to assess whether each member of the jury would return a verdict solely on the basis of the evidence. Moreover, the judge's assessment was thoroughly reviewed by the Court of Appeal.
According to the case-law of the Convention, misgivings on the part of the applicant were not enough to establish objective impartiality. The applicant's fear had to be objectively justified.
The fact that the jury acquitted an Asian co-defendant was a relevant consideration under the same case-law.
The Court recalled that it was of fundamental importance in a democratic society that the courts inspire confidence in the public and above all, as far as criminal proceedings are concerned, in the accused.
To that end it had constantly stressed that a tribunal, including a jury, must be impartial from a subjective as well as an objective point of view: see paragraph 43 of the Gregory judgment.
The Court also recalled that the present case concerned clear and precise allegations that racist comments had been made by jurors called upon to try an Asian accused.
The Court considered that to be a very serious matter given that, in today's multicultural European societies, the eradication of racism had become a common priority goal for all contracting states: see, inter alia, declarations of the Vienna and Strasbourg Summits of the Council of Europe.
The court noted that the allegations in question led the applicant to the conclusion that he was tried by a racially prejudiced jury. The applicant's complaint was, therefore, that there was subjective bias on the part of some jurors.
The court recalled that the personal impartiality of a judge had to be presumed until there was proof to the contrary: see the Piersack v Belgium judgment of October 1, 1982 (Series A No 53 pp14-15, paragraph 30). The same held true in respect of jurors.
In the circumstances of the applicant's case, a member of the jury submitted a note alleging that two fellow jurors "[had] been making openly racist remarks and jokes" and stating that he feared that "they [were] going to convict the defendants not on the evidence but because they were Asian".
Another juror, being confronted with those allegations, accepted that "he might have done so" and stated that "he was sorry if he had given any offence".
The Court, therefore, considered that it was established that at least one juror had made comments that could be understood as jokes about Asians. That did not on its own amount to evidence that the juror in question was actually biased against the applicant.
Moreover, the Court noted that it was not possible for the trial judge to question the jurors about the true nature of the comments and the exact context in which they had been made. It followed that it had not been established that the court that tried the applicant was lacking in impartiality from a subjective point of view.
That was not, however, the end of the Court's examination of the applicant's complaint. The Court had also to examine whether the court was impartial from an objective point of view, that is, whether in the circumstances there were sufficient guarantees to exclude any objectively justified or legitimate doubts as to the impartiality of the court.
Although the standpoint of the accused was important in that connection, it could not be decisive: see paragraph 45 of the Gregory judgment.
The Government submitted that there existed such guarantees. They referred in principle to the redirection of the jury by the judge and to the unequivocally positive assurance of impartiality that the judge sought and received from the jurors.
As regards the latter, the Court recalled that, the morning after the submission of the note about the racist jokes, all the jurors signed a letter to the effect that the allegations in question were unfounded.
However, the Court considered that that letter could not on its own discredit the allegations contained in the original note, for the following reasons.
1 One of the jurors wrote a separate letter indirectly admitting that he had been making racist jokes.
The Court considered that that was a matter that could not be taken lightly since jokes of that nature, when made by jurors in the context of judicial proceedings, took on a different hue and assumed a different significance from jokes made in the context of a more intimate and informal atmosphere.
2 The collective letter was also signed by the juror who had submitted the note. In the Court's view, that in itself cast some doubt on the credibility of the letter.
The note, which was the product of a genuine, spontaneous reaction, the honesty of which had not been questioned, expressed fear that the defendants could be convicted because they were Asian.
The letter, which reflected the common position of a number of persons with not necessarily the same interests in mind, denied any possible racial bias. The two could not be reconciled and the Court considered the note more reliable.
In addition, the Court noted that the juror who had submitted the note had been treated in such a way that it had become obvious to the other jurors that he was the one who had made the allegations. It was obvious that that must have compromised his position vis-à-vis his fellow jurors.
3 The Court considered that the collective letter did not discredit the allegations contained in the original note because openly admitting to racism is something which the average person would have a natural tendency to avoid.
A fortiori, an open admission of racism could not be easily expected from a person in jury service, the latter being generally regarded an important civic duty.
Given all the above, the Court found that the collective denial of the allegations contained in the note could not in itself provide a satisfactory solution to the problem.
Moreover, in the present case the Court was not prepared to attach very much weight to the judge's redirection of the jury. Generally speaking, an admonition or direction by a judge, however clear, detailed and forceful, would not change racist views overnight.
Although in the present case it could not be assumed that such views were indeed held by one or more jurors, it had been established that at least one juror had been making racist comments.
In those circumstances, the Court considered that the direction given by the judge to the jury could not dispel the reasonable impression and fear of a lack of impartiality, which were based on the original note.
As for the rest, the Court was not prepared to attach much weight to the fact that the judge had direct contact with the jurors either.
The Court had already noted that, under domestic law, the judge could not question the jurors on the allegations contained in the note. Nor could G.C.'s acquittal be of decisive importance, since there was nothing to indicate that the two cases were comparable.
Finally, the fact that the Court of Appeal rejected the applicant's appeal applying principles that corresponded to the Convention case-law could offer only limited assistance to the Court in the present case.
The Court, therefore, considered that the allegations contained in the note were capable of causing the applicant and any objective observer legitimate doubts as to the impartiality of the court, which neither the collective letter nor the redirection of the jury by the judge could have dispelled.
In that connection, the Court observed that the facts of the applicant's case could be distinguished from Gregory in which the Court found no violation of the Convention.
In that case there was no admission by a juror that he had made racist comments, in the form of a joke or otherwise; there was no indication as to who had made the complaint and the complaint was vague and imprecise.
Moreover, as opposed to Gregory, in the present case, the applicant's counsel insisted throughout the proceedings that dismissing the jury was the only viable course of action.
The Court accepted that, although discharging the jury would not always be the only means to achieve a fair trial, there were certain circumstances where that was required by article 6.1: see paragraph 48 of the Gregory Judgment.
In the present case the judge was faced with a serious allegation that the applicant risked being condemned because of his ethnic origin. Moreover, one of the jurors indirectly admitted to making racist comments.
Given the importance attached by all contracting states to the need to combat racism, the Court considered that the judge should have reacted in a more robust manner than merely seeking vague assurances that the jurors could set aside their prejudices and try the case solely on the evidence.
By failing to do so, the judge did not provide sufficient guarantees to exclude any objectively justified or legitimate doubts as to the impartiality of the court.
It followed that the court that condemned the applicant was not impartial from an objective point of view.
The Court therefore found a violation of article 6.1 of the Convention: Judges Sir Nicolas Bratza, Costa and Fuhrmann dissented.
II Application of article 41
The Court dismissed, unanimously, the applicant's claims for just satisfaction.
It considered that no causal link had been established between the violation and the claimed damage of £458,000 in respect of earnings lost and property the applicant had to sell during his imprisonment.
The applicant had not made any claim for costs and expenses.
