Minding the Gaps I
One of the many controversial aspects of the Criminal Justice Act 2003 was the widening of the pool of people who were eligible to serve on juries.
The ECHR gave a very important judgment on this last year that potentially makes massive inroads in to when, if ever, police officers will be able to sit on juries. This was at the fag end of last year (20th December to be precise) and was missed by quite a few in the Christmas spirit and the other big cases going on at the time.
The basic facts were that the Appellants were convicted of a conspiracy to supply Class A. The first Appellant was a taxi driver and was arrested with 6 kilos of heroin in the boot. He stated that he had no knowledge of this and must have been used as an unknowing courier. He knew the co-defendants as previous ‘fares’ only. Evidence was given by various police officers who had kept them under surveillance and there was a dispute as to whether he had a passenger with him on the relevant journey. One juror passed up a note saying that he was a police officer had had known one of the police witnesses for ten years, working with him on three occasions. They were at different stations and didn’t know each other socially. The Judge declined to discharge the juror. It later transpired that the jury member has worked regularly on drugs operations.
The Court of Appeal dismissed the appeal (see paras 45-57).
The ECHR conducted an extensive review of different country’s practices as to (paras 93-125) and concluded that only in Belgium and New York were police officers allowed to serve on juries. Crucially, in Belgium there was an automatic right for the defence to ask between 6 and 12 jurors to stand by without any reasons. Similarly, in New York, there was an automatic right to a peremptory challenge without cause, the ability to conduct extensive jury vetting and many of the jury trials were also civil trials where fewer issues arise.
The conclusion of the ECHR is at paras 142-150. It was not argued that allowing police officers on jurors was a breach of Art 6 per se, and the ECHR did not explicitly examine that question. However, they referred to the research and the conclusions of many other jurisdictions that police officers could not be impartial sitting on a jury. Having reviewed the case, the fact that there was contradictory evidence from the defence and police meant that the Appellants did not have a fair trial under Art 6.
There is a strong indication that, had the ECHR been asked to have reviewed the compatibility of the legislation with Art 6, they would have concluded that police officers should not be permitted to sit on juries. It’s also worth noting what the ECHR said in relation to the strength of the case:
“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” (see paragraph 25 above). 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.”