AHMED v. THE UNITED KINGDOM
Inadmissible
Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Ledi Bianku;Mirjana Lazarova Trajkovska;Paul Mahoney;Pauliine Koskelo
The applicant, Mr Shabir Ahmed, is a British national who was born in 1953. He is detained at HMP Wakefield. 1. Between 6 February and 8 May 2012 the applicant and nine other men were tried at Liverpool Crown Court before HHJ Clifton and a jury. The men were charged with a range of sexual offences against young girls. There were twenty-two counts in the indictment. The applicant faced charges of: conspiracy with his co-defendants to engage in sexual activity with children (count 1A in the indictment), trafficking within the United Kingdom for sexual exploitation (count 2), two counts of rape (counts 3 and 4), aiding and abetting another to rape (count 5), and sexual assault (count 6). His co-defendants faced similar charges. 2. The media gave extensive coverage to the proceedings. Some, including the British National Party and the English Defence League, attributed a racial dimension to the case given that the defendants were of Asian origin and the complainants were not. The BNP protested at the preliminary court hearings in the case. For these reasons, prospective jurors who indicated on the jury questionnaire that they were associated with the BNP or EDL were excluded. The trial venue was also moved from Bolton (where the offences were alleged to have taken place) to Liverpool to minimise the effect of that publicity. 3. At the start of the trial, the trial judge warned the jury not to discuss the case outside of the jury room and to discuss it only with their fellow jurors. He repeated this warning whenever the jury separated. 4. The jury began their deliberations on 1 May 2012. At that time, the judge directed that no verdicts were to be published until all verdicts against all of the defendants had been returned. This was to avoid the jury being subject to pressure from media reports or public demonstrations. 5. The jury separated at the end of the day on 1 May and resumed their deliberations on 2 May. In the course of their deliberations on 2 May they sent the trial judge notes asking to be reminded of the accounts given to the police by certain of the complainants in the case. Those notes related to counts 5, 8 and 9 on the indictment. 6. That day, while the jury was deliberating, the applicant, through his counsel, complained to the judge that one of the two interpreters at the trial had spoken to the press about him. The judge questioned the interpreter who confirmed that she had discussed the applicant’s demeanour in court with a member of the press but nothing more. The judge then warned both interpreters not to have any communication with the press. 7. The jury resumed their deliberations on 3 May. While deliberating they sent further notes either asking to be reminded of the evidence of a complainant or requesting copies of evidence. Those notes related to counts 13, 18, 19, 20 and 21 of the indictment. 8. On the afternoon of 3 May, counsel informed the judge of two postings that had appeared on the internet about the jury’s deliberations. 9. At 1.05 p.m. a post appeared on the Facebook page of a group called “Infidels of Britain” which stated: “Seven Muslim groomer scum found GUILTY so far at Liverpool Crown Court.” 10. At 1.53 p.m. Nick Griffin MEP, the chairman of the BNP, sent a “tweet” on the social media website Twitter. It said: “Newsflash – seven of the Muslim paedophile rapists found guilty in Liverpool.” 11. At 2.30 p.m. the trial judge consulted counsel in private. With the consent of counsel, at 3.15 p.m. he called the jury into court and asked the jury’s foreman if they had reached any guilty verdicts, and if so, how many. After a series of exchanges, it became clear that the jury had indeed reached guilty verdicts for seven of the defendants. The precise verdicts – that is, and the counts and defendants to which they related – were not taken at this stage. The jury retired to their room at 4.28 p.m. 12. Between 4.30 p.m. and 4.37 p.m. Mr Griffin sent five further tweets appeared casting doubt on the initial claim he had made in his 1.53 p.m. tweet. The last tweet, however, stated: “But people there [in Liverpool] say jury still out on four [defendants] and others will be sentenced next week.” 13. The jury would not have been aware of any date for sentencing and it had not been mentioned in open court. 14. The trial judge called the jury back into court and said to them: “... Could I ask all of you to tell me, to assure me, that nothing that you have discussed in the jury room ... can have got out into the world in general? Nothing? Nothing whatsoever, by any means whatsoever?” All of the jurors replied “No.” The judge then asked: “There isn’t any chance of anybody overhearing anything you might have been saying inadvertently outside the jury room?” The jurors again all replied “No”. 15. The judge then consulted counsel in the absence of the jury. He informed them that, in the light of the jurors’ replies and their demeanour, he intended to proceed on the assumption that they were telling the truth and had acted properly. Defence counsel requested time to make an application for discharge of the jury. The judge, therefore, allowed the jury to separate for the evening, giving them instructions not to consider any news source, whether on the internet, on television or in the newspapers. 16. On 4 May, the judge sat in open court, but imposed reporting restrictions. He rejected the defence’s application to discharge the jury, concluding that he was satisfied that no juror had communicated the jury’s deliberations either deliberately or accidentally to anyone else, and therefore questions of bias did not arise. The judge observed that the jury’s notes indicated that they were adopting a “perfectly reasonable, logical and unbiased approach to the evidence.” He did not believe that a message could have been communicated by a juror to the outside during deliberations. The judge also concluded that communication from a juror was not the only possible explanation for the internet postings. 17. At this time, the judge was also informed of additional posts on a Facebook group called “Infidels of Britain” that included threatening comments toward the jury if they were to acquit. The judge determined that there was no evidence that the jurors had seen these posts or had felt intimidated by them. 18. At 11.49 a.m. on 4 May the jury returned verdicts on fourteen of the twenty-two counts in the indictment. These verdicts included all of the counts against the applicant, save for the count of conspiracy to engage in sexual activity with children (count 1A), which the trial judge had advised the jury to leave until last and thus upon which they continued to deliberate. Twelve of the fourteen verdicts returned at this stage were guilty verdicts; two were not guilty verdicts. 19. The jury resumed their deliberations on 8 May (the next working day). That day, they returned the following verdicts: (a) on count 1A on the indictment (the conspiracy count): a unanimous guilty verdict against all of the defendants facing that charge, including the applicant; (b) on count 1B (an alternative conspiracy count faced by five defendants, not including the applicant): a unanimous guilty verdict for three defendants, a not guilty verdict for another defendant, and the jury were unable to agree on a verdict on this count for a fifth defendant; and (c) on count 22: a unanimous guilty verdict in respect of the one defendant facing this charge. 20. The jury were then given a “majority direction” by the trial judge, allowing them to return majority rather than unanimous verdicts. 21. Later the same day (8 May), they returned their remaining verdicts. These were not guilty verdicts on counts 8, 18, 19, 20 and 21 (counts of rape against certain of the defendants, not including the applicant). 22. In an interview on 9 May on BBC News, Mr Griffin stated that he had received his information from three different people who were outside the courthouse demonstrating. He also tweeted on 9 May: “... inaccurate leak re convictions last week came from a court or police officer, not a juror ...” 23. The convicted defendants, including the applicant, lodged appeals against their convictions. The Court of Appeal directed the Criminal Cases Review Commission (CCRC) to investigate the allegations of jury irregularity. 24. The CCRC appointed a police officer to act as investigator. The investigator asked Mr Griffin to attend a voluntary interview: he declined. 25. Despite interviewing a possible leader of the “Infidels of Britain” group, the CCRC was unsuccessful in establishing who had been responsible for the posts on the group’s Facebook page. 26. Facebook and Twitter did not co-operate by disclosing the data relating to the accounts used, and the CCRC concluded that, even if the data were disclosed, it would be unlikely to shed light on the source of the information posted on the internet. 27. The CCRC detailed the measures taken to ensure the security of jury deliberations, including the seclusion of the jury in the jury suite at court. All toilet and refreshment facilities were in the suite. Meals were provided from the canteen and smoking breaks were escorted. The jury room was kept locked. The jury had been asked to hand over all mobile phones, laptops and electronic devices, which were locked in a safe and returned to them at the end of each day. They were not searched. As part of general security measures during the trial, the jury had been picked up and dropped by a coach at a designated meeting point some distance from the court. During the journey to and from court the jurors were accompanied by an usher. The CCRC took statements from the court clerk and usher. Both stated that they did not see or hear anything suspicious during the trial. The usher added that the jury had been really professional and a pleasure to look after. 28. The CCRC concluded: “It would appear, therefore, that the only opportunity for a member of the jury to have communicated with a third party during their deliberations would have been if they had wilfully retained a mobile phone or communications device, despite having been asked to hand in all such items. Even in those circumstances ... and although access to private toilet facilities was apparently provided from the jury room, it would seem unlikely that a juror could have conducted such a clandestine operation without being noticed by fellow jurors. Nothing has emerged from the enquiries which have been conducted pursuant to the Court’s directions which suggest to the Commission that any member of the jury or security staff engaged in any inappropriate activity as regards the disclosure of the jury’s verdicts or otherwise.” 29. At a directions hearing on 18 July 2013 the Court of Appeal refused to order any further investigation, for example by interviewing individual jurors. 30. On 20 September 2013 a single judge of the Court of Appeal, Mr Justice Spencer, refused the applicant and his co-defendants leave to appeal. He found that the trial judge had not erred in refusing to discharge the jury. As regards the alleged bias on the part of the jury, Spencer J found that, as a result of the CCRC’s investigation, no misconduct had been uncovered. There was, for instance, no indication that a “rogue” juror had been in communication with a far-right organisation. 31. Regard had to be given to the manner in which the jury had deliberated, he observed: “It is important that although, in the first batch of verdicts on Friday 4th May, there were indeed verdicts of guilty against seven of the eleven defendants, there was a unanimous verdict of not guilty against A.A. (on count 9, rape). It follows (on the hypothesis of a juror in communication with a far-right organisation) that the supposed ‘rogue’ juror had subscribed to an acquittal. The jury had reached no verdicts on count 1A or count 1B (the conspiracy counts). This suggests that they were following the judge’s advice to work through the substantive counts before considering the conspiracy counts. When on Tuesday 8th May (a bank holiday intervened) the next batch of unanimous verdicts where returned, they included a verdict of not guilty against [Q.S.] on count 1B. Again the supposed ‘rogue’ had subscribed to an acquittal. Following a majority direction, further not guilty verdicts were returned: count 8 (A.A., rape), count 18 (L.S., rape), counts 20 and 21 (H.S., rape). These may, of course, have been by a majority.[] Accordingly, it is clear that the jury were considered the case carefully and analytically.” 32. Of the defendants, only the applicant renewed his application for leave to appeal before the full court. On 1 April 2014, following a hearing, the Court of Appeal refused permission to appeal: [2014] EWCA Crim 619. It found: “30. We have carefully considered the material facts and the results of the CCRC’s investigation. 31. We agree with the conclusions of the CCRC. In our judgment, it is not possible to draw the inference from the material before us that a juror deliberately communicated information about the jury’s deliberations to someone outside the jury whilst at court. The CCRC investigation shows that extensive precautions were taken to protect the integrity of the jury in this trial which made it extremely difficult for jurors to communicate in secret with anyone outside the jury room. It is fanciful to imagine that a juror was covertly signalling from the window or that a juror was able to make clandestine telephone calls on a hidden mobile phone, from the toilet or elsewhere, without being overheard or detected by other jurors or court staff. The court clerk and usher, who had worked with the jury for three months, found no reason to suspect any juror of impropriety or unusual behaviour. 32. The Judge apparently accepted the Crown’s submission that the information posted on the internet could have derived from discussions amongst those at court trying to guess the state of the jury’s deliberations, perhaps from the sequence of jury notes. In our view, it is improbable that guesswork could have resulted in such an accurate prediction of the jury’s guilty verdicts. We do, however, accept that the information in Mr Griffin’s final tweet at about 16.37 on 3rd May (‘jury still out on 4 and others will be sentenced next week’), most probably originated from someone connected to the prosecution or defence teams, or the interpreters. The court was sitting in private; the jury had only just left court after indicating that they had found seven defendants guilty; and sentencing dates were not known to the jury and had not been mentioned at any stage in open court. 33. We accept it is possible that ‘loose talk’ by jurors outside the jury room resulted in information about the jury’s deliberations being disclosed to outsiders. It is quite possible that the jury had decided upon guilty verdicts in respect of seven defendants by the time they separated on the afternoon of 2nd May. Jury deliberations are, of course, confidential, and jurors are routinely warned not to discuss the case outside the jury room, whether with fellow jurors or anyone else, including members of their family. 34. Such conduct, even if inadvertent, would amount to a jury irregularity. However, we do not consider that it would be sufficient to render the convictions unsafe. In our view, taken on its own, disclosure of the jury’s progress on the counts would not have compromised the jury’s independence or impacted on the jury’s ability to remain faithful to their oath or affirmation to "faithfully try the defendant and give a true verdict according to the evidence" (see Criminal Practice Direction 39M.2). The Judge, legal representatives and court staff were unanimous in the view that, throughout the lengthy trial, the jury had participated appropriately in the trial process and appeared to be assessing the evidence conscientiously. 35. The Applicant alleges apparent bias on the part of the jury, because the information was disseminated by far-right organisations hostile to the defendants. We have applied the test set out in Re Medicaments [2001] 1 WLR 700, as amended in Porter v. McGill [2002] 2 AC 357, namely, whether, on an objective appraisal, the material facts give rise to a legitimate fear that the jury might not have been impartial, asking ourselves whether a fair-minded and informed observer would conclude that there was a real possibility that the jury was biased. A similar test applies under Article 6 of the European Convention on Human Rights, namely, whether there are sufficient guarantees to exclude any objectively justified or legitimate doubts as to the impartiality of the jury: see Gregory v. UK (1998) 25 EHRR 577; Sander v. UK (2001) 31 EHRR 44. 36. There was ample evidence to support the Judge’s view that the jury was adopting a ‘perfectly reasonable, logical and unbiased approach to the evidence’. Judging from the content of the jury notes and the sequence of the verdicts, they progressed through the counts in the order recommended by the Judge, and carefully considered the evidence in relation to each count. The verdicts, taken as a whole, appeared rational and consistent with the evidence. The Judge observed at the end of the trial that the jury had performed their task with "painstaking care". 37. The jurors had all completed questionnaires confirming that they were not associated with the BNP or English Defence League and there was no evidence to suggest that any juror had withheld information about such an association. The fact that the jury returned unanimous ‘not guilty’ verdicts on two counts on 3rd May was at odds with the allegation that there was one or more racially biased supporter of a farright organisation on the jury, as such a person would presumably not have been party to any ‘not guilty’ verdict. 38. Like the Judge, we have concluded that there was simply no evidential link established between the jury and the far-right organisations which posted the information on the internet. Therefore we do not consider that, on the material facts, a fair minded and informed observer would conclude that there was a real possibility that the jury was biased, nor that there were any objectively justified or legitimate doubts about the impartiality of the jury. 39. No criticism can be made of the careful and fair manner in which the Judge conducted the necessary enquiries. He was not permitted to ask the jury about the content of its deliberations; only to investigate any irregularity. We agree with his conclusion that it was not necessary to discharge the jury and we consider that he gave appropriate directions to the jury throughout the trial regarding their conduct. 40. We do not accept [Counsel for the applicant’s] criticism of the CCRC’s investigations as inadequate. In our view, there was nothing more that the CCRC could reasonably have done. 41. The safety of the convictions is not in doubt and therefore the application for permission to appeal against conviction is refused.” 33. The following standard instructions and directions to a jury trying a case in England and Wales are taken from the Court’s judgment in Abdulla Ali v. the United Kingdom, no. 30971/12, §§ 68-71, 30 June 2015. 34. Upon responding to a summons, jury members are sent a leaflet called “Your Guide to Jury Service”. The leaflet explains that jurors’ discussions are private and that jurors should not discuss any aspects of the trial with anyone other than fellow jurors. It sets out that the verdict must be that of the jurors alone and reminds jurors that their role is to reach a verdict on the evidence presented in the court room at trial. The leaflet also notes that it is an offence for anyone outside the jury to try and influence them. 35. Once selected for jury duty, jurors must swear an oath or make an affirmation that they will: “faithfully try the defendant and give a true verdict according to the evidence.” 36. At the outset of the trial, the jury are conventionally given a direction to the effect that they must try the case on the evidence alone, which is what they hear in court. They are instructed that they must not discuss the case with family, friends or anyone else or conduct their own research into the case. 37. In Re: B [2006] EWCA Crim 2692, which involved an appeal against an order restricting the reporting of a criminal trial, the Court of Appeal (Criminal Division) said: “There is a feature of our trial system which is sometimes overlooked or taken for granted. The collective experience of this constitution as well as the previous constitution of the court, both when we were in practice at the Bar and judicially, has demonstrated to us time and time again, that juries up and down the country have a passionate and profound belief in, and a commitment to, the right of a defendant to be given a fair trial. They know that it is integral to their responsibility. It is, when all is said and done, their birthright; it is shared by each one of them with the defendant. They guard it faithfully. The integrity of the jury is an essential feature of our trial process. Juries follow the directions which the judge will give them to focus exclusively on the evidence and to ignore anything they may have heard or read out of court. No doubt in this case [the judge] will give appropriate directions, tailor-made to the individual facts in the light of any trial post the sentencing hearing, after hearing submissions from counsel for the defendants. We cannot too strongly emphasise that the jury will follow them, not only because they will loyally abide by the directions of law which they will be given by the judge, but also because the directions themselves will appeal directly to their own instinctive and fundamental belief in the need for the trial process to be fair.” 38. In Montgomery v. HM Advocate; Coulter v. HM Advocate [2003] 1 AC 641, Judicial Committee of the Privy Council considered whether a Scottish jury trial taking place after adverse publicity would be compatible with Article 6. In finding that it would, Lord Hope (with whom the members of the Committee agreed) observed: “[T]he entire system of trial by jury is based upon the assumption that the jury will follow the instructions which they receive from the trial judge and that they will return a true verdict in accordance with the evidence. The Scottish judges are not alone in proceeding upon this assumption. In the Supreme Court of Canada, in Reg. v. Corbett [1988] 1 S.C.R. 670, 692, Dickson C.J. said that jury directions are often long and difficult but that the experience of trial judges is that juries do perform their duty according to law. In R. v. Vermette (1988) 50 D.L.R. (4th) 385, 392 La Forest J., under reference to the Corbett case, said that dicta in that case underlined the confidence that may be had in the ability of a jury to disabuse itself of information that it is not entitled to consider. In the High Court of Australia, in The Queen v. Glennon (1992) 173 C.L.R. 592, 603 Mason C.J. and Toohey J. said that the law proceeds on the footing that the jury, acting in accordance with the instructions given to them by the trial judge, will render a true verdict in accordance with the evidence and that to conclude otherwise would be to underrate the integrity of the system of trial by jury and the effect on the jury of the instructions given by the trial judge. In the Irish High Court, in Z. v. Director of Public Prosecutions [1994] 2 I.R. 476, 496 Hamilton P., drawing upon his experience as counsel and as a judge, said that he shared in the confidence that his legal system has in juries to act with responsibility in accordance with the terms of their oath, to follow the directions given by the trial judge and a true verdict give in accordance with the evidence. I consider that the judges in the court below were entitled to draw upon their experience, and I see no reason in the light of my own experience to disagree with their assessment.” 39. In the House of Lords judgment’ in Magill v. Porter [2001] UKHL 67, Lord Hope of Craighead considered the question of apparent bias and concluded (at paragraph 100 of the judgment) that: “The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.” 40. That test was designed to bring English law into line with the approach taken in Scotland and various Commonwealth jurisdictions, and the approach taken by this Court in its Article 6 jurisprudence (paragraphs 100-103 of the judgment). 41. Under the law of England and Wales, the Court of Appeal will allow an appeal against conviction if it regards the conviction as unsafe (section 2(1) of the Criminal Appeal Act 1968). 42. In R v. Heward [2012] EWCA Crim 890 – where one juror had complained of racial bias on the part of other jurors – the Court of Appeal found that a verdict would be unsafe if the fair minded observer would conclude, on the available evidence, that there was a real possibility of a real danger that the verdict was at least in part the product of bias. Having considered the facts in the case, the Court of Appeal concluded that it was left with the suspicion that an impartial observer would perceive a real risk of bias. It thus allowed the appeal and quashed the conviction. 43. In R v. JC and Others [2013] EWCA Crim 368 – also concerning a complaint of prejudice on the part of fellow jurors – the Court of Appeal stated: “The receipt of any communication by a juror or jurors complaining of possible irregularities by or among the other jurors demands rapid and close attention. It behoves the judge to decide whether the integrity of the trial process has been irretrievably damaged or whether the trial can continue notwithstanding the complaints. Depending on the individual facts it may be appropriate for the judge to discharge the jury as a whole, or one or more individual members of it, or to continue with the trial, with any necessary direction or warning sufficient to deal with the specific problem. The question for this court is whether the alternative adopted by the judge was correct, which, if the trial has been allowed to continue must be decided at its end, when the warning or directions of the judge, and their impact and any consequences can all be examined.” 44. The Court of Appeal declined to quash the conviction in that case, having regard to the trial’s judge handling of the complaint (including the directions he then gave to the jury), the conduct of the jury throughout the trial, the length of their deliberations, a question as to the law they had asked of the judge while deliberating, and the different verdicts they had rendered against different defendants on the different counts in the indictment. 45. Section 17(3) prevents the Crown Court from accepting a majority verdict of guilty unless the foreman of the jury has stated in open court the number of jurors who respectively agreed to and dissented from the verdict. To comply with this provision, and at the same time to prevent it being known whether a not guilty verdict is unanimous or by a majority, the Criminal Practice Directions set the following procedure for taking a verdict once the jury is permitted to give a majority verdict (that is, after a “majority direction” is given by the trial judge). The procedure is now set out in Criminal Practice Direction VI: Trial at paragraph 26Q1-6 (at the time of the applicant’s trial, paragraph 39Q1-6). When the jury return with a verdict after a majority direction has been given, they should be asked: (a) “Have at least ten (or nine as the case may be) of you agreed on your verdict?”; (b) If “Yes”, “What is your verdict? Please only answer ‘Guilty’ or ‘Not Guilty’.”; (c) (i) If “Not Guilty”, accept the verdict without more ado; (ii) If “Guilty”, “Is that the verdict of you all, or by a majority?”; (d) If “Guilty” by a majority, “How many of you agreed to the verdict and how many dissented?” 46. Section 23A of the Criminal Appeal Act 1968 gives the Court of Appeal the power to direct the Criminal Cases Review Commission to investigate and report to the Court on any matter necessary for the resolution of an appeal against conviction before it. 47. Part II of the Criminal Appeal Act 1995 gives the CCCR the necessary powers to conduct such an investigation, including the power to require the appointment of police officers to acting as investigating officers.