CASE OF HANIF AND KHAN v. THE UNITED KINGDOM

Violation of Art. 6-1;Pecuniary and non-pecuniary damage - finding of violation sufficient

David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Vincent A. De Gaetano

ORG The first applicant was born in DATE and at the time of the lodging of his application was detained in FAC . He was expected to be released on DATE . The second applicant was born in DATE and is currently detained in FAC .

The first applicant is a taxi driver . On DATE , he drove from GPE to GPE . On his way back to GPE from GPE , he was arrested in the context of a police investigation into the supply of unlawful drugs . He had been followed on his journey in both directions by police officers . QUANTITY of heroin were found in the boot of his car . The case against him was that he had collected the consignment of drugs in GPE and was transporting it back to GPE when he was arrested .

The first applicant ’s defence was that he did not know anything about the drugs found in his car . He said that he had taken a passenger named PERSON with him on the journey from GPE to GPE at the request of PERSON GPE , one of the alleged members of the conspiracy to supply unlawful drugs . PERSON had used the first applicant ’s mobile telephone while in the car and the calls to another of the individuals in the alleged conspiracy , Mr PERSON , had been made by PERSON . Calls to PERSON and a third member of the alleged conspiracy , Mr PERSON , were made by the first applicant : calls to Mr GPE were to check directions and calls to Mr PERSON related to a dispute about an unpaid taxi fare . PERSON had left the car shortly after arrival in GPE . The first applicant argued that he must have left the drugs in the car when he left the vehicle .

In DATE , the second applicant was charged with conspiracy to supply heroin . The case against him was that he was involved in making arrangements for the payment of the drugs to be transported from GPE to GPE . The prosecution relied on telephone analysis to establish a link between the second applicant and the other alleged conspirators . Cash amounting to ORG CARDINAL was found in the second applicant ’s cellar . The money had been in contact with heroin .

The second applicant ’s defence was that he was a cousin of Mr N. FAC and a friend of PERSON and was therefore in close contact with them . However , he had not taken part in the conspiracy . His telephone contacts with them on DATE had been innocent . The cash found at his home derived partly from the sale of a car and partly from former heroin dealings for which he had been convicted in DATE .

The applicants were subsequently tried together on charges of conspiracy to supply heroin . The trial commenced on DATE and the jury was sworn . On DATE the court heard evidence from the police officers who had followed the first applicant from GPE to GPE and back , CARDINAL of whom was PERSON The police officers testified that the first applicant did not have a passenger with him at any point during that journey and that CARDINAL had alighted from the vehicle in GPE .

During the evidence of PERSON , the first of the police officers to testify , CARDINAL of the jurors , ORG , sent a note to the judge indicating that he , ORG , was a serving police officer and that he knew PERSON , although he had not worked with him for DATE . The judge read the note to counsel and agreed with them a series of questions to be put to ORG The judge then questioned ORG in the absence of the other jurors but in the presence of the applicants . ORG confirmed that he was a police dog handler near GPE , some distance from GPE . He said that he had known PERSON for DATE and that on CARDINAL occasions they had worked on the same incident , although not in the same team . They had never worked at the same station and did not know each other socially . He was asked if he knew anything about PERSON which would affect his ability to judge PERSON ’s evidence impartially or his ability to judge the case in accordance with the oath he had sworn . He replied that he did not .

The defence made an application to the judge to discharge ORG on the grounds that there was a conflict of evidence between the police and the first applicant which the jury would have to resolve , that it would therefore be unfair for the jury to include a police officer and that justice would not be seen to be done if the police officer continued to serve on the jury . They also argued that there was a risk that ORG knew of the second applicant ’s previous conviction for dealing in heroin . On DATE , setting out his decision on the application , the judge concluded that :

“ Jurors are entitled , when called , to try the cases before them , and are not to be asked to withdraw ... unless there is a proper reason , CARDINAL of which clearly concerns prejudice to an accused , or the appearance of any prejudice . I am wholly satisfied in this case that there is no prejudice to either defendant if this juror remains , nor indeed , if anyone were to hear his questioning , any appearance of unfairness . This is a juror who honestly and frankly has brought to the court ’s attention his knowledge of a witness and , in answering the questions posed to him as he has , has clearly indicated that his knowledge is slight and , no matter what the extent of his knowledge , not something that will in any way adversely affect his judgment of this particular case .

... I appreciate that there is a conflict between the witness and the defendant , and that that is a conflict of some importance within the case but , in my judgment , this juror is well capable of dealing with the matter in a proper and impartial way . ”

The application to discharge ORG was rejected . ORG subsequently became the jury foreman .

In the trial proceedings before the court , the prosecution relied on the fact that the other co - accused in the conspiracy had pleaded guilty in order to establish the existence of a conspiracy . They also relied on evidence of the second applicant ’s bad character and previous conviction for dealing in heroin .

The first applicant , in his defence , called a witness who testified that she had seen him leave GPE at the start of his journey with a passenger in the car .

On DATE , the applicants were convicted of conspiracy to supply heroin . The first applicant was sentenced to DATE imprisonment . The second applicant was sentenced to CARDINAL years’ imprisonment . This was to take place consecutively to a period of DATE and CARDINAL months’ imprisonment , the period outstanding under a previous conviction for supplying heroin in respect of which he had been released on licence .

After the trial , the applicants’ counsel realised that ORG had been involved in recent drugs operations in the area and had given evidence at other drugs trials in which counsel for the second applicant had appeared .

The applicants applied for leave to appeal against their convictions on the ground that the presence of the police officer on the jury , and in particular his role as jury foreman , led to an appearance of bias in the trial proceedings . Leave to appeal was granted and the appeal was heard on DATE .

Handing down its judgment on DATE , ORG noted :

“ CARDINAL . 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 CARDINAL 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 . ”

The court referred to the recent change in the law which had allowed persons previously ineligible for jury duty , including police officers , to sit on juries ( see paragraphs CARDINAL - CARDINAL below ) . However , it observed that the change had

After considering the judgment of ORG in Abdroikof and Others ( see paragraphs CARDINAL - CARDINAL below ) which concerned the compatibility of police officer jurors with LAW , the court concluded on the general issue of bias :

“ ... 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 . ”

As to the ORG appeals , the court emphasised that there was no question of the juror having any connection with those responsible for the prosecution of the case . The investigation had been carried out by ORG without the involvement of local police forces . The prosecution was conducted by ORG of the Crown Prosecution Central Casework Directorate without contact with the local ORG branch .

NORP The court set out the starting point for consideration of the applicants’ appeals as follows :

“ If CARDINAL starts , as one must , from the premise that police officers are not , by reason simply of their occupations , considered to be biased in favour of the prosecution , we do not consider that the fact that a police officer has taken part in operations involving the type of offence with which a defendant is charged , gives rise , of itself , to an appearance of bias on the part of the police officer . Most police officers are likely to have had experience of most of the common types of criminal offence , not least drug dealing . We do not consider that familiarity with the particular offence charged against an offender would lead the objective observer to suspect a police juror of bias . ”

As regards the first applicant , the court noted that QUANTITY police officers , one of whom was PERSON , gave evidence of keeping him under observation at different stages of his journey from GPE to GPE and that each of the officers said that he saw no passenger in the car . The court further noted that the challenge to the ORG evidence was on the basis that it was inaccurate and that it was not suggested to the witnesses in cross - examination that their evidence was untruthful . It further observed that such a suggestion would not have been likely to be fruitful as the ORG accounts were no doubt supported by contemporary records made at a time when they would have attached no significance to the fact that the first applicant had no passenger in the car . As to the witness called by the first applicant who spoke to glimpsing a passenger in the back of his car as it passed her in GPE , the court commented that she was not a witness of good character and that it was the prosecution case that she was not to be believed . It continued :

“ DATE . PERSON ’s explanation for the records of the use of his mobile phone and for being found with the heroin in the back of his car bordered on the farcical . The mobile phone records showed that , if his explanation was true , his phone must have been being passed to and fro between himself and his passenger like a yo - yo . Equally unlikely was the suggestion that the conspirators , PERSON and [ N. Khan ] , would have been having repeated telephone conversations with him about his taxi charges at a time when they were busy arranging for a drug delivery . Finally it is hard to believe that , if his passenger had been carrying a valuable consignment of heroin , he would have left it in the back of the taxi .

Quite apart from these matters , PERSON ’s evidence had significant inconsistencies with earlier statements made to the police . It was the prosecution ’s case that his evidence had been tailored to accommodate the police evidence .

In the light of these facts we turn to consider the CARDINAL questions set out at paragraph CARDINAL above . The material evidence of the QUANTITY police witnesses was that they had seen no passenger in PERSON ’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 [ PERSON ] who was known to him . Thus the question is answered in the negative and the second question does not arise . ”

The court accordingly concluded that the first applicant ’s conviction was not rendered unsafe by the fact that the foreman of the jury was a police officer who was acquainted with PERSON and dismissed the first applicant ’s appeal against conviction .

The court also rejected the second applicant ’s contention that , because of ORG ’s involvement in drugs operations , he might have become aware of the second applicant ’s previous conviction for dealing in heroin , noting :

“ DATE . ... there was nothing to support this surmise . Had the juror known anything about any of the defendants we think that he would clearly have made this fact known to the judge , as he did his knowledge of [ M.B. ] . Furthermore , PERSON previous conviction was placed before the jury . ”

The court observed that at trial there was no challenge to the prosecution evidence in respect of the second applicant and that no police witnesses were called . The issue was whether the jury was satisfied that the explanations advanced by the second applicant for the undisputed evidence were untrue and that this evidence demonstrated his guilt . ORG considered that the jury ’s verdict showed that it was satisfied of this . It therefore concluded that the allegation of jury bias made on behalf of the second applicant was not made out and dismissed his appeal against conviction .

ORG made the following concluding remarks :

“ It is undesirable that the apprehension of the jury bias should lead to appeals such as those with which this court has been concerned . It is particularly undesirable if such appeals lead to the quashing of convictions so that re - trials have to take place . In order to avoid this it is desirable that any risk of jury bias , or of unfairness as a result of partiality to witnesses , should be identified before the trial begins . If such a risk may arise , the juror should be stood down .

We considered attempting to give guidance in this judgment as to the steps that should be taken to ensure that the risk of jury bias does not occur . However , it seems to us that these will involve instructions to be given by the police , prosecuting and prison authorities to their employees coupled with guidance to court officials . It would be ambitious to attempt to formulate all of this in a judgment without discussion with those involved . There is CARDINAL matter , however , that should receive attention without any delay . It is essential that the trial judge should be aware at the stage of jury selection if any juror in waiting is , or has been , a police officer or a member of the prosecuting authority , or is a serving prison officer . Those called for jury service should be required to record on the appropriate form whether they fall into any of these categories , so that this information can be conveyed to the judge . We invite all of these authorities and Her ORG to consider the implications of this judgment and to issue such directions as they consider appropriate . ”

The second applicant ’s appeal against sentence was successful and the sentence of DATE was reduced to DATE .

The applicants were refused leave to appeal to ORG on DATE .

Pursuant to section CARDINAL of the Juries Act DATE as amended ( “ the DATE LAW ) , all persons aged DATE to seventy who are registered as parliamentary or local electors and have been ordinarily resident in GPE for a period of DATE since DATE are eligible for jury service and are therefore under a duty to attend court if summoned .

Certain individuals are ineligible for jury duty , including for example those who suffer from a mental disorder . Other narrowly defined groups , although eligible for jury duty , are entitled to be excused , such as persons who have served as jurors in the recent past and full - time members of the armed forces whose absence from duty would be prejudicial to the efficiency of the service .

The trial judge has the power to question jurors in order to establish that they are qualified for jury service or to ensure that they are not unsuitable to try the case , for example , on the ground of bias . A juror who is not qualified or is otherwise unsuitable will be excused . Both prosecution and defence are entitled to challenge as many individual jurors as they wish for cause . A juror may be challenged on the basis that he is ineligible for jury service or on the basis that he may reasonably be suspected of being biased .

Pursuant to LAW and a series of later statutes , a number of occupational groups were exempted from jury service , including the elected members of representative assemblies , ministers of religion , officers in the armed services , medical practitioners , various classes of public servants , holders of certain offices related to the sea and all who could not satisfy a threshold property qualification .

A review of jury service was undertaken by a departmental committee chaired by Lord PERSON of PERSON ( “ the ORG ” ) , which reported in DATE . ORG considered that those professionally concerned in the administration of the law and the police should continue to be ineligible for jury service . ORG noted :

“ CARDINAL . The present law exempts many of those who practise the law or are concerned with the business of the courts . It seems to us clearly right that such persons , and all others closely connected with the administration of law and justice , should be specifically excluded from juries ... If juries are to continue to command public confidence it is essential that they should manifestly represent an impartial and lay element in the workings of the courts . It follows that all those whose work is connected with the detection of crime and the enforcement of law and order must be excluded , as must those who professionally practise the law , or whose work is concerned with the functioning of the courts . It is impossible , whether desirable or not , to ensure that jurors have no previous knowledge of the law before they begin to hear a case . Many persons without formal legal training , for example , know enough about the way our courts function to be able to make a shrewd guess as to whether the accused has a previous criminal record ; and one can not entirely prevent by legislation the use of such knowledge in the jury room .

Nevertheless , it seems to us necessary to secure the exclusion from juries of any person who ... ‘ because of occupation or position , has knowledge or experience of a legal or quasi - legal nature which is likely to enable him to exercise undue influence over his fellow ORG . If justice is not only to be done but to be seen to be done , such persons must not be allowed to serve on juries lest the specialist knowledge and prestige attaching to their occupations might cause them to be what has been described to us as ‘ built - in ORG ”

As to civilian employees of the police , ORG said :

“ CARDINAL . ... we think there is much force in the contention of ORG that ‘ all civilian employees in the police service who have been employed for some length of time , no matter in what capacity , become identified with the service through their everyday contact with its members . As such they become influenced by the principles and attitudes of the police , and it would be difficult for them to bring to bear those qualities demanding a completely impartial approach to the problems confronting members of a jury’ . We find this convincing , and we have little doubt that civilian employees in the police service , including traffic wardens , should be ineligible . ”

The Juries Act DATE implemented a number of ORG recommendations and included a provision rendering police officers and other involved in the administration of justice ineligible to serve on juries .

In DATE the issue of ORG eligibility was reviewed by ORG in the context of his “ Review of ORG and GPE ” ( “ the ORG ” ) . He considered the concerns which arose when individuals connected in a professional capacity with the criminal justice system were permitted to serve on juries :

“ There is also the anxiety voiced by some that those closely connected with the criminal justice system , for example , a policeman or a prosecutor , would not approach the case with the same openness of mind as someone unconnected with the legal system . I do not know why the undoubted risk of prejudice of that sort should be any greater than in the case of many others who are not excluded from juries and who are trusted to put aside any prejudices they may have . Take , for example shopkeepers or house - owners who may have been burgled , or car owners whose cars may have been vandalised , many government and other employees concerned in CARDINAL way or another with public welfare and people with strong views on various controversial issues , such as legalisation of drugs or euthanasia . I acknowledge that there may be Article CARDINAL considerations in this . But it would be for the judge in each case to satisfy himself that the potential juror in question was not likely to engender any reasonable suspicion or apprehension of bias so as to distinguish him from other members of the public who would normally be expected to have an interest in upholding the law . Provided that the judge was so satisfied , the overall fairness of the tribunal and of the trial should not be at risk . ”

He concluded :

“ Thus , in my view , there is a strong case for removing all the present categories of ineligibility based upon occupation , that is , ... the ORG , ... others concerned with the administration of justice and ... the clergy ... Any difficulty or embarrassment that the holding of any such office may pose in a particular case can be dealt with under the ORG discretionary power of excusal . ”

He further considered developments in the state of GPE , where the automatic ineligibility of occupational groups to serve had been removed ( see paragraphs CARDINAL - CARDINAL below ) and the positive experience of those involved in the administration of justice who had served on juries there . Accordingly , he recommended that everyone should be eligible for jury service , save the mentally ill .

Following this recommendation , section CARDINAL and schedule CARDINAL to LAW DATE ( “ the DATE LAW ) amended LAW to remove the automatic disqualification of those involved in the administration of justice from jury duty ( see paragraphs CARDINAL above ) .

The compatibility of the change in the law introduced by LAW with LAW was considered prior to the ORG appeal hearing by ORG in NORP v. PERSON and Others [ DATE ] ORG CARDINAL , which concerned CARDINAL appeals against conviction . The first CARDINAL involved trials in which serving police officers had sat as jurors ; the third concerned a trial where an employee of ORG was a juror and is therefore not of direct relevance to the present case .

Lord GPE of NORP confirmed that the test of bias under the common law was no different from the requirement under LAW and impartial tribunal . He further observed :

“ CARDINAL . It must in my view be accepted that most adult human beings , as a result of their background , education and experience , harbour certain prejudices and predilections of which they may be conscious or unconscious . I would also , for my part , accept that the safeguards established to protect the impartiality of the jury , when properly operated , do all that can reasonably be done to neutralise the ordinary prejudices and predilections to which we are all prone ... ”

In relation to the first appeal , he found as follows :

“ CARDINAL . In the case of the first appellant , it was unfortunate that the identity of the officer became known at such a late stage in the trial , and on very short notice to the judge and defence counsel . But had the matter been ventilated at the outset of the trial , it is difficult to see what argument defence counsel could have urged other than the general undesirability of police officers serving on juries , a difficult argument to advance in face of the parliamentary enactment . It was not a case which turned on a contest between the evidence of the police and that of the appellant , and it would have been hard to suggest that the case was one in which unconscious prejudice , even if present , would have been likely to operate to the disadvantage of the appellant , and it makes no difference that the officer was the foreman of the jury . In the event , confronted with this question at very short notice , defence counsel raised no objection . I conclude , not without unease , that having regard to the parliamentary enactment ORG reached the right conclusion in this case , and I would dismiss the appeal . ”

As regards the second appeal , however , Lord PERSON considered :

“ CARDINAL . The second appellant ’s case is different . Here , there was a crucial dispute on the evidence between the appellant and the police sergeant , and the sergeant and the juror , although not personally known to each other , shared the same local service background . In this context the instinct ( however unconscious ) of a police officer on the jury to prefer the evidence of a brother officer to that of a drug - addicted defendant would be judged by the fair - minded and informed observer to be a real and possible source of unfairness , beyond the reach of standard judicial warnings and directions . The second appellant was not tried by a tribunal which was and appeared to be impartial . It can not be supposed that ORG intended to infringe the rule in the GPE case [ that justice should not only be done , but should manifestly and undoubtedly be seen to be done ] , still less to do so without express language . I would allow this appeal , and quash the second appellant ’s conviction . ”

Lord PERSON of PERSON dismissed both appeals . He was of the view that while the notional observer ’s first reaction to the news that police officers could serve on juries might well be that it was possible that a police officer on the jury would tend to prefer the evidence of any police or prosecution witnesses to the defence evidence , and be thus , consciously or subconsciously , biased in favour of the prosecution , this perception did not withstand closer scrutiny :

“ DATE . ... [ B]eing fair - minded and informed , the observer will think a little more about the matter . He will reflect that , up and down the land , day in day out , we take risks when we hand the critical decisions on guilt or innocence to juries . We take the risk that , consciously or subconsciously , men on juries may be unduly sympathetic to a man charged with rape who claims that he and the woman just got carried away by their physical urges . We take the risk that , consciously or subconsciously , a juror who has herself been the victim of sexual abuse may tend to side with the woman who claims that she was sexually assaulted by the defendant . We take the risk that , consciously or subconsciously , a gay juror may tend to believe the gay man who says that he was assaulted by the defendant in a homophobic attack . We take the risk that , consciously or subconsciously , a homophobic juror may just reject the gay man ’s evidence . We take the risk that , consciously or subconsciously , a juror who is an undergraduate may sympathise with a victim who is an undergraduate at the same university . We take the risk that , consciously or subconsciously , a black juror may tend to believe the evidence of a black witness as opposed to the account given by an NORP defendant . We take the risk that , consciously or subconsciously , a juror who was convicted of drug dealing and was sentenced to DATE in prison in DATE may sympathise with a defendant accused of supplying drugs . Having reflected on these and similar situations , the observer will realise that , in effect , ORG has now added CARDINAL to the long list of situations where there is indeed a risk , where it is indeed possible , that , consciously or subconsciously , a juror may be partial . But he will also realise that ORG must have considered that in these CARDINAL situations , like so many others , the risk is manageable within the system of jury trial as we know it . ”

He continued :

“ CARDINAL . It would , after all , be wrong to pretend that in these various situations there is not a real , as opposed to a fanciful , possibility that the jurors in question may be biased . For instance , there is plainly a real possibility , in the sense of it being something that could well happen , that a homophobic juror may just reject the gay man ’s evidence . But the law regards that risk as being manageable and , so , acceptable . The law caters for the risk . It takes steps to minimise it by making jurors take an oath or affirm that they will ‘ faithfully try the defendant and give a true verdict according to the evidence’ . It makes them sit and listen to the evidence in a solemn setting . It requires the judge to give them a direction that they must assess the evidence impartially . Of course , it would be naïve to suppose that these safeguards will always work with every juror . The law is not naïve : it stipulates that there should be CARDINAL men and women on a jury . The assumption is that , among them , the CARDINAL will be able to neutralise any bias on the part of CARDINAL or more members and so reach an impartial verdict – by a majority , if necessary . If any of the jurors consider that the jury will be unable to do so , then they must tell the judge , who can then deal with the matter – by discharging the jury , if necessary . So the mere fact that there is a real possibility that a juror may be biased does not mean that there is a real possibility that the jury will be incapable of returning an impartial verdict . ”

He considered that the jury system operated , not because those who served were free from prejudice but despite the fact that many of them would harbour prejudices of various kinds when they entered the jury box . However , he accepted that there would be an unacceptable risk of a juror going wrong if , inter alia , he was a friend of CARDINAL of the witnesses , was having an affair with a witness or had worked alongside CARDINAL of the witnesses . In such a case he agreed that the person should be discharged from sitting on the jury .

As to the first appeal , ORG concluded :

“ DATE . The PERSON case was tried at FAC , which hears cases from all over GPE and sometimes further afield . There was no particular link between the court and the station where the police juror served . No important issue turned on a conflict between police and defence evidence and there was no closer link between the police witnesses and the police juror than that they all served in ORG . It would be possible , perhaps , to conclude that ORG had intended that no police officer should serve on a jury involving police witnesses from the same police force as that in which he served . Given the independence of each police force , that would have the attraction of consistency with the approach adopted earlier in relation to the ORG and other prosecuting bodies . With some hesitation , however , but because of the greater distance between the police and the prosecution process , I feel able to agree with my noble and learned friend , Lord PERSON of GPE , that there is not sufficient to raise the appearance of bias in this case . Hence this appeal should be dismissed ... ”

She identified further considerations arising in the second appeal which required the conviction to be quashed , noting as follows :

“ CARDINAL . In the Green case there are CARDINAL factors which make the connection between the police and prosecution too close for comfort . CARDINAL is that the victim of the alleged crime was himself a police officer and the case depended to some extent on his evidence of how the accused was searched and what was said at the time . The officers were serving in the same borough at the time of the trial although not in the same police station . Another is that the juror was posted to a police station which committed its cases to ORG where the case was tried . Officers in his station will have had regular dealings with the ORG conducting prosecutions in the same court . ”

Lord PERSON noted at the outset that the changes relating to jury service enacted in the DATE Act reflected the changes in the sophistication of jurors and in the willingness of ORG to trust in their impartiality and ability to recognise and put aside their prejudices . He continued :

“ CARDINAL . Unconscious prejudices and bias can be insidious in their operation on people ’s minds , but the number and diversity of people on a criminal jury constitute a safeguard against such prejudice or bias on the part of any CARDINAL juror exercising sufficient influence to determine the outcome of the trial . To a certain extent they are inescapable in human society , but it is generally reckoned that they are balanced out in the jury ’s deliberation and subsumed in the general attempt to reach a consensus ...

Lord PERSON agreed with Lord PERSON that both appeals should be dismissed .

Lord PERSON agreed with Lord PERSON and ORG and concluded :

“ DATE . With regard to the case of the second appellant , as Lord PERSON and ORG point out ... , the police sergeant who was the alleged victim and whose evidence was relevant shared the same local service background as , and was as a result the ‘ brother ORG of , the policeman on the jury . Further , the juror was posted to a station which committed its cases to ORG of trial – a factor which FAC identified as one to be avoided ... Absent such considerations , I do not agree that it follows automatically that a police officer is disqualified as a juror , even in a case of significant conflict of evidence between a police witness and a defendant . ”

ORG , by LAW , informed police officers and staff that they were no longer exempt from jury service . The notice advised that :

“ Where possible , police officers should not attend the court where ORG commits its work ” .

NORP In DATE , after the applicants’ appeal had been dismissed , Her ORG issued ORG for summoning officers when considering deferral and excusal applications . The guidance notes , inter alia :

“ CARDINAL . Members of the judiciary or those involved in the administration of justice who apply for excusal or deferral on grounds that they may be known to a party or parties involved in the trial should normally be deferred or moved to an alternative court where the excusal grounds may not exist . If this is not possible , then they should be excused ...

There are additional considerations which apply to certain categories of potential jurors involved in the administration of justice . Those categories are :

( CARDINAL ) employees of the prosecuting authority ;

( CARDINAL ) serving police officers summoned to a court which receives work from their police station or who are likely to have a shared local service background with police witnesses in the trial .

( CARDINAL ) serving prison officers summoned to a court , who are employed at a prison linked to that court or who are likely to have special knowledge of any person , involved in a trial .

Potential jurors falling into category ( CARDINAL ) , ( CARDINAL ) or ( CARDINAL ) should be excused from jury service unless there is a suitable alternative court / trial to which they can be transferred . For example an employee of ORG should not serve on a trial prosecuted by the ORG . However , they can serve on a trial prosecuted by another prosecuting authority , such as the Revenue and ORG . Similarly , a serving police officer can serve where there is no particular link between the court and the station where the police juror serves . ”

Following the judgment in ORG , but prior to ORG judgment in the applicants’ case , ORG handed down judgment in the case of NORP v. PERSON . The appeal against conviction had been lodged in light of the fact that one of the jurors was a police officer who knew all the officers in the case , including the CARDINAL who had given evidence .

ORG considered the judgment of ORG in Abdroikof and Others and summarised the position as follows :

“ CARDINAL . In all cases the test is CARDINAL of apparent bias . This will depend on the facts . If , for example , a potential juror knows a witness personally , it is common for such a juror to stand down . Where , however , the witness he knows is not contentious and not to be called , but is taken simply as read as an agreed statement , there may well be no possibility of bias . It is therefore necessary for the judge to make all appropriate factual enquiries . Usually , this is by posing questions , either in court or in writing to the potential juror . The manner in which the questions are asked will depend on the circumstances . Sometimes a few questions in open court will suffice . In other cases , where the information might be sensitive , or more detail is required , the matter may have to be dealt with in writing .

The results of the factual inquiry should be made known to counsel , who will then be in a position to make submissions to the court . Here , it would have been helpful to have known how well the juror knew the police officers . Had he ever worked with them on any particular matter or in a particular project ? How often did he see them in the course of his work ? How and in what circumstances did he meet him ? All such inquiries can be dealt with by very brief questions , briefly stated and briefly answered . They are not complicated ... ”

ORG was of the view that although the evidence of the police officers in the case would not have been vigorously challenged even if the policeman had not been on the jury , the evidence was nevertheless a relevant part of the background to the case . It noted that it was simply not known how important the evidence was to the jury ’s deliberations and in what light they considered the evidence or what views the police officer juror expressed , if any , on his colleagues’ evidence . It concluded :

“ CARDINAL . In these circumstances , we have no doubt that there was here a real possibility of bias arising from the presence on the jury of a police officer who knew the police witnesses . The possibility that he might be likely to accept the words of his colleagues , irrespective of the dispute between the parties is CARDINAL which can only be described as real . We know no more than that and there is no suggestion the police officer was actually biased . None at all . Justice must not only be done but must be seen to be done . We fear that on the facts of this case that did not occur . ”

As to the point at which the juror ought to have been discharged , the court noted :

“ DATE . ... We consider that caution should have caused [ the trial judge ] to exclude as a juror the officer who knew all CARDINAL of the police witnesses who were going to give evidence , particularly in view of the fact that he could not be certain as to the precise scope , when all the evidence was given , of their evidence and how it might emerge , and not forgetting that this was the third attempt , it appears , to bring this matter to trial .

... [ T]he police officer juror should , in our judgment , have been asked to stand down at the outset , as should normally occur where a policeman or indeed any other potential juror knows witnesses who are to be called to give oral evidence , unless it can be said with certainty that the evidence of the witnesses who are known will play no contested part in the determination of the matter .

We venture to suggest , if it can not be so determined with certainty , the potential juror who knows witnesses personally should be asked to stand down , whether he be a policeman or not a policeman . In other words , in many cases , if not most , where a potential juror knows witnesses who are likely to be called , it is the case that an enquiry always has to take place , albeit a brief one . When that enquiry has taken place , then the judge will act upon it , but we reiterate , unless it can be said with certainty that the known witnesses to be called will play no contested as opposed to an agreed part in the determination of the issues , a juror who personally knows a witness or witnesses should normally be asked to stand down . Once the juror was not excluded , we accept [ defence counsel ’s ] submission that the judge had a continuing obligation to keep that decision under review . When facts emerge which might change the situation , having decided not to exclude the juror , the judge is under an obligation to consider such facts and here , it is in the view of this ORG when it became apparent there was potential significance of the police evidence , that the jury should have been discharged , as it simply could not be known how the juror would deal with the witnesses as against the defendant ’s case ... ”

Following the judgment of ORG in the applicants’ case , ORG dismissed an appeal in the case of R v. C , where a juror with experience as a police officer serving in a child protection or child abuse team and of conducting interviews with those who made complaints of such behaviour sat at a trial involving offences of sexual abuse against the defendant ’s daughter . The judge had refused to discharge the juror , noting that the juror had indicated in her note to the judge that she felt able to give a proper judgment on the evidence .

The Court of Appeal reiterated that the fact that a police officer was a juror did not in itself give rise to an appearance of bias . However , an appearance of bias could arise where a police officer juror shared some connection , for example , by way of place of service , with a police officer in the case whose evidence was going to be in dispute .

The court noted that the evidence of the police officer in the case was not in dispute , although there was some criticism of the conduct of the interview which was alleged to have been aimed at eliciting rather than challenging what the complainant was saying . However , the court found that this was insufficient to give rise to an appearance of bias , noting that those who investigated matters of sexual abuse might believe some complainants or disbelieve them and that it was impossible to say that the occupation carried an inherent risk of an assumption that the allegations were truthful .

ORG subsequently dismissed CARDINAL appeals against conviction for money laundering offences in R v. PERSON and PERSON . The evidence against the defendants consisted of bank account evidence of cheques cashed ; nothing had been found to link them to knowledge of the particular underlying fraud . At trial , the prosecution had called CARDINAL witness , a police officer , to read the defendants’ interviews . He was cross - examined principally to show that there was no evidence directly linking either of the defendants to the underlying fraud .

After the jury had been empanelled but before the prosecution witness was called , it was discovered that CARDINAL of the jurors was a policeman . The CARDINAL officers worked for different police forces some distance apart , and the police officer juror was a road traffic officer . An application was made by the defence to discharge the jury , but the application was refused . The juror became the jury foreman . At trial , a dispute arose between the police officer witness and CARDINAL of the defendants .

The court reiterated the relevant principles , and concluded :

“ It seems to us that it is clear there was no connection between the CARDINAL officers . It would therefore follow that no right - thinking person would think there would be bias . Secondly , and more crucially in this case , it is clear that the point raised on behalf of [ CARDINAL of the defendants ] was not an important part of the prosecution case , nor a serious issue between the defence and the prosecution . It was a small part of [ his ] case . We can not therefore consider that this ground of the appeal has any merit at all . It can be dismissed simply by the application of now the well - established principles to the facts . The answer is clear . ”

In NORP v. PERSON and Others , ORG dismissed the appeals of a number of appellants complaining about the presence of a police officer on the jury at their trial concerning a stabbing . At trial , evidence was heard from QUANTITY police officers who had arrived at the scene of the crime in the GPE borough of GPE shortly after the victim had collapsed . The evidence of CARDINAL of the officers , which strongly supported the theory of a group attack on the victim , was challenged by all defendants .

DATE . DATE after the trial started , the judge learned that a police officer was sitting on the jury . He did not inform the parties until the jury had retired to deliberate . At that point , he informed counsel of the fact that a serving police officer was a member of the jury , and that he appeared to be its foreman . He explained that the police officer juror was based in the area of GPE , GPE , and had indicated that he knew nothing about the case . The judge was accordingly satisfied that he should serve on the jury . He also indicated that he had had in mind that the police evidence was “ really less than contentious ” and that had that not been the case , he would have reported the matter to counsel immediately . Counsel for the defence requested that the jury be discharged , noting that GPE and GPE were not very distant from one another geographically and that youth gang violence was a problem affecting both areas . The judge refused the application .

Summarising the relevant passages of the judgments in Abdroikof and Others and the applicants’ case , ORG noted :

“ CARDINAL . Although it might have been preferable for the judge to have asked more questions of the juror , it seems to us that we should accept the answer as conveyed to the judge that the juror knew nothing about the case , and by that we mean in his professional position . If he had inside information about the case or the background to the case as a result of his position as a police officer in GPE , we take the view that he would have told the court official . Likewise the judge made it clear in his summing up that the jury had to decide the case on the evidence and we imagine he had said that on other occasions . If the juror was aware of information which did not form part of the evidence in the case then it seems likely to us that he would have publicly made that clear . Unlike in GPE , jurors are only rarely questioned in this country . Jurors are often told the names of witnesses in case they know them and are usually questioned before being empanelled on long complex trials , such as terrorism and fraud cases , but not otherwise . The system here proceeds on the assumption that a juror will reveal any difficulties that he or she may have in impartially approaching the case being tried and that other jurors will play a role in ensuring impartiality . No appeal would succeed on the speculative basis that a juror may have been partial towards a witness . We see no need for any further enquiries to be made . ”

The Court of Appeal further observed that the factual evidence of the CARDINAL police officer witnesses differed on the contested point , and that there were other witnesses on the same issue . It considered that this removed the basis for an allegation of bias , emphasising in particular that :

“ ... there is absolutely no logical reason why , and no evidential basis for contending that , the juror would have preferred the evidence of [ the police officer who gave the contested evidence ] ( and persuaded the other jurors to accept it ) over [ the second police officer ] merely because the juror was a policeman . ”

Following his conviction for having an offensive weapon , the defendant appealed on the basis that his jury had included a police officer , based at ORG police station in GPE . CARDINAL police officers , based at GPE police station , GPE , had given evidence at his trial , and the defendant challenged the evidence they gave . All officers were members of ORG .

ORG summarised the position as follows :

“ CARDINAL . ... First , the question is obviously one of fact and degree and there is a measure of judicial discretion at the margins . Second and obviously each case will depend on its own facts . Third , again at the margins it is difficult to deduce clear cut principles which are to be applied . ”

The court recalled that ORG had decided that generally speaking police officers should not be disqualified from serving on juries and continued :

“ CARDINAL . ... We take note of the fact that ORG is a huge organisation , and we consider that it would be contrary to the Parliamentary intention if ORG officer could serve on a GPE jury in any case where significant evidence of a ORG officer was challenged . The expression used in Abdroikov , ‘ the same local service background’ , can not extend to service in any part of the whole of the Metropolitan Police area . In the case before ORG where the appeal succeeded the officers served in the same borough . Mere casual contact with a GPE police station should not alone be regarded as significant since no doubt police officers from time to time make enquiries all over GPE and beyond . Certainly , in the present case there was a conflict of evidence , central to the issue in the case , between police officers and the appellant . It was , however , a conflict as to the officer ’s accuracy not as to their truthfulness and it was , we think , generally speaking a strong case and there was some support for the police account ... ORG did not regard such a significant conflict of evidence as an automatic ground for disqualification and in this respect , he may be seen as having been in a majority with Lord PERSON of PERSON and Lord PERSON who dissented in the result . ”

The court therefore concluded :

“ CARDINAL . The judge is not therefore , in our judgment , to be regarded as being in error , in exercising his discretionary judgment to reject the submission because , first of all , although there was a significant conflict of evidence between the police officers and the appellant , ORG did not consider that that was an automatic ground for disqualification , and secondly , because these officers were not within our understanding of Abdroikov from the same local service background . They were merely and only , for present purposes , all members of ORG . ”

The court also commented on the applicant ’s failure to challenge the presence of the police officer juror before the trial had commenced :

“ CARDINAL . There is an added feature in this case . We are concerned with the putative view of the fair - minded observer . Such a putative person would have known that the fact that the juror was a police officer was published before the trial when the jury were being selected . The defendant then raised no objection although the nature of the impending evidential conflict must have been well known to him and those representing him . We think that the fair - minded observer would reckon that it was rather late in DATE to take the point at a later stage which should have been taken , if at all , at the outset . The fact that the point was taken when it was is not fatal but it colours the court ’s approach to its persuasiveness . For these reasons the appeal against conviction is dismissed . ”

DATE . In NORP v. PERSON , the applicant appealed against his conviction of CARDINAL offences of rape , buggery and indecent assault involving his children . A member of his jury was a police officer , and she became the jury foreman . Prior to trial , she had advised the summoning officer of her occupation , but this information was not passed on to the judge and none of the participants of the trial were aware of it until after the jury had returned their verdicts and been discharged . When it became known , the police officer was questioned by the judge in the presence of counsel . She explained that she served in ORG of ORG .

ORG accepted that the defendant ’s evidence involved allegations of improper conduct in DATE and DATE by police officers of ORG , although the officers appeared to have worked in different divisions to the police officer juror . The court noted that for the jury to accept that the defendant was telling the truth required them to accept that the police had behaved improperly on both occasions . However , it observed that the case did not involve contested police evidence , let alone a crucial dispute of evidence between the defendant and police witnesses : the police officers concerned in the events of DATE and DATE were not called as witnesses and their identities were not even known . It continued :

“ DATE . ... Thus the presence of a serving police officer on the jury can not give rise to any question of partiality towards a witness ( and there is not , and could not be , any suggestion of partiality towards the prosecution ) . The question of apparent bias depends in this case , as it seems to us , simply on whether a serving officer might be influenced to reject the appellant ’s evidence concerning events in DATE and DATE out of a sense of loyalty to the police and an unwillingness to accept the possibility of improper conduct on the part of another police officer , rather than making a fair assessment of the appellant ’s credibility on the basis of the evidence in the case . ”

In this regard , the court noted that the defendant ’s evidence regarding the police officers formed a relatively small part of the evidence as a whole . It further noted that the police officer on the jury served , so far as was known , in a different division from the officers concerned ; she did not know who those officers were ; and it was conceded by defence counsel that in the light of her apparent age she could not herself have been a serving officer at the time . It observed :

“ CARDINAL . ... Those factors all militate against her assessment of the appellant ’s evidence ... being influenced by her position as a serving officer . ”

The ORG concluded :

“ DATE . Taking all those matters into account , we have reached the conclusion that the case of apparent bias is not made out . We are satisfied that in the circumstances of this case a fair - minded and informed observer would not consider there to be a real possibility of bias arising out of the occupation of the juror . It is unfortunate that the juror ’s occupation was not communicated to the trial judge before the trial proceeded . It is likely that , out of an abundance of caution , the judge would have asked her to stand down if the position had been known . In the event , however , her presence on the jury did not affect the fairness of the appellant ’s trial or render the convictions unsafe . ”

In the case of NORP v. L the applicant was convicted of CARDINAL count of attempted burglary and CARDINAL counts of burglary . At trial , QUANTITY police officers had given evidence as to his movements over the period in which the offences had taken place . Following the lodging of an appeal , ORG invited ORG to investigate the membership of the jury , and in particular the occupations of its members . These inquiries revealed that CARDINAL juror was an employee of ORG ( “ ORG ” ) , a second was a serving police officer and a third was a retired police officer . As to the police officers , the serving police officer ’s role was administrative and he was non - operational . He had no knowledge of the defendant and no connection with those conducting the surveillance operation . He assumed that ORG was generally responsible for the operation which had led to the defendant ’s arrest and he was a member of that force . The retired police officer retired from ORG in DATE . He had no connection with the surveillance operation in the case or with ORG .

The court explained that it was normal practice for the attention of the judge to be drawn to any information about potential jurors with specific occupations , such as the police , ORG and ORG , whose role might be regarded as directed to and part of the overall prosecution of offences . It further observed that the form for the jury summons had been amended since the trial to include the following question :

“ If you are , or have been in DATE , employed by any ORG , Her ORG or any prosecuting authority , please state your occupation , your employer and work place location . We may need to contact you about this . ”

The court acknowledged that what had happened in relation to the selection and empanelling of the jury in the appellant ’s case was unclear . It continued :

“ CARDINAL . ... We know from the transcript that before the jury was sworn the Common PERSON raised the issue with counsel . We have studied the transcript . He asked defence counsel whether there was any ‘ attack on police ORG so as to enable him to decide whether to ‘ enquire whether any of the jury members are serving officers or part of the prosecution services’ . Counsel responded that there might well be criticism of the police and that it might be advisable to avoid any potential risks , and so the necessary enquiries should be made . Counsel accepted , however , that there would be no direct attack on any individual police officer , although he later said that there would be suggestions that police officers were ‘ incorrect factually or ORG . He then added that there would be observations that he would make towards the end of the case which would not fall ‘ particularly kindly on police DATE . In answer to a further direct question by LOC , counsel confirmed that there was ‘ certainly not going to be any accusation of deliberate fabrication’ . That response led LAW to observe that this represented the dividing line on the issue . As we have indicated , counsel ’s answer at this stage was unfortunate . The reality was that , however uncomfortable it might be forensically , it was , as we look at the case now with the benefit of hindsight , inevitable that CARDINAL of the officers would have to be addressed directly on the basis that his evidence was not true .

Counsel for the ORG suggested that if the issue was that police officers were mistaken rather than lying , then it ‘ may be proper’ that police officers should be allowed to sit on the jury . With this information the Common PERSON decided that no further steps should be taken in relation to the jury panel , and no further comments were made to the jury about the subject . ”

On appeal , defence counsel told the court , and the court accepted , that he had not been aware of any of these facts at the time . He submitted that he should have been informed of the occupations and that if he had known , quite apart from any specific objections to individual jurors , he would also have objected to a jury CARDINAL of whose members consisted of CARDINAL individuals involved in or linked with “ the prosecuting arm of the criminal justice system ” .

The court then turned to the facts of the case , addressing first the position of the CARDINAL police officer jurors :

“ CARDINAL . ... The retired former police officer did not have , and never had , any connection whatever with the police force , let alone any individual officers involved in the surveillance operation or who gave evidence at trial . There was no link whatever between him and the prosecution process . He was indeed long - retired .

The serving police officer is in a different position because he was at the time still a serving officer . However , he , too , had no link at all with the case or the prosecution witnesses or the surveillance operation , and in particular no contact or link with the only police witness whose evidence was to be challenged ( even if not head - on ) , or the police station involved in the process , or the court to which the case had been committed . So , in accordance with the principles outlined in Abdroikov and [ the applicants’ case ] , we can see no reason why the position of either of these CARDINAL jurors should cause any further concern or interest . ”

The appeal was in the event upheld on the ground of the participation of the ORG juror . However , having upheld the appeal on this limited basis , the court went on to consider the defence argument that the cumulative effect of the employments of the CARDINAL jury members should have led to the quashing of the conviction . On this point , it noted :

“ CARDINAL . ... In the context of random jury selection , questions of eligibility or disqualification or excusal are directed to individual potential jurors , not to the jury as a whole . It might be possible to envisage very exceptional circumstances in which the end result of the random process could give rise to concerns about the appearance of jury impartiality even when , taking each individual juror on his or her own , there would be none . [ Counsel for the defence ] suggested in argument the possibility of CARDINAL jurors , each one of whom was a serving police officer , about whom each CARDINAL taken individually there could be no concern in the context of disqualification or excusal . It would , he suggested , not be unreasonable for the defendant at such a trial ( or in the event of a conviction , the appellant ) , as well as properly informed , reasonable members of the public , to question the fairness of the process , again preferably before the trial started , or , if the fact only emerged after conviction , after trial .

We shall deal with the submission briefly . In the criminal justice process it is never wise to say ‘ GPE . In the context of a situation which does not arise for decision , we simply record that this problem should be examined if and when it occurs . We have already indicated that it would be a very exceptional case if it were to occur . Given the valuable ORG and the provisions of LAW for its employees in the context of their potential as jurors , we think that the exceptional circumstances that we have in mind are most unlikely to arise . ”

DATE . Once selected for jury duty , jurors must swear an oath or affirmation that they will :

“ faithfully try the defendant and give a true verdict according to the evidence . ”

Prospective jurors and those called to sit as jurors are provided with guidance to ensure that they are alert to the need to bring any concerns about fellow jurors to the attention of the trial judge .

Jurors are also warned , by directions of the trial judge , of the importance of not discussing the case with anyone outside their number and are further directed to try the case on the basis of the evidence .

In GPE v Her Majesty ’s Advocate [ DATE ] CARDINAL AC CARDINAL , Lord Hope of PERSON noted :

“ ... the 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 judge may discharge a juror whether due to illness or any other reason . The remainder of the jury may complete the hearing of the case and return a verdict provided that their number is not reduced below CARDINAL .

Section CARDINAL(CARDINAL ) of the Contempt of Court Act DATE 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 .

The jury ’s verdict is given in open court in the presence of all the jurors and the parties to the proceedings . Majority verdicts are possible . The minimum majorities possible are CARDINAL - CARDINAL or DATE . In the case of a jury which has been reduced in number to CARDINAL or QUANTITY members , the minimum permissible majorities are CARDINAL - CARDINAL or CARDINAL respectively . A jury of CARDINAL members must be unanimous .

Jury selection in GPE is governed by LAW ( Miscellaneous Provisions ) ( GPE ) Act DATE as amended . Section CARDINAL ) provides that those listed in Part I of Schedule CARDINAL to the Act are ineligible for jury service . Part I of Schedule CARDINAL includes the judiciary and others concerned with the administration of justice . The latter category in particular covers , inter alia , “ constables of any police force ” .

In DATE ORG published a consultation paper on “ The Modern Scottish Jury in Criminal Trials ” . The consultation paper sought views on whether the categories of ineligible persons should be maintained or amended . In DATE , it published a follow - up paper , “ The Modern Scottish Jury in Criminal Trials – Next Steps ” . It indicated that it did not intend to amend the list of ineligible persons as the responses to the consultation did not indicate a strong appetite for change . The paper further noted that there was :

“ ... a strong indication from respondents that it would be unwise to open up jury duty to those who work within the justice system ... ”

By virtue of article CARDINAL(CARDINAL ) of the Juries ( GPE ) Order DATE , persons listed in Schedule CARDINAL to that Order are ineligible for jury service . Schedule CARDINAL includes police officers .

The Juries Act DATE as amended regulates juries in GPE . LAW provides that the persons specified in Part I of the First Schedule to the LAW are ineligible for jury service . Part I of the LAW lists persons concerned with the administration of justice and includes members of ORG , the NORP police force .

In DATE ORG in GPE published a consultation paper on jury service as part of its Third ORG DATE . It considered the developments in other jurisdictions , commenting in particular on ORG ( see paragraph CARDINAL below ) ; the ORG report ( see paragraphs DATE above ) , ORG and subsequent legislative changes in GPE and GPE ( see paragraphs CARDINAL - CARDINAL above ) ; the recent consultation exercise in GPE ( see paragraph CARDINAL above ) ; and the activities of LAW of GPE and ORG ( see paragraphs CARDINAL - CARDINAL and CARDINAL - CARDINAL below ) .

In its discussion of the ineligibility of police officers , the ORG noted , as regards ORG :

“ CARDINAL.CARDINAL ORG concluded that the exemption of police officers from jury service was no longer justified on the basis that a large number of cases are not connected to the special training or presumed biases of police officers in that jurisdiction . This is particularly the case in terms of a large number of civil trials in the state of GPE . However , this is not the situation in GPE where the vast majority of cases requiring juries involve serious criminal offences . ” ( footnotes omitted )

The paper concluded :

“ CARDINAL.CARDINAL ORG suggested that the trial judge , on a case - by - case basis , should resolve cases of this nature . However , this can only be achieved where the judge is aware of the presence of such jurors and is familiar with any possible connection to the case . The fact that this decision by ORG was a majority decision suggests that the difference picked out in the cases does not provide any hard and fast rules . Having considered this issue at some length , the ORG has provisionally concluded that , since members of police forces have strong occupational cultures , there is scope for a likelihood of at least a perception of bias if ORG were permitted to serve on juries .

CARDINAL The Commission therefore considers that members of An PERSON should continue to be ineligible for jury service . The ORG has come to this decision on the basis that the overwhelming majority of jury trials in this jurisdiction relate to the prosecution of criminal offences . It is possible that GPE jurors might legitimately have access to information about accused persons which would be inadmissible as evidence at trial and which would not be available to other jurors . Additionally , the Commission considers that it is important to maintain community confidence in the impartiality , fairness and unbiased nature of the jury system . The Commission considers that confidence in trial by jury will be called into question if members of the An PERSON were eligible for selection as jurors ... ”

The Commission therefore provisionally recommended that the exclusion be retained .

Article CARDINAL of LAW Criminal Code provides that some occupational groups are exempted from serving as jurors . The list of exempted occupations includes police officers . Pursuant to Article CARDINAL , if the name of an exempted person is drawn to serve on a jury , it is not taken into account and is considered as if it had not been drawn .

Pursuant to ORG CARDINAL and CARDINAL of LAW Code on Criminal Procedure , police officers are not able to serve on juries .

Article CARDINAL of the NORP Judiciary Code lists various occupations and functions which are excluded from jury service . While certain civil servants are excluded , the list does not refer to “ police officers ” as such . An assessment of whether individual officers fell within any other category listed would have to be made on a case by case basis .

ORG . Article CARDINAL of the Code of Criminal Procedure allows an accused to challenge between CARDINAL and CARDINAL jurors without providing reasons .

Section CARDINAL(CARDINAL ) of ORG Act DATE ( domstolloven ) provides that police officers are not eligible for jury service .

Section CARDINAL of the DATE Act on Juries of ORG and Lay Judges excludes police officers from serving on juries .

In GPE , the criteria for eligibility for jury service are set out in the Juries Act DATE . LAW contains a list of “ certain persons not to serve ” , which includes police officers .

NORP In DATE , ORG published a report on Juries in Criminal Trials . It made a series of recommendations regarding jury services , but did not address whether police officers should continue to be excluded . A prior discussion paper published in DATE , which highlighted aspects for consideration , did not suggest a possible reform of the police officer exclusion , although it did invite submissions on whether lawyers and barristers should continue to be excluded from jury service .

In each of the CARDINAL NORP states as well as in its CARDINAL major mainland territories police officers are ineligible for jury service .

In a report of DATE , GPE considered the developments in GPE and GPE and in GPE . As to ORG in particular , it noted the conclusion there that the exemption of police officers was not justified because of the large number of cases that did not implicate the special training or presumed biases of police officers , on which they could sit without any problem at all . The Commission continued :

“ This is not the case in GPE , where the vast majority of jury trials are of criminal matters . ”

It concluded :

“ CARDINAL It is our view that serving members of the core law enforcement agencies mentioned at the commencement of this section who are actually engaged in criminal investigation and law enforcement should continue to be ineligible . This follows from the fact that the vast majority of jury trials are criminal , and from the further fact that the primary job of these officers is the detection and charging of crime , so that it is likely that they would be aware of , or have access to , information concerning suspects that would not be available to private citizens and could not be adduced in evidence . In our view , it is important to maintain the community confidence in the impartiality and fairness of the jury system , which might be threatened if police or those centrally involved in criminal law enforcement were permitted to serve as jurors . ”

ORG of ORG reached a similar conclusion . In a discussion paper published in DATE , the ORG discussed the changes in GPE and GPE following ORG . It considered that there were good reasons for the exclusion of justice - related occupations , noting that the integrity of the jury system depended upon its independence from government and impartiality to inspire public confidence in the criminal justice system . It further observed that , while some GPE states had abolished occupation - based exclusions , these jurisdictions had also established rigorous jury vetting practices to ensure that juries were as impartial and independent as possible . Such practices existed neither in GPE nor in GPE . It continued :

“ The failure of the Auld review ( and the subsequent Criminal Justice White Paper ) to properly appreciate the importance of the rationales underlying justice - related occupational exclusions has left the jury system in GPE vulnerable to criticism that it is not properly independent or impartial ...

... It is the Commission ’s strongly held view that , even without the attendant practical difficulties , the underlying rationale of juror independence from the justice system and the status of the jury as an impartial lay tribunal preclude adoption of the NORP approach in this jurisdiction . The Commission notes that various LANGUAGE judges and commentators have expressed the view that the fair trial of the accused is potentially at risk where judicial officers , police officers and lawyers can sit on juries . More importantly , ORG has found that the potential of bias in some cases where police officers and prosecutors have served on juries is such that the jury ’s verdict must be considered unsafe and the conviction quashed . ” ( footnotes omitted )

Taking into account the experience in GPE , the Commission expressed the view that the current exclusion of police officers from jury service during the term of their employment and for DATE thereafter should remain in place . It found the following points to be persuasive :

“ • the integral role that police officers play in the detection and investigation of crime and prosecution of criminal charges ;

• the fact that police officers have ready access to information that may concern an accused or witness and that is not available to lay jurors and may not be adduced in evidence ;

• the potential for partiality of police - jurors toward the prosecution or the evidence of fellow officers , whether real or apparent ;

• the risk of unsafe verdicts should a police - juror know or be known to a witness or prosecutor or an accused in a trial ;

• the appearance to an accused that he or she would not receive a fair trial where a police - juror was empanelled ; and

• the need to preserve public confidence in the impartial administration of criminal justice . ” ( footnotes omitted )

In its final report of DATE , the ORG noted that , as to its proposal to maintain the ineligibility of police officers to service on juries , the vast majority of submissions it received in reply supported the proposal . Indeed , the only submission opposing it came from ORG the Attorney - General , on the basis that the removal of the exclusion would increase the size of the jury pool as well as its representative nature .

The Commission concluded :

“ Studies undertaken in this area suggest that a police culture of ‘ group loyalty’ does exist and that it is both widespread and influential ... As mentioned earlier , ORG has warned that the potential for a police - juror to accept at face value a fellow officer ’s evidence where that evidence is disputed may be enough to put in doubt the safety of a verdict to convict .

Taking into account the perception by the accused that he or she would not receive a fair trial if a police officer were empanelled on the jury , the potential for unsafe verdicts and the need to maintain public confidence in the jury system , the Commission considers that the risks of permitting a police officer to serve on a jury far outweigh any benefit that can be gained by a small increase to the jury pool ... ” ( footnotes omitted )

A discussion paper published by ORG in DATE also reviewed the developments which had occurred in other jurisdictions . As to the ineligibility of police officers to serve , the paper noted :

“ CARDINAL Where police officers have a connection with the case at hand , or are known to the witnesses , prosecutors , defendant or other participants in the trial , their presence on a jury would constitute a clear case of potential bias which ought to be avoided .

CARDINAL.CARDINAL Aside from specific instances like those , however , it may be thought that police officers would be no more susceptible to prejudices or biases than any other potential juror . Lord Justice Auld suggested as much in recommending that police officers be made liable to perform jury service in GPE and GPE :

CARDINAL A significant body of research has , however , demonstrated that ‘ police as a group are generally suspicious and primed to see deception in other people’ and ‘ tend to make prejudgments of guilt , with confidence , that are frequently in error’ . In GPE , police training has been found to enhance this ‘ guilt - presumptive PERSON : trained investigators ‘ were significantly less accurate , more confident , and more biased toward seeing deception’ . Thus , police officers may not merely be prone , like everyone else , to any number of a range of personal prejudices or biases but predisposed , by virtue of their profession , to assume guilt . This is not a criticism of police , but a reflection of the nature of their profession and training .

CARDINAL ... Regardless of whether an individual officer is directly connected with a particular case or a trial ’s participants , and whether or not he or she personally is biased towards the prosecution , it would seem to be inimical to include those identified with CARDINAL of the CARDINAL opposing sides of the adversarial contest in the pool of ordinary community members whose task is to judge DATE with impartiality and independence – the contest between those CARDINAL sides . ” ( footnotes omitted )

ORG provisional recommended that police officers should continue to be ineligible for jury service .

In CARDINAL of the CARDINAL provinces of GPE ( excluding GPE , where the right to a jury trial is an exceptional CARDINAL ) , legislation provides that police officers are excluded from jury service .

The Jury Selection and Service Act DATE is the federal legislation which governs juries in GPE . Section CARDINAL(CARDINAL ) sets out CARDINAL categories of persons who are not permitted to serve on juries on the ground that they are exempt from service , namely members in the active service of the armed forces , members of the fire or police department and public officers in the executive , legislative or judicial branch of federal , state or local government actively involved in the performance of official duties .

Paragraph CARDINAL(c)(CARDINAL ) provides that any person summoned for jury service may be excluded upon peremptory challenge , i.e. challenge without cause shown , as provided by law . Paragraph CARDINAL ) provides that a person may be challenged pursuant to the procedure specified by law upon a challenge for good cause shown .

In the state of GPE , a report to the Chief Judge , ORG , was published on DATE ( “ GPE Project ” ) . The report proposed that all automatic exemptions and excusals from jury service be eliminated . It noted that GPE had the most extensive list of occupational and related exemptions in GPE , and that CARDINAL of the states outside GPE had either reduced or completely abolished occupational jury exemptions . As regards the exemption of police officers , the report explained :

“ Other occupational exemptions ( notably those for doctors and law enforcement officers ) are often justified on the ground that these individuals would not be appropriate jurors in particular cases ( physicians in malpractice and some tort cases ; police officers in criminal cases ) . Putting aside the dubiousness of this proposition , there are obviously a large number of cases that do not implicate the special training or presumed biases of doctors and police officers , on which they could sit without any problem at all . ” ( footnotes omitted )

The New York Judiciary Law now contains no automatic exemption for police officers . However , the possibility for the defence to make a number of peremptory challenges remains , pursuant to LAW .

Section CARDINAL of the Jury Ordinance exempts from service as jurors members of ORG .

A DATE report by ORG of GPE reviewed the applicable criteria for service as jurors . It considered the position in other common law jurisdictions and examined ORG and the subsequent legislative amendment in GPE and GPE to allow police officers to serve on juries . The report noted :

“ CARDINAL Members of ORG ... are generally perceived as part of the prosecution process ... We took the view in our consultation paper that these persons should be excluded from jury service to avoid a perception of bias ...

CARDINAL We received strong support for this recommendation and maintain our view that members of ORG ... should be exempt from jury service . ”

ORG accordingly recommended that members of the police force should continue to be exempt from service as jurors .


The applicant , Mr PERSON , is a NORP national , who was born in DATE and lives in Xanthi . The Government are represented by Mr M. PERSON , Senior Adviser at ORG , and Mr NORP GPE , Legal Assistant at ORG .

The facts of the case , as submitted by the parties , may be summarised as follows .

The applicant , who considers himself a member of the NORP minority of Thrace , is a graduate of ORG . He used to work as a teacher in the minority schools of CARDINAL . His conditions of employment were no different from those of other civil servants .

On DATE ORG GPE called all the NORP teachers of the minority schools of GPE to attend an educational meeting on DATE . The aim of the meeting was to present new books for the teaching of the NORP language , which were to be delivered to the directors of the schools between QUANTITY and CARDINAL DATE . A similar order was issued on DATE by ORG .

On DATE the Co - ordination ORG of the NORP Minority of Western Thrace issued a statement to the effect that the content of these books “ was in breach of the autonomy of the NORP Minority of Western Thrace ” and failed to respect certain international agreements . The NORP teachers were called upon not to collect these books and the NORP pupils not to attend school DATE , in order to voice the protest of the NORP Minority of Western Thrace .

On DATE ORG issued a statement to the effect that the NORP schools of LOC would be closed DATE , because the NORP teachers of LOC were against the NORP language books which ORG intended to distribute to the pupils of the minority schools . The statement also said that all the NORP teachers of LOC would participate in the strike . Reference was made to the members of ORG who were graduates of ORG . The statement specified that all those who felt they were NORP and who wanted to learn or teach the NORP language would take part in the boycott .

On an unspecified date , a NORP religious leader , the mufti of Xanthi , called on the NORP teachers who felt they were NORP not to go to the presentation of the books on DATE .

On DATE CARDINAL teachers of the minority schools of Xanthi , including the applicant , signed a statement to the effect that they would not attend the educational meeting in ORG in order to protest about certain unfair decisions against them concerning their posting , transfer and secondment and their exclusion from training seminars in GPE and GPE . They specified that they would not carry out their duties DATE .

On DATE ORG of ORG of the NORP Minority of Western Thrace issued a statement congratulating the pupils and teachers who took part in the mobilisation which showed the length to which the minority was prepared to go in order to vindicate its rights .

On DATE ORG decided to institute disciplinary proceedings under LAW against CARDINAL minority school teachers , including the applicant , for having failed to attend the educational meeting of DATE .

On DATE ORG ordered an inquiry and decided provisionally to suspend the applicant from his duties for DATE pending the outcome of the disciplinary proceedings against him .

On DATE ORG confirmed the decision of ORG regarding the provisional suspension of the applicant from his duties .

On DATE ORG issued a decision in which it considered the following :

– Firstly , the applicant had been asked by his superiors to attend the educational meeting of DATE but had failed to do so , arguing that attendance at the meeting would have disrupted his relationship with his pupils and their parents and put his personal integrity in danger . However , ORG considered that this excuse was not valid , because the meeting would have taken place in the city of Xanthi far from the applicant ’s school area . Moreover , the applicant took part in the strike between CARDINAL and CARDINAL DATE complying with the order and appeal of the irregular ORG of the NORP Minority of Western Thrace and the appeal of the illegally self - proclaimed mufti of Xanthi calling on the NORP teachers who felt they were NORP not to attend the meeting of QUANTITY DATE . He had accused ORG persecuting him . His illegal acts had contributed to creating tension and commotion in the minority community . The applicant had allied himself with certain subversive elements in the minority community who falsely contended that there was no equality before the law in LOC . Thus , he had become an agent of foreign anti - NORP powers . These facts constituted the following disciplinary offences : not having faith in and dedication to his country ( Article CARDINAL § CARDINAL–CARDINAL of ORG ) , refusing to discharge his duties or employing obstructive tactics ( Article CARDINAL § CARDINAL–CARDINAL of the Code ) , taking part in a strike in breach of LAW and the relevant legislation ( LAW CARDINAL of the Code ) and intentionally engaging in an act or omission which could damage or endanger the interests of the ORG ( Article CARDINAL § CARDINAL–CARDINAL of the Code ) .

– Secondly , the applicant had publicly criticised ORG on the ground that the new books were distributed in breach of international agreements concluded by GPE . As a result , he had committed the disciplinary offence of criticising the actions of his superiors in public using phraseology which showed a lack of respect or intentionally using unfounded arguments ( LAW of the above - mentioned Code ) .

– Thirdly , the applicant had become an organ of irregular committees acting against the interests of the nation . His actions had stirred up trouble in the minority community and had led to the involvement of NORP newspapers , to tension between the CARDINAL countries and to criminal proceedings being instituted against parents who had disrupted the functioning of the schools . As a result , the applicant had committed the disciplinary offence of failing to respect a duty imposed by criminal law ( LAW ) .

ORG was fully satisfied that the applicant “ acting in full conscience and with intent and malice , behaving in a manner incompatible with [ his ] status as a civil servant , acting against the nation and obeying the commands of anti - NORP power structures , aimed at destabilising the region where the situation was until then normal and creating social unrest ” . In the light of all the above , the ORG decided to dismiss the applicant .

On DATE ORG ordered the applicant ’s dismissal by virtue of LAW no . CARDINAL/CARDINAL . Under that decree , pertaining to the appointment and career of NORP teachers in the minority schools of NORP , the ORG is the competent authority to pronounce the termination of service of NORP teachers .

On DATE the applicant challenged the decision of ORG and the ORG ’s decision before ORG . He claimed that he did not lack faith in and dedication to his country , that he had not acted against social order , that he had the right to engage in objective and reasonable criticism of the actions of his superiors or the Government , that he had not refused to discharge his duties but had instead participated in a lawful strike , that he had not engaged in any acts which could have caused damage to the ORG or in any criminal offences , that he had been forced not to collect the books in person because his life had been threatened by other NORP , that the ORG had attributed wrong motives to his actions which were not anti - NORP and that his punishment was aimed at his destruction . He further submitted that the hearing before ORG had not been preceded by a proper inquiry , that he had been punished for offences which were not mentioned in the decision instituting proceedings against him and that ORG had not heard a number of witnesses he had proposed . Finally , the applicant argued that the decision of ORG was not duly reasoned in that it failed to specify how his actions amounted to the particular disciplinary offences which should be punished with the particular penalty .

On DATE ORG rejected the applicant ’s appeal against the decision of ORG of DATE . The court considered that the inquiry ordered on DATE satisfied the requirements of the law and that ORG had not failed to examine any witnesses proposed by the applicant . The court also considered that the applicant could not be punished for facts other than those which were mentioned in the decision of DATE by which the disciplinary proceedings had been instituted . The applicant could only be punished for having failed to attend the educational meeting of CARDINAL DATE . However , ORG and ORG remained free to examine these facts under different legal provisions from those mentioned in the decision instituting disciplinary proceedings . The court considered that the applicant ’s failure to attend the meeting of DATE in order to participate in a strike CARDINAL and DATE amounted to the disciplinary offence of serious disobedience under LAW of LAW . The court found that the punishment imposed was appropriate given the circumstances in which the offence had taken place . The court referred in this connection to the statement of DATE of the Co - ordination ORG of the NORP Minority of Western Thrace , the statement of QUANTITY DATE of ORG and the statement of the mufti of Xanthi which called on all the NORP teachers who considered themselves NORP not to attend the educational meeting of DATE . The court considered that the applicant had obviously associated his failure to comply with the order to attend the educational meeting with the above - mentioned statements of organisations which purported to represent the self - proclaimed NORP minority of LOC . Seen in the light of the above , the applicant ’s actions had had as a result the disruption of the functioning of the minority schools in LOC in which the ORG was particularly interested . They had also resulted in social unrest among the NORP minority of this sensitive region . This in turn could have resulted in dangerous , albeit unwarranted , disruption of the friendly relations between GPE and neighbouring countries and in the disruption of the harmonious coexistence between the NORP citizens , NORP and NORP , who lived in LOC .

Finally , the court considered that the decision of ORG was duly reasoned . All the elements of the disciplinary offence of serious disobedience were set out in the decision which specified that the applicant had not attended the meeting of DATE , although he had been asked to do so by his superiors . The decision also specified that the applicant had complied with the order and appeal of the irregular ORG of ORG of the NORP Minority of Western Thrace and the appeal of the illegally self - proclaimed mufti of Xanthi calling on the NORP teachers who felt they were NORP not to attend the meeting of QUANTITY DATE ( decision no . CARDINAL/CARDINAL ) .

On DATE the Prefect of Xanthi revoked his decision of CARDINAL DATE and , in compliance with decision no . CARDINAL/CARDINAL of ORG , ordered the applicant ’s dismissal as from DATE .

On DATE ORG struck out the proceedings instituted against the ORG ’s decision of CARDINAL DATE , on the ground that the decision complained of had already been revoked by the ORG ( decision no . CARDINAL/CARDINAL ) .

On DATE the ORG ordered for the third time the applicant ’s dismissal .

On DATE the applicant appealed against the ORG ’s decision of DATE to ORG of PERSON . He claimed that all other civil servants were dismissed by ministerial decision and complained that his dismissal by decision of a Prefect was contrary to religious freedom . He further complained that he was not previously heard by the Prefect . The applicant further invoked Articles CARDINAL and CARDINAL of the Convention and CARDINAL of Protocol No . CARDINAL .

On DATE ORG rejected the appeal ( decision no . CARDINAL ) . The court held that , by definition , the ORG has a better knowledge of the local situation than the Minister ; therefore , it could not be sustained that the delegation to the ORG to pronounce the termination of service of NORP teachers violated religious freedom . Moreover , the court held that the ORG ’s decision was aimed at complying with the relevant decisions of ORG ; therefore , the prior hearing of the applicant was not required . The applicant did not appeal against this decision to ORG .

The applicant claims that he has instituted civil and administrative proceedings in order to recover several sums ( arrears of salaries , compensation for his dismissal , etc . ) . The applicant alleges that a set of proceedings instituted on DATE before ORG of Rodopi is still pending . He further alleges that on DATE ORG notified to him a decision of ORG that his pecuniary claims were statute - barred .

On DATE the applicant instituted proceedings also before ORG of PERSON . On DATE the court awarded the applicant ORG CARDINAL,CARDINAL for pecuniary damage ( decision no . DATE ) . The applicant did not appeal against this decision within DATE time - limit provided for by LAW .