Law report: Direction sufficient to deal with jury bias

LAW REPORT: 5 March 1997
Gregory v United Kingdom; European Court of Human Rights; 25 February 1997

The decision of a judge, faced with an allegation of racial bias in a jury trying a black defendant, to give the jury a forceful redirection instructing them to put all thoughts of prejudice out of their minds and to consider the case on the evidence alone, was sufficient to ensure the jury's impartiality and to dispel any doubts as to the fairness of the defendant's trial.

The European Court of Human Rights ruled by a majority of eight to one that there had been no infringement of the right to "a fair . . . hearing . . . by an independent and impartial tribunal established by law" under article 6.1 of the European Convention on Human Rights in the case of David Gregory.

The applicant, who was black, was tried for robbery before a jury at Manchester Crown Court in November 1991. The jury retired at 10.46am on 28 November to consider their verdict but returned at 12.28 and handed to the trial judge a note stating: "Jury showing racial overtones. One member to be excused."

In the jury's absence, the judge consulted counsel for the prosecution and defence about a suitable response to the note. Defence counsel recollected asking the judge to discharge the jury, but in the judge's recollection both counsel agreed to his proposal to issue a redirection. The jury were recalled and the judge instructed them to put out of their minds any thoughts of prejudice and to consider the case on the evidence alone.

After a further direction in which the judge told the jury that he could accept a majority verdict, the defendant was found guilty by a 10-2 majority. The applicant was sentenced to six years' imprisonment. His applications for leave to appeal against conviction were refused.

The European Court of Human Rights stressed that the impartiality of a tribunal including a jury had to be determined on the basis of both a subjective and an objective test.

Since there was no proof of actual or subjective bias on the part of one or more jurors, and evidence of such could not be adduced by questioning them about the allegations in the note because of the rule in English law governing the secrecy of jury deliberations, the appropriate starting point was to examine whether the trial judge had done all that could be required of him under article 6.1 to dispel any objectively justified doubts about the jury's impartiality.

The court had particular regard to the steps taken by the judge on receipt of the jury's note. He had not dismissed the allegation outright but had sought the views of prosecution and defence counsel on a suitable reaction to it. He had concluded that, of the options available to him at that stage of the trial, the matter could best be dealt with by reconvening the jury and issuing a firm redirection in open court.

As an experienced judge, having observed the jury throughout the trial, he had no doubt been aware of the possibility of discharging them or asking them in open court whether they were capable of continuing and returning a verdict on the evidence alone. Defence counsel had not in fact pressed for either of these courses, and it could thus be reasonably inferred that he had not considered that either had been warranted in the circumstances.

At most, defence counsel would appear to have asked the judge to investigate the circumstances which had motivated the writing of the note. However, any such investigation would have been impossible because of the rule on secrecy of jury deliberations.

The redirection itself had been forceful, detailed and carefully worded, with particular emphasis on the jury members' sworn duty to try the case on the evidence alone, to the exclusion of any thoughts of prejudice of any kind. The tenor of the redirection, coupled with the fact that no further allegations of racial bias were made, led the court to conclude that the trial judge had taken sufficient steps to any objective doubts about the jury's impartiality.

While the guarantee of a fair trial might in certain circumstances require a judge to discharge a jury, in the present case a carefully worded redirection was sufficient.

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