CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 20 décembre 2011

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margin-bottom:12pt; text-indent:-17pt; text-align:justify } .s48DB3670 { margin-top:12pt; margin-bottom:36pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .sF8DCB537 { width:16.53pt; display:inline-block } .s30B52FCF { width:208.1pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block }       FOURTH SECTION             CASE OF HANIF AND KHAN v. THE UNITED KINGDOM   (Applications nos. 52999/08 and 61779/08)             JUDGMENT     STRASBOURG   20 December 2011     FINAL   20/03/2012   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision . In the case of Hanif and Khan v. the United Kingdom , The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:   Lech Garlicki, President,   David Thór Björgvinsson,   Nicolas Bratza,   Päivi Hirvelä,   George Nicolaou,   Nebojša Vučinić,   Vincent A. De Gaetano, judges, and Lawrence Early, Section Registrar, Having deliberated in private on 29 November 2011, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in two applications (nos. 52999/08 and 61779/08) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two British nationals, Mr Ilyas Hanif (“the first applicant”) and Mr Bakish Allah Khan (“the second applicant”), on 13 October 2008 and 15 December 2008 respectively. 2.     The first applicant was represented by Howells, a firm of solicitors based in Sheffield. The second applicant was represented by Favell Smith and Lawson, a firm of solicitors also based in Sheffield. The United Kingdom Government (“the Government”) were represented by their Agent, Ms H.   Upton, Foreign and Commonwealth Office. 3.     The applicants alleged that they did not receive a fair trial by an independent and impartial tribunal as a result of the presence of a police officer on the jury which tried their case. 4.     On 15 September 2009 the President of the Chamber decided to give notice of the applications to the Government. It was also decided to rule on the admissibility and merits of the applications at the same time (Article 29 § 1). 5.     The first applicant requested an oral hearing but the Chamber decided not to hold a hearing in the case. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 6.     The first applicant was born in 1967 and at the time of the lodging of his application was detained in HM Prison Moorlands. He was expected to be released on 1 September 2010. The second applicant was born in 1978 and is currently detained in HM Prison Dovegate. 7.     The first applicant is a taxi driver. On 31 August 2006, he drove from Sheffield to Luton. On his way back to Sheffield from Luton, 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. Six kilograms of heroin were found in the boot of his car. The case against him was that he had collected the consignment of drugs in Luton and was transporting it back to Sheffield when he was arrested. 8.     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 Paul with him on the journey from Sheffield to Luton at the request of Mr   Younas, one of the alleged members of the conspiracy to supply unlawful drugs. Paul 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 Rasul, had been made by Paul. Calls to Mr Younas and a third member of the alleged conspiracy, Mr N. Khan, were made by the first applicant: calls to Mr Younas were to check directions and calls to Mr N. Khan related to a dispute about an unpaid taxi fare. Paul had left the car shortly after arrival in Luton. The first applicant argued that he must have left the drugs in the car when he left the vehicle. 9.     In August 2006, 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 Luton to Sheffield. The prosecution relied on telephone analysis to establish a link between the second applicant and the other alleged conspirators. Cash amounting to GBP 18,955 was found in the second applicant’s cellar. The money had been in contact with heroin. 10.     The second applicant’s defence was that he was a cousin of Mr N.   Khan and a friend of Mr Younas and was therefore in close contact with them. However, he had not taken part in the conspiracy. His telephone contacts with them on the relevant days 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 2003. 11.     The applicants were subsequently tried together on charges of conspiracy to supply heroin. The trial commenced on 3 January 2007 and the jury was sworn. On the following day the court heard evidence from the police officers who had followed the first applicant from Sheffield to Luton and back, one of whom was M.B. The police officers testified that the first applicant did not have a passenger with him at any point during that journey and that no-one had alighted from the vehicle in Luton. 12.     During the evidence of M.B., the first of the police officers to testify, one of the jurors, A.T., sent a note to the judge indicating that he, A.T., was a serving police officer and that he knew M.B., although he had not worked with him for two years. The judge read the note to counsel and agreed with them a series of questions to be put to A.T. The judge then questioned A.T. in the absence of the other jurors but in the presence of the applicants. A.T. confirmed that he was a police dog handler near Doncaster, some distance from Sheffield. He said that he had known M.B. for approximately ten years and that on three 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 M.B. which would affect his ability to judge M.B.’s evidence impartially or his ability to judge the case in accordance with the oath he had sworn. He replied that he did not. 13.     The defence made an application to the judge to discharge A.T. 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 A.T. knew of the second applicant’s previous conviction for dealing in heroin. On 4 January 2007, 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, one 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.” 14.     The application to discharge A.T. was rejected. A.T. subsequently became the jury foreman. 15.     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. 16.     The first applicant, in his defence, called a witness who testified that she had seen him leave Sheffield at the start of his journey with a passenger in the car. 17.     On 12 January 2007, the applicants were convicted of conspiracy to supply heroin. The first applicant was sentenced to eight years’ imprisonment. The second applicant was sentenced to 17 years’ imprisonment. This was to take place consecutively to a period of two years and five months’ imprisonment, the period outstanding under a previous conviction for supplying heroin in respect of which he had been released on licence. 18.     After the trial, the applicants’ counsel realised that A.T. 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. 19.     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 29   January 2008. 20.     Handing down its judgment on 14 March 2008, the Court of Appeal noted: “10. 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 two 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.” 21.     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 38-42 below). However, it observed that the change had simply removed the automatic disqualification of such persons: disqualification was still possible on a case-by-case basis where the particular circumstances of the case were such as to suggest apparent bias. 22.     After considering the judgment of the House of Lords in Abdroikof and Others (see paragraphs 43-54 below) which concerned the compatibility of police officer jurors with Article 6 of the Convention, 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.” 23.     As to the applicants’ 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 the Serious Organised Crime Agency without the involvement of local police forces. The prosecution was conducted by the Organised Crime Division of the Crown Prosecution Central Casework Directorate without contact with the local Crown Prosecution Service branch. 24.     The court set out the starting point for consideration of the applicants’ appeals as follows: “If one 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.” 25.     As regards the first applicant, the court noted that three police officers, one of whom was M.B., gave evidence of keeping him under observation at different stages of his journey from Sheffield to Luton and that each of the officers said that he saw no passenger in the car. The court further noted that the challenge to the officers’ 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 officers’ 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 Sheffield, 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: “54. Hanif’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, Younas 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. 55. Quite apart from these matters, Hanif’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. 56. In the light of these facts we turn to consider the two questions set out at paragraph 10 above. The material evidence of the three police witnesses was that they had seen no passenger in Hanif’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 [M.B.] who was known to him. Thus the question is answered in the negative and the second question does not arise.” 26.     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 M.B. and dismissed the first applicant’s appeal against conviction. 27.     The court also rejected the second applicant’s contention that, because of A.T.’s involvement in drugs operations, he might have become aware of the second applicant’s previous conviction for dealing in heroin, noting: “49. ... 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, Bakish Alla Khan’s previous conviction was placed before the jury.” 28.     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. The Court of Appeal 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. 29.     The Court of Appeal 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 one 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 Majesty’s Court Service to consider the implications of this judgment and to issue such directions as they consider appropriate.” 30.     The second applicant’s appeal against sentence was successful and the sentence of 17 years was reduced to 15 years. 31.     The applicants were refused leave to appeal to the House of Lords on 17 June 2008. II.     RELEVANT DOMESTIC LAW AND PRACTICE A.     Jury selection 32.     Pursuant to section 1 of the Juries Act 1974 as amended (“the 1974 Act”), all persons aged eighteen to seventy who are registered as parliamentary or local electors and have been ordinarily resident in the United Kingdom for a period of at least five years since the age of thirteen are eligible for jury service and are therefore under a duty to attend court if summoned. 33.     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. 34.     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. B.     Eligibility of police officers to serve on juries 1.     The historic position 35.     Pursuant to the Juries Act 1870 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. 36.     A review of jury service was undertaken by a departmental committee chaired by Lord Morris of Borth-y-Gest (“the Morris Committee”), which reported in 1965. The Morris Committee considered that those professionally concerned in the administration of the law and the police should continue to be ineligible for jury service. The Morris Committee noted: “103.   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 cannot entirely prevent by legislation the use of such knowledge in the jury room. 104.     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 jurors’. 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 leaders’” 37.     As to civilian employees of the police, the Morris Committee said: “110.   ... we think there is much force in the contention of the Association of Chief Police Officers 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.” 38.     The Juries Act 1974 implemented a number of the Morris Committee’s recommendations and included a provision rendering police officers and other involved in the administration of justice ineligible to serve on juries. 2.     The Auld Review and subsequent legislative amendment 39.     In September 2001 the issue of jurors’ eligibility was reviewed by Lord Justice Auld in the context of his “Review of the Criminal Courts of England and Wales” (“the Auld Review”). 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 one 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 6 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.” 40.     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 Judiciary, ... 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 courts’ discretionary power of excusal.” 41.     He further considered developments in the state of New York, where the automatic ineligibility of occupational groups to serve had been removed (see paragraphs 121-122 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. 42.     Following this recommendation, section 321 and schedule 33 to the Criminal Justice Act 2003 (“the 2003 Act”) amended the 1974 Act to remove the automatic disqualification of those involved in the administration of justice from jury duty (see paragraphs 32-33 above). 3.     Abdroikof and Others in the House of Lords 43.     The compatibility of the change in the law introduced by the 2003 Act with Article 6 of the Convention was considered prior to the applicants’ appeal hearing by the House of Lords in R v. Abdroikof and Others [2007] UKHL 37, which concerned three appeals against conviction. The first two involved trials in which serving police officers had sat as jurors; the third concerned a trial where an employee of the Crown Prosecution Service was a juror and is therefore not of direct relevance to the present case. 44.     Lord Bingham of Cornhill confirmed that the test of bias under the common law was no different from the requirement under Article 6 of the Convention for an independent and impartial tribunal. He further observed: “23. 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 ...” 45.     In relation to the first appeal, he found as follows: “25. 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 the Court of Appeal reached the right conclusion in this case, and I would dismiss the appeal.” 46.     As regards the second appeal, however, Lord Bingham considered: “26. 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 cannot be supposed that Parliament intended to infringe the rule in the Sussex Justices 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.” 47.     Lord Rodger of Earlsferry 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: “32. ... [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 Asian defendant. We take the risk that, consciously or subconsciously, a juror who was convicted of drug dealing and was sentenced to four years in prison in the early 1990s may sympathise with a defendant accused of supplying drugs. Having reflected on these and similar situations, the observer will realise that, in effect, Parliament has now added two 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 Parliament must have considered that in these two situations, like so many others, the risk is manageable within the system of jury trial as we know it.” 48.     He continued: “33. 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 12 men and women on a jury. The assumption is that, among them, the twelve will be able to neutralise any bias on the part of one 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.” 49.     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 one of the witnesses, was having an affair with a witness or had worked alongside one of the witnesses. In such a case he agreed that the person should be discharged from sitting on the jury. 50.     As to the first appeal, Baroness Hale concluded: “54. The Abdroikof case was tried at the Old Bailey, which hears cases from all over London 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 the Metropolitan Police. It would be possible, perhaps, to conclude that Parliament 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 CPS 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 Bingham of Cornhill, that there is not sufficient to raise the appearance of bias in this case. Hence this appeal should be dismissed ...” 51.     She identified further considerations arising in the second appeal which required the conviction to be quashed, noting as follows: “53. In the Green case there are two factors which make the connection between the police and prosecution too close for comfort. One 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 the Crown Court where the case was tried. Officers in his station will have had regular dealings with the CPS conducting prosecutions in the same court.” 52.     Lord Carswell noted at the outset that the changes relating to jury service enacted in the 2003 Act reflected the changes in the sophistication of jurors and in the willingness of Parliament to trust in their impartiality and ability to recognise and put aside their prejudices. He continued: “67.   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 one 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 ... 68.     I accordingly consider that the fair-minded and informed observer would not necessarily conclude that the mere presence on a jury of a police officer or CPS staff member would create such a possibility of bias as to deny the defendant a fair trial. Such an observer would in my view wish to know more about the circumstances of the case, the issues to be decided, the background of the juror in question and the closeness of any connection which he or she might have to the case to be tried. I think that it is for this reason that the Metropolitan Police has instructed its officers that, where possible, they should not serve as jurors in a court where their Operational Command Unit carries out its work ...” 53.     Lord Carswell agreed with Lord Rodger that both appeals should be dismissed. 54.     Lord Mance agreed with Lord Bingham and Baroness Hale and concluded: “83. With regard to the case of the second appellant, as Lord Bingham and Baroness Hale 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 officer’ of, the policeman on the jury. Further, the juror was posted to a station which committed its cases to the Crown Court of trial – a factor which Metropolitan Police Notice 20-2004 Item 1 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.” 4.     Guidance regarding police officers and jury service 55.     The Metropolitan Police, by Notice 20-2004 Item 1, 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 their Operational Command Unit commits its work”. 56.     In 2009, after the applicants’ appeal had been dismissed, Her Majesty’s Court Service issued Guidance for summoning officers when considering deferral and excusal applications . The guidance notes, inter alia : “18. 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: (1) employees of the prosecuting authority; (2) 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. (3) 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 (1), (2) or (3) 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 the Crown Prosecution Service should not serve on a trial prosecuted by the CPS. However, they can serve on a trial prosecuted by another prosecuting authority, such as the Revenue and Customs Prosecution Office. Similarly, a serving police officer can serve where there is no particular link between the court and the station where the police juror serves.” 5.     Other recent judicial consideration of the amended 1974 Act a.     R v. Ingleton [2007] EWCA Crim 2999 57.     Following the judgment in Abdroikof and Others , but prior to the Court of Appeal judgment in the applicants’ case, the Court of Appeal handed down judgment in the case of R v. Ingleton . 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 four who had given evidence. 58.     The