GRAHAM’S CCRC APPLICATION (February 2012)

2. The basis of the application is that a juror, Mr [JS ], an intelligence officer who at the time of the trial revealed that he had some contact with the investigating police force in this case, namely Sussex Constabulary, but ostensibly nothing in relation to this case, should have been excluded from the jury on the basis of bias or the possibility of bias and the failure to exclude this juror resulted in Mr Coutts being denied a fair trial. The CCRC should note that the level and extent of the contact Mr [S] had with the investigating force in this case has never been disclosed to Mr Coutts. It is submitted on behalf of Mr Coutts that as a result of bias or the appearance of bias the conviction in this matter is unsafe. The CCRC should refer the matter to the Court of Appeal as there is a real possibility that the conviction will not be upheld were the reference made.

3. Notwithstanding whether the CCRC accepts that bias and the appearance of bias is established, Mr Coutts is so concerned about the inclusion of [JS] on the jury that he does ask the CCRC to use its powers of investigation and make enquiries in relation to this officer and his admitted links with Sussex Constabulary. In this context:

(1) if we have been unable to satisfy the Commission on the facts set out below that there is bias or the appearance of bias, any such enquiries may reveal new facts which establish bias or potential bias and

(2) the result of any such enquiries may enable the CCRC to refer the conviction on additional grounds. In the absence of an investigation by the CCRC such grounds cannot be identified by Mr Coutts.

Conditions for referring a case

4. The relevant conditions upon which the CCRC can refer a conviction back to the Court of Appeal are set out at section 13 of the Criminal Act 1995 and it is submitted that they are met in this case. Section 13 states:

(1) A reference of a conviction, verdict [ … ] shall not be made under any of [section 9 to 128 ] unless—

(a) the Commission consider that there is a real possibility that the conviction, verdict [ … ] would not be upheld were the reference to be made.

(b) the Commission so consider—

(1) in the case of a conviction, verdict [ … ] because of an argument, or evidence, not raised in the proceedings which led to it or on any appeal or application for leave to appeal against it [ … ]

( c) an appeal against the conviction, verdict [ … ] has been determined or leave to appeal against it has been refused.

(2) Nothing in subsection ( 1) ( b ) ( i ) or ( c ) shall the making of a reference if it appears to the Commission that there are exceptional circumstances which justify making it.

“Conclusions:

95 …His presence on the jury satisfies the objective test for bias, namely, that in the circumstances of this case a fair minded and informed observer would consider that there was a real possibility that the tribunal was biased/at risk of bias.  In our view, his presence on the jury prevented Mr Coutts from having a fair trial in accordance with the Human Rights Act 1998 and Article 6 of the European Convention of Human Rights and his conviction is unsafe……”

As a fair minded an informed observer, do you consider that there was a real possibility that the tribunal was biased or, at the very least, at risk of bias?  We would welcome your thoughts on this issue.  Please leave a comment below.

More detail and information will be added to this page over the next few months, included further extracts from Graham’s 1st CCRC application and relevant legislation and authorities

6. [ JS ] The act also provides the CCRC with the relevant powers to investigate in
accordance with Mr Coutts request.

Case History

7. On 4th July 2007, at the Central Criminal Court after a trial before a judge, His Honour
Judge Hone QC, and Jury, Mr Coutts was convicted by a majority of 11 – 1 [ … ]. The
Jury deliberated for 13 hours and 1 minute over a period of 3 days. On 5th of July, he was
sentenced to life imprisonment. The minimum term before Mr Coutts can be considered
for release was set by the Judge at 26 years less the time spent on remand [ … ]

Previous Proceedings

9. [ … ] in 2006, the House of Lords allowed Mr Coutts’ appeal and a re-trial was ordered
[ … ] The House of Lords held that the Judge at the first trial should have left
manslaughter to the jury and that his failure to do so made the conviction unsafe.

Grounds upon which the conviction should be referred to the Court of Appeal

70. In our submission, a juror, [ JS ], an intelligence officer, I .e, .a police intelligence
Officer, who informed the trial Judge that he had some contact with Sussex Police
but nothing in relation to this case ought to have been excused from sitting as a juror.
It is our submission, on the basis that allowed to sit, notwithstanding his assertion that his
previous contact had nothing to do with this case, the fair-minded and informed observer
having considered the facts of this particular case would consider that the tribunal was
biased and thus the trial was unfair. We submit that the conviction is, a result, unsafe and
thus there is a real possibility the conviction will be set aside if it is referred to the Court
of Appeal by the CCRC.

Bias and the appearance of bias

71. Section 321 and Schedule 33 of the Criminal Justice Act 2003 broadened the categories
of those eligible to serve on juries which, as a result, includes amongst other groups:
members of the judiciary and those concerned with the administration of justice
including barristers, solicitors and police officers. Judicial discretion as to the eligibility
of jurors to serve is still preserved if, in the circumstances of the individual case, by
their presence on a jury there is a real risk of an unfair trial or the perception of an
unfair trial.

72. The leading case on jury bias since the changes in the law is R v Abdroikof,
R v Green and R v Williamson [ 2007 ] UKHL 37. This case was considered
By the House of Lords on 17th October 2007 after the conclusion of Mr Coutts
trial. However, the case had been considered by the Court of Appeal before his
trial. The test in relation to jury bias applied by the Court of Appeal in Abdroikof
was retained and applied by he House of Lords, although the application of the test
did result in different outcomes for two appellants when applied by the majority in the
Supreme Court. After Abdroikof , the law was reviewed by the Supreme Court in
Khan. A further review took place in Yemoah. And matters were further reviewed in
Tragelles [ 2009 ] EWCA Crim 1638.

73. It is widely accepted that the exact principles are difficult to draw out from the differing
judgements in Abdroikof ( all Law Lords took the view that there was no bias in
Abdroikof’s case, three took the view that Green’s case should be quashed and three
took the view that Williamson’s conviction should be quashed ). However, it is evident
that police officers by their profession alone can be excluded from jury service, but that
their profession alone does not make them ineligible. Each case would appear to turn on
its own unique facts when applying the test. It is clear from the case referred to that the
Relevant test of whether a jury is independent and impartial is an objective one, namely
whether the fair- minded and informed observer, having considered the facts, would
consider that there was a real possibility that the tribunal was biased.

74. In the case of Abdroikof, the presence of the police officer on the jury was only
revealed by a note from the jury which referred to the fact of the presence of the police
officer. The note was handed to the Judge during the jury’s retirement. It was
unanimously held by the House of Lords that in this particular case there was no bias.
In the case of Green , the presence of a police officer on the jury was discovered
inadvertently by a solicitor acting for the defendant after the trial was over. The House
of Lords by majority held there was bias and the conviction was quashed. In the case of
Williamson , a juror, a CPS solicitor, when called for jury service sent a letter to the
Court clearly setting out his position. The letter was drawn to the attention of counsel
appearing on behalf of Williamson . Counsel objected to the presence of that juror on the
jury for cause [ sic ] because he was an employee of an agency which was bringing the
prosecution . The trial Judge ruled against the objection. The House of Lords held again
by majority that there was bias or apparent bias and the conviction was quashed.

75. The Supreme Court in Khan considered Abdroikof and said that they had not found it
easy to deduce on the part of the majority of the committee clear principles that apply
where a juror is a police officer. One principle was clear, however, namely that the fact
that if a juror is a police officer this will not, of itself, disqualify the juror on the ground
of want of impartiality. After considering Abdroikof, the Court in Khan reiterated its
conclusions in these terms ( at paragraph 29 ):

“ Our conclusion is, as already expressed, that the fact that a police juror may seem
likely to favour the evidence of a fellow police officer ill 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.

,76. In Khan at paragraphs 9 – 11, the Court drew a distinction between partiality
towards the case of one of the parties and partiality towards a witness, stating that a
conviction will not necessarily be quashed because a juror is shown to have had reason
to favour a particular witness; this will happen only if it has rendered the trial unfair or
given appearance of unfairness . To decide that, 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? and ( ii )
would the fair minded observer consider that this may have affected the outcome of the
trial? On the particular facts, the presence of a police officer on the jury was not found
to give rise to an appearance of bias or to render the convictions unsafe in any of the
cases under consideration. In Khan a police officer was sitting on the jury and sent a
note to he Judge on the second day of trial stating that he knew the police witness but
that there was nothing he new about the witness that would affect his ability to judge
his evidence impartially. The same wa true in Yemoah, , although in that case the
specific reasoning was that there was a conflict of evidence between police officer
witnesses and and there was no logical basis why a juror should prefer the evidence
of one witness over the other merely because the juror was a policeman.

77. In Tregallen all three of the above cases were considered further. In this case, a police
officer had made her profession known to the jury summoning officer before the trial
but this information did not become known to the trial Judge or the participants in it.
She sat as a juror and acted as foreman. The appellant relied on this fact arguing that
the conviction was unsafe as a result of bias. The appellant referred also to the majority
verdict. The Supreme Court took the view that bias was not made out but observed had
the Judge known out of an abundance of caution it is likely the Judge would not have
allowed the officer to stand.

78. Recently. the European Court of Human Rights ( ECtHR ) has reviewed jury bias
in the cases of Hanif and Khan v the United Kingdom ( application nos. 52999/08 and
61779/08 ). The judgement in this case is not final but the Court has held in these two
cases in which police officers were present on the jury that there had been a violation of
Article 6 ( 1 ) – right to a fair trial. In the context of Mr Coutts’ application, the
significance of this case cannot be underestimated. However, the ECtHR, in
reaching this decision, referred to the fundamental importance in a democratic society
that courts must inspire confidence in the public and the accused and emphasised the
the need to ensure that juries are free from bias and the appearance of bias. The Court
reviewed he changes in the law under the Criminal Justice Act 2003. The Court noted
that of the jurisdiction it surveyed only two permitted police officers to serve on juries
and in both it was possible to challenge the inclusion of jurors without providing
specific reasons for the challenge. The Court noted that a recent public consultations in
a number of jurisdictions had shown support for the continued exclusion of police officer
from jury service. Although there was no declaration of incompatibility ( the court was
not asked to consider this ), the ECtHR in this case considered that the relevant
provisions of the Criminal Justice Act 2003 required particularly careful scrutiny.
.
The empanelling of the jury in R v Coutts

79. The trial team was deeply concerned that Mr Coutts may not have a fair trial. It would appear that there was some sympathy for this position both from the Crown and the trial Judge. The defence team submitted an application to the trial Judge in relation to the jury selection procedure [ … ]. Owing to the history of the proceedings, the sensational nature of the case and the extent of the media and internet publicity [ … ] and the Contempt of Court Order in place at the time of the trial [… ] the Court was invited to consider the eligibility and if necessary disqualification of potential jurors including those who have worked in certain occupations, namely those:

1 . who may have acquired special knowledge either of the individuals involved
in the case or as to the facts of the case apart from that provided by the
evidence, or
11 .who may have formed a view about the case as a result of adverse publicity,
or
111. whose presence on the jury may give rise to the real possibility of bias: Judges
and Lawyers and CPS employees and others involved in the administration
of justice; police officers in the Sussex Constabulary; prison officers;
journalists , pathologists; those involved in the mental health profession.

81. The Judge took the view that there would be a series of quite conventional questions which could properly be asked of a jury panel to ensure that anyone with special knowledge of individuals involved or particular facts of the case could be asked to declare that before they stepped forward to form part of the randomly selected 12 members of the jury. […] As regards the specific categories of individuals, he accepted that certain categories should be excluded including police officers in the Sussex Constabulary but not all those put forward by the defence team. Indeed in relation to police officers in the Sussex Constabulary the Crown did not make any objections in relation to the defence application.

82. Agreement was reached on the questions that Judge may consider to be asked of the jury panel . [ … ] The Judge told the jury:

“ What I propose to do next is say a few words about this particular case and …
six questions … will be read out by me … the purpose of that is the
overriding objective of a fair trial for both sides, but particularly bearing in
mind the defence interests. … There has been a great deal of publicity
surrounding the case. If any of you have through publicity acquired any
special knowledge of the facts of the case, please tell me as your name is
called and tell me what the extent of the knowledge that you have is. Also,
if for some other reason you feel unable to give impartial consideration of the
case, please also indicate to me when your name is called.
Question two. If any of you work, have worked or are or were connected with
the Sussex police force, please let me know if your name is called. Thirdly, if
any of you are or were prison officers, please indicate to me. Fourth question :
… If any of you is a pathologist or has special knowledge of this specialist area,
please let me know. Fifth, if any of you work in the mental [ sic ] in the field
of mental health please inform me if your name is called . Finally, Six if any of
you know the names or identity of the following witnesses … please indicate if
If your name is called ( prosecution witness names called out ).” [ … ]

83. According to the transcript, [ JS ] name was read out [ … ] and immediately
after this [ RK ] proceeded to inform the Judge that he worked with people with mental health problems. [ … ] After this exchange, [ JS ] came forward and there is an “ Inaudible conversation by the clerk and the Judge “ recorded on the transcript
[ … ] followed by this conversation.

“Judge Can I ask you to come forward please? What dealings have you had
with the Sussex Police?
A Inaudible conversation with the Judge..
Judge Have you had any professional contact in relation to this case?
A Inaudible.
Judge Mr Sallon [ defence QC], this gentleman is an intelligence officer
who had some contact with Sussex Police but nothing in relation to
this case. Again, should we put that in reserve? Mr Sallon, yes your
Lordship.
Judge Would you be kind enough to take a reserve seat just for the moment.
Thank you very much for telling us.”

84. The case was then adjourned overnight.

85. When the court reconvened, it would appear that no further submissions were made by the defence in relation to [ JS ].

86. [ … ] the transcripts show that Mr [ JS ] was called to sit on the jury. No submissions were apparently made in relation to this by the defence team according to the transcript.

80. The defence team asserted that it would be for the trial Judge in each case to satisfy himself with the potential juror in question that he or she was not likely to engender any reasonable suspicion of bias or potential bias so as to distinguish
him/her from the other members of the public who would normally be expected to have an interest in the upholding of the rule of law. Providing the Judge was so satisfied that no such juror would sit, the defence asserted that the overall fairness of the trial should not be at risk. The defence team argued that the Judge had discretion to ensure fairness and should exclude those who nonetheless may be eligible to serve but who should not serve but who should not serve for one reason or another from serving. This submission was accepted by the Judge.

89. In our view, the trial Judge ought to have ensured that there was nothing to jeopardise or potentially jeopardise Mr Coutts’ fair trial rights. In our view, even if out of an abundance of caution at the very least, [ JS ] ought to have been excused. This was certainly the observation of the Supreme Court in Tregalles, a case which was not high profile or reported to any great extent in the media. In addition, the rank of the officer in the Tregalles differed to that of [ JS ]. In Mr Coutts’ case the presence on the jury of an intelligence officer ( emphasis added ) whose status only became known upon enquiry and not as a result of any positive action taken on the officer’s behalf when called for jury service ( unlike the CPS solicitor in Green ) and who admitted to having links, albeit historic, to the investigating force in the case gives rise to bias or the possibility of bias. [ JS ] did not, according to the transcripts, give any assurances to the trial Judge in relation to his impartiality. Unlike the cases referred to above, Mr Coutts’ was not challenging the evidence of a particular officer or police officers and in this case [ JS ] did not have to consider the evidence of a brother officer over the evidence of Mr Coutts or a witness called on his behalf. However, the case of Hanif and Khan does reiterate the need for care when police officers are randomly selected for jury service. In addition to the actual concerns set out above, there were other aspects of the case, in particular the forensic evidence and the investigations of the case per se, which Mr [ JS ] may, as a police intelligence officer, have had specific or general knowledge about, certainly knowledge above and beyond that of the ordinary police officer juror, and therefore aspects of the evidence may have called into question his ability to be impartial. In this context it is noted that other professions were excused.

90. The Commission should also note that Mr Coutts also instructs us that [ JS ] attended the sentencing hearing in this case which took place the day after his conviction and thus after the jury had been discharged of its duties. In our view, [JS] attendance at the sentence hearing is unusual and gives further force to the assertion of bias/ potential bias. It is acknowledged that jurors do attend sentence hearings after trials in order to learn of the sentence imposed. However, [ JS ] must have known that Mr Coutts, having been convicted of murder, could only receive one possible sentence, namely imprisonment for life, and yet he still attended the hearing, according to the instructions of Mr Coutts.

92. For the reasons set out above we would submit that [JS ] presence on this jury amounts to bias or a risk of bias.

93. If we have been unable to persuade the Commission on the facts set out above that bias and the appearance of bias is established, Mr Coutts asks that enquires are made in relation to this officer as such enquires may cause the commission to be satisfied that there is a bias and the appearance of bias and refer the case to the Court of Appeal on this basis.

94. In addition, even if the CCRC accepts that there is bias / potential bias and is willing to refer the conviction to the Court of Appeal on this basis alone, Mr Coutts asks the CCRC to investigate Mr [ JS ] professional records in order to ascertain whether there is anything in these records which would allow the Commission to consider that there are additional grounds upon which the case should be referred. Mr Coutts seeks disclosure of any such records. In this context the Commission should note the following matters. Mr [ JS ] accepted that he had past links with the investigating force in this case. The nature and extent of his dealings has never been disclosed. The timing of his links has not been disclosed.. It is not known whether the officers who gave evidence at Mr Coutts’ trial were known to [ JS ]. It has not been established with evidence that this officer did not have any knowledge about Mr Coutts’ case or particular knowledge about the evidence in the case which prevented other jurors from sitting, for example, particular expertise in or experience of forensic science and psychological matters. The Commission will no doubt note that these matters cannot be investigated by those acting on behalf of Mr Coutts, by Mr Coutts himself or any person acting on his behalf and who maintains he is innocent.

“Conclusions:

95 …His presence on the jury satisfies the objective test for bias, namely, that in the circumstances of this case a fair minded and informed observer would consider that there was a real possibility that the tribunal was biased/at risk of bias.  In our view, his presence on the jury prevented Mr Coutts from having a fair trial in accordance with the Human Rights Act 1998 and Article 6 of the European Convention of Human Rights and his conviction is unsafe……”

As a fair minded an informed observer, do you consider that there was a real possibility that the tribunal was biased or, at the very least, at risk of bias?  We would welcome your thoughts on this issue.  Please leave a comment below.

More detail and information will be added to this page over the next few months, included further extracts from Graham’s 1st CCRC application and relevant legislation and authorities

96. The CCRC is asked to investigate [ JS ] if it is not satisfied that bias / potential bias is established on the facts argued.

97. In any event, the CCRC is asked to investigate [ JS ] in order to establish whether there are additional grounds upon which this case should be referred to the Court of Appeal.

.

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