Imagine, if you will, you are on trial charged with a serious offence.  Your fate is in the hands of the jury whose verdict could lead you to spending the rest of your life in prison.   Would there be any potential jurors you want excluded?  What about a Police Intelligence Officer with undisclosed links to the prosecuting police force?  Well, this is exactly the situation Graham was faced with at his retrial.

Is the bias test satisfied in R v Coutts?

87. In our submission, the presence of (JS) on this particular jury gives rise to real bias and in the alternative the possibility of bias.

88. As a result of the provisions in the Criminal Justice Act 2003, (JS) by virtue of the fact that he is a police intelligence officer is not ineligible to serve on a jury. Mr Coutts has noted, however, the ECtHR’s views in relation to these provisions. In this particular case, very careful scrutiny was required and we submit (JS) ought to have been excluded, that is to say stood down, by the trial Judge, and prevented from sitting as a juror in this criminal trial. There are a number of reasons for this.
i) This case is very different to those previously decided by the domestic courts in view of its notoriety. None of the cases referred to above is known publicly to the same extent as the case of Regina v Graham Coutts.
ii) (JS) is not an “ordinary” police officer like the cases referred to and decided by the domestic courts. (JS) is an intelligence officer which distinguishes him from other police officers in many regards including rank, but also experience, expertise, knowledge and an ability to access national police intelligence data and this may potentially be significant in this case.
iii) Unlike the case of Tregalles, (JS) did not, prior to serving on the jury, put the jury summoning officer on notice of his professional status. We would say this is unusual, particularly given his status, and of particular note. In this context, it is also noted that he did not immediately inform the Judge of his professional status or past contact with the investigating force in this case. He only volunteered this information after witnessing another juror present the difficulties he had in the trial (RO).
iv) It is of concern to us that initially (JS) was placed in the reserve pool of jurors as the defence team and the Judge had some concerns about him but he was then called to serve without any further discussion in relation to this (according to the transcript). This of itself gives rise, in our view, to at the very least potential bias.
v) It was not established from (JS) what his past links with the investigating force were. In this context, it is noted that the (death) was historic at the time of the retrial and so his links may have taken place at the time the (death) was being investigated. The exact links he had nave never been disclosed to Mr Coutts.
vi) It is noted that the exchanges between (JS) and the trial Judge were not on oath.
vii) Finally, the case of Hanif and Khan reiterates the fundamental role of the courts in a democratic society to inspire confidence in the system and to ensure that juries are free from bias and the appearance of bias. Mr. Coutts considers that bias/potential bias is established but importantly it is arguable from the facts of this case that “objective others” could also reach this view. The ECtHR has also expressed a view that the provisions of the Criminal Justice Act 2003 must also be scrutinised with absolute care. It is arguable of the facts of this case that the Court failed in its duty to ensure that there was no bias or appearance of bias and that the care taken in relation to the scrutiny of the Criminal Justice Act 2003 was below the standard required.



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.


Police on the Jury

“ Injustice anywhere is a threat to justice everywhere. “
( Martin Luther King )

In 2003, changes were made to the Criminal Justice Act which allowed previously excluded professions to be considered for jury duty. One of those professions were police officers.

In 2007, at Graham’s retrial, a Police Intelligence Officer with undisclosed links to Sussex Police ( the prosecuting police force ) somehow made it onto the jury.

There have been several appeals which have used this as a ground. However, almost without exception, the Court of Appeal and the Supreme Court have dismissed them all. However, one rejected appeal ( Hanif and Khan ) took it all the way to the European Court of Human Rights ( ECHR ) and won.. The ECHR’S judgement was that , under Article 6 – Right to a Fair Trial, they were not tried by an independent tribunal.

The Human Rights Act 1998

Taken from MOJUK No. 352 ( 25/12/2011 )

“Decision of the Court of Human Rights

The Court referred to its consistent case-law to the effect that it is of
fundamental importance in a democratic society that the courts inspire
in the public and the accused and emphasised the need to ensure that juries are
free from bias and the appearance of bias.

It is noted that the Criminal Justice Act 2003, which for the first time allowed
police officers to serve on juries in England and Wales, was also a departure
from the rule followed in a number of other jurisdictions which have trial by

jury. Of the jurisdictions surveyed by the Court, only two permitted police
officers to serve on juries and in both it was possible to challenge the inclusion
of jurors without providing any reasons for the challenge [ … ]

The Court accordingly found that Mr Hanif had not been tried by an impartial
tribunal, in violation of Article 6 s.l in respect of Mr Khan [ … ] “

Article 6. Right to a fair trial

1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law [ … ]

Given the weight of evidence in Graham’s favour and the possibility of bias and/or the appearance of bias, despite their detailed reasons, questions have to be asked as to why the Criminal Cases Review Commission did not use their Section 7 powers of investigations and/or refer Graham’s case back to the Court of Appeal.

The CCRC also did not fully investigate the recent Victor Nealon case. Taken from Safari, issue 98 ( June 014 ):

“ Victor Nealon (53) [ … ] has won an apology from the Criminal Cases Review Commission ( CCRC ) for failing to investigate his case properly. Victor originally asked the CCRC to examine his case but was turned down twice. Victor had asked the CCRC to get more information about the forensic evidence presented in the prosecution’s case, and they requested that information from West Mercia Police, but failed to ask more questions when the force said a file of evidence had been lost. Victor’s defence team { the same as Graham’s – Mark Newby of Jordans ]
Eventually discovered an unknown person’s DNA on clothing that had not been disclosed by West Mercia Police, and his conviction was finally quashed in 2013. CCRC chairman Richard Foster said: ’ I regret the fact in this particular case we missed something and I apologise to all concerned for the fact we did so.’ Victor said ’ I could have been out at least 10 to 12 years ago but, on account of the CCRC and their failure to research a paper trail, I remained in prison’ [ … ]

How many more years will Graham have to spend in prison due to the failure of the CCRC to properly investigate his case?.

Graham also wrote the CCRC regarding an illuminating conversation he had with a former Police Intelligence Officer who, at that time, was resident at HMP Frankland . When asked that seeing their case was falling apart at the retrial could Sussex Police have resisted the temptation to use their ‘ man on the inside ‘ to influence other jury members? Based on his own experience as a police offices, he was unequivocal that this would have happened. Graham’s case was high profile and they had already seen the first trial conviction quashed. They had a lot riding on this – reputations, promotions, higher salaries and pensions. He then disclosed to Graham where evidence of this type of corrupt activity could be found if it had taken place. The CCRC refused investigate.

Despite the above, Graham’s verdict took over 13 hours to deliberate and was not unanimous but an 11-1 majority. Firstly, thank you to that one juror who clearly stood up for justice and correctly applied the law to the evidence. Secondly, what on earth did go on in that jury room with the Police Intelligence Officer and the other 10 jury members? Draw your own conclusions.

The judges in the failed ‘police on the jury’ appeals all make this similar comment:
‘no reasonable and informed observer could come to the conclusion of bias or the appearance of bias’. Well reader, you are the reasonable and informed observer – do you think Graham’s retrial was absent of bias or did not have the appearance of bias? Leave your comment below.

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