Chapter 12 THE INTEGRITY OF THE COURT: JUDGMENT AND THE PROHIBITION ON BIAS We outlined in the Introduction our nor

r at!"e a##o$nt o% the tr!a&' In this chapter we want to elaborate the pr!n#!p&e o% !nte(r!t). The principle of !nte(r!t) (!"e* the #o$rt the ora& a$thor!t) to either p$n!*h or +eter !ne the #!"!& &!a,!&!t) o% #!t!-en*' Our argument is that the jurisprudence of Art!#&e . a&&o/* $* to a0e a ore +eta!&e+ !n"e*t!(at!on of these key concerns. We will first examine the central doctrine of Article 6 the !n+epen+en#e an+ ! part!a&!t) o% the #o$rt. We will then turn to the re&ate+ !**$e o% ,!a*. We will consider ho/ the &a/ on 1$+!#!a& ,!a* ha* +e"e&ope+!

before turning our attention to the "uestion of ,!a*e+ 1$r!e*. Appreciating the fundamental importance of the pr!n#!p&e o% !nte(r!t) !* perhap* %a!r&) straightforward. If a #o$rt or a 1$+(e !* ,!a*e+! one would conclude that a fair trial has not taken place! and that any +e#!*!on that the #o$rt !**$e* !* #o pro !*e+' The common law and the #on$ention take this principle seriously. %owe$er! in assessing the ! pa#t o% Art!#&e . jurisprudence on the common law! we will see that the #o on &a/ ha* ,een %or#e+ to re+e%!ne !t*e&% to re a!n #o pat!,&e with human rights standards. We will also argue that there are ten*!on* ,et/een #o on &a/ $n+er*tan+!n(* o% +$e pro#e**! an+ tho*e +e"e&ope+ ,) Stra*,o$r( with reference to the jury. If nothing else! these ten*!on* a&&o/ $* to *t$+) the pe#$&!ar !n*!*ten#e that the #o on &a/

p&a#e* on the ro&e o% #!t!-en* !n a #r! !na& tr!a&'

Ne/ Se#t!on: INDEPENDENT AND IMPARTIA2 TRIBUNA2 Independent court- HR and constitutional matter and ROL Tre#h*e& &y far the most important guarantee enshrined in Article 6 is that to an !n+epen+ent an+ ! part!a& tribunal established by law. It is probably also one of the most important guarantees of the whole #on$ention.

 In fact! there are t/o a*pe#t* to this ($arantee. On the one hand it is an indi$idual h$ an r!(ht which ensures that disputes in which the !n+!"!+$a& !* !n"o&"e+ are +e#!+e+ ,) a ne$tra& a$thor!t). On the other hand! howe$er! it also has an !n*t!t$t!ona& a*pe#t o% #on*t!t$t!ona& ! portan#e it lays the foundation for what has been labelled . . . the th!r+ po/er !n a *tate a%ter the &e(!*&at!"e an+ the e3e#$t!"e. While the right to free elections under Article ' of the (irst )rotocol protects the foundations of democracy! the guarantee to an !n+epen+ent an+ ! part!a& tr!,$na& &a)* the %o$n+at!on* ne#e**ar) %or the r$&e o% &a/'

Art. 6 related to ROL guarantee impartiality and related to constitutional matter This passage places Article 6 in the context of the politics of the #on$ention. It stresses that the Art!#&e !* #entra& to the "er) !+ea o% the r$&e o% &a/4 as it ($arantee* the ! part!a&!t) of the courts. Indeed! we could e$en talk about the #on*t!t$t!ona&!*at!on o% pro#e+$re to the extent that the Art!#&e pro"!+e* a %o$n+at!on for a $alue that is often en*hr!ne+ !n #on*t!t$t!ona& +o#$ ent*' This reminds us that pro#e+$ra& &a/ is an e**ent!a& %eat$re o% the po&!t!#* o% +e o#ra#). The r$&e o% &a/ re5$!re* that the body that a+1$+!#ate* +!*p$te* !* not *$,1e#t to the e3e#$t!"e or! at the $ery least! that the executi$e and the judiciary respect their mutual spheres of competence. In this chapter we will outline the 1$r!*pr$+en#e o% Art!#&e . an+ !t* ! pa#t on the common law.

Art. 6- impartiality irrespective the body in national law The key theme that underlies Article 6 jurisprudence is the e&a,orat!on o% pr!n#!p&e* that +e%!ne the ! part!a&!t) o% the #o$rt or tribunal. If a court be partial! the *#t%+ will hold that proceedings are not fair. Trechsel This reflects the need to a%%!r the +e o#rat!# or+er o% the #o$rt* a(a!n*t that o% 6 !&!tar)7 or 6*pe#!a&7 #o$rt* that retain a right to try ci$ilians! and it a&*o #o"er* the operation of /e&%are tr!,$na&* an+ pro%e**!ona& +!*#!p&!nar) ,o+!e*' To co$er the range of judicial and "uasi,judicial bodies! the jurisprudence of the *#t%+ *tre**e* that !rre*pe#t!"e o% the na e (!"en to a ,o+) !n nat!ona& &a/4 a #o$rt or tr!,$na& must be !n+epen+ent 6!n part!#$&ar o% the e3e#$t!"e74 an+ 6! part!a&7' A tr!,$na& $*t a&*o ha"e !n p&a#e the pro#e+$ra& ($arantee* that are pro$ided by the Art!#&e. Be&!o* " S/!t-er&an+

Established by law- impartiality- as did not behold to superior position What sense! then! can be made of the particular wording of Article 6- that the tr!,$na& $*t ,e .independent! impartial/ an+ 6e*ta,&!*he+ ,) &a/70 Are these terms merely amplificatory of the core sense that the court must be independent or do they add distinct substanti$e re"uirements0 Arguably! the court sees the re"uirement that the tr!,$na& !* 6e*ta,&!*he+ ,) &a/7 a* part o% the #r!ter!a o% ! part!a&!t)' An impartial body is one established by law and not ,eho&+en to a *$per!or ,o+). 8an+ "' A$*tr!a Application 1'62316

Establish by law- independenceappointment !ree !rom pressure and independence to parties This does raise issues of definition to /hat e3tent $*t &a/ re($&ate e"er) e&e ent of the tribunal0 4oes it lea$e no room at all for discretion0 The consensus appears to be that the .organisational set up/ 5Zand v. Austria6 of the court! including the +e%!n!t!on o% !t* 1$r!*+!#t!on an+ !t* pro#ee+!n(*! must be determined by law! but there can be *o e +!*#ret!on !n the han+* o% the e3e#$t!"e4 pro"!+e+ that it +oe* not #o pro !*e 1$+!#!a& !n+epen+en#e. This is perhaps a +!%%!#$&t &!ne to +ra/. What does seem clear is the sense in which the re"uirement that a tr!,$na& *ho$&+ ,e e*ta,&!*he+ ,) &a/ *ha+e* !nto the !+ea o% !n+epen+en#e'

 The #a*e &a/ of the Con"ent!on establishes that a tr!,$na&7* !n+epen+en#e must be 1$+(e+ with 52e Co pte an+ other "' Be&(!$ 789:8;! In#a& "' T$r0e) 7899:;6 re%eren#e to the appo!nt o% !t* e ,er*! ent

the .safeguards/ that exist to prote#t !t %ro pre**$re to determine a case in a particular manner! and that it actually appear* to ,e !n+epen+ent to the part!e* concerned. Thus! independence describes the #on*t!t$t!ona& po*!t!on of the court and +oe* not ean that a h!erar#h!#a& re&at!on*h!p #annot e3!*t ,et/een #o$rt*! or that a h!(her #o$rt #annot ha"e a *$per"!*or) or appellate relationship to a &o/er #o$rt! pro$ided that the impartiality o% the tr!,$na& as to the +eter !nat!on o% atter* o%

Impartiality cover unbias "udge and same as independence #learly! ! part!a&!t) extends to #o"er the &a#0 o% ,!a* o% the 1$+(e towards either party to the proceedings. 5same as independence to party6 In In(a&! one of the major rulings of the *#t%+! the court articulated the broader principle at stake in issues of independence and bias .7w;hat is at stake is the #on%!+en#e /h!#h the #o$rt* !n a +e o#rat!# *o#!et) must inspire in the public and abo$e all. . . in the accused./ <upra The presence of a !&!tar) 1$+(e in the Turkish =ational <ecurity #ourt meant that .the app&!#ant #o$&+ &e(!t! ate&) %ear7 that the court .might allow itself to be $n+$&) !n%&$en#e+ ,) considerations /h!#h ha+ noth!n( to +o /!th the nat$re o% the #a*e7. <upra This amounted to a ,rea#h o% Art!#&e .91:' The ECtHR th$* &!n0* to(ether ! part!a&!t) an+ !n+epen+en#e a* #&o*e&) re&ate+ concepts that are

%$n+a enta& to the not!on o% the %a!r tr!a&.

M!&!tar) #o$rt an+ Tr!,$na& !n U; %ow can we think about the &ritish courts from the perspecti$e of Article 60 We will turn to one particular area !&!tar) +!*#!p&!ne' A great deal of the cases brought against the >? #on#ern the operat!on o% !&!tar) tr!,$na&*. The key authority is F!n+&a) "' U;. (act The appellant! a "eteran of the (alklands war! *$%%ere+ %ro Po*t Tra$ at!# Stre** 4isorder! which was e3a#er,ate+ ,) an a##!+ent suffered shortly after his posting to acti$e duty in =orthern Ireland.

The appellant threatened to kill colleagues and himself. %e fired two shots! which were not aimed at anyone! then surrendered the pistol and was arrested.

 #harged with assault! threatening to kill! and with offences against military discipline! (indlay was tried by a court martial. At the time of his trial! the po/er* an+ #on*t!t$t!on o% #o$rt art!a&* +er!"e+ %ro the Ar ) A#t 89@@. #on$ening officer issue, tribunal staff subordinate to him The case +re/ attent!on to the #o po*!t!on o% the tr!,$na&! in particular the ro&e o% the #on"en!n( o%%!#er! who was re*pon*!,&e %or #a&&!n( the ,o+) to(ether! and its pro#e+$ra& #orre#tne**.

The tr!,$na& /a* *ta%%e+ by a pre*!+ent and four other *er"!n( o%%!#er*! all of whom were *$,or+!nate !n ran0 to the #on"en!n( o%%!#er. None o% the tra!n!n(' ha+ an) &e(a&

The pro*e#$t!n( an+ +e%en+!n( o%%!#er* were also! at least in theory! *$,or+!nate !n ran0 to the #on"en!n( o%%!#er.

Audge Ad$ocate in the tribunal The court martial was a+"!*e+ on po!nt* o% &a/ ,) a J$+(e A+"o#ate! who was an assistant judge. As well as ad$ising the tribunal on points of law! the J$+(e A+"o#ate 9an+ the pre*!+ent: ha+ to en*$re that the +e%en+ant +!+ not *$%%er an) +!*a+"anta(e* during his or her trial! and understood the charges and the rele$ant law. 4ecision, plead guilty but appeal on the sentencing F!n+&a) p&ea+e+ ($!&t)' %owe$er! despite con$incing medical e$idence and the urging of his solicitor that he should be gi$en a lenient punishment! the tribunal ordered a period of imprisonment! a reduction in rank! a dismissal from the army and a reduction in pension entitlement.

Appeal rejected by non,legal officer on ad$ice of Audge ad$ocate with no reason gi$en The app&!#ant then a+e a n$ ,er o% appea&* a(a!n*t h!* *enten#e! all of which were re1e#te+ ,) o%%!#!a&* who were not &e(a&&) 5$a&!%!e+! although they did recei$e a+"!#e %ro the J$+(e A+"o#ate Genera&7* o%%!#e' Ne!ther the nat$re o% th!* a+"!#e! nor the rea*on* %or re%$*a& /ere re"ea&e+ to the applicant.

Appeal to #ommission on .not impartial and independent tribunal/ After the failure of an application for judicial re$iew! F!n+&a) app&!e+ to the Co !**!on alleging that he ha+ not re#e!"e+ a %a!r tr!a& by an ! part!a& an+ !n+epen+ent tr!,$na&' The essence of his argument was that the *$,or+!nate po*!t!on of the members of the tribunal to the con$ening officer! and their &a#0 o% &e(a& tra!n!n(! rendered the tribunal incapable of making a fair decision. decisions on the appea& had been a+e !n pr!"ate and with no rules of procedure. the re&e"ant *tat$te #onta!ne+ no r$&e* on the appo!nt ent of the con$ening officer and re$iewing authorities the tr!,$na& /a* th$* not e*ta,&!*he+ ,) &a/.

Bo$t did not reply but submit .failure of due process/ The &ritish Bo$ernment did not reply to these allegations! but submitted both to the #ommission and the #ourt that the Ar ) A#t /a* ,e!n( a en+e+ !n the &!(ht o% the*e %a!&$re* o% +$e pro#e**' In Corris the court noted the changes that the &ritish Bo$ernment had made to the system of military justice in the 8996 Act .The posts of con$ening officer and Dconfirming officerE ha$e been abolished! and the roles pre$iously played by those officers ha$e been separated. The con$ening officer/s responsibilities in relation to the bringing of charges and progress of the prosecution are now split between the higher authority and the prosecuting authority.

 %is duties concerning the con$ening of the court martial! appointment of its members! arrangement of $enue and summoning of witnesses ha$e been entrusted to the Army #ourt <er$ice 5formerly the #ourt,Cartial Administration Office6! whose staff are independent of both the higher and prosecuting authorities. The con$ening officer/s powers to dissol$e the court martial ha$e been in$ested! prior to a hearing! in the Army #ourt <er$ice and thereafter in the judge ad$ocate! who is now a formal member of the court martial! deli$ers his summing,up in open court and has a $ote on sentence./ %owe$er! the*e #han(e* +!+ not app&) to the pre*ent #a*e! which /a* +ea&t /!th ent!re&) $n+er the o&+ pro#e+$re*'

*#t%+, uphold independence and impartiality point and held Audge Ad$ocate doubt on impartiality &oth the *#t%+ and the #ommission a(ree+ /!th the app&!#ant7* ar($ ent' The *#t%+/s decision in (indlay is #on*!*tent /!th the (enera& 1$r!*pr$+en#e on this point! as it asserts the #&o*e re&at!on*h!p of the concepts of !n+epen+en#e an+ ! part!a&!t).

They also stressed that the presence of the J$+(e A+"o#ate in the court martial! and the a$ailability of ad$ice for the authorities that re$iewed the tribunal/s decision! were not *$%%!#!ent eno$(h to +!*pe& the *er!o$* +o$,t* a,o$t the tr!,$na&7* ! part!a&!t).

+elying on )ullar $. >?! the court asserted that the tr!,$na& ha+ to ,e %ree o% ,oth 6per*ona& pre1$+!#e7 an+ o,1e#t!"e&) %ree o% ,!a*.

(loodgates to the case failure in due process The court/s decision in (indlay opened the floodgates. #ases drew attention not just to these problems in relation to army tribunals! but a&*o to *! !&ar ,o+!e* pre*!+!n( o"er +!*#!p&!ne !n the RAF 5#ooper $. >?6 and the Ro)a& Na") 5B.W. $. >? Application no.6. The number of cases recei$ed in its wake suggests that there had been a1or %a!&$re* !n the +$e pro#e** re"uirements of !&!tar) 1$*t!#e and that these re a!ne+ e"en a%ter re%or * o% the *)*te '

4oubt on entire structure of court martial system Indeed! Morr!* "' U; went e$en further! casting doubt on the ent!re *tr$#t$re o% the #o$rt art!a& *)*te ' The applicant argued that a #o$rt art!a& ha+ to ,e .!n+epen+ent o% the ar ) as an institution! part!#$&ar&) o% *en!or ar ) #o an+7' The problem was that this was clearly not the case .at all key stages of the applicant/s court martial! including the bringing of charges! the appointment of the members of the court! the reaching of a decision on $erdict and sentence! and the re$iew of such $erdict and sentence! army institutions were in$ol$ed./ %is argument also showed that there were no *tat$tor) ($!+e&!ne* to regulate the appointment of court martial personnel! and the &a#0 o% *e#$r!t) o% ten$re of the per anent pre*!+ent* of the tribunals meant that they were "$&nera,&e to pre**$re %ro ore *en!or o%%!#er*'

 A related problem was the fact that there could be a +!%%eren#e !n ran0 an+ *en!or!t) between the president and the other members of the court martial! a&*o *$((e*t!n( that a *en!or o%%!#er !(ht ,e a,&e to pre**$re or influence the opinion of a more junior colleague.

The .*tron( o%%!#er corps ethos ! which pr!"!&e(e+ 6+!*#!p&!ne7 and the need to create examples to deter others! further #o pro !*e+ the !n+epen+ent nat$re of the court martial.

Whilst not accepting the applicant/s point about the role of the 4efence #ouncil and the Adjutant Beneral! the court re&!e+ on In(a& "' T$r0e) to find ,rea#he* o% Art!#&e . in relation to ,oth the per anent pre*!+ent an+ the o%%!#er* /ho *er"e+ on the tr!,$na&! and the %a!&$re o% 1$+!#!a& *$per"!*!on in relation to appeals from the decision of court martial.

 The system of military justice was brought into "uestion in two later cases Cooper "' U; and Gr!e"e* "' U; In Cooper! the applicant was $n*$##e**%$& ,e%ore the ECtHR in his challenge to the composition of the Air (orce #ourt Cartial )anel as it was constituted under the Army Act of 8996. %owe$er! in Gr!e"e* the applicant/s complaint against the composition of a =a$y #ourt Cartial was upheld. This was largely to do with the office of the J$+(e A+"o#ate in a na$al court,martial. The J$+(e A+"o#ate !* a&*o a 6*er"!n( na"a& officer who! when not *!tt!n( !n a #o$rt martial! carries out regular na$al duties/.

In comparison! the J$+(e A+"o#ate in the air force court martial !* #!"!&!an

)recisely because the J$+(e A+"o#ate /a* a *er"!n( o%%!#er! his !n+epen+en#e was potent!a&&) #o pro !*e+'

Ne/ Se#t!on: THE TESTS FOR BIAS The not!on o% the !n+epen+en#e an+ ! part!a&!t) of the tribunal is ,o$n+ $p /!th the issue of the te*t %or ,!a*. We now need to turn our attention to this essential concern. Ho/ does the ECtHR $n+er*tan+ ,!a*0 I part!a&!t) !* #o ,!a*. pro !*e+ ,)

&ias! in this sense! would be one of the %$n+a enta& ,rea#he* o% the r!(ht to a %a!r tr!a&.

#iersac$ v. %elgium- E&HRsub"ective and ob"ective bias As the court stated in P!er*a#0 "' Be&(!$ ! underlying Article 6 is .the #on%!+en#e which the #o$rt* $*t !n*p!re !n the p$,&!# in a democratic society/. Bi$en the importance of the concept! the issue that has o##$p!e+ the #o$rt* ha* ,een the #orre#t te*t %or ,!a*. In )iersack the court pointed out that there are +!%%erent /a)* !n /h!#h ,!a* shows itself. The %$n+a enta& +!*t!n#t!on is ,et/een *$,1e#t!"e an+ o,1e#t!"e %or * o% ,!a*: A distinction can be drawn . . . between a *$,1e#t!"e approach! that is en+ea"o$r!n( to a*#erta!n the per*ona& #on"!#t!on of a gi$en judge in a gi$en case! and an o,1e#t!"e approach! that is +eter !n!n( /hether he o%%ere+ ($arantee* *$%%!#!ent to e3#&$+e an) &e(!t! ate +o$,t !n th!* re*pe#t'

 At the #ore o% the +!*t!n#t!on <,t/ *$,1e#t!"e an+ o,1e#t!"e=4 is the +!%%eren#e between the a#t$a& ,!a*e* of a judge! an+ the per#ept!on o% ,!a* that /o$&+ ,e 1$*t!%!e+ !% there /ere not /a)* of *ho/!n( that the #o$rt /a* operat!n( ! part!a&&)' That mean actual and perception bias will be justified when we ha$e no ways to show whether the court operates impartially &ut subjecti$e and objecti$e can. <ubjecti$e bias is that he keen to con$ict the person while when he cannot exclude any legitimate doubt in this respect then it is objecti$e bias Actual bias and perception bias is difficult to show.

4elcourt $ &elgium, difficult to show there difference btw < and O bias Ho/e"er! the *#t%+ went on to suggest that it !(ht ,e +!%%!#$&t to *eparate the t/o %or * of bias. #iting De&#o$rt "' Be&(!$ 4 the ECtHR ar($e+ that !% a 1$+(e !* *$,1e#t!"e&) biased! then there /o$&+ ,e a 6&e(!t! ate7 rea*on to +o$,t the ne$tra&!t) of the court and! therefore! $n&e** the 1$+(e /!th+re/! there /o$&+ a&*o ,e o,1e#t!"e ,!a*.

*#%+,Independence and Impartial closely related On the facts of P!er*a#0! the *#t%+ had to determine whether the presence of a %or er p$,&!# pro*e#$tor! /ho /a* no/ a 1$+(e in the *a e #a*e that he ha+ ,een pro*e#$t!n(! ,rea#he+ the te*t %or ,!a*' While it would be .going to the extreme/ to hold that no public prosecutor could e$er act as a judge! ,$t the %a#t* *$((e*te+ that there ha+ !n+ee+ ,een ,!a*' The *#t%+/s argument! to the extent that it co$ered the #o po*!t!on o% the #o$rt and the /a) !n /h!#h 1$+(e* /ere appo!nte+! It also suggests the #&o*e #onne#t!on ,et/een the %!n+!n( o% ,!a* an+ the re5$!re ent that a #o$rt ,e !n+epen+ent' It is no correct that prosecutor ne$er can be a judge When he be the judge! to know whether he is bias also based on the ways he is appointed and composition of court.

 <o! Impartiality 5not bias6 is closed related to Independence 5way of appointment and composition of court6

*#%+,Austice must not only be done but also seen to be done The court followed this approach closely in De C$,,er "' Be&(!$ .

The applicant was alleging that he ha+ not re#e!"e+ a %a!r tr!a& from an impartial tribunal! because the pre*!+!n( 1$+(e ha+ a#te+ a* an 6!n"e*t!(at!n( 1$+(e7 !n the #a*e a(a!n*t h! ' 4e #ubber thus goes to the heart of the ci$ilian practice of the in$estigating magistrate! a role that is not a predominant feature of common law courts. The &elgian go$ernment stressed that the in$estigating judge is .fully independent/ as s3he is not party to the proceedings and does not perform a prosecutorial role! helping to establish the guilt of the defendant. The in$estigating judge must .strike a balance between prosecution and defence/ in assembling e$idence! and presenting to the court an .objecti$e re$iew/ of the progress of the case.

 The ECtHR +!*a(ree+ with this argument. *xamining the legal definition of the powers of the in$estigating judge! they found that the o%%!#e !* not *tr!#t&) *eparate %ro that o% the pro*e#$tor. In particular! the .preparatory in$estigation/ which is presided o$er by the judge is .in"uisitorial/! .*e#ret7 and .not #on+$#te+ !n the pre*en#e o% ,oth part!e*7. They concluded that

One can accordingly understand that an a##$*e+ !(ht %ee& *o e $nea*e !% he *ee on the ,en#h o% the #o$rt #a&&e+ $pon to +eter !ne the #har(e against him and the judge who had ordered him to be placed in detention on remand and /ho ha+ !nterro(ate+ h! on n$ ero$* o##a*!on* +$r!n( the preparator) !n"e*t!(at!on! a&,e!t /!th 5$e*t!on* +!#tate+ by a #on#ern to a*#erta!n the tr$th' 7That mean the judge in$estigate and judge him are the same person;

 This appeared to amount to a finding of o,1e#t!"e ,!a*'

There was no reason to doubt the objecti$ity of the indi$idual judge! but .h!* pre*en#e on the ,en#h pro"!+e+ (ro$n+* %or *o e &e(!t! ate !*(!"!n(* on the app&!#ant7* part7'

This makes it clear that there is a correspondence between the objecti$e test! and the .*nglish maxim/ that was also cited in the 4elcourt judgment .1$*t!#e $*t not on&) ,e +one: !t $*t a&*o ,e *een to ,e +one./

&ommon law %ias- hypothetical !air-minded and in!ormed observer believes that the "udge may be biased'. %ow has the common law responded to <trasbourg jurisprudence0 &efore we can properly address this issue! we need to establish the common law approach to bias. We are concerned with the Go$(h te*t which is an authority on the situation where a .h)pothet!#a& %a!r> !n+e+ and !n%or e+ o,*er"er ,e&!e"e* that the 1$+(e a) ,e ,!a*e+7' The Bough test asks the court to consider .whether! !n a&& the #!r#$ *tan#e* of the case! there appeare+ to ,e a rea& +an(er o% ,!a*! concerning the member of the tribunal in "uestion so that 1$*t!#e re5$!re+ that the +e#!*!on *ho$&+ not *tan+./

Impression to a .reasonable/ man As Ford Boff pointed out in Bough! cases of a#t$a& ,!a* are 6"er) rare7! and the ore pre**!n( !**$e is .the +e(ree o% po**!,!&!t) o% ,!a*7'

The law on bias has to negotiate two extremes. If the te*t /ere too *tr!n(ent ! it would be too ea*) to !n"a&!+ate +e#!*!on* on the grounds of partiality. An o"er&) &en!ent te*t would en#o$ra(e ,a+ pra#t!#e*'

The #entra& !+ea is that p$,&!# #on%!+en#e in the a+ !n!*trat!on o% 1$*t!#e re5$!re* that the ! part!a&!t) o% the 1$+(e ,e a,o"e *$*p!#!on. I% !t !* not ne#e**ar) to pro"e a#t$a& ,!a*! then the %$n+a enta& 5$e*t!on is ho/ #on#&$*!on* /!&& ,e +ra/n from .! pre**!on*7 deri$ed %ro the #!r#$ *tan#e* of the case.

 (rom the case law! there were two possible ways of thinking about these impressions one would be %ro the per*pe#t!"e o% the #o$rt the other %ro that o% the rea*ona,&e man.

%owe$er! .7s;ince . . . the #o$rt !n"e*t!(ate* the a#t$a& #!r#$ *tan#e*! knowledge of such circumstances as are found by the court $*t ,e ! p$te+ to the rea*ona,&e an/! and there should be no rea& +!%%eren#e ,et/een the t/o per*pe#t!"e*'

&alance of probabilities The related "uestion would be the issue of whether possibility or probability of bias is decided on the *tan+ar+ o% the ,a&an#e o% pro,a,!&!t!e*' This! in Ford Boff/s opinion! would be .too rigorous/. %e concludes

I a ,) no ean* per*$a+e+ that! in its original form! the real likelihood test re5$!re+ that an) ore r!(oro$* #r!ter!on should be applied.

(urthermore the test as so stated gi$es sufficient effect! in cases of apparent bias! to the principle that 1$*t!#e $*t an!%e*t&) ,e *een to ,e +one4 and !t !* $nne#e**ar)4 !n ) op!n!on4 to ha"e re#o$r*e to a te*t ,a*e+ on ere *$*p!#!on4 or e$en reasonable suspicion! for that purpose. (inally there is! so far as I can see! no pra#t!#a& +!*t!n#t!on ,et/een the te*t as I ha$e stated it! and a test which re"uires a real danger of bias! as stated in +. $. <pettcer 789:1;

 (or the moment we must suspend our judgment about whether or not this approach to bias does balance the competing demands that the test must satisfy. This statement will be following a lot of case laws (or the moment! answer is that a fair,minded and informed obser$er will strike the balance on his own while understanding the impartial judges is fundamental issue and critical to this legal culture

=ot a real danger but a reasonable suspicion, no difference btw common and ci$ilian approach The Bough test was further elaborated in *x parte )inochet =o. G. Ford &rowne,Wilkinson pointed out that the case was about the .real danger/ .or reasonable apprehension or suspicion/ of bias. +eturning to the case law! he showed that the test re*te+ on the pr!n#!p&e* of natural justice that a an *ho$&+ not ,e the 1$+(e !n h!* o/n #a*e. %owe$er! there are t/o /a)* !n /h!#h th!* pr!n#!p&e could be understood. It may mean that a 1$+(e $*t not tr) a #a*e !n /h!#h he or *he !* a part) or has an interest. The $ery fact that the 1$+(e !* a part) to the action or has an interest would make for his or her a$to at!# +!*5$a&!%!#at!on.

 D! e* "' Propr!etor* o% the Gran+ J$n#t!on Cana& 58:@G6

 The *e#on+ !nterpretat!on is broader. It would apply where a 1$+(e !* not +!re#t&) part) to a dispute and does not ha$e a financial interest ,$t ha* *o e #on#ern /!th the !**$e at *ta0e! which may make for a *$*p!#!on that s3he is not impartial. This second interpretation is not4 *tr!#t&)! an app&!#at!on o% the pr!n#!p&e that a wo3man must not be a judge in his3her own case at all. It is! more properly! an extension of the general sense of the principle a 1$+(e $*t not ,e #o pro !*e+ ,) an) +!re#t or !n+!re#t !ntere*t !n the a#t!on' In P!no#het! the judges were aware of Article 6586 and the +!%%eren#e* ,et/een the S#ott!*h an+ En(&!*h #o$rt* on the issue of bias. In the S#ott!*h4 a 1$+(e ha+ ,een +!*5$a&!%!e+ on the basis that there was rea*ona,&e *$*p!#!on about her3his impartiality. Bradford $. McLeod 89:6 <FT

 The rea*ona,&e *$*p!#!on te*t was o,"!o$*&) +!%%erent to the rea& +an(er te*t. Was this a problem0 Although Ford %ope would speak of the .uneasy tension/ between the tests in )orter $. Cagill! ,$t the!r 2or+*h!p* +!+ not *ee $n+$&) #on#erne+' They explained that the tests reflected the differences between two legal traditions. The ,roa+ pr!n#!p&e /a* the *a ethe 1$+(e $*t ,r!n( to ,ear 6an $n,!a*e+ an+ ! part!a& !n+7 an+ 6<h=e $*t ,e *een to ,e ! part!a&7' Gillies v. Secretary of State for Work and Pensions [ !!"# $%&L Although the case of Focabail went on to pro$ide some guidance on the issue of .real danger/! ,$t the #o on &a/ re a!ne+ #o !tte+ to the Go$(h te*t and the ,e&!e% that there /a* no *!(n!%!#ant +!%%eren#e ,et/een the #o on an+ #!"!&!an approa#he*.

Te*t: Co$rt a*#erta!n a&& #!r#$ *tan#e* an+ a*0 /hether %a!r> !n+e+ an+ !n%or e+ o,*er"er #on#&$+e+ that rea& po**!,!&!t) o% ,!a* <not rea& +an(er= Porter "' Ma(!&& struck a $ery different note and established that! !n the &!(ht o% Art!#&e .! a ne/ te*t %or ,!a* /a* ne#e**ar). Ford %ope made reference to #r!t!#!* * o% ,oth the rea& +an(er an+ the rea& &!0e&!hoo+ te*t! as they ten+e+ to pr!"!&e(e the "!e/ o% the #o$rt and .to p&a#e !na+e5$ate e pha*!* on the p$,&!# per#ept!on of the irregular incident/. The #o on &a/ te*t /a* o$t o% &!ne /!th Stra*,o$r( 1$r!*pr$+en#e as it &a#0e+ the necessary element of o,1e#t!"e 1$*t!%!#at!on of the fear of bias. 2or+ Hope went on to look at a passage in Re Me+!#a ent* an+ Re&ate+ C&a**e* o% Goo+* where .a o+e*t a+1$*t ent to the test of +. $. Bough/ was suggested.

 The ne/ te*t would in$ol$e the #o$rt a*#erta!n!n( 6a&& the #!r#$ *tan#e* /h!#h ha"e a ,ear!n( on the *$((e*t!on that the judge was biased/! and then a*0!n( !% 6a %a!r> !n+e+ an+ !n%or e+ o,*er"er7 /o$&+ #o e to the #on#&$*!on that there /a* 6a rea& po**!,!&!t)! or a real danger . . . that the tribunal was biased/.

Ford %ope stressed that !t /a* ne#e**ar) to make some adjustments! and .+e&ete ' ' ' the re%eren#e to ?a rea& +an(er7@ 'Porter v. Magill( in the test for bias as it .no &on(er *er"e+ a $*e%$& p$rpo*e ')e Medicaments and )elated *lasses of Goods(

The %$n+a enta& 5$e*t!on was ./hether a %a!r> !n+e+ an+ !n%or e+ o,*er"er ha"!n( #on*!+ere+ the %a#t* /o$&+ #on#&$+e that there /a* a rea& po**!,!&!t) that the tribunal was biased/. 'Gillies v. Secretary of State for Work and Pensions [ !!"# $%&L(/'

#ourt ascertain all circumstances, court will not concern what the .judge/ know! it is presumption the fair,minded man knew the .judge/ understand the situation What does this mean0 This test was further elaborated in Jone* "' DAS 2e(a& E3pen*e* In*$ran#e Co' 2t+ A Or*' In this case! the #ourt of Appeal heard an appeal from an employment tribunal that had presided o$er a sex discrimination case. The appeal was based on the fact that the chairwoman of the *mployment Tribunal was married to a barrister whose chambers took work from 4A<! the company that employed the appellant. The appeal was dismissed. In Aones! the #ourt of Appeal ret$rne+ to a point that had been ra!*e+ !n Re Me+!#a ent*. The ta*0 o% the #o$rt is to *#r$t!n!*e a&& the #!r#$ *tan#e* that are re&e"ant to the allegation that the judge was biased.

 In +e Cedicaments! the court stated that this scrutiny would !n#&$+e ta0!n( !nto a##o$nt an) 6e3p&anat!on7 (!"en ,) the 1$+(e! which! if necessary! would be #on*!+ere+ %ro the per*pe#t!"e o% the %a!r> !n+e+ o,*er"er. %eld Where that explanation is accepted by the applicant for re$iew it can be treated as accurate. Where it is not accepted! it becomes one further matter to be considered from the $iewpoint of a fair, minded obser$er. The #o$rt +oe* not ha"e to r$&e /hether the e3p&anat!on *ho$&+ ,e a##epte+ or re1e#te+. +ather! !t ha* to +e#!+e /hether or not the %a!r> !n+e+ o,*er"er would consider that there /a* a rea& +an(er o% ,!a* not/!th*tan+!n( the e3p&anat!on a+"an#e+.

 <o! the "uestion for the court is whether .there /a* a rea& +an(er o% ,!a* not/!th*tan+!n( the e3p&anat!on a+"an#e+7. On the facts of the case! it meant that the test should be applied in the following way the #o$rt !* not #on#erne+ /!th pre#!*e&) /hat the #ha!r/o an o% the tr!,$na& 0ne/. <ince! %o&&o/!n( 2o#a,a!&! the pre*$ pt!on !* $pon +!*5$a&!%!#at!on! the %a!r> !n+e+ o,*er"er /o$&+ 6pro#ee+ $pon a ,a*!* that <the #ha!r/o an= 0ne/ !n (enera& ho/ the *)*te operate+ and that her h$*,an+ /a* to *o e e3tent a ,ene%!#!ar) of it e$en if she did not know all of the detail/. This brings us to a second "uestion /o$&+ a %a!r> !n+e+ an+ !n%or e+ o,*er"er then #on#&$+e that there /a* 6a rea& po**!,!&!t) that the tribunal was biased/0 What "ualities must the hypothetical fair,minded and informed obser$er possess0

 We will consider how the judge should disclose before discuss how the fair minded and informed obser$er make the conclusion.

+,tra- &o. /udge disclose t0e relations0ip1 Ta)&or "' 2a/ren#e concerned an appeal before a judge who had made use of the ser$ices of the respondent/s solicitors the night before he ga$e judgment. Although the court did not find apparent bias! they offered some reflections on the nature of the test.

They stated that 1$+(e* *ho$&+ ,e 6#!r#$ *pe#t7 a,o$t 6+e#&ar!n( re&at!on*h!p*7 where a %a!r> !n+e+ o,*er"er /o$&+ not *ee !t a* 6ra!*!n( a po**!,!&!t) o% ,!a*7.

4isclosure might itself suggest an .! p&!#at!on7 that the re&at!on*h!p /o$&+ !n%&$en#e the 1$+(e7* op!n!on' In a .borderline/ case the 1$+(e *ho$&+ a0e +!*#&o*$re and then #on*!+er the *$, !**!on* o% e!ther part) before making his3her decision about whether or not to withdraw from the case.

 It had to be stressed that! if +!*#&o*$re was made! it would ha"e to ,e %$&& an+ proper. (air,minded obser$er proceeds on the basis that judges are not biased The court concluded No %a!r> !n+e+ o,*er"er /o$&+ rea#h the #on#&$*!on that a 1$+(e /o$&+ *o %ar %or(et or disregard the o,&!(at!on* ! po*e+ ,) h!* 1$+!#!a& oath as to allow himself! consciously or unconsciously! to be influenced by the fact that one of the parties before him was represented by solicitors with whom he was himself dealing on a /ho&&) $nre&ate+ atter' 7That mean a fair,minded obser$er will presume a judge is impartial when deal with unrelated matter; It would seem that the %a!r> !n+e+ o,*er"er pro#ee+* on the ,a*!* that 1$+(e* are not ,!a*e+ and that there $*t ,e *tron( e"!+en#e to *ho/ that there !* ,!a*' In other words! the court/s interpretation of the te*t a**$ e* a

&e"e& o% !nte(r!t) to &e(a& #$&t$re in general and to the judiciary in particular. #onsider the fact 7not what in the mind of judge; Billies $. <ecretary of <tate for Work and )ensions 9HO2: Ford %ope suggested that the test demands a #on*!+erat!on o% the appearan#e o% the %a#t*! rather than raising a "uestion about ./hat !* !n the !n+ o% the part!#$&ar 1$+(e or tr!,$na& e ,er /ho !* $n+er *#r$t!n)7' It would thus seem that an) e"!+en#e o% the 1$+(e7* !ntent!on* /o$&+ ,e !rre&e"ant. Doe* th!* *$((e*t that the te*t (rant* too $#h to the 1$+(e*B

(air,minded obser$er critical to legal culture 7belie$e necessity of high standard of justice;! so the test no grant to the judge 2a/a& "' Northern Sp!r!t 2t+' 9HO2: The fair> !n+e+ o,*er"er can be seen to be #r!t!#a& o% the #$&t$re with which he or she is familiar and ,e&!e"e !n the ne#e**!t) o% h!(h *tan+ar+* %or the a+ !n!*trat!on o% 1$*t!#e! and . a) not ,e /ho&&) $n#r!t!#a& of this culture/. There are further guidelines that relate to constitution of the .fair minded obser$er/ in R' "' O&+%!e&+ 7G288; that return to comments made by Ford &ingham in Prince 2efri v State of Brunei 7G221;! .The re"uirement that the obser$er be informed means that he +oe* not #o e to the atter a* a *tran(er or #o p&ete o$t*!+er- he must be ta0en to ha"e a rea*ona,&e /or0!n( (ra*p o% ho/ th!n(* are $*$a&&) +one'/

 In O&+%!e&+! this was elaborated as follows .7t;his fictional character is neither complacent nor unduly sensiti$e or suspicious. %e or she has access to all facts known by the general public. %e or she knows how things are usually done. %e or she is aware that judges ha$e years of rele$ant training and experience. %e or she is aware of the terms of the judicial oath./

=o need characteristic of fair,minded man! he will strike a balance! and it is still a high standard test and not to .undermine the need for constant $igilance that judges maintain that impartiality/. Where does this lea$e us0 The %ouse of Fords has asserted that the test for bias under Art!#&e . an+ the #o on &a/ te*t are e3a#t&) the *a e. In applying the fair, minded obser$er test! it is 6$nne#e**ar) to +e&"e !nto the #hara#ter!*t!#* to be attributed to the fair,minded and informed obser$er/! and to accept that .such an o,*er"er /o$&+ a+opt a ,a&an#e+ approa#h7. Importantly! the key reference points return to the common law test that the obser$er should be as concerned with the appearan#e o% ! part!a&!t) a* /!th !t* a#t$a&!t).

In other words! the ! part!a&!t) o% the +e#!*!on a0er should be a**e**e+ to the h!(he*t *tan+ar+4 so as not to 6$n+er !ne the nee+ %or #on*tant "!(!&an#e that 1$+(e* a!nta!n that ! part!a&!t)7'

What is interesting in our context! is the use of the judgment of another court that shares the common law tradition the Con*t!t$t!ona& Co$rt o% So$th A%r!#a4 in the case of the Pre*!+ent o% the Rep$,&!# o% So$th A%r!#a an+ other* " So$th A%r!#an R$(,) Foot,a&& Un!on an+ other* 78999; 516 The rea*ona,&ene** of the apprehension 7for which one must read in our jurisprudence Hthe real riskH; must be a**e**e+ !n the &!(ht o% the oath o% o%%!#e ta0en ,) the 1$+(e* to administer justice without fear or fa$our! and the!r a,!&!t) to #arr) o$t that oath ,) rea*on of their training and experience. It $*t ,e a**$ e+ that the) #an +!*a,$*e their minds of any irrele$ant personal beliefs or pre, dispositions... At the *a e t! e4 !t $*t ne"er ,e %or(otten that an ! part!a&

1$+(e !* a %$n+a enta& prere5$!*!te for a fair trial... =& the prohibition on bias also applies in criminal proceedings. We ha$e chosen to %o#$* on !t* ro&e !n #!"!& pro#e+$re ere&) %or ana&)t!#a& #on"en!en#e. Iou might want to connect the analysis on bias in this chapter with the discussion of racial bias in the jury in <ection 82.8'.'.

Ne/ Se#t!on: BIAS4 HUMAN RIGHTS AND THE JURY Law downplay (e!!iciency o! the "ury system' The essential issues in this area of #r! !na& pro#e+$re are focused by Ford <teyn/s speech in R' "' M!r-a. Ford <teyn stressed the context of the problem the accused is entitled to trial before an .impartial tribunal/ and! should there be allegations that the tribunal showed bias! then there must be a robust way of examining this allegation. %ow does this .fundamental/ fair trial guarantee sit alongside the common law rule that pre$ents any examination of the jury/s deliberations0 What are the risks of this approach0 It would appear that the law places the 6e%%!#!en#) o% the 1$r) *)*te 7 a,o"e the po**!,!&!t!e* o% 6 !*#arr!a(e* o% 1$*t!#e7.

Core specifically! we will see that the &a/ !* #on*!*tent&) +o/np&a)!n(

the 6#orro*!"e7 e%%e#t o% ra#!* /!th!n the 1$r)'

The #o on &a/ an+ h$ an r!(ht* 1$r!*pr$+en#e ha$e not ta0en th!* pro,&e o% ra#!* *er!o$*&) eno$(h' It is! of course! easy to ar($e that a per*on who has been found guilty of an offence /!&& /ant to re>open h!*Cher #a*e. %owe$er! th!* +oe* not (et to the rea& !**$e the pro,&e decisions. o% ,!a*e+ 1$r)

To understand this issue! we need to examine the leading cases.

)ury bias case In Gre(or) "' U;4 e$idence emerged of jury bias. (act After the 1$r) ha+ ret!re+ to #on*!+er !t* "er+!#t! a note /a* pa**e+ to the 1$+(e which read .J$r) *ho/!n( ra#!a& o"ertone*. One member to be excused./ The 1$+(e /ent on to *ho/ the note to ,oth the pro*e#$t!on an+ the +e%en#e! and /arne+ the 1$r) that the) ha+ to !(nore an) pre1$+!#e and try the case on its facts. The jury found the defendant guilty by a $erdict of 82 to G. The applicant ar($e+ ,e%ore the ECtHR that he ha+ not re#e!"e+ a %a!r tr!a& and his rights under Article 6 and Article 8J had been breached.

Old test 5Bough6 disagreed by *#t%+ What should the judge ha$e done0 The rele$ant test for bias at the time of the trial was +. $. Bough. Old test Once the judge became aware of bias on the part of the jurors s3he should ha$e considered whether there was a possibility of actual bias. <3he should ha$e to ha$e asked whether indi$idual jurors could be shown to be biased or! failing that! was it possible to find a .real danger of bias affecting the mind of the rele$ant juror or jurors/. This is the so,called objecti$e test. Bregory argued that a&tho$(h the note !t*e&% was not e"!+en#e of actual bias! the 1$+(e *ho$&+ *t!&& ha"e +!*#har(e+ the 1$r) or! at $ery least! p$t the 5$e*t!on to the 1$r) a* to /hether the) /ere a,&e to #ont!n$e tr)!n( the case! and ,e a,&e to p$t ,!a* o$t o% the!r !n+*'

*#t%+ held the decision is reasonable but Audge Koegel 5dissenting6, discharge jury or in$estigate They began from the principle that it was of .fundamental importance/ that the criminal courts a!nta!n the #on%!+en#e o% the> p$,&!#! and to this end it was necessary to ensure that they were .impartial/ decision makers. This returns! in part! to the )ullar case! which linked the &a#0 o% part!a&!t) to the %$n+a enta& Art!#&e . ($arantee o% a tr!a& before an independent and impartial tribunal. In Gre(or)! the court held that the rule that maintained the *e#re#) o% 1$r) deliberations was .#r$#!a& an+ &e(!t! ate7to the operation of common law courts! as it guaranteed .open and frank deliberations among the jurors/.

 They then +!*t!n($!*he+ Gre(or)7* #a*e %ro another important authority! Re &! "' Fran#e' In Re &!! the 1$+(e ha+ not ta0en an) a#t!on when a member of the jury had been o$erheard saying that he was a racist. The a ,!($o$* nat$re o% the note that the judge re#e!"e+ !n Gre(or) meant that the 1$+(e7* a#t!on* /ere rea*ona,&e. The +!**ent o% J$+(e Doe(e& is interesting! as it suggests one way in which the law could respond to racism in the jury. %e pointed out that as the 1$r) !* 6the $&t! ate ar,!ter o% the %a#t* o% a #a*e7 it is of para o$nt ! portan#e that 1$ror* are a+e a/are o% the pro,&e o% ,!a* especially as no warning or training is gi$en! and then, per*ona& e3per!en#e* a) ,e a poor *$,*t!t$te for a more structured approach.

 %e argued that! in these circumstances! a speech from a 1$+(e /o$&+ not 6+!*pe& ra#!a& pre1$+!#e7 and the on&) rea& re e+) /o$&+ ha"e ,een to +!*#har(e part o% the 1$r) or to #on+$#t a ore thoro$(h !n"e*t!(at!on into the note itself. Th!* /a* not po**!,&e ,e#a$*e o% the r$&e on 1$r) *e#re#)' We could thus suggest that the law is more properly stated by the dissenting judgment in Bregory.

<ander case 7*#t%+;, presumed impartial until e$idence pro$ed contrary If not sure then make in$estigation 4oes this suggest that! as Bregory/s case was distinguished in San+er "' U;! this latter case is a more desirable statement of the law0 <ander had been con$icted of conspiracy to defraud but his trial was adjourned because the 1$+(e re#e!"e+ a #o p&a!nt from one of the jurors that t/o other e ,er* of the jury had been a0!n( ra#!*t #o ent*' The judge then recei$ed a letter from one of the 1$ror* apo&o(!*!n( and a letter from the jury as a whole denying racial prejudice. Rather than +!*#har(!n( the jury! the 1$+(e #ho*e to re+!re#t the . The app&!#ant ar($e+ that this was a fundamental error that +epr!"e+ h! o% a %a!r tr!a&'

 As there was a real danger of bias! the jury should ha$e been discharged.

 The *#t%+ argued that there had been a ,rea#h o% Art!#&e .. (ollowing )iersack $. &elgium! the court held that the ! part!a&!t) o% the +e#!*!on> a0er $*t ,e pre*$ e+ $nt!& there !* e$idence to the contrary and! on these facts! there was e"!+en#e that the 1$r) /a* ra#!a&&) ,!a*e+. The judge /a* not *$re that there was not actual bias in the jury! and *ho$&+ ha"e a+e %$rther !n"e*t!(at!on*.

 On these facts! the applicant had not recei$ed a fair trial. What seems #entra& to the rea*on!n( of the court is that the 1$+(e 6ha+ ,oth ,een !n%or e+ o% a *er!o$* a&&e(at!on and re#e!"e+ an !n+!re#t a+ !**!on that racist remarks had been made/. In such a situation! the 1$+(e *ho$&+ ha"e +!*#har(e+ the jury. It /o$&+ appear that the +!*t!n#t!on ,et/een Gre(or) an+ San+er !* one o% +!%%eren#e* o% %a#t. &ecause in Bregory there is no admit by juror himself while in <ander! there is apologise letter show that juror himself admit he is racist

Re!orm up to *+ court but not E&tHR Indeed! /e #annot e3pe#t a clear statement of the need to re%or the 1$r) %ro the ECtHR because! gi$en the role and function of the court! !t /o$&+ not ta0e the &ea+ on the !**$e !n *$#h a /a). The matter is nuanced. The *e#re#) r$&e !* not #&ear&) !n ,rea#h o% Art!#&e .' If 1$r) re%or !* ne#e**ar)! then !t /o$&+ ,e $p to the En(&!*h #o$rt* to articulate the way forward.

,ir-a- a!!irm .ecrecy rule /no investigation0 In our reading of +. $. CirLa! we show that this matter has been firmly taken off the agenda. In CirLa! the %ouse of Fords a%%!r e+ the #entra&!t) o% the *e#re#) r$&e to the /or0!n(* o% the 1$r)! e"en !% this meant that the part!a&!t) o% the 1$r) #o$&+ not ,e e3a !ne+ The general common law rule was that the #o$rt /o$&+ not !n"e*t!(ate! or recei$e e$idence about! an)th!n( *a!+ !n the #o$r*e o% the 1$r)7* +e&!,erat!on* /h!&e the) /ere #on*!+er!n( the!r "er+!#t in their retiring room. Atte pt* to *o%ten the r$&e to ser$e the interests of those who claimed that they were unfairly con$icted *ho$&+ ,e re*!*te+ !n the (enera& p$,&!# !ntere*t! if jurors were to continue to perform their $ital function of safeguarding the liberty of e$ery indi$idual.

Importance o! "ury secrecy- #an 1&anada case2 There is a useful consideration of the underlying rationale of the rule in the Cana+!an #a*e o% Pan' <ecrecy a&&o/* 1$ror* to #on*!+er the aspects of the case .w!tho$t %ear o% e3po*$re to p$,&!# r!+!#$&e 4 #onte pt or hatre+7'

also allows the jurors a degree of prote#t!on %ro 6hara** ent an+ 6repr!*a&* ! an important consideration in the criminal trial. case might concern an .unpopular accused/ or someone .charged with a particularly repulsi$e crime/! this re"uirement prote#t* the !nte(r!t) o% the +e#!*!on> a0!n( pro#e**. This has to be taken on faith.

stresses the .%!na&!t)7 o% the 1$r)7* "er+!#t'

This is perhaps less con$incing in a legal system that allows appeals and re$iews of decisions! and should not

perhaps .trump/ other due process $alues ,ir-a-)ury system wor$ed well in *+ In M!r-a! Ford <lynn described the other *a%e($ar+* that prote#te+ both the #o po*!t!on an+ the !nte(r!t) o% the 1$r). The principle of random selection means that it is #o po*e+ o% a #ro** *e#t!on of the population who are a#t!n( on oath. As far as the operation of the jury in the court is concerned! the fact that the 1$+(e (!"e* +!re#t!on* a&&o/* !rre($&ar!t!e* to ,e +ea&t /!th e%%e#t!"e&)! as does the possibility of an appeal.

 Ford %obhouse pointed out that since *e#t!on 1E o% the J$r!e* A#t 1FEG 5which re5$!re* a1or!t)! rather than unanimous $erdicts6 there will always be situations where the $iews of one or two jurors ha$e not been followed.

While this may be a .fertile scenario for a dissident juror/! ,$t the *)*te !t*e&% #onta!n* *$%%!#!ent #he#0* to ($arantee the &e(!t! a#) o% the re*$&t'

&esides! /!tho$t +e%!n!te e"!+en#e of .actual bias/! the ,!a* o% an !n+!"!+$a& #annot a%%e#t the +e#!*!on' (urthermore! the tr!a& 1$+(e *$per"!*e* the tr!a& and can (!"e 1$ror* +!re#t!on* and guidanceprejudicial e$idence can be excluded. Cost importantly! the 1$r) tr!a& repre*ent* a particularly #o on &a/ approa#h to h$ an r!(ht*H

.a ,a*t!on o% the #r! !na& 1$*t!#e *)*te a(a!n*t +o !nat!on of the state and a

*a%e($ar+ of the liberty of its citiLens/.

*xception to secrecy rule, inter$ene when affected by extraneous influences/- and jury .guessing/ to make $erdict Indeed! the cases of bias and .improper beha$iour/ show the system is sensiti$e to these matters and that they do come to light. Of course! there are e3#ept!on* to the *e#re#) r$&e'

These e3#ept!on* relate to those instances when the 1$r) !* a&&e(e+&) a%%e#te+ ,) 6e3traneo$* !n%&$en#e*7 5although this was not an issue in the present case6. Another problem was also considered if it was alleged that .the jury as a whole declined to deliberate at all! but +e#!+e+ the #a*e ,) other ean* *$#h a* +ra/!n( &ot* or ,) the to** o% a #o!n7 then the #o$rt /o$&+ !nter"ene! as such beha$iour would- .amount to a complete repudiation by the jury of their only function which! as the juror/s oath put it! was to gi$e a true $erdict according to the e$idence./

 The e3#ept!on* +o not #o pe& the conclusion that there is any profound nee+ to re%or 1$r) pra#t!#e*4 and that any problems cannot be dealt with by the existing law.

=o need refer to >< jury process which need procedure to empanel jury

While this issue does indeed stress the foundational $alues of due process! but it is interesting that 2or+ Ho,ho$*e +!*t!n($!*he* the 1$r) *)*te !n the US! with its .$ery thoro$(h an+ p$,&!# pro#e+$re of jury $etting which precedes the e pane&&!n( o% the 1$r)7 and a&&o/* 6an !n"e*t!(at!on of their prejudices/ from that of the >?.

%e appears to be ar($!n( that the US approa#h !* not ne#e**ar) if the #on%!+ent!a&!t) r$&e /a* re1e#te+ there would be .no *topp!n( po!nt !n the other #han(e* /h!#h /o$&+ #on*e5$ent!a&&) ha$e to be made short of !ntro+$#!n( a %$&&>+e"e&op pre>tr!a& pro#e+$re o% 1$r) "ett!n( in order to maintain an acceptable minimum le$el of finality and public confidence in the jury $erdict/.

)reser$e public confidence is necessary This may be the case! but! !t !* a,*o&$te&) ne#e**ar) to pre*er"e p$,&!# #on%!+en#e in the jury ... it is +!%%!#$&t to *ee ho/ !t /o$&+ pro ote p$,&!# #on%!+en#e in the criminal justice system for the public to be informed that our appellate courts o,*er"e a *e&% +en)!n( r$&e ne"er to a+ !t e"!+en#e of the deliberations of a jury e"en !% *$#h e"!+en#e *tron(&) *$((e*t* that the 1$r) /a* not ! part!a&'

In cases where there is #o(ent e"!+en#e +e on*trat!n( a rea& r!*0 that the jury was not impartial and that the general confidence in jury $erdicts was in the particular case ill reposed! /hat po**!,&e p$,&!# !ntere*t #an there ,e !n a!nta!n!n( a +$,!o$* #on"!#t!onB

Allege jury about prejudice issue is miss the direction Ford %obhouse/s approach suggests that there is a %a!&$re to appre#!ate the nat$re o% ra#!* as it is a *o#!a& pro,&e an+ an !**$e o% peop&e7* pre1$+!#e*! then it will make arguments about the 1$r) a* a +e%en#e a(a!n*t the *tate !** the po!nt' Fikewise! arguments stressing the liberty of the indi$idual do not necessarily deal with racism. A +e%en+ant /ho a&&e(e* 1$r) ,!a* is not a0!n( an ar($ ent a,o$t &!,ert)! ,$t about +!*torte+ per#ept!on* that a0e o,1e#t!"e 1$+( ent* ! po**!,&e'

U; J$r)> ,a*e+ on #on*#!en#e an+ Art' .> #he#0 an+ ,a&an#e Muestions about bias in the jury will not go away. Indeed! changes in the composition of the jury ha$e ra!*e+ ne/ !**$e* about the re&at!on*h!p ,et/een Art!#&e . an+ th!* #o on &a/ !n*t!t$t!on'

Han!% an+ ;han "' U; The applicants argued that although the presence of a police officer on a jury was not a $iolation of Article 6! the case raised two distinct issues. %anif asserted that there was a ,rea#h o% .91: when a po&!#e o%%!#er /a* on the 1$r) and the pro*e#$t!on #a*e re&!e+ on po&!#e e"!+en#e that was tested during cross examination. ?han/s point was a little different a breach of 6586 would occur if there was a police officer on the jury and the prosecution/s case made use of e$idence .gathered by police officers with whom the police officer juror would ha$e! at the $ery least! some form of #o&&e(!ate !ntere*t7 5para 8'26. The *#t%+ found that there had been ,rea#he* o% Art!#&e . !n ,oth #a*e*.

 It is /orth *tre**!n( that the *#t%+ took particular note of #on%&!#t* !n the e"!+en#e (!"en ,) the po&!#e and the %a#t that the po&!#e o%%!#er *er"!n( on the 1$r) 0ne/ the o%%!#er (!"!n( e"!+en#e' As well as issues of racism! recent cases on irregularities in jury deliberations ha$e concerned the nat$re o% #o&&e#t!"e re*pon*!,!&!t) %or the 1$r) "er+!#t! and the issue of ! proper pre**$re or stress that may !n%&$en#e 1$ror* to #o e to +e#!*!on* that the) &ater re(ret'

 %owe$er! the Co$rt o% Appea& appears committed to +e%en+!n( the #entra&!t) o% the 1$r) to the #r! !na& tr!a&' In R' "' Tho p*on! the court acknowledged that 6<1=$r) *er"!#e !* not ea*)7 but that O$r #on%!+en#e !n the 1$r) *)*te ultimately +epen+* on the ,e&!e% that! /hate"er the +!%%!#$&t!e* in$ol$ed in the process! after reflecting on the $iews expressed by the other members of the jury! ea#h 1$ror /!&& ,e %a!th%$& to the +!#tate* o% h!* or her #on*#!en#e ,a*e+ on e3a !nat!on an+ ana&)*!* o% the e"!+en#e! so that those who cannot agree with the $iews of their colleagues stand firm by their consciences. . . ! This argument *ho/* %a!th !n the !nte&&!(en#e an+ !nte(r!t) o% !n+!"!+$a&*. <uch a faith might be appealing! but! is it enough to safeguard the integrity of legal procedures0

 The 1$r) +oe* not 1$*t +epen+ on the !nte(r!t) of its members- !t ha* to ,e a**e**e+ !n the #onte3t o% the #he#0* an+ ,a&an#e* that ensure that jury $erdicts are not !n ,rea#h o% Art!#&e .' Thus! the key "uestions to be asked in assessing the fairness of the jury/s $erdict can be outlined as follows. (irstly! it is necessary to establish whether! in the terms of the trial as a whole! the a##$*e+ /a* 6a/are o% the #har(e* a(a!n*t h! 7! the nat$re o% the o%%en#e! and the (ro$n+* o% h!* #on"!#t!on' the 1$+(e a**!*t* the 1$r) to rea#h !t* "er+!#t by summing up the e$idence! gi$ing directions! and! explaining the rele$ant law. both pro*e#$t!on an+ +e%en#e #an a++re** the 1$r) and outline the conclusions which they should reach. the 1$r) deliberates in pri$ate! and! if necessary! #an a*0 the 1$+(e %or %$rther a+"!#e' 5+ $ Thomson6

Aury has to prejudice to $arious things and Aury system exist for long time <o! from the $iewpoint of Article 6! we need to see the jury as a peculiar institution a *et o% pro#e+$ra& *a%e($ar+* that ena,&e #!t!-en* to a0e +!%%!#$&t +e#!*!on* $n+er pre**$re' 2or+ Ro+(er in A,+ro!0o% made a similar point

.The reality ... is that the jury system operates! not because those who ser$e are free from prejudice! ,$t +e*p!te the %a#t that an) o% the /!&& har,o$r pre1$+!#e* o% "ar!o$* 0!n+* when they enter the jury box. . . ./

I% e3per!en#e ha+ *ho/n that &ritish juries! made up of people drawn at random from all kinds of backgrounds! #o$&+ not a#t ! part!a&&)4 the *)*te /o$&+ &on( *!n#e ha"e &o*t a&& #re+!,!&!t)'

)erhaps this is an understanding of due process at least as compelling as the most rigorously formal.

3urther E&tHR development on )ury4 5o !or the moment %owe$er! some commentators ha$e suggested that in the wake of Tax"uet! the *#t%+ may be opening up the possibility of further challenges to the jury. Brand #hamber found that as the 1$r) 6+!+ not rea#h !t* "er+!#t on the ,a*!* of the case file but on the e"!+en#e !t ha+ hear+ at the tr!a&7 it was ne#e**ar) to 6e3p&a!n7 the $erdict .both to the accused and to the public at large/ and .to h!(h&!(ht the #on*!+erat!on* that ha+ per*$a+e+ the 1$r) o% the a##$*e+7* ($!&t or !nno#en#e7' This may or may not be the case. At least for the moment! it would seem that the #o on &a/ 1$r) operate* !n *$#h a /a) a* to ,e #on*!*tent /!th the h$ an r!(ht to a %a!r tr!a&'

Ne/ Se#t!on: CONC2USION In order to sum up on our key points in this chapter! it is necessary to remember one of the main arguments we made in the introduction. We explained that one of the o$erarching principles of Art!#&e . re&ate+ to the pre*er"at!on o% the !nte(r!t) o% &e(a& pro#ee+!n(*' As we ha$e seen in this chapter! the notion of integrity is based on common sense a fair trial re"uires an independent court and an unbiased judge. The proh!,!t!on on ,!a* a&*o e3ten+* to the 1$r). In order to assess the fairness of the court! the judge and the jury! /e ha"e &oo0e+ at h$ an r!(ht* 1$r!*pr$+en#e4 an+ a**e**e+ !t* ! pa#t on the #o on &a/' It is fairly clear that4 a* %ar a* the *)*te o% !&!tar) 1$*t!#e !* #on#erne+! Art!#&e . ha* ha+ a a1or ! pa#t on #o on &a/'

 The way in which the te*t on ,!a* had to be re,articulated in the light of Article 6 is also e$idence that #o on &a/ r$&e* re5$!re+ re> /or0!n( to ,e #on*!*tent /!th !nternat!ona& *tan+ar+*' It is perhaps ore +!%%!#$&t to *$ $p on the ar($ ent* !n re&at!on to the 1$r). While broadly consistent with fair trial rights! there is a sense that , a%ter Ta35$et > there /!&& ,e %$rther #ha&&en(e* to the 1$r) !n Stra*,o$r(! and a robust defence of the institution will ha$e to be mounted.