Smith & Anor, R v

Article 6 does not require a racially mixed jury merely because a black defendant is tried by an all-white jury. The decisive question is whether a fair-minded and informed observer would conclude, from the facts of the particular case, that there was a real possibility of bias. Jurors are presumed impartial unless evidence proves otherwise.

Random selection remains capable of securing an impartial tribunal. An all-white jury does not make a conviction unsafe where there is no evidential basis for doubting that the jurors assessed the evidence fairly and objectively. A conventional direction that co-accused guilty pleas must not determine the accused’s guilt is not a misdirection where the jury is also clearly directed to assess the evidence against that accused and apply the prosecution burden of proof.

Smith was convicted at Preston Crown Court of causing grievous bodily harm with intent and possessing a firearm with intent following violence outside a nightclub. His co-accused, Rennie and Patel, had pleaded guilty before Smith’s trial.

Smith appealed against conviction. He contended that the trial was unfair and the convictions unsafe because the jury was randomly selected and all white, despite alleged racial overtones in the incident. He also challenged the direction concerning his co-accused’s guilty pleas. Rennie appealed against sentence, but that appeal was not determined in this judgment.

The central issues were whether an all-white jury was incompatible with Article 6 and whether the conventional direction on the co-accused’s pleas deprived Smith of a potentially exculpatory use of those pleas.

1. Smith’s conviction appeal was dismissed. The court refused leave on the all-white-jury ground and dismissed the ground alleging misdirection on the co-accused’s pleas. The sentencing appeals were reserved for later submissions.
2. Article 6 requires an independent and impartial tribunal. The objective inquiry, stated in Porter v Magill [2002] 2 WLR 37, is whether a fair-minded and informed observer would see a real possibility of bias. Jurors, like judges, are presumed personally impartial unless there is proof to the contrary.
3. The court accepted that diverse experience can assist jury deliberations. It nevertheless held that random selection of an all-white jury did not, without more, create unfairness. There was no evidence that the jurors failed to scrutinise the evidence fairly and objectively, or that the issues required knowledge of particular racial traditions or social circumstances. The witnesses had been fully cross-examined and the asserted racial stereotyping had not been put to them.
4. The court approved the position in R v Ford (1989) 89 Cr App R 278 that a trial judge has no power to influence the composition of a jury. It held that Juries Act 1974 section 1 was not shown to be incompatible with Article 6, and declined to make a declaration of incompatibility. Section 2 placed responsibility for summoning jurors on the Lord Chancellor, so this conviction appeal was not an appropriate vehicle for considering alternative eligibility arrangements.
5. The guilty pleas of Rennie and Patel were capable of assisting Smith’s defence under Police and Criminal Evidence Act 1974 section 74. However, the conventional direction did not misdirect the jury in context. It immediately reiterated that the prosecution had to prove Smith’s guilt and that the jury alone decided the facts. The convictions were safe.

• Court of Appeal (Criminal Division). Smith was refused leave to appeal on the all-white-jury ground, and his conviction appeal was dismissed. The court reserved the sentencing appeals for later submissions.
• Preston Crown Court. On 6 February 2001, Smith was convicted after jury trial and received an aggregate sentence of eight years’ imprisonment. Rennie had pleaded guilty and was sentenced on 23 March 2001 to five years’ detention in a young offender institution.