Azam & Ors, R. v

A trial judge has an independent duty to ensure a fair jury trial and may discharge the jury even if neither party seeks that course. The question is whether there are real grounds to doubt the jury’s ability to reach an objective verdict. It must be answered in the context of the trial as a whole, including the effectiveness of clear directions to disregard inadmissible and prejudicial material.

An appellate court will not interfere with that case-specific discretion unless the decision was wrong and the resulting conviction is unsafe. A difficult or uncontrolled witness does not necessarily require discharge where firm directions can neutralise prejudice and the behaviour itself is relevant to the witness’s credibility.

The appellants were convicted at Nottingham Crown Court before Gage J of attempting to murder Ishrat Khan during a group attack in which he was shot and struck with hammers. Khan identified the appellants, who denied involvement and challenged his credibility.

They appealed against conviction on the grounds that the judge should have discharged the jury after Khan made uncontrolled and prejudicial allegations during cross-examination, that later psychiatric material undermined his reliability, and, in Azam’s case, that there was no case to answer. The common issue was whether the trial nevertheless remained fair and the convictions safe.

1. Appeals against conviction dismissed. The trial judge retained an independent discretionary power, integral to the duty to secure a fair trial, to discharge the jury. He had to make his own assessment of the interests of justice even though the appellants wished the trial to continue.
2. The correct inquiry was whether there were real grounds to doubt the jury’s ability to bring an objective judgment to the issues. The risk created by prejudicial material had to be assessed alongside the directions available to the judge and the trial process as a whole. The court adapted the observations in Locobail (UK) Ltd v Bayfield Properties Ltd, [2000] QB 451, to the jury-trial context.
3. Khan’s aggressive, uncontrolled and threatening outbursts were serious and could not be ignored. However, discharge was not the only remedy. A retrial could repeat the problem or permit the principal witness to present an artificially improved account. The judge gave unequivocal directions to disregard the irrelevant allegations and told the jury that Khan’s conduct could bear adversely on his credibility. He was entitled to conclude that the jury could decide the case fairly on the admissible evidence.
4. The Court of Appeal would not interfere with a trial-management discretion unless it was wrong and made the conviction unsafe. Gage J had considered the relevant matters closely, applied the proper fair-trial standard and given adequate directions. His ruling was therefore correct.
5. The subsequent psychiatric material provided no evidence of mental illness, schizophrenia, delusion, hallucination or cognitive impairment at the time of the offence or trial. It did not materially affect the real issue: whether Khan truthfully identified his attackers.
6. There was ample evidence capable of supporting Azam’s identification, including recognition by body shape and voice, his association with the other appellants, and evidence concerning the vehicle used before and after the attack. The no-case submission was correctly rejected.

• Court of Appeal (Criminal Division) In a single judgment, dismissed the appeals against conviction: [2006] EWCA Crim 161.
• Nottingham Crown Court (Gage J) On 19 May 2004, convicted each appellant of attempting to murder Khan. Renewed applications for leave to appeal against sentence were referred to the court, but their outcome is not stated in the judgment.