Khan & Ors v R

The removal of occupational disqualification from jury service does not remove the common-law and Convention requirement for an impartial tribunal. Apparent bias remains a fact-sensitive question for the fair-minded and informed observer.

A police officer is not apparently biased merely because of that occupation or experience of the type of offending charged. Partiality towards a witness invalidates a conviction only where it might cause the jury to accept that witness’s evidence and might affect the outcome. A prosecution-service employee is not thereby disqualified in a prosecution brought by another authority. Knowledge of prejudicial material is assessed by the safety of the conviction, not by an automatic rule of bias.

These conjoined appeals and applications arose from convictions in several Crown Courts. They concerned jurors who were serving police officers, a Crown Prosecution Service employee, or prison officers.

The appellants and applicants contended that the jurors’ occupations, their connection with a police witness, or possible knowledge of a defendant’s past created an appearance of bias. The court also considered sentence challenges arising from a heroin conspiracy, bankruptcy non-disclosure offences, and guilty-plea credit.

The central issue was whether the particular juror’s circumstances would lead the fair-minded and informed observer to find a real possibility of bias, or otherwise render the conviction unsafe.

1. The conviction challenges failed. The appeals of Bakish Alla Khan and Hanif were dismissed. Permission was granted, but the appeals dismissed, in the cases of Lewthwaite and Michael Arshad Khan on the jury-bias ground. The applications of Cross and Hill were refused.

2. Under article 6, the objective question is that stated in Porter v Magill [2001] UKHL 67: whether the fair-minded and informed observer would see a real possibility that the tribunal was biased. Bias towards a party is distinct from favouring a witness. Where the latter is alleged, the court must ask whether the juror’s partiality might have caused acceptance of that witness’s evidence and whether that might have affected the result. Both questions must be answered affirmatively before the trial lacks the appearance of fairness.

3. The removal of automatic occupational disqualification by the Criminal Justice Act 2003 did not make otherwise biased persons eligible. It required an individual assessment. A serving police officer was not apparently biased merely by being a police officer, acting as foreman, or having experience of drug operations. On the facts, neither the acquaintance with the police witness nor the minor disputed evidence could have affected the safety of the relevant convictions.

4. Applying R v Abdrokof and another; R v Williamson [2007] UKHL 37, a CPS employee may appear partial where the CPS is the prosecutor. That did not apply to the Department of Trade and Industry prosecution. Nor did a prison officer’s possible access to prejudicial information itself create bias. The investigations established that the prison-officer jurors did not know the defendants.

5. The court invited practical safeguards at jury selection. In particular, the trial judge should be told if a prospective juror is or has been a police officer, a member of the prosecuting authority, or a serving prison officer.

6. The sentence challenges succeeded. Bakish Khan’s term was reduced from 17 to 15 years, while the consecutive unserved licence period remained. Younas received 13 years and 6 months, including a 10% reduction for his late guilty plea. A basis of plea that deprived an offender of mitigation did not remove credit for the practical saving achieved by the plea where no Newton hearing was required. Michael Arshad Khan’s concurrent 30-month terms were replaced with concurrent 18-month terms.

• Court of Appeal (Criminal Division). In [2008] EWCA Crim 531, the court dismissed the conviction appeals and applications, but allowed the material sentence challenges and substituted lower terms.

• Crown Court at Sheffield. Bakish Alla Khan and Hanif were convicted of conspiracy to supply heroin. Younas pleaded guilty to that conspiracy.

• Crown Court at Bristol. Lewthwaite was convicted of causing grievous bodily harm with intent.

• Crown Court sitting at Hull. Michael Arshad Khan was convicted of failures to disclose property in bankruptcy.

• Crown Court at Worcester. Cross was convicted of wounding with intent.

• Crown Court at Liverpool. Hill was convicted of attempted murder and witness intimidation.