Zulhayir, R. v

Where jury notes raise a credible concern that a juror has prejudged the accused, including because of ethnic background, the trial process must enable the court to be satisfied that the accused has been tried by an impartial tribunal. A general assurance from the jury that it can decide fairly will not cure handling of the complaint which leaves that question unresolved.

A judge should treat a juror’s report of possible bias with particular care. It is concerning to disclose the report to the whole jury without first considering the matter privately with the reporting juror, especially where jurors have been directed to raise such concerns promptly.

The appellant was convicted at Snaresbrook Crown Court, by a majority of 10 to 2, of three counts of indecency with a child contrary to section 1(1) of the Indecency with Children Act 1960. He received two years’ imprisonment. He had been acquitted of rape.

During the trial, one juror sent a note alleging that another juror had prejudged the appellant, particularly because of the family’s ethnic background. The judge did not disclose that note to counsel. A second note later said that the conduct had continued and that a fair verdict could not be reached. The judge disclosed the second note to the whole jury and sought its collective assurance that it could decide fairly. She refused an application to discharge the jury.

The appeal concerned whether that procedure secured a fair trial before an impartial tribunal.

1. Appeal allowed. The convictions were quashed and no retrial was ordered.

2. The first note was sent after the jury had received a direction to decide solely on the evidence and to report significant concerns about jury service. The judge’s failure to disclose that note to counsel was accepted to have been wrong. The second note alleged continuing ethnic bias and asserted that a fair verdict could not be reached.

3. The court had concerns about disclosing the reporting juror’s complaint to the whole jury without first giving that juror an opportunity to discuss it privately. That approach was particularly troubling because jurors had been encouraged to bring concerns to the judge’s attention. Brown [2001] EWCA Crim 2828 had identified a similar concern.

4. The jury’s collective answer that it could try the case fairly did not provide a sufficient basis to resolve the issue. By the time the judge considered speaking separately to the reporting juror, the jury had begun deliberating and any inquiry risked engaging the secrecy of those deliberations.

5. Looking at the course of the trial as a whole, the court could not be satisfied that the appellant had received a fair trial before an impartial tribunal. It was unnecessary to determine the authorities in further detail. The only proper result was to allow the appeal and quash the convictions.

• Court of Appeal (Criminal Division): Allowed the appeal in [2010] EWCA Crim 2272, quashed the convictions and declined to order a retrial.
• Crown Court at Snaresbrook: On 25 January 2010, convicted the appellant by a majority of 10 to 2 on three counts of indecency with a child. On 12 March 2010, sentenced him to two years’ imprisonment.