Zaheer, R. v

A trial judge deciding whether to discharge a jury after leading defence counsel becomes unavailable must determine objectively whether the accused can still receive a fair trial. The issue is not an exercise of subjective discretion or a balance between fairness and practical inconvenience.

The fair-minded-observer test, ordinarily used for alleged judicial bias, need not be imported where no bias is alleged. Although continued representation by trusted leading counsel is preferable, a trial may continue with replacement counsel if the judge is satisfied that effective representation and a fair process remain possible. The whole course of the trial must then be considered when assessing the safety of any conviction.

The appellant was tried for the murder of his wife. His first trial ended when the jury failed to agree. At the retrial in the Central Criminal Court, leading defence counsel became seriously ill towards the end of the prosecution case and could not return for at least a month.

On the appellant’s instructions, replacement counsel applied to discharge the jury. The trial judge refused because he was satisfied that junior counsel could continue fairly, with time and assistance, and later permitted newly instructed leading counsel a week to prepare. The appellant was convicted of murder and sentenced to life imprisonment with a minimum term of 15 years.

His appeal against conviction alleged that refusal to discharge the jury had made the trial unfair.

1. Appeal dismissed. The trial judge applied the correct question: whether the appellant could still receive a fair trial. That was an objective judgment, not a discretionary balancing exercise. The judge made clear that he would have discharged the jury if there had been a risk of unfairness.

2. The proposed test of whether a fair-minded independent observer would perceive unfairness was unnecessary. That test is generally used in judicial-bias cases. No bias was alleged or capable of being alleged here. In any event, the court held that such an observer would have reached the same conclusion: the continued trial was fair.

3. It is preferable for an accused to retain experienced leading counsel who has conducted the case throughout. However, counsel’s illness does not itself require discharge of the jury. The trial may continue where the judge, having assessed the available advocate and the practical safeguards, is satisfied that the accused can still be represented fairly and effectively.

4. That conclusion was justified on the facts. Junior counsel had attended the retrial, had cross-examined the remaining non-contentious witnesses, and was regarded by the judge as a competent advocate. Replacement leading counsel received time to prepare and had junior counsel, solicitors, and transcripts from both trials. No identifiable prejudice was shown. The case depended principally on scientific and circumstantial evidence rather than the demeanour of prosecution witnesses.

5. Reviewing the proceedings as a whole, the court found no breach of the appellant’s common-law or Convention right to a fair trial. There was consequently no basis to doubt the safety of the conviction.

• Court of Appeal (Criminal Division) — appeal against conviction dismissed: [2010] EWCA Crim 525.

• Central Criminal Court — following a retrial beginning on 16 January 2006, the appellant was convicted of murder on 24 February 2006 and sentenced on 2 March 2006 to life imprisonment with a minimum term of 15 years, less time on remand.

• First trial — the jury failed to agree.