Zejmowicz & Anor, R. v

Jury impartiality is assessed objectively by asking whether a fair-minded and informed observer, considering the facts established after trial, would perceive a real possibility of bias. A prison officer’s employment at a prison where defendants or witnesses were held, and failures in precautionary procedures, do not alone satisfy that test.

A jury need not be discharged after a co-defendant is removed from a trial if clear and repeated directions can cure prejudice from evidence admissible only against that co-defendant. Hearsay evidence from an absent witness may be admitted under the Criminal Justice Act 2003 where it is potentially probative and appropriate directions adequately address the inability to cross-examine the witness.

Following a jury trial at Nottingham Crown Court, Krzysztof Zejmowicz and Tomasz Ruskinski were convicted of murdering Leszek Milon. Both appealed against conviction.

The common ground alleged that the trial was unfair because a serving prison officer at HMP Nottingham sat as a juror, although the appellants and two witnesses had been held there. Ruskinski additionally challenged the refusal to discharge the jury after a co-defendant was directed to be acquitted, and the admission of a video-recorded interview of a shopkeeper who was abroad and could not attend.

The central issue was whether any of those matters rendered the convictions unsafe.

1. Both appeals were dismissed. None of the grounds gave reason to doubt the safety of the murder convictions.
2. The court applied the objective test stated in R v Khan [2008] EWCA Crim 531. A fair-minded and informed observer would not find a real possibility of bias. The failures to identify the juror’s prison-officer role before trial were regrettable, but the subsequent investigation established that he did not recognise or know either appellant or the relevant witnesses and had obtained no prejudicial information. Speculation that prison gossip might have reached him was insufficient.
3. The trial judge was entitled not to discharge the jury after directing the acquittal of the co-defendant. The hearsay statements attributed to that co-defendant were prejudicial, but the prejudice could be cured by firm directions that the statements were inadmissible against the appellants. The summing-up went further by requiring caution over whether other witnesses’ ostensibly direct evidence had been influenced by what the co-defendant had told them. The jury could be relied upon to follow those directions.
4. The admission of the absent shopkeeper’s video interview under the Criminal Justice Act 2003 was a proper exercise of discretion. The statutory conditions for hearsay admissibility were met. The evidence was potentially probative, and it was proper for the jury to have both shopkeepers’ accounts. Although the inability to cross-examine the absent witness was a serious disadvantage, detailed directions requiring considerable caution adequately protected fairness.

• Court of Appeal (Criminal Division) Dismissed both appeals against conviction.
• Crown Court at Nottingham On 5 December 2008, a jury convicted both appellants of murder.