Pouladian-Kari v R

Where the relevant words of an export-control regulation have an ordinary and straightforward meaning, the judge need not decide the full factual effect of notification letters. The judge may rule on their legal capability, while the jury decides whether the exporter was in fact informed.

A fair trial is nevertheless impossible where a juror's professional knowledge directly concerns the decisive issue, creates a real possibility of unconscious bias, and is not adequately addressed by the trial judge. A direction to decide solely on the evidence may be insufficient if it does not warn the jury against relying on that juror's specialist views.

The appellant was convicted at the Central Criminal Court of being knowingly concerned in an attempted export of electrical switchgear without the required licence, contrary to section 68(2) of the Customs and Excise Management Act 1979. The goods were dual-use items intended for export to Iran.

The prosecution relied on letters sent in October 2009 concerning an earlier invoice as notification under Article 4(1) of Council Regulation (EC) 428/2009. The appellant contended that the letters were confined to that earlier export. He also challenged prosecution closing submissions and the refusal to discharge a juror who disclosed relevant professional experience and concerns about its effect on his assessment of the case.

Decision

1. The appeal was allowed and the conviction was quashed. Although the first two grounds failed, the juror issue rendered the conviction unsafe.

2. The October letters were capable of constituting notification under Article 4(1) of Council Regulation (EC) 428/2009. The expressions “informed” and “items in question” were ordinary and straightforward. They did not raise a question of construction requiring determination by the judge. The judge could therefore rule on the letters' capability, leaving the factual question of notification to the jury. The Regulation's references to Annex 1 supported a generic, rather than invoice-specific, description of the relevant items. The Court also held that the letters did amount to notification in relation to the later invoice.

3. The Recorder had correctly rejected the first ground. R v Goldstein [1983] 1 WLR 151 and R v Spens (1991) 93 Cr.App.R.194 concerned genuine issues of legal construction and did not require a different result.

4. The prosecution's comments about unproduced documents and the authenticity of end-user certificates were not unfair. The appellant had relied on the material, had been challenged on his knowledge and credibility, and had opportunities to produce or address it. The second ground did not undermine the safety of the conviction.

5. The third ground succeeded. The juror's responsible disclosure showed no conscious bias, but his reference to automatic rejection and definite compliance red signals, derived from professional experience directly relevant to the issue at trial, created a real possibility of unconscious bias. The Recorder's direction did not warn the jury to treat any specialist views with caution and suggested that such knowledge might assist deliberations. A fair-minded and informed observer would conclude that a fair trial was not possible.

• Court of Appeal (Criminal Division): Allowed the appeal and quashed the conviction: [2013] EWCA Crim 158.
• Central Criminal Court: The appellant was convicted on 18 November 2011 of the attempted export offence and sentenced on 12 December 2011 to 12 months' imprisonment, suspended for two years, with 200 hours' unpaid work.