Hanif & Anor, R v (No 2)

Where a serving police officer sits on a jury, the tribunal’s impartiality depends on the circumstances. If police evidence is challenged and is important, the court must ask whether a fair-minded and informed observer would see a real possibility of bias. Relevant matters include the closeness of the relationship between the juror and the police witness.

A breach of the right to an impartial tribunal under Article 6 makes a conviction unsafe, irrespective of the apparent strength of the evidence. In a joint trial, however, a lack of impartiality affecting one defendant does not necessarily affect a co-defendant whose case rests on separate evidence.

Hanif and Khan were convicted at Sheffield Crown Court of conspiracy to supply heroin. During the trial, a juror disclosed that he was a serving police officer who had known, and had previously worked on an incident with, a police officer called as a prosecution witness. The trial judge declined to discharge the juror.

An earlier appeal against conviction was dismissed by the Court of Appeal in [2008] EWCA Crim 531. The Fourth Section of the Strasbourg Court later found a violation of Article 6 in respect of both defendants. The Criminal Cases Review Commission referred both convictions to the Court of Appeal.

Hanif’s defence directly challenged the accuracy and reliability of police observations. Khan’s case rested instead on separate telephone, cell-site, financial and scientific evidence. The central issue was whether the juror’s presence rendered either conviction unsafe.

1. Hanif’s appeal was allowed. Where police evidence is unchallenged, a police officer’s presence on the jury will not ordinarily affect the tribunal’s independence or impartiality. Where that evidence is disputed, the court must apply the fair-minded and informed observer test stated in Porter v Magill [2001] UKHL 67. The assessment is fact-sensitive and includes the importance of the police evidence and the closeness of the connection between the juror and the witness.
2. Hanif had directly challenged the reliability and accuracy of evidence from police officers. That evidence was important to the prosecution case. The juror had known Officer Blackburn for ten years and had worked with him on the same investigation. A fair-minded and informed observer would therefore conclude that there was a real possibility that the tribunal was biased.
3. The court applied the principle that a conviction cannot stand where there has been an Article 6 breach arising from a tribunal’s lack of independence or impartiality. The strength of the evidence against Hanif was immaterial once that conclusion had been reached. His conviction was set aside.
4. Khan’s appeal was dismissed. Although the defendants had been tried together, the jury had been directed to consider the case against each separately. The evidence against Khan did not depend on the police evidence challenged by Hanif, nor on Hanif’s guilt. There was no real possibility that the tribunal had been biased in determining Khan’s case, and his conviction remained safe.
5. A retrial of Hanif was ordered. In light of the gravity of the charge and the apparent continued availability of the evidence, the court held that a retrial was right and just. The indictment was to be served within 56 days, followed by directions at Sheffield Crown Court.

• Court of Appeal (Criminal Division): On this reference by the Criminal Cases Review Commission, the court allowed Hanif’s appeal, set aside his conviction and ordered a retrial; it dismissed Khan’s appeal. [2014] EWCA Crim 1678
• European Court of Human Rights, Fourth Section: It found a violation of Article 6 in respect of both applicants because of the police officer juror’s presence. Hanif and Khan v UK 52999/08, 61779/08.
• House of Lords: Leave to appeal was refused on 17 June 2008.
• Court of Appeal (Criminal Division): It dismissed the appellants’ conviction appeals, but allowed Khan’s sentence appeal and reduced his sentence from 17 to 15 years’ imprisonment. [2008] EWCA Crim 531; [2008] 2 Cr App R 13.
• Sheffield Crown Court: Hanif and Khan were convicted of conspiracy to supply heroin. The trial judge refused an application to discharge the serving police officer juror.