R v Jordan Hernandez

Where a prospective juror declares a fixed view about the guilt of accused persons, the trial judge should conduct a careful, case-specific inquiry before deciding whether the juror can serve. The relevant question is whether a fair minded and informed observer, informed by the inquiry and the judge’s assessment, would conclude that there remained a real possibility of bias. A serving or former police officer is not automatically disqualified. The appellate court will be slow to interfere with the trial judge’s assessment of the juror’s reliability, manner and willingness to abide by the juror affirmation. A speculative risk that one juror influenced others does not itself make a conviction unsafe where no concern was raised and appropriate directions were given.

Following a jury trial at the Crown Court at Portsmouth, the appellant was convicted of sexual assault. Before empanelling the jury, Juror 11 had written to the court stating that his thirty years as a police officer had left him believing that a person charged by the police and Crown Prosecution Service was guilty. The trial judge questioned him. Juror 11 then confirmed that he would make and abide by the juror affirmation and decide the case according to the evidence.

The judge ruled that the applicable bias test was not satisfied and permitted Juror 11 to serve. The appellant appealed against conviction, arguing that there remained a real possibility of bias and that the juror might influence others. The central issue was whether the judge’s inquiry and assessment sufficiently resolved that risk.

Appeal dismissed. The conviction was safe.

1. Juror 11’s letter, and his initial response to the judge, expressed actual bias: a fixed view that anyone charged and brought to trial was guilty regardless of the evidence.
2. The judge was right not to accept that assertion at face value and immediately stand Juror 11 down. Jury service is an important public duty. A prospective juror who asserts an irremediable bias may, in some cases, be seeking to avoid that duty. Conversely, a person genuinely incapable of returning a true verdict according to the evidence must not serve.
3. The judge adopted the correct approach under Porter v McGill [2001] UKHL 67, [2002] AC 357. The inquiry must be case-specific and must consider the nature of the case, the issues, the anticipated evidence, and the nature and reasons for the asserted bias. The trial judge is best placed to assess the reliability of the answers, their manner and tone, and the strength of the juror’s willingness to abide by the affirmation. The appellate court will therefore be slow to interfere.
4. Juror 11 twice stated unequivocally that he would make and abide by the affirmation and decide the case according to the evidence. The trial judge was entitled to accept those answers and conclude that a fair minded and informed observer, invested with the judge’s knowledge and assessment of the inquiry, would not consider there to be a real possibility that bias remained. Holding public office as a serving or former police officer does not, by itself, require a juror to be stood down; the answer depends on the issues and evidence in the particular case.
5. The suggested risk that Juror 11 might influence other jurors did not alter the result. The argument relied on speculation about the deliberations and their length. No juror had raised any concern, and the jury had received standard directions about deciding the case on the evidence and reporting concerns about fellow jurors.

The appeal accordingly failed and was dismissed.

• Court of Appeal (Criminal Division): On 14 June 2023, the court dismissed the appeal against conviction and held that the conviction was safe: [2023] EWCA Crim 814.
• Crown Court at Portsmouth: Following a jury trial on 6 February 2023, the appellant was convicted of sexual assault.