European Court of Human Rights

Published December 27, 2011

Hanif and Khan v United Kingdom

(Application Nos. 52999/08 and 61779/08)

Before L. Garlicki, President, and Judges D.Th?r Bj?rgvinsson, Sir Nicolas Bratza, P.Hirvel?, G.Nicolaou, N.Vucinic and V. A. de Gaetano Section

Registrar L. Early Judgment December 20, 2011

The presence of a policeman on a jury which had convicted two defendants of drugs offences violated their right to a fair hearing guaranteed by article 6.1 of the European Convention on Human Rights.

The European Court of Human Rights so held, unanimously, in a case brought against the United Kingdom by the applicants, Ilyas Hanif and Bakish Alla Khan, who had been convicted at Sheffield Crown Court (Judge Keen, QC and a jury) , on January 12, 2007, of conspiracy to supply heroin and been jailed for 8 and 17 years, respectively.

During the trial, in which they had been co-defendants, Mr Hanif?s defence had been that a third man had left the drugs in his car. The court heard evidence from police officers, who said that they had not seen anyone else in the car.

One of the jurors, AT, indicated to the judge that he was a serving police officer and that he knew one of the police officers giving evidence, MB. AT stated that he had known MB for about ten years and that on three occasions they had worked on the same incident, although not in the same team. They had never worked at the same station and did not know each other socially. The defence made an application to discharge AT but the judge rejected it. AT subsequently became the jury foreman.

The applicants appealed their conviction arguing that the jury which convicted them had not been impartial, because of the presence of the police officer. The Court of Appeal (Lord Phillips of Worth Matravers, Lord Chief Justice, Sir Igor Judge, President and Mr Justice Silber) upheld the convictions (The Times April 7, 2008).

It considered that police officers could not be considered solely by reason of their occupation to be biased in favour of the prosecution. As the police officer sitting as juror in the applicants? case had not had any connection with the prosecution of the case, no violation of article 6 had occurred.

The applicants were refused leave to appeal to the House of Lords on June 17, 2008, and commenced proceedings against the United Kingdom in the European Court of Human Rights.

THE COURT referred to its consistent case-law to the effect that it was of fundamental importance in a democratic society that the courts inspired confidence in the public and the accused and emphasised the need to ensure that juries were free from bias and the appearance of bias.

It noted that the Criminal Justice Act 2003, which had, for the first time, allowed police officers to serve in juries in England and Wales, was also a departure from the rule followed in a number of other jurisdictions which had trial by jury.

Of the various jurisdictions surveyed by the Court, only two, those of Belgium and the State of New York, permitted police officers to serve on juries, and in both, it was possible to challenge the inclusion of jurors without providing any reasons for the challenge.

Recent public consultations in a number of jurisdictions (Scotland, Ireland, New Zealand, Australia and Hong Kong) had shown support for the continued exclusion of police officers from jury service. The Court therefore considered that the effect of the amendment in the circumstances of the case required particularly careful scrutiny.

Mr Hanif?s defence had depended to a significant extent upon his challenge to the evidence given by the police officers, including MB. There was therefore a clear dispute between the defence and the prosecution regarding the credibility of the evidence of the police officers.

The Court considered that where there was an important conflict regarding police evidence, and a police officer who was personally acquainted with the police officer giving the relevant evidence was a member of the jury, that juror might favour the evidence of the police.

In the present case, although the juror and the witness had not been from the same police station, AT had known MB for ten years and had worked with him on three occasions. The Court accordingly found, unanimously, that Mr Hanif had not been tried by an impartial tribunal, in violation of article 6.1.

The applicants had been co-defendants in one set of criminal proceedings and had been convicted by the same jury. The Court therefore considered that, having found in its examination of Mr Hanif?s complaint that the jury could not be considered to have constituted an ?impartial tribunal? for the purpose of article 6.1 in light of AT?s presence, it would be artificial to reach a different conclusion regarding the tribunal which had tried Mr Khan.

Thus the Court was of the unanimous view that that there had also been a violation of article 6.1 in respect of Mr Khan.

The Court held that the finding of a violation of article 6 constituted sufficient just satisfaction and rejected the applicants? claims in respect of non-pecuniary damage. However it held that the United Kingdom was to pay Mr Hanif € 4,500 and Mr Khan € 2,000 in respect of costs and expenses.