Smash hit

Williamson was charged with two offences of rape, of which he was convicted. The jury included among its members Mr McKay-Smith who wrote to the court before the trial to say that he had worked for the Crown Prosecution Service since 1986.

His letter was passed to defending counsel who sought to challenge him, contending that the court should not only do what was right but should be seen to have done what was right.

The judge ruled that he had to operate within the law passed by Parliament and in the light of the current legislation he could see no objection to that juror sitting.

His Lordship said it was one of the best known principles of English law that it was not merely of some importance but was of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done: see Lord Hewart, Lord Chief Justice, in R v Sussex Justices, Ex parte McCarthy ([1924] 1 KB 256, 259).

As Lord Hewart’s aphorism recognised and later case law made clear, justice was not done if the objective judgment of a judicial decision-maker, whether judge or juror, was shown to be vitiated by actual partiality or prejudice towards any of the parties.

But actual bias, hard as it was to prove, was rarely alleged, and was not alleged in any of the present cases. The defendants relied on the second part of Lord Hewart’s aphorism: that justice should manifestly and undoubtedly be seen to be done.

That condition they said was not met where one of those charged do decide whether the defendant was guilty or not, was employed full time by a body dedicated to promoting the success of one side in the adversarial trial process.

Mr Perry laid emphasis on the institutional safeguards established to protect the independence and impartiality of the jury. Those did all that could be done to exclude the possibility of actual bias and to dispel the appearance of it to the fair-minded and informed observer.

His Lordship accepted that those safeguards, when properly operated, did all that could reasonably be done to neutralise the ordinary prejudices and predelictions to which people were all prone.

But that did not meet the central thrust of the argument: that the cases involved, not those ordinary prejudices and predelictions, but the possibility of bias, possibly unconscious, which inevitably flowed from the presence on a jury of persons professionally committed to one side of an adversarial trial process.

The expectation that each doubtful case would be resolved by the judge on a case-by-case basis was not met, the defendants said, if neither the judge nor counsel knew of the identity of a police officer on the jury, as appeared to be the present practice.

That was not an argument which his Lordship felt able, in principle, to dismiss. Serving police officers remained ineligible for jury service in many jurisdictions. But Parliament had declared that in England and Wales police officers were eligible to sit, perhaps envisaging their identity would be known and any objection would be the subject of judicial decision.

In the case of Abdroikov, it was unfortunate that the identity of the officer became known at such a late stage in the trial, and on very short notice to the judge and defence counsel. But it was not a case which turned on a contest between the evidence of the police and that of the defendant. His Lordship concluded, not without unease, that having regard to the parliamentary enactment, the Court of Appeal reached the right conclusion, and the appeal was dismissed.

The case of Green was different. There there was a crucial dispute between the defendant and the police sergeant, and the sergeant and the juror, although not personally known to each other, shared the same local service background.

Green was not tried by a tribunal which was and appeared to be impartial. It could not be supposed that Parliament intended to infringe the rule in the Sussex Justice case, still less to do so without express language. That appeal was allowed and Green’s conviction quashed.

In the case of Williamson, the judge gave no serious consideration to the objection of defence counsel, who himself had little opportunity to review the law on the subject. It might be doubted whether Parliament contemplated that employed Crown prosecutors would sit as jurors in prosecutions brought by their own authority.

Williamson was entitled to be tried by a tribunal that was and appeared to be impartial, and he was not. The consequence was that his conviction had to be quashed.

That was a most unfortunate outcome since he was accused of very grave crimes, of which he might have been guilty. The case was remitted to the Court of Appeal with an invitation to rule on any application which might be made for a retrial.

Lord Rodger and Lord Carswell delivered speeches dismissing all three appeals. Lady Hale and Lord Mance delivered speeches agreeing with Lord Bingham.

Solicitors: Hayes Burcombe & Co, Hammersmith; Macauley Smith & Co, Deptford; Colin Watson, Warrington; Crown Prosecution Service, Headquarters.

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