Ahmed v United Kingdom: European Court of Human Rights Still Skirting Around Jury Bias
The European Court of Human Rights (“ECtHR”) recently handed down its long-awaited admissibility decision in Ahmed v United Kingdom. It unanimously declared that the defendant’s claim, that at least one juror participating in his trial had unlawfully disclosed confidential information to far-right media sources, was ill-founded, and consequently, neither his right to a fair trial nor any other human right was breached.
According to the court, the crucial matter was the manner in which the information was disseminated. In this instance, the cause of the leak could not be established. Therefore, while entertaining the possibility of information being disclosed by counsel or interpreters or being overheard outside the deliberation room (Ahmed, ECtHR, para. 22; Ahmed, Court of Appeal, para. 32 & 33), neither the national Court of Appeal, the Criminal Cases Review Commission (“CCRC”) nor the ECtHR had any credible evidence that any juror had disclosed the information themselves (Ahmed, ECtHR, para. 64). As a result, no bias could be established and the trial was said to be a fair one.
The case seems, at first glance, fairly uncontroversial, being a tidy application of common sense and legal principle. However, there are certain underlying irregularities which the ECtHR failed to unpack. The thrust of the judgment was that, had information been intentionally leaked to far-right publications (on the facts, of course, this had not been established), this would constitute jury bias and thus a breach of Article 6 European Convention on Human Rights (“ECHR”). The exact reasoning behind this, however, is not so clear. There was no evidence before the court that the leak had improperly influenced any other juror, and so could not affect the case outcome. The alleged action nevertheless shows some impropriety on the part of the offending juror. But where does the crux of the impropriety lay?
Two answers appear in the ECtHR’s judgment, sometimes separately, sometimes messily merged together under the unwieldy header of “bias”. The first is that the existence of a leak demonstrates a failure to comply with the standards required of a competent juror – this could be termed the ‘improper conduct reason’. There exists a link between jurors’ conduct and bias. Consequently, a jury which fails to act as it ought to, arguably demonstrates that it is inadequately prepared to deliver a fair verdict. A juror who disrespects confidentiality flagrantly breaches the rules of court in such a manner that they may not be expected to deliver a fair judgment and “conscientiously… assess the evidence” (Ahmed, Court of Appeal, para. 34).
The second answer could be termed the ‘prejudice reason’. Explicitly racist behaviour – or more general, racist associations – could constitute a breach of a fair and impartial trial (Ahmed, ECtHR, at para. 2). The notion of jury ‘bias’ has often been used as shorthand for prejudice in the case-law in this area (Morice v France, para. 55). As such, a juror who leaks not just generally, but to a far-right organisation hostile to a defendant, could be demonstrating an inherent bias which would negate jury impartiality, a core component of a fair trial (Gregory v UK, para. 45).
Both approaches are based on imperfect rationales, and taken on their own, neither offer sufficient reasons for the decision in this case. If the ‘improper conduct reason’ is preferred, this brings into question the court’s focus on the association between the juror and “far-right organisations” (Ahmed, Court of Appeal, para. 35). If the ‘prejudice reason’ is preferred, as perhaps hinted at certain points in the ECtHR decision (para. 63), the implication is that dissemination to a publication without far-right associations would not be problematic, which surely cannot be right. In the case, the Court was thus forced to focus on an unduly narrow question – whether a juror themselves leaked information – without really explaining what this entails.
The Court’s conclusion in this case, that there could be no finding of jury bias without evidence of it, is clearly correct. However, the Court’s continued amalgamation of different approaches to the problem of ‘bias’, whether intentional or otherwise, leaves much unresolved for cases such as this. Perhaps generality is a necessary evil for a court which has to lay down guidance for a term as broad as ‘bias’, but even given the relatively broad approach associated with ECtHR’s jurisprudence, there is definitely room for elaboration and clarification. In Ahmed, as it has done many times before, the Court has skirted around the issue entirely.