Smith & Anor, R v

On 6 February 2001, after a seven day trial at Preston Crown Court before Her Honour Judge Watson and a jury, Lance Percival Smith was convicted of causing grievous bodily harm with intent (Count 1) and possessing a firearm with intent (count 3). He was sentenced to six years imprisonment on Count 1 and two years on Count 2 the sentences to run consecutively, making a total of eight years imprisonment. The single judge referred to the full court a ground of appeal based on there being an all-white jury. With the leave of the single judge he appeals against conviction on the ground (Ground 2) that the judge misdirected the jury as to the relevance of pleas of guilty by the co-accused Stephen Rennie and Kamal Patel. He appeals against sentence with leave of the single judge.

The co-accused Rennie, aged 18, pleaded guilty on 27 March 2000, on a change of plea, to Counts 1 and 3. He also pleaded guilty, on a separate indictment, to theft of a caravan and driving whilst disqualified. On 23 March 2001, he was sentenced to four years detention in a young offender institution on Count 1 and twelve months detention, consecutive, on Count 2. He was sentenced to nine months and six months detention respectively on the counts in the other indictment, the sentences to run concurrently with each other and with those on Counts 1 and 3, so that the total period of detention was one of five years. He appeals against sentence by leave of the single judge. The co-accused Patel, on a change of plea, pleaded guilty to Count 1 and was sentenced to four years imprisonment.

The charges arose out of violence outside a night club in Morecambe on 2 August 1999 in which all three defendants were alleged to have been involved. The alleged victim Darren Wright and Rennie are white; Smith and Patel are black. In summarising the evidence, we bear in mind the issues which arise from the grounds of appeal, the alleged racial dimension in the case and the relevance of the guilty pleas of Rennie and Patel.

There is evidence that, inside the club, a woman had been abusive and offensive to Smith and Patel, including calling them “black slags”. When she declined to desist and go away, Smith held her by the throat over a pool table. A doorman intervened and Smith, Rennie and Patel left the premises.

In evidence, Wright admitted that he had been maddened by Smith’s reaction to the woman in the club. He followed the men out of the club, intending to sort things out with them. He agreed that he had been ready for a fight when he went outside the club.

Wright’s evidence was, however, that Smith produced a handgun, cocked it and walked towards him. Fearing he was going to be shot, he struck Smith in the face. They fought and fell to the ground. Smith got up and struck him on the head with the butt of the handgun. Wright mistakenly believed that the gun was real. He was struck with it four or five times. Smith and the co-accused kicked him in the face and body as he lay on the ground. His next clear recollection was of an ambulance arriving.

An eye-witness, Mrs Ellison, saw two black men who appeared to be in a bad mood outside the club. Smith had a handgun which he put in his waistband. He uttered threats, pulled out the gun, cocked it and walked towards a man standing nearby. He hit the man on the head with it, knocking him to the ground. The man got up and tried to defend himself but the two black men began to batter him. He curled up on the ground. When he tried to rise, he was knocked down again. Rennie joined in, kicking him in the head and stomach. She denied that a white man had used the gun. It was Rennie, however, who had run off with the gun.

Mr Harwood, who worked at a nearby pizzeria, saw a lad on the ground with Smith standing over him hitting down with a clenched fist. He held him down with one hand and punched him with the other. Smith kicked the man viciously in the head, stomach and chest and he lay on his side. The co-accused Patel joined in the attack. The witness saw Smith using a bottle but had not seen a gun. The black men repeatedly hit the victim even when he was not moving. When he attempted to get up they returned and renewed the attack before walking away. There were other witnesses who gave evidence as to what happened outside the club.

Medical evidence showed that Wright had sustained a depressed fracture of the skull requiring an operation to remove fragments of bone and the insertion of a metal plate. There were two large cuts to the scalp. He had also suffered bruising to his right thigh and a cut at the top of his right ear, a small piece of which was missing.

A taxi driver gave evidence of having called at Smith’s flat in the early hours of 3 August. Two black men got into the back of his taxi. Smith was not wearing a shirt and was limping badly. The other had a bandaged arm with blood seeping through the bandages. A white lad waved them off. The witness described them both as worn out.

On 3 August, the police searched Smith’s flat and found a body harness containing a round of ammunition. On a further visit, they found a box of ammunition identical with the round found in the harness. At Rennie’s home, they found a handgun under a kitchen step.

The accused attended a police station to explain the events of the previous night. Smith complained about painful injuries to his foot, hands and shoulders and a cut to his head and, at hospital, was found to have fractures of a finger and a toe.

Mr Ellison, a forensic scientist, found blood on Smith’s jacket which was Wright’s. There had been contact staining on the right cuff from the victim, consistent with punches from Smith.

In his evidence, Smith said that Wright had approached him and punched him in the face. They fell to the ground and Wright was on top of him punching down towards his face. He had not struck Wright with a pistol. He tried unsuccessfully to get Wright off him. The co-accused arrived and kicked and punched Wright in an endeavour to move him. It was Rennie who had swiped at Wright with a gun and accidentally struck Smith’s head. The co-accused helped Smith up and he hobbled away, returning to his flat. When on remand, he had been approached with an offer to pay money to Wright in return for the dropping of charges. Wright denied any knowledge of this.

Under cross-examination, Smith agreed that he had not told the police about Rennie using the gun. He had remembered it only a few months after the incident. Mr McInally, forensic scientist, agreed that the bloodstains on Smith’s jacket had come from Wright but the blood distribution pattern suggested that Smith’s involvement in the incident had been very limited.

Mr Mailer, for the appellant, submits that there were significant racial dimensions in the appellant’s case. All the witnesses in the case were local to the area and white, as were the jurors. The overwhelming majority of persons living in Morecambe are white. Counsel were unable to say from what part of the Preston Crown Court catchment area the jury panel had been drawn.

Inside the club, Margarette Burges had racially taunted and pestered the appellant. That caused him to hold her by the throat. When the appellant and his two companions left the club, the complainant, in following them outside, was explicitly motivated by racist feelings stating that they should “sort the black guys out”. When he found himself alone outside the club, Wright changed his mind.

The evidence as to what happened outside the club is submitted to have disturbing features. Only one of the four witnesses who described the incident was aware that a white male had participated in the alleged attack on the complainant, yet Rennie pleaded guilty to the section 18 offence. Two witnesses claimed to have seen the two black men using iron bars and bottles to strike the complainant, a suggestion not made by the claimant himself or supported by other evidence. One witness who claimed to have recalled the appellant having a gun conceded in cross-examination that he had mentioned the gun only because he had heard other people talking about it and had not in fact seen a gun.

References are made to inconsistencies in the evidence and to evidence which favoured the appellant. Those issues were properly ventilated before the jury as the tribunal of fact, and have no additional racial dimension. It is accepted that there was evidence before the jury which entitled them to convict and that the central issue was plainly placed before the jury in the summing-up.

The submission is that the errors and omissions of some witnesses, such as failing to observe that a white man was party to the violence, raise the possibility of racial stereotyping adverse to a black defendant. The witnesses may have converted their observations into simple, stereotypical racial terms. The racial assumptions of the witnesses, all of whom were white, were in issue. It is submitted that a truly representative jury would have been alive to those nuances having regard to their own experience of stereotypical assumptions in society.

A multi-racial jury was not requested at the trial though the appellant’s concern was made know to his legal advisers. The appellant’s solicitor, Mr Fell, has sworn a statement that the appellant has instructed that he has experienced racial harassment in Morecambe and believes the indigenous white population of England to hold a “general racist attitude”. It is submitted that the conviction of the appellant is unsafe because he was tried by an all-white jury. For the appellant, Mr Mailer challenges the legality of section 1 of the Juries Act 1974 (“the 1974 Act”) in the context of Article 6 of the European Convention on Human Rights, by reason of its failure to make provision for multi-racial juries.

Mr Mailer further submits that the trial of a black defendant by an all-white jury is demonstrated to be unfair by a substantial body of research into the subject. Reference is made to an article entitled “Black innocents and the white jury” by Sheri Lynn Johnson, Associate Professor of Law at Cornell Law School (Michigan Law Review June 1985, volume 83: 1611), an article entitled “Empty votes in jury deliberations” by Dr Kim Taylor-Thompson, Professor of Clinical Law, New York University School of Law (Harvard Law Review 2000, vol 113:1262) and a study entitled “What can the English legal system learn from the jury research published up to 2001?” by Dr Penny Darbyshire of the Kingston Law School. Dr Darbyshire’s report became Appendix V to Auld LJ’s “Review of the Criminal Courts of England and Wales” of October 2001. Having considered Dr Darbyshire’s report and other documents, Auld LJ reported, at paragraph 62 of Chapter 5:

“Accordingly, I recommend that a scheme should be devised, along the lines that I have outlined, for cases in which the court considers that race is likely to be relevant to an issue of importance in the case, for the selection of a jury consisting of, say, up to three people from any ethnic minority group.”

We refer only briefly to the studies, conscious that brief and selective quotation does not give adequate credit to the depth and scope of the research. Mr Mailer adopts findings in them in his submissions, to which we will refer. In her synopsis, Johnson refers to “A large body of social science research that reveals a widespread tendency amongst whites to convict black defendants in instances in which white defendants would be acquitted”. (Mock jury research also provides evidence that black juries are more likely to convict white defendants, p1697.) She contends (p 1706) that “the inclusion of racially similar juries increases the likelihood of accurate assessment of the evidence”. Johnson states (p 1693) that “it is not the malevolence of white jurors that threatens constitutional values, but their susceptibility to culturally dictated distortions of judgment”. Taylor-Thompson states (p 1276) that “a deliberative process that emphasises and maximises consultation amongst individual jurors with diverse backgrounds broadens the overall perspective of the jury”. The author adds (p 1279) that “The jury can benefit from the observations and comments of individuals who share at least one socialising characteristic or who may have had some common experiences with the accused”. Darbyshire states (p 19) that “It appears the racial composition of the jury can affect its verdict. We might consider permitting the trial judge to draw three or more black or Asian jurors (whichever is appropriate) from the pool to place them on a jury in a racially sensitive case, or when the defendant or victim requests this”.

Mr Mailer submits that a problem arises from an insidious and covert prejudice which may be operating. He defines racial prejudice as an antipathy based on faulty and inflexible generalisations and submits that such prejudice causes a person to ignore information about another person if that information is contrary to the stereotype the person has of the racial group to which the other belongs. The prejudice operates at a deep level and may be sub-conscious or unconscious. It leads to a failure to recognise errors of logic and a resistance to realising that the judgment formed may result from prejudice. The white juror will have a tendency to form a negative view of a black defendant or will have a lack of empathy with him or her and will not make a fair appraisal. Mr Mailer accepts, given his present submission, that it should have been put to witnesses who gave the evidence complained of that they were or might have been racially prejudiced.

It is submitted that the entire population has this problem and that racism permeates right across the country. (The professional training of judges allows them to overcome it, it is submitted.) Put in that way, the submission, if accepted, would appear to apply to every white jury trying a black defendant.

The racial considerations alleged to be present in the case, apart from Wright’s attitude when first leaving the club, depend on the subconscious or unconscious prejudice the claimed existence of which formed the core of Mr Mailer’s submissions. Mr Mailer does, however, limit his submission that there should be a multi-racial jury to cases where there may be racial overtones as more conventionally described. That accords with the written submissions submitted to the Court by Liberty as to what should happen when application is made for a multi-racial jury: “The judge deciding the matter should only approve the selection of a multi-racial jury if he or she is satisfied on the balance of probabilities that race is relevant to an important issue in the case and a fair-minded and informed observer would conclude there was a real possibility of an all-white jury trying the case being racially biased and partial”.

Our task is to decide whether the trial was fair and whether the conviction is safe. It is not our task to work out the implications which may follow from the acceptance of Mr Mailer’s submissions. These will include having to decide the basis for selecting the non-white element of a jury in a society with many different non-white racial groups each having differing traditions, the danger of jurors perceiving their role to be as representatives of a particular group rather than as seekers after the truth and the possibility, arising from Dr Darbyshire’s analysis as quoted, of conflicting requests from victim and defendant.

Under section 2 of the 1974 Act, the responsibility for the summoning of jurors is that of the Lord Chancellor. In R v Ford (1989) 89 Cr App R 278 it was held in this Court, Lord Lane CJ presiding, that a trial judge has no power to empanel a jury, let alone a discretion as to how a jury is composed. The judge’s common law powers have never been held to include a discretion to discharge a jury drawn from particular sections of the community, or otherwise to influence the overall composition of a jury. For that purpose the law provided that fairness was achieved by the principle of random selection. Lord Lane CJ stated at p 282:

“The conclusion is that, however well intentioned the judge’s motive might be, the judge has no power to influence the composition of the jury, and that it is wrong for him to attempt to do so. If it should ever become desirable that the principle of random selection should be altered, that will have to be done by way of statute and cannot be done by any judicial decision.”

Lord Lane referred (at p 283) to the submission that a jury should be racially balanced and stated: “In our judgment the principle cannot be correct, for it would depend on an underlying premise that jurors of a particular racial origin or holding particular religious beliefs are incapable of giving an impartial verdict in accordance with the evidence.”

Mr Mailer submits that Ford cannot stand in the light of the Human Rights Act 1998, incorporating Article 6 of the Convention into English and Welsh law. Random selection is not an end in itself and Article 6 requires a different approach to jury selection.

Reference was made to the decision of the Canadian Supreme Court in Williams v The Queen [1998] 6 BHRC 189. The case turned on whether the trial judge should have allowed the defendant to challenge prospective jurors for cause. It was considered in the context of a community where prejudice against people of the defendant’s race (described in the judgment as aboriginal) was proved by evidence to be widespread. It was held that challenges for cause should have been permitted because there was a realistic potential for jural partiality. Mr Mailer submits that Williams has nothing to do with the present issue save in its recognition of the complex and insidious nature of racial prejudice. We agree that it does not assist in the determination of the present appeal.

Under Article 6 of the Convention, the appellant is entitled to a fair hearing by “an independent and impartial tribunal established by law”. In Porter v Magill [2002] 2 WLR 37, Lord Hope of Craighead stated that:

“in both cases the concept [of impartiality] requires not only that the tribunal must be truly independent and free from actual bias, proof of which is likely to be very difficult, but also that it must not appear in the objective sense to lack the essential qualities.”

Lord Hope stated at paragraph 103:

“The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.”

The importance of public confidence has also been a theme of the jurisprudence of the ECHR. In Wettstein v Switzerland 2001 (Application No 33958/96) the Court stated, at paragraph 44:

“In this respect even appearances may be of a certain importance. What is at stake is the confidence which the courts in a democratic society must inspire in the public.”

It is submitted that such observer, knowing that there was a deeply contested issue involving a conflict of evidence between white witnesses and a black defendant, in a racially charged atmosphere, would be concerned about the lack of any ethnic minority voice in the deliberations of the jury. Without such voice, the jury might unconsciously be inclined to favour the interests of the prosecution over those of the defendant. The observer would not be convinced that an all-white jury would be able to transcend the inevitable perspectives brought by their race, it is submitted, and the product of their entire set of life experiences, without an import of an ethnic minority perspective. The observer would apprehend the real possibility that the jury would not be able to make an objective and impartial appraisal of the evidence and would not appreciate the significance of contradictions or shortcomings.

In two cases, Gregory v UK 1997 25 EHRR 577 and Sander v UK 1999 8 BHRC 279, breaches of Article 6 have been alleged in the ECHR in the context of a jury trial. In both cases, however, evidence had come to the attention of the judge during the trial of racist comments or jokes having been made by a member or members of the jury. In Sander, it was the allegations contained in the note disclosed to the judge which were “capable of causing the applicant and any objective observer legitimate doubts as to the impartiality of the Court” (para 32). The process of jury selection was not under consideration. Mr Mailer relies on the Court’s statement in Sander, at paragraph 22, that:

“The Court recalls that it is of fundamental importance in a democratic society that the Court inspires confidence in the public and above all, as far as criminal proceedings are concerned, in the accused.”

At paragraph 23 the Court noted that: “In today’s multi-cultural European societies, the eradication of racism has become a common priority goal for all contracting States”.

In neither case does the ECHR impugn the legitimacy of the jury system or the procedure by which juries are selected. In Gregory (para 41), reference is made to “personal impartiality being assumed until there is proof to the contrary”. Moreover, in Sander (para 25): “The Court recalls that the personal impartiality of a judge must be presumed until there is proof to the contrary. The same hold true in respect of jurors”. Nothing arose in the present case to suggest that the members of the jury were not performing their duty, in accordance with their oath, to try the case impartially.

By virtue of section 1 of the 1974 Act, liability for jury service, subject to other limitations, depends on being registered as a parliamentary or local government elector. It is submitted that research has shown that electoral lists are not representative of the community and that non-registration has been shown to be highest for ethnic minorities. The pool must be wider, it is submitted. Auld LJ has recommended (Report chapter 5, para 24) “amendment to the law to substitute for the condition of registration on an electoral roll, inclusion in such other roll and/or on any one of a number of other specified publicly maintained lists or directories, but excluding anyone listed who, on investigation at the summons stage, is found not to be entitled to registration as an elector.” It is submitted that in the light of that recommendation and the material on which it is based, section 1 of the 1974 Act is not compatible in its present form with Article 6 of the Convention. The Court should make a declaration of incompatibility.

In relation to the convictions, the submission is that this trial required a decision by a deliberative process which included the active participation of ethnic minority jurors. That would be the conclusion of the fair-minded and informed observer and, in the absence of a multi-racial jury, the trial was unfair and the convictions unsafe.

We acknowledge the force of the point made, for example, by Dr Taylor-Thompson (p 1276) that “a deliberative process that emphasises and maximises consultation among individual jurors with diverse backgrounds broadens the overall perspective of the jury”. Juries are conventionally directed that “each of you takes into the jury box with you your individual experience and wisdom. Your task is to pool that experience and wisdom. You do that by giving your views and listening to the views of others.” This is said to be “the strength of the jury system.” (R v Watson and ors (1988) 87 Cr App R 1). Plainly, the wider the experience of jurors and the deeper their wisdom the greater assistance it will give them in their deliberations upon the issues in the case. This will apply across the whole range of possible issues and not only to issues with racial overtones. It will apply to the jury’s assessment of other witnesses, for prosecution and defence, as well as the defendants themselves.

The case involved violence between a white man and a black man in circumstances in which the evidence established that, shortly before the violence occurred, the white man had shown aggressive intent which was expressed to be in relation to the black man. The jury heard that evidence and, against that background, were invited to consider the evidence as to what then happened. We give such weight as we can to the risk of racial stereotyping and also note that, by limiting his submission in the way considered in paragraph 26 of this judgment, Mr Mailer appears to accept that the racial stereotyping which he claims to be universal does not necessarily require a multi-racial jury. On the facts of this case, we see no risk that the jury failed to approach the evidence fairly or that they did not scrutinise it carefully and objectively.

The suggestion that witnesses might have reacted to the events they observed, whether consciously or subconsciously, on racial grounds, was not explored with them and the basis for the present submission not laid. That apart, the witnesses were properly and fully cross-examined and the jury had every opportunity to assess their credibility and reliability.

We do not accept that it was unfair for the appellant to be tried by a randomly selected all-white jury or that the fair-minded and informed observer would regard it as unfair. We do not accept that, on the facts of this case, the trial could only be fair if members of the defendant’s race were present on the jury. It was not a case where a consideration of the evidence required knowledge of the traditions or social circumstances of a particular racial group. The situation was an all too common one, violence late at night outside a club, and a randomly selected jury was entirely capable of trying the issues fairly and impartially. Public confidence is not impaired by the composition of this jury.

Before considering the facts of the particular case, we have attempted to set out the submissions made on behalf of the appellant, and the considerations involved, in some detail. That approach should not be taken as an indication from the Court that other methods of jury selection will necessarily be required in other cases. In this case, we can find no reason to doubt the safety of the verdicts. In our analysis, we have kept in mind that, in the view of the ECHR, personal impartiality must be presumed until there is proof to the contrary.

We are not persuaded by the submissions in this case that section 1 of the Juries Act 1974 is inconsistent with Article 6 of the Convention and are not prepared to make the declaration requested. Moreover, since the responsibility for summoning jurors is upon the Lord Chancellor (section 2 of the 1974 Act and Ford), we do not consider that this appeal against conviction is an appropriate vehicle with which to consider whether there may be better ways of deciding eligibility for jury service than that provided by section 1.

There is nothing in this ground of appeal which renders the convictions unsafe. Indeed, on analysis, we do not consider the ground to be arguable and leave to appeal is refused.

The co-accused Rennie and Patel had pleaded guilty before the trial. The judge gave the conventional direction when such a situation arises:

“You have heard also that Mr Rennie and Mr Patel, with whom it is alleged Mr Smith committed these offences, have pleaded guilty. You must not speculate as to why they have pleaded guilty or on what basis they have pleaded guilty. The only reasons that you have been told about their guilty pleas has been to remove any question from your minds as to why they are not standing there with Mr Smith and being tried by you today. The fact that they have pleaded guilty can have no bearing on your decision in this case. The prosecution has to prove the case against Mr Smith so that you are sure of his guilt.

So, members of the jury, the facts of this case are your sole responsibility… .”

It is submitted that, on the facts of the case, that amounted to a misdirection because the appellant, in his defence was seeking to rely on the guilty pleas to establish that the co-accused, and not the appellant, had attacked Wright, if Wright was attacked.. Wright’s injuries were explained by the willingness of Rennie and Patel to plead guilty and some witnesses had referred to only three men, claimed to be Wright, Rennie and Patel had been involved in the incident. Section 74 of the Police and Criminal Evidence Act 1974 provides for the admissibility in evidence of the conviction of another “for the purpose of proving, where to do so is relevant to any issue in [the] proceedings, that that person committed that offence …”.

The conventional direction has its place even in a case such as the present to prevent speculation as to why Rennie and Patel were not in the dock. We accept the point that pleas of guilty were capable of assisting the appellant’s case in the manner described. What we do not accept is that there was a risk that the jury would have been distracted from their task of considering the evidence for and against the appellant, or the submissions of defence counsel, by this passage in the summing-up. It was followed immediately by the reminder that the prosecution had to prove the case against the appellant and also that the facts of the case were the sole responsibility of the jury.

The convictions of the appellant were in our judgment safe and the appeal is dismissed. We have already heard submissions in respect of Rennie’s appeal against sentence. We will hear submissions on Smith’s behalf when the judgment is handed down.