FIRST SECTION

DECISION

Application no . 57645/14 Shabir AHMED against the United Kingdom

The European Court of Human Rights (First Section), sitting on 6 September 2016 as a Chamber composed of:

Mirjana Lazarova Trajkovska, President , Ledi Bianku, Kristina Pardalos, Paul Mahoney, Aleš Pejchal, Armen Harutyunyan, Pauliine Koskelo, judges ,

and Renata Degener, Deputy Section Registrar ,

Having regard to the above application lodged on 18 August 2014,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Shabir Ahmed, is a British national who was born in 1953. He is detained at HMP Wakefield.

A. The circumstances of the case

1. The trial

1 . Between 6 February and 8 May 2012 the applicant and nine other men were tried at Liverpool Crown Court before HHJ Clifton and a jury. The men were charged with a range of sexual offences against young girls. There were twenty-two counts in the indictment. The applicant faced charges of: conspiracy with his co-defendants to engage in sexual activity with children (count 1A in the indictment), trafficking within the United Kingdom for sexual exploitation (count 2), two counts of rape (counts 3 and 4), aiding and abetting another to rape (coun t 5), and sexual assault (count 6). His co-defendants faced similar charges.

2 . The media gave extensive coverage to the proceedings. Some, including the British National Party and the English Defence League, attributed a racial dimension to the case given that the defendants were of Asian origin and the complainants were not. The BNP protested at the preliminary court hearings in the case. For these reasons, prospective jurors who indicated on the jury questionnaire that they were associated with the BNP or EDL were excluded. The trial venue was also moved from Bolton (where the offences were alleged to have taken place) to Liverpool to minimise the effect of that publicity.

3 . At the start of the trial, the trial judge warned the jury not to discuss the case outside of the jury room and to discuss it only with their fellow jurors. He repeated this warning whenever the jury separated.

2. The jury ’ s deliberations and verdicts

4 . The jury began their deliberations on 1 May 2012. At that time, the judge directed that no verdicts were to be published until all verdicts against all of the defendants had been returned. This was to avoid the jury being subject to pressure from media reports or public demonstrations.

5 . The jury separated at the end of the day on 1 May and resumed their deliberations on 2 May. In the course of their deliberations on 2 May they sent the trial judge notes asking to be reminded of the accounts given to the police by certain of the complainants in the case. Those notes related to counts 5, 8 and 9 on the indictment.

6 . That day, while the jury was deliberating, the applicant, through his counsel, complained to the judge that one of the two interpreters at the trial had spoken to the press about him. The judge questioned the interpreter who confirmed that she had discussed the applicant ’ s demeanour in court with a member of the press but nothing more. The judge then warned both interpreters not to have any communication with the press.

7 . The jury resumed their deliberations on 3 May. While deliberating they sent further notes either asking to be reminded of the evidence of a complainant or requesting copies of evidence. Those notes related to counts 13, 18, 19, 20 and 21 of the indictment.

8 . On the afternoon of 3 May, counsel informed the judge of two postings that had appeared on the internet about the jury ’ s deliberations.

9 . At 1.05 p.m. a post appeared on the Facebook page of a group called “Infidels of Britain” which stated:

“Seven Muslim groomer scum found GUILTY so far at Liverpool Crown Court.”

10 . At 1.53 p.m. Nick Griffin MEP, the chairman of the BNP, sent a “tweet” on the social media website Twitter. It said:

“Newsflash – seven of the Muslim paedophile rapists found guilty in Liverpool.”

11 . At 2.30 p.m. the trial judge consulted counsel in private. With the consent of counsel, at 3.15 p.m. he called the jury into court and asked the jury ’ s foreman if they had reached any guilty verdicts, and if so, how many. After a series of exchanges, it became clear that the jury had indeed reached guilty verdicts for seven of the defendants. The precise verdicts – that is, and the counts and defendants to which they related – were not taken at this stage. The jury retired to their room at 4.28 p.m.

12 . Between 4.30 p.m. and 4.37 p.m. Mr Griffin sent five further tweets appeared casting doubt on the initial claim he had made in his 1.53 p.m. tweet. The last tweet, however, stated:

“But people there [in Liverpool] say jury still out on four [defendants] and others will be sentenced next week.”

13 . The jury would not have been aware of any date for sentencing and it had not been mentioned in open court.

14 . The trial judge called the jury back into court and said to them:

“... Could I ask all of you to tell me, to assure me, that nothing that you have discussed in the jury room ... can have got out into the world in general? Nothing? Nothing whatsoever, by any means whatsoever?”

All of the jurors replied “No.” The judge then asked:

“There isn ’ t any chance of anybody overhearing anything you might have been saying inadvertently outside the jury room?”

The jurors again all replied “No”.

15 . The judge then consulted counsel in the absence of the jury. He informed them that, in the light of the jurors ’ replies and their demeanour, he intended to proceed on the assumption that they were telling the truth and had acted properly. Defence counsel requested time to make an application for discharge of the jury. The judge, therefore, allowed the jury to separate for the evening, giving them instructions not to consider any news source, whether on the internet, on television or in the newspapers.

16 . On 4 May, the judge sat in open court, but imposed reporting restrictions. He rejected the defence ’ s application to discharge the jury, concluding that he was satisfied that no juror had communicated the jury ’ s deliberations either deliberately or accidentally to anyone else, and therefore questions of bias did not arise. The judge observed that the jury ’ s notes indicated that they were adopting a “perfectly reasonable, logical and unbiased approach to the evidence.” He did not believe that a message could have been communicated by a juror to the outside during deliberations. The judge also concluded that communication from a juror was not the only possible explanation for the internet postings.

17 . At this time, the judge was also informed of additional posts on a Facebook group called “Infidels of Britain” that included threatening comments toward the jury if they were to acquit. The judge determined that there was no evidence that the jurors had seen these posts or had felt intimidated by them.

18 . At 11.49 a.m. on 4 May the jury returned verdicts on fourteen of the twenty-two counts in the indictment. These verdicts included all of the counts against the applicant, save for the count of conspiracy to engage in sexual activity with children (count 1A), which the trial judge had advised the jury to leave until last and thus upon which they continued to deliberate. Twelve of the fourteen verdicts returned at this stage were guilty verdicts; two were not guilty verdicts.

19 . The jury resumed their deliberations on 8 May (the next working day). That day, they returned the following verdicts:

( a ) on count 1A on the indictment (the conspiracy count): a unanimous guilty verdict against all of the defendants facing that charge, including the applicant;

( b ) on count 1B (an alternative conspiracy count faced by five defendants, not including the applicant): a unanimous guilty verdict for three defendants, a not guilty verdict for another defendant, and the jury were unable to agree on a verdict on this count for a fifth defendant; and

(c) on count 22: a unanimous guilty verdict in respect of the one defendant facing this charge.

20 . The jury were then given a “majority direction” by the trial judge, allowing them to return majority rather than unanimous verdicts.

21 . Later the same day (8 May), they returned their remaining verdicts. These were not guilty verdicts on counts 8, 18, 19, 20 and 21 (counts of rape against certain of the defendants, not including the applicant).

22 . In an interview on 9 May on BBC News, Mr Griffin stated that he had received his information from three different people who were outside the courthouse demonstrating. He also tweeted on 9 May:

“... inaccurate leak re convictions last week came from a court or police officer, not a juror ...”

3. Criminal Cases Review Commission ’ s investigation

23 . The convicted defendants, including the applicant, lodged appeals against their convictions. The Court of Appeal directed the Criminal Cases Review Commission (CCRC) to investigate the allegations of jury irregularity.

24 . The CCRC appointed a police officer to act as investigator. The investigator asked Mr Griffin to attend a voluntary interview: he declined.

25 . Despite interviewing a possible leader of the “Infidels of Britain” group, the CCRC was unsuccessful in establishing who had been responsible for the posts on the group ’ s Facebook page.

26 . Facebook and Twitter did not co-operate by disclosing the data relating to the accounts used, and the CCRC concluded that, even if the data were disclosed, it would be unlikely to shed light on the source of the information posted on the internet.

27 . The CCRC detailed the measures taken to ensure the security of jury deliberations, including the seclusion of the jury in the jury suite at court. All toilet and refreshment facilities were in the suite. Meals were provided from the canteen and smoking breaks were escorted. The jury room was kept locked. The jury had been asked to hand over all mobile phones, laptops and electronic devices, which were locked in a safe and returned to them at the end of each day. They were not searched. As part of general security measures during the trial, the jury had been picked up and dropped by a coach at a designated meeting point some distance from the court. During the journey to and from court the jurors were accompanied by an usher. The CCRC took statements from the court clerk and usher. Both stated that they did not see or hear anything suspicious during the trial. The usher added that the jury had been really professional and a pleasure to look after.

28 . The CCRC concluded:

“It would appear, therefore, that the only opportunity for a member of the jury to have communicated with a third party during their deliberations would have been if they had wilfully retained a mobile phone or communications device, despite having been asked to hand in all such items. Even in those circumstances ... and although access to private toilet facilities was apparently provided from the jury room, it would seem unlikely that a juror could have conducted such a clandestine operation without being noticed by fellow jurors. Nothing has emerged from the enquiries which have been conducted pursuant to the Court ’ s directions which suggest to the Commission that any member of the jury or security staff engaged in any inappropriate activity as regards the disclosure of the jury ’ s verdicts or otherwise.”

4. The Court of Appeal proceedings

29 . At a directions hearing on 18 July 2013 the Court of Appeal refused to order any further investigation, for example by interviewing individual jurors.

(a) The Single Judge ’ s decision

30 . On 20 September 2013 a single judge of the Court of Appeal, Mr Justice Spencer, refused the applicant and his co-defendants leave to appeal. He found that the trial judge had not erred in refusing to discharge the jury. As regards the alleged bias on the part of the jury, Spencer J found that, as a result of the CCRC ’ s investigation, no misconduct had been uncovered. There was, for instance, no indication that a “rogue” juror had been in communication with a far-right organisation.

31 . Regard had to be given to the manner in which the jury had deliberated, he observed:

“It is important that although, in the first batch of verdicts on Friday 4 th May, there were indeed verdicts of guilty against seven of the eleven defendants, there was a unanimous verdict of not guilty against A.A. (on count 9, rape). It follows (on the hypothesis of a juror in communication with a far-right organisation) that the supposed ‘ rogue ’ juror had subscribed to an acquittal. The jury had reached no verdicts on count 1A or count 1B (the conspiracy counts). This suggests that they were following the judge ’ s advice to work through the substantive counts before considering the conspiracy counts.

When on Tuesday 8 th May (a bank holiday intervened) the next batch of unanimous verdicts where returned, they included a verdict of not guilty against [Q.S.] on count 1B. Again the supposed ‘ rogue ’ had subscribed to an acquittal. Following a majority direction, further not guilty verdicts were returned: count 8 (A.A., rape), count 18 (L.S., rape), counts 20 and 21 (H.S., rape). These may, of course, have been by a majority.[ [1] ]

Accordingly, it is clear that the jury were considered the case carefully and analytically.”

(b) The Full Court ’ s judgment

32 . Of the defendants, only the applicant renewed his application for leave to appeal before the full court. On 1 April 2014, following a hearing, the Court of Appeal refused permission to appeal: [2014] EWCA Crim 619 . It found:

“30. We have carefully considered the material facts and the results of the CCRC ’ s investigation.

31. We agree with the conclusions of the CCRC. In our judgment, it is not possible to draw the inference from the material before us that a juror deliberately communicated information about the jury ’ s deliberations to someone outside the jury whilst at court. The CCRC investigation shows that extensive precautions were taken to protect the integrity of the jury in this trial which made it extremely difficult for jurors to communicate in secret with anyone outside the jury room. It is fanciful to imagine that a juror was covertly signalling from the window or that a juror was able to make clandestine telephone calls on a hidden mobile phone, from the toilet or elsewhere, without being overheard or detected by other jurors or court staff. The court clerk and usher, who had worked with the jury for three months, found no reason to suspect any juror of impropriety or unusual behaviour.

32. The Judge apparently accepted the Crown ’ s submission that the information posted on the internet could have derived from discussions amongst those at court trying to guess the state of the jury ’ s deliberations, perhaps from the sequence of jury notes. In our view, it is improbable that guesswork could have resulted in such an accurate prediction of the jury ’ s guilty verdicts. We do, however, accept that the information in Mr Griffin ’ s final tweet at about 16.37 on 3 rd May ( ‘ jury still out on 4 and others will be sentenced next week ’ ), most probably originated from someone connected to the prosecution or defence teams, or the interpreters. The court was sitting in private; the jury had only just left court after indicating that they had found seven defendants guilty; and sentencing dates were not known to the jury and had not been mentioned at any stage in open court.

33. We accept it is possible that ‘ loose talk ’ by jurors outside the jury room resulted in information about the jury ’ s deliberations being disclosed to outsiders. It is quite possible that the jury had decided upon guilty verdicts in respect of seven defendants by the time they separated on the afternoon of 2 nd May. Jury deliberations are, of course, confidential, and jurors are routinely warned not to discuss the case outside the jury room, whether with fellow jurors or anyone else, including members of their family.

34. Such conduct, even if inadvertent, would amount to a jury irregularity. However, we do not consider that it would be sufficient to render the convictions unsafe. In our view, taken on its own, disclosure of the jury ’ s progress on the counts would not have compromised the jury ’ s independence or impacted on the jury ’ s ability to remain faithful to their oath or affirmation to "faithfully try the defendant and give a true verdict according to the evidence" (see Criminal Practice Direction 39M.2). The Judge, legal representatives and court staff were unanimous in the view that, throughout the lengthy trial, the jury had participated appropriately in the trial process and appeared to be assessing the evidence conscientiously.

35. The Applicant alleges apparent bias on the part of the jury, because the information was disseminated by far-right organisations hostile to the defendants. We have applied the test set out in Re Medicaments [2001] 1 WLR 700, as amended in Porter v. McGill [2002] 2 AC 357, namely, whether, on an objective appraisal, the material facts give rise to a legitimate fear that the jury might not have been impartial, asking ourselves whether a fair-minded and informed observer would conclude that there was a real possibility that the jury was biased. A similar test applies under Article 6 of the European Convention on Human Rights, namely, whether there are sufficient guarantees to exclude any objectively justified or legitimate doubts as to the impartiality of the jury: see Gregory v. UK (1998) 25 EHRR 577; Sander v. UK (2001) 31 EHRR 44.

36. There was ample evidence to support the Judge ’ s view that the jury was adopting a ‘ perfectly reasonable, logical and unbiased approach to the evidence ’ . Judging from the content of the jury notes and the sequence of the verdicts, they progressed through the counts in the order recommended by the Judge, and carefully considered the evidence in relation to each count. The verdicts, taken as a whole, appeared rational and consistent with the evidence. The Judge observed at the end of the trial that the jury had performed their task with "painstaking care".

37. The jurors had all completed questionnaires confirming that they were not associated with the BNP or English Defence League and there was no evidence to suggest that any juror had withheld information about such an association. The fact that the jury returned unanimous ‘ not guilty ’ verdicts on two counts on 3 rd May was at odds with the allegation that there was one or more racially biased supporter of a far ‑ right organisation on the jury, as such a person would presumably not have been party to any ‘ not guilty ’ verdict.

38. Like the Judge, we have concluded that there was simply no evidential link established between the jury and the far-right organisations which posted the information on the internet. Therefore we do not consider that, on the material facts, a fair minded and informed observer would conclude that there was a real possibility that the jury was biased, nor that there were any objectively justified or legitimate doubts about the impartiality of the jury.

39. No criticism can be made of the careful and fair manner in which the Judge conducted the necessary enquiries. He was not permitted to ask the jury about the content of its deliberations; only to investigate any irregularity. We agree with his conclusion that it was not necessary to discharge the jury and we consider that he gave appropriate directions to the jury throughout the trial regarding their conduct.

40. We do not accept [Counsel for the applicant ’ s] criticism of the CCRC ’ s investigations as inadequate. In our view, there was nothing more that the CCRC could reasonably have done.

41. The safety of the convictions is not in doubt and therefore the application for permission to appeal against conviction is refused. ”

B. Relevant domestic law and practice

1. Instructions and directions to the jury

33 . The following standard instructions and directions to a jury trying a case in England and Wales are taken from the Court ’ s judgment in Abdulla Ali v. the United Kingdom , no. 30971/12 , §§ 68- 71, 30 June 2015.

34 . Upon responding to a summons, jury members are sent a leaflet called “Your Guide to Jury Service”. The leaflet explains that jurors ’ discussions are private and that jurors should not discuss any aspects of the trial with anyone other than fellow jurors. It sets out that the verdict must be that of the jurors alone and reminds jurors that their role is to reach a verdict on the evidence presented in the court room at trial. The leaflet also notes that it is an offence for anyone outside the jury to try and influence them.

35 . Once selected for jury duty, jurors must swear an oath or make an affirmation that they will:

“faithfully try the defendant and give a true verdict according to the evidence.”

36 . At the outset of the trial, the jury are conventionally given a direction to the effect that they must try the case on the evidence alone, which is what they hear in court. They are instructed that they must not discuss the case with family, friends or anyone else or conduct their own research into the case.

2. Judicial dicta on juries and directions given by the trial judge

37 . In Re: B [2006] EWCA Crim 2692, which involved an appeal against an order restricting the reporting of a criminal trial, the Court of Appeal (Criminal Division) said:

“There is a feature of our trial system which is sometimes overlooked or taken for granted. The collective experience of this constitution as well as the previous constitution of the court, both when we were in practice at the Bar and judicially, has demonstrated to us time and time again, that juries up and down the country have a passionate and profound belief in, and a commitment to, the right of a defendant to be given a fair trial. They know that it is integral to their responsibility. It is, when all is said and done, their birthright; it is shared by each one of them with the defendant. They guard it faithfully. The integrity of the jury is an essential feature of our trial process. Juries follow the directions which the judge will give them to focus exclusively on the evidence and to ignore anything they may have heard or read out of court. No doubt in this case [the judge] will give appropriate directions, tailor-made to the individual facts in the light of any trial post the sentencing hearing, after hearing submissions from counsel for the defendants. We cannot too strongly emphasise that the jury will follow them, not only because they will loyally abide by the directions of law which they will be given by the judge, but also because the directions themselves will appeal directly to their own instinctive and fundamental belief in the need for the trial process to be fair.”

38 . In Montgomery v. HM Advocate ; Coulter v. HM Advocate [2003] 1 AC 641, Judicial Committee of the Privy Council considered whether a Scottish jury trial taking place after adverse publicity would be compatible with Article 6. In finding that it would, Lord Hope (with whom the members of the Committee agreed) observed:

“[T]he entire system of trial by jury is based upon the assumption that the jury will follow the instructions which they receive from the trial judge and that they will return a true verdict in accordance with the evidence.

The Scottish judges are not alone in proceeding upon this assumption. In the Supreme Court of Canada, in Reg. v. Corbett [1988] 1 S.C.R. 670, 692, Dickson C.J. said that jury directions are often long and difficult but that the experience of trial judges is that juries do perform their duty according to law. In R. v. Vermette (1988) 50 D.L.R. (4th) 385, 392 La Forest J., under reference to the Corbett case, said that dicta in that case underlined the confidence that may be had in the ability of a jury to disabuse itself of information that it is not entitled to consider. In the High Court of Australia, in The Queen v. Glennon (1992) 173 C.L.R. 592, 603 Mason C.J. and Toohey J. said that the law proceeds on the footing that the jury, acting in accordance with the instructions given to them by the trial judge, will render a true verdict in accordance with the evidence and that to conclude otherwise would be to underrate the integrity of the system of trial by jury and the effect on the jury of the instructions given by the trial judge. In the Irish High Court, in Z. v. Director of Public Prosecutions [1994] 2 I.R. 476, 496 Hamilton P., drawing upon his experience as counsel and as a judge, said that he shared in the confidence that his legal system has in juries to act with responsibility in accordance with the terms of their oath, to follow the directions given by the trial judge and a true verdict give in accordance with the evidence. I consider that the judges in the court below were entitled to draw upon their experience, and I see no reason in the light of my own experience to disagree with their assessment.”

3. Impartiality

39 . In the House of Lords judgment ’ in Magill v. Porter [2001] UKHL 67, Lord Hope of Craighead considered the question of apparent bias and concluded (at paragraph 100 of the judgment) that:

“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.”

40 . That test was designed to bring English law into line with the approach taken in Scotland and various Commonwealth jurisdictions, and the approach taken by this Court in its Article 6 jurisprudence (paragraphs 100 - 103 of the judgment).

41 . Under the law of England and Wales, the Court of Appeal will allow an appeal against conviction if it regards the conviction as unsafe (section 2(1) of the Criminal Appeal Act 1968).

42 . In R v. Heward [2012] EWCA Crim 890 – where one juror had complained of racial bias on the part of other jurors – the Court of Appeal found that a verdict would be unsafe if the fair minded observer would conclude, on the available evidence, that there was a real possibility of a real danger that the verdict was at least in part the product of bias. Having considered the facts in the case, the Court of Appeal concluded that it was left with the suspicion that an impartial observer would perceive a real risk of bias. It thus allowed the appeal and quashed the conviction.

43 . In R v. JC and Others [2013] EWCA Crim 368 – also concerning a complaint of prejudice on the part of fellow jurors – the Court of Appeal stated:

“The receipt of any communication by a juror or jurors complaining of possible irregularities by or among the other jurors demands rapid and close attention. It behoves the judge to decide whether the integrity of the trial process has been irretrievably damaged or whether the trial can continue notwithstanding the complaints. Depending on the individual facts it may be appropriate for the judge to discharge the jury as a whole, or one or more individual members of it, or to continue with the trial, with any necessary direction or warning sufficient to deal with the specific problem. The question for this court is whether the alternative adopted by the judge was correct, which, if the trial has been allowed to continue must be decided at its end, when the warning or directions of the judge, and their impact and any consequences can all be examined. ”

44 . The Court of Appeal declined to quash the conviction in that case, having regard to the trial ’ s judge handling of the complaint (including the directions he then gave to the jury), the conduct of the jury throughout the trial, the length of their deliberations, a question as to the law they had asked of the judge while deliberating, and the different verdicts they had rendered against different defendants on the different counts in the indictment.

4. Majority verdicts

45 . Section 17(3) prevents the Crown Court from accepting a majority verdict of guilty unless the foreman of the jury has stated in open court the number of jurors who respectively agreed to and dissented from the verdict. To comply with this provision, and at the same time to prevent it being known whether a not guilty verdict is unanimous or by a majority, the Criminal Practice Directions set the following procedure for taking a verdict once the jury is permitted to give a majority verdict (that is, after a “majority direction” is given by the trial judge). The procedure is now set out in Criminal Practice Direction VI: Trial at paragraph 26Q1-6 (at the time of the applicant ’ s trial, paragraph 39Q1-6). When the jury return with a verdict after a majority direction has been given, they should be asked:

(a) “Have at least ten (or nine as the case may be) of you agreed on your verdict?”;

(b) If “Yes”, “What is your verdict? Please only answer ‘ Guilty ’ or ‘ Not Guilty ’ . ”;

(c) (i) If “Not Guilty”, accept the verdict without more ado;

(ii) If “Guilty”, “Is that the verdict of you all, or by a majority?”;

(d) If “Guilty” by a majority, “How many of you agreed to the verdict and how many dissented?”

5. The CCRC ’ s power of investigation

46 . Section 23A of the Criminal Appeal Act 1968 gives the Court of Appeal the power to direct the Criminal Cases Review Commission to investigate and report to the Court on any matter necessary for the resolution of an appeal against conviction before it.

47 . Part II of the Criminal Appeal Act 1995 gives the CCCR the necessary powers to conduct such an investigation, including the power to require the appointment of police officers to acting as investigating officers.

COMPLAINTS

48 . The applicant principal complaint was that the jury which tried and convicted him was biased, and thus that he was not tried by an impartial tribunal, in violation of Article 6 § 1 of the Convention.

49 . He also made the following additional complaints.

50 . He submitted that the case against him was tailored by the police to fit anti-Muslim prejudice. This amounted to ill-treatment contrary to Article 3 of the Convention.

51 . Relying on Articles 6 §§ 1, 2 and 3(d), he complained: (i) that the environment in which the trial took place made a fair trial impossible; (ii) that the negative media coverage of the trial, the interest taken in it by far-right organisations, the switching of the trial venue from Bolton to Liverpool, and the fact that all twelve jurors were white meant that the trial was unfair and that the applicant and his co-defendants were not presumed innocent until proven guilty; (iii) his counsel was not allowed to cross ‑ examine certain of the witnesses against him.

52 . Relying on Article 8, he complained that his private and family life had not been respected by the trial and media reporting of it.

53 . Relying on Article 14 and Protocol No. 12, he complained that he had been discriminated against on grounds of race and religion.

THE LAW

A. The alleged bias of the jury

54 . Where relevant, Article 6 § 1 of the Convention provides:

“In the determination ... of any criminal charge against him, everyone is entitled to a fair ... hearing ... by an ... impartial tribunal ...”

1. General principles

55 . The Grand Chamber recently re-stated the general principles which apply in considering whether a court or tribunal meets the requirement of impartiality in Morice v. France [GC], no. 29369/10 , §§ 73 - 78, 2 3 April 2015. Where relevant to the present case, these principles provide (internal references omitted):

(a) Impartiality normally denotes the absence of prejudice or bias and its existence or otherwise can be tested in various ways. According to the Court ’ s settled case-law, the existence of impartiality for the purposes of Article 6 § 1 must be determined according to a subjective test where regard must be had to the personal conviction and behaviour of a particular judge, that is, whether the judge held any personal prejudice or bias in a given case; and also according to an objective test, that is to say by ascertaining whether the tribunal itself and, among other aspects, its composition, offered sufficient guarantees to exclude any legitimate doubt in respect of its impartiality.

(b) As to the subjective test, the principle that a tribunal must be presumed to be free of personal prejudice or partiality is long-established in the case ‑ law of the Court. The personal impartiality of a judge must be presumed until there is proof to the contrary. As regards the type of proof required, the Court has, for example, sought to ascertain whether a judge has displayed hostility or ill will for personal reasons.

(c) In the vast majority of cases raising impartiality issues the Court has focused on the objective test. However, there is no watertight division between subjective and objective impartiality since the conduct of a judge may not only prompt objectively held misgivings as to impartiality from the point of view of the external observer (objective test) but may also go to the issue of his or her personal convictions (subjective test). Thus, in some cases where it may be difficult to procure evidence with which to rebut the presumption of the judge ’ s subjective impartiality, the requirement of objective impartiality provides a further important guarantee.

(d) As to the objective test, it must be determined whether, quite apart from the judge ’ s conduct, there are ascertainable facts which may raise doubts as to his or her impartiality. This implies that, in deciding whether in a given case there is a legitimate reason to fear that a particular judge or a body sitting as a bench lacks impartiality, the standpoint of the person concerned is important but not decisive. What is decisive is whether this fear can be held to be objectively justified.

56 . These principles apply equally to jurors as to professional and lay judges (see, among many authorities, Hanif and Khan v. the United Kingdom , nos. 52999/08 and 61779/08 , 20 December 2011; Mustafa (Abu Hamza) v. the United Kingdom (dec.), no. 31411/07, 18 January 2011; and Ekeberg and Others v. Norway , nos. 11106/04, 11108/04, 11116/04, 11311/04 and 13276/04, § 31 , 31 July 2007, with further references therein ).

57 . Not every irregularity in a jury trial will result in that trial being unfair. For instance, in Hanif and Khan , cited above, § 140, the Court recognised that, w hile the need to ensure a fair trial may, in certain circumstances, require a judge to discharge an individual juror or an entire jury it must also be acknowledged that this may not always be the only means to achieve this aim. In other circumstances, the presence of additional safeguards will be sufficient .

58 . One such safeguard is the trial judge ’ s summing up: it is reasonable to assume that a jury will follow the directions given by the judge in the absence of any evidence suggesting the contrary ( Abdulla Ali v. the United Kingdom , no. 30971/12 , § 89, 30 June 2015 , with references therein; and, mutatis mutandis , Firkins v. the United Kingdom (dec.), no. 33235/09, 4 October 2011).

59 . Indeed, as was noted in Montgomery (see paragraph 38 above), the entire system of trial by jury is based upon the assumption that the jury will follow the instructions which they receive from the trial judge and that they will return a true verdict in accordance with the evidence. The references contained in Montgomery show that this comment reflected, not only the experience of the United Kingdom courts, but that of criminal justice systems throughout the common law world. That experience also underpins the Court of Appeal ’ s observations ’ in Re: B (see paragraph 37 above). The Court has already stated that this experience should be respected (see Mustafa (Abu Hamza) , cited above, § 39).

60 . It was for this reason that, in Mustafa (Abu Hamza) , the Court considered it appropriate to reiterate that it will require cogent evidence that concerns as to the impartiality of jurors are objectively justified before any breach of Article 6 § 1 can be found (see paragraph 39 of the decision, with further references therein).

62 . Finally, while the trial judge ’ s direction to the jury and other such safeguards in the trial process are central to its assessment, in jury cases the Court has also looked to other indicia of objective impartiality such the length of time the jury in the case have deliberated ( Pullicino v. Malta (dec.), no. 45441/99, 15 June 2000); the manner in which they have deliberated ( Mustafa (Abu Hamza) , cited above, § 38); and whether they have returned different verdicts on the charges faced by the applicant and, where relevant, his co-defendants ( Mustafa (Abu Hamza) at § 38; Abdulla Ali , cited above, § 98).

2. Application to the present case

63 . In applying these principles to the present case, the Court begins by considering the subjective test: whether there was any personal bias or prejudice on the part of the jury in the applicant ’ s case. The Court considers that a juror passing confidential information on jury deliberations to far ‑ right organisations would, if proven, undoubtedly meet the test for subjective partiality on the part of that juror. Given that, in view of the secrecy of jury deliberations it would be impossible to know the actual influence of that juror on the other members of the jury, it would follow that any subjective partiality on his or her part would mean that the jury as a whole would not meet the requirements of impartiality (see, mutatis mutandis , Morice , cited above, § 89). However, the Court must base itself on the facts of the case since, consistent with the general principles it has set above, the personal impartiality of a jury must be presumed until there is proof to the contrary

64 . There is no such proof in the present case. The trial judge investigated. The CCRC investigated. Neither found any evidence of any misconduct. The trial judge had the advantage of being able to ask the jury directly whether there had been any such misconduct and to observe their reaction as they replied there had not. The CCRC had the benefit of time, detachment from the immediacy of trial, and the resources of the police to investigate whether any breach of confidence had occurred. Their investigation found no such misconduct. If anything, on the evidence of the clerk and usher, suspicion pointed away from the jury. There was, in consequence, no evidence of any personal prejudice or bias on the part of the jury or any member of it. The test for the subjective impartiality of the jury has therefore been met.

65 . It remains to consider the objective test: whether there were sufficient guarantees to exclude any legitimate doubts as to the jury ’ s impartiality.

66 . In paragraphs 36- 41 of its judgment (set out at paragraph 32 above), the Court of Appeal identified the following six guarantees that were present during the trial:

( a ) the questionnaires the jury had completed confirming they had no association with the BNP or the EDL;

( b ) the careful and fair manner with which the trial judge conducted his enquiries;

( c ) the directions he gave throughout the trial regarding the jury ’ s conduct (including warnings, given at the start of the trial and periodically thereafter to only discuss the case with each other and only in their jury room);

( d ) the content of the jury ’ s notes and the sequence of their verdicts. These indicated that they were progressing through the counts in the order recommended by the judge;

( e ) the verdicts of not guilty which were unanimously returned on 4 May and 8 May against certain of the defendants, before the jury had been given a majority direction (see paragraphs 18 and 19 above);

( f ) that the jury ’ s verdicts appeared rational and consistent with the evidence.

67 . The Court has stated that, in a case of this nature, it must attach particular weight to the Court of Appeal ’ s assessment (see paragraph 61 above). It therefore agrees with the Court of Appeal that these safeguards provided sufficient guarantees to exclude any legitimate doubts as to the jury ’ s impartiality. Moreover, considering the domestic proceedings as a whole, the Court considers following six additional safeguards were present, which provide further assurances of the jury ’ s objective impartiality:

( a ) t he oath the jury took and standard directions they would have received to try the case only on the evidence before them (see paragraphs 33 and 36 above).

( b ) the arrangements for the seclusion of the jury while they deliberated and the broader arrangements made to ensure that they were insulated from the publicity and other interest surrounding the trial.

( c ) the ability of the trial judge quickly to respond to any suggestions of misconduct, both when the first tweets appeared at 1.05 and 1.53 p.m. on 3 May and again when Mr Griffin ’ s subsequent tweets appeared between 4.30 and 4.37 p.m. that day.

( d ) the CCRC ’ s investigation after trial and its ability to draw on the resources of the police to assemble the evidence necessary to assist it and, in turn, to assist the Court of Appeal.

( e ) the oversight exercised by the Court of Appeal, including its power to direct the CCRC to investigate, and the Court of Appeal ’ s power to order further investigation if it felt that was necessary in the light of the investigation already conducted).

( f ) the Court of Appeal ’ s power to quash the applicant ’ s conviction if, applying the tests set out in Magill and JC and Others (see paragraphs 39 and 43 above), if it found there was any doubt as to the safety of that conviction.

68 . In light of these safeguards, and the further safeguards identified by the Court of Appeal, the Court concludes that were sufficient guarantees to exclude any legitimate doubts as to the jury ’ s impartiality. The objective test for impartiality has, therefore, also been met in this case.

69 . Since it has found that the subjective and objective tests of impartiality were met, the Court considers that the applicant ’ s complaint of bias on the part of the jury is manifestly ill-founded and falls to be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

B. Remaining complaints

70 . The Court has examined the other complaints submitted by the applicant. None of these complaints was made to the Court of Appeal. In any case, having regard to all the material in its possession and in so far as these complaints fall within the Court ’ s competence, it finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that these complaints must also be rejected as manifestly ill-founded, purs uant to Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court unani mously

Declares the application inadmissible.

Done in English and notified in writing on 29 September 2016 .

             Renata Degener Mirjana Lazarova Trajkovska              Deputy Registrar President

[1] . Once a majority direction is given to a jury, from that point on, when verdicts are taken from the jury, the procedure followed in court is designed to ascertain only whether a guilty verdict is unanimous or by a majority. It is designed never to reveal whether a not guilty verdict which is rendered after a majority direction has been given is unanimous or by a majority. See the Criminal Practice Direction (Trial) 39Q.5-6 at paragraph 45 below. Thus, in this case, because a majority direction had been given in the course of 4 May, it is not possible to know whether the not guilty verdicts returned on counts 8, 18, 19, 20 and 21 were unanimous or by a majority.