DISSENTING OPINION OF

        Mr. C.L. ROZAKIS, Mrs. J. LIDDY AND Mr. E. BUSUTTIL

      In our opinion this application gives rise to a violation of

Article 6 of the Convention.

      We note the reference by the majority to the recent finding of

a violation in the Remli application, a case similar to the present

case (No. 16839/90, Remli v. France, Comm. Report 30.11.94,

unpublished) and agree that it was the failure of the trial court in

that case to examine or check in any way a statement presented to the

court (about a racist comment made by a juror prior to being sworn in)

which was central to the finding of a violation.

      We also agree that the question to be decided in the present case

is whether, in the circumstances of this case, the means employed by

the trial judge were sufficient to exclude any legitimate doubt as to

the impartiality of the jury within the meaning of Article 6 of the

Convention.

      However, we find the issue to which the jury note referred to be

a serious one and consider the ambiguity of the jury note central to

the question of objective impartiality in this case. It was possible

that the note could have been evidence of the over sensitivity of a

juror to comments made by fellow jurors. However, it could equally be

interpreted as referring to racist comments expressed by one, more or

indeed all of the members of the jury.

      In this respect, we consider that by redirecting the jury, the

trial judge was implicitly deciding against the necessity of exercising

his powers to discharge up to three jurors, to discharge the entire

jury or to adjourn the jury's further deliberations pending further

reflection and feedback as to their ability to bring in a verdict on

the evidence alone.

      The trial judge accordingly made a decision to redirect the jury

without knowing the extent or gravity of the "racial overtones"

referred to in the jury note. Moreover, we consider that if we were to

accept the Government's position as to the absence of any reason to

doubt the jury's impartiality, this would necessarily imply that we

conclude as to the precise meaning of the jury note, a fact which was

not and can not be established. While a single judge of the Court of

Appeal and the full Court of Appeal reviewed the case, that court was

similarly unaware of the precise meaning of the jury note.

      While we note that the second redirection given to the jury was

a standard form direction used when the jury cannot decide by the

required majority, a juror with racial prejudice could have drawn some

comfort from the following words:

      "So each of you when you go into your jury room take with you

      your individual experience and wisdom. ... Your task is to pool

      that experience and wisdom."

      Furthermore, the present case can be distinguished from the

Nielsen case referred to by the Government (No. 343/57, Dec. 15.3.51,

Yearbook 4, p. 568) where the Commission found that a redirection

sufficed in guaranteeing the impartiality of the jury. In that case,

the biased comment was made by an expert witness giving evidence in

open court and thus did not emanate from the jury. In addition, the

judge was aware of the precise nature and extent of the expressed bias

and was, therefore, in a position to evaluate the sufficiency of a

redirection to the jury with all of the pertinent facts to hand.

      We are also cognisant of the recent developments in the United

Kingdom concerning the training of members of the judiciary in race

awareness and note, in particular, section 95 of the Criminal Justice

Act 1991 which obliges the Home Secretary to publish yearly information

for the purposes of, inter alia, facilitating courts in their duty to

avoid discriminating against any person on racial grounds.

      Accordingly, we conclude that, in the circumstances of this case,

the trial judge's redirection to the jury was not sufficient to dispel

doubts as to the impartiality of the jury which convicted the applicant

and that the applicant's fears in this regard can be considered as

objectively justified.

      Consequently, we are of the opinion that the applicant's case was

not determined by a tribunal which can be regarded as impartial within

the meaning of Article 6 para. 1 of the Convention.