PARTLY DISSENTING OPINION OF JUDGE SPIELMANN JOINED BY JUDGES LOUCAIDES AND KOVLER

1. I cannot agree with the finding of the majority that there has been no violation of Article 6 § 1 of the Convention on account of juror W ' s participation (point 2 of the operative part).

2. The trial opened on 24 February 2003 and on 21 March 2003 the jury deliberated and returned its verdict. After the first four days of the trial, on 28 February 2003, the High Court was informed of the juror ' s witness statement to the police of 10 July 1997. After this had been read out in court and counsel for the defence had made their comments, the High Court ' s President ordered her to withdraw from further participation in the case.

3. I strongly believe that the applicants, from their perspective, had legitimate reasons to suspect that it could not be ruled out that, before the High Court ' s President discharged her from the jury, W. had communicated with the other members of the jury on the subject of her statement to the police of 10 July 1997 . May I add that it transpires from the reasons given by the first voting judge of the Supreme Court (Judgment of 25 September 2003, §§ 23 et seq., reproduced in paragraph 1 8 of the judgment) that the witness statement of W. to the police was not a neutral witness statement but related to precise factual circumstances.

4. While the jurors were reminded of their duty not to discuss or have contact with outsiders about the case, no such safeguards applied to discussions amongst jurors. In fact, quite the contrary, it is undisputed that at the beginning of the trial the presiding judge informed the jury about the importance of conferring among themselves during the trial without making this known to others.

5. Certainly, I am mindful of the fact that the jury ' s impartiality was ensured by a number of safeguards (see Pullar v. the United Kingdom , judgment of 10 June 1996, Reports of Judgments and Decisions 1996 ‑ III, p. 795, § 40). The rules in the Administration of Court Act governing the impartiality of judges also applied to jurors. Not only had the presiding judge at the opening of the trial discussed with the jury the impartiality requirement applicable to jurors, but the jury had also been reminded of the importance of this requirement when the High Court ordered juror W. to withdraw from the case on the ground of disqualification. While neither side in the trial had relied on W. ' s statement to the police of 10 July 1997, the presiding judge would regularly remind the jury to rely only on statements presented in court and not to discuss the case with third parties (see paragraph 33 of the Supreme Court ' s judgment quoted at paragraph 1 8 of the judgment). However, these safeguards did not in my view remove the risk that juror W. might have influenced the other members of the jury. Indeed, I am not convinced that it sufficed for the jury to have been lawfully constituted when it decided on the question of guilt, since the proceedings leading to that decision had been contaminated owing to the presence of juror W. during the initial phase of the criminal trial.

6. In the circumstances, the risk appeared to be a real one and I am satisfied that it was legitimate for the applicants to entertain fears that the jury lacked the requisite impartiality for the purposes of Article 6 § 1 of the Convention. Accordingly, I find that the High Court ' s refusal to accede to the applicants ' request, on account of juror W ' s participation, to discharge the jury and to order a rehearing before a differently composed jury, also gave rise to a violation of Article 6 of the Convention in respect of all the applicants.