DISSENTING OPINION OF JUDGE DAVID THÓR BJÖRGVINSSON JOINED BY JUDGE GARLICKI

I.

1. I disagree with the majority in finding no violation of Art icle 6 § 1 of the Convention in this case.

2. It is clear from the decision of 20 June 2006 that the Court of Appeal recognised that a fundamental problem had arisen in this case: “A lthough in this case we are satisfied that no harm was done, we firmly suggest that this is a course which is not followed in the future with or without the consent of the parties ...” (paragraph 56 of the Court of Appeal ' s judgment – see § 37 above).

3. The finding of the Court of Appeal that no harm was done do es not sit comfortably with the same court ' s view t hat this course of action ought not to be followed in the future even where the parties consent . It is self ‑ evident, in my view, that no trial should ever be tainted with a scenario whereby a member of the police investigation team who was a witness for the prosecution spends two hours alone with a jury, if the minimum requirements of Article 6 (1) of the Convention are to be observed.

4 . In my view, the reasons for the domestic court ' s warning that this course of action should never recur, with or without the consent of the parties, ought to have been sufficient to lead the Court of Appeal to find that the applicant ' s trial was unfair and thus in violation of Article 6 § 1.

5. T he importa nce in a democratic society of the criminal courts inspiri ng confidence in the public at large and , in particular, in the accused , cannot be overstated . A fundamental prerequisite for such confidence is that a tribunal must be independent and impartial. ( Hauschildt , cited above, § 46; Kyprianou , cited above § 118; Pullar , cited above § 30 and Gregory , cited above § 43). It is clear from this Court ' s case-law that the requirement of independence and impartiality of tribunals applies equally to juries (see Holm v Sweden 14191/88, 25 November 1993, § 30 ). Thus, when assessing whether this requirement ha s been fulfilled the same criteria apply to judges, lay judges and jurors alike.

6 . It is well - established that impartiality for the purposes of Article 6 § 1 of the Convention must be determined on the basis of both a subjective and an objective test. In the case of juries the subjective test relates to the personal conviction of the individual jurors . Under the objective test it must be ascertained whether there are sufficient guarantees to exclude any legitimate doubt as to a juror ' s impartiality (see mutatis mutandis Pétur Thór Sigurðsson v. Iceland , no. 39731/98, § 37, ECHR 2003-IV; and Wettstein v. Switzerland , no. 33958/96, § 42, ECHR 2000-XII ).

II.

7 . As regards the subjectiv e test, the majority finds that there was in this case no evidence of actual or subjective bias on the part of one or more of the jurors ( § 80). Nor, however, is there any evidence to the contrary. Why? Because the Court of Appeal found that that any further inquiry of the jurors as to what happened while they were view ing the CCTV footage in the pre sence of officer M would be improper. Thus, we do not have any evidence either way. We are left only with the stark reality that a witness for the prosecution spent two hours alone with the jury in the absence of any representation for the accused.

8. Thus, the question is whether this fact alone, viewed objectively, can be considered to give rise to a justified fear that the jury might have been influenced by officer M ' s presence in a way that was detrimental to the accused.

III.

9 . Applying the objective test , it must be determined whether there are ascertainable facts which may give rise to justifiable doubts as to the impartiality of the jury and therefore the tribunal (see for example Pé tur Thór Sigurðsson v. Iceland , judgment , § 37, ECHR 2003-IV ). The question is whether , in the circumstances of this case, the applicant ' s fear of lack of impartiality of the jury because of the presence of officer M in the jury room is objectively ju stified. I find that it is.

10 . The majority accepts that, regardless of the extent of o fficer M ' s actual role in the p rosecution, his status as a police officer and his resultant association with the prosecution could give rise to “understandable misgivings” on the part of the accused as to the impartiality of the jury. However, by reference to the jurors ' respect for their oath and to the directions and wa rnings given by the trial judge, the majority finds that there were sufficient safeguards in place to exclude any objectively justified or legitimate doubts as to the jury ' s impartiality. I disagree.

11 . None of the safeguards relied upon by the majority, taken individually or collectively, was sufficient to counter balance the procedural irregularity that occurred in a case whe re the trial jud ge allowed the said improper course of actio n to be followed. I make the following observations.

12 . Firstly , the Court of Appeal itself indicated that this is a course of action which ought never to be followed in the future, with or without the consent of the parties.

13. Secondly , it is apparent, that as soon as the lead counse l for the applicant was apprised of the procedure adopted, he objected to it. S ubsequently , it was discontinued and , there after , the jurors viewed the video recordings alone (see §§ 18-23). By then it was, of course, too late since the jury had spent almost two hours alone in the company of M who was in control of the technical evidence which the jury wanted to review.

14 . Thirdly , I am unimpressed by the majority ' s ( § 82) and the Court of Appeal ' s ( paragraphs 44-45 of its judgment, cited at § 31 above) reliance on the fact that jurors are no longer as isolated as they used to be and can potentially be in contact with a large number of people. T he same consideration applies to judges and lay judges alike . The relevance of this is therefore questionable since, regardless of whether a judge or a juror is concerned, direct contact with a witness for the prosecution behind locked doors in the absence of the defence must always be considered irregular and improper.

15 . Fourthly , I emphasise that when assessing whether the applicant ' s fear of possible bias on the part of the jurors is justified, the nature of the role of the jury as the triers of facts must be borne in mind. In other words the jurors are “judges” of the facts of the case . T he jury , as with a judge, is obliged to reach an independent judgment on the evidence. The essential idea is that the jury is impartial and arrives at its verdict on the basis of an independent consideration of the evidence wh ich has been given in court. It would certainly give rise to justified fears of impartiality if a judge in a criminal case, after the evidence was heard, relied on the technical assistance of a member of the police investigation team as well as a witness for the prosecution to help him to review the main evidence in the case in the absence of the defence team .

16 . Fifthly , it is not contested that o fficer M was a member of the investigation team which had dealt with the applicant ' s case . He was also a witness for the prosecution. While his role may have been primarily technical and his s tatements un controversial, the fact remains that he was a part of the prosecution and actively participated in the investigation and presentation of the c ase. F or this reason alone a fair minded and objective observer would be justified in fearing that there was a real risk that the jury lacked impartial ity .

17 . Sixthly , the relevance of the role played by o fficer M should not be underestimated. He was , in the absence of the trial judge and counsel for the defence, entrusted with the task of assisting the jurors in reviewing one of the most important pieces of evidence. Furthermore, the relevance of the communication that took place is not insignificant. In that context it should be pointed out that the mere identification of the parts of the video footage in which the jurors were interested is in itself a form of communication which potentially was capable of revealing the jurors ' thoughts on the evidence and their deliberations as they identified those parts of the evidence in which they were particularly interested. Furthermore, i t cannot be excluded tha t the very presence of o fficer M in the “jury room” may unwittingly have inhibited or influenced the jurors. Thus , I find that M ' s role was not as insignificant as implied by the majority and that this situation certainly gives rise, from an objective point of view, to justified fears that the jury may have come under an improper and extraneous influ ence .

18 . Finally , the majority relied on the fact that the barristers for two of the defendants expressly agreed to the procedure adopted and that initially no objection was voiced by the junior counsel of the applicant (see § 14 of the judgment ) . The Court of Appeal found that there was no doubt that all concerned consented to the presence of o fficer M. Nevertheless, the Court of Appeal clearly stated t hat the proposed course of action ought not to be followed in the future “with or without the consent of the parties”. This is not surprising since nobody can waive his right to a fair trial. It is this Court ' s function to ensure that the domestic courts comply with the State ' s Convention obligations under Article 6 which establishes the unqualified fundamental right of every person to a fair trial by an independent and impartial tribunal.

19 . For the reasons advanced above, I believe that the applicant ' s fears as to the impartiality of the jury because of the presence and role of o fficer M were both legitimate and objectively justified. I therefore conclude that there has been a breach of Article 6 § 1 of the Convention.

20. I regret that the majority has accepted a “slippage” of the sort found in the case to form a part of this Court ' s case law. We are now in the unsatisfactory position that this Court finds tolerable a course of action which the domestic court said ought never to recur.