CCRC Refer Bakish Allah Khan and Ilyas Hanif to Court of Appeal

Messrs Khan and Hanif were convicted at Sheffield Crown Court in 2007 for conspiracy to supply heroin. Mr Khan was sentence to 17 years' imprisonment and Mr Hanif to eight years' imprisonment.

Both men appealed against their convictions but their appeals were dismissed. Mr Khan also appealed against his sentence and his sentence was reduced from 17 to 15 years' imprisonment.

Both men then applied to the European Court of Human Rights (ECtHR). Judgment was handed down 20 December 2011. The ECtHR considered the implications of the presence of a police officer on the jury, in circumstances where there was a significant challenge to the evidence to be given by police officers and where the juror knew one of the police officers giving evidence. It concluded that there was a violation of Article 6§1 of the European Convention on Human Rights (ECtHR) in that Mr Khan and Mr Hanif were not tried by an impartial tribunal and accordingly did not receive a fair trial. The government of the United Kingdom did not request that the case be referred to the Grand Chamber and accordingly the decision of the ECtHR became final on 20th March 2012.

Messrs Khan and Hanif applied to the Criminal Cases Review Commission in July 2012.

Having reviewed the case, the Commission has decided to refer the convictions to the Court of Appeal because it considers that the conclusion of the European Court of Human Rights in regard to their trial raises a real possibility that the Court of Appeal will now quash their convictions.

Mr Khan is represented by Mr Tarsam Salhan, Salhan & Co Solicitors, 1st Floor Murdoch Chambers, 153a Corporation Street, Birmingham B4 6PH.

Mr Hanif is represented by Ms Chris Davey, Howells Solicitors, 7 Castle Street, Sheffield S3 8LT.

<> Ministry of Justice, Friday 2nd August 2013

Police Officer's Presence on Jury Made Trial Unfair

Hanif and Khan v. the United Kingdom

In today's (Tuesday 20th December 2011) European Court of Human Rights Chamber judgment in the case Hanif and Khan v. the United Kingdom (application nos. 52999/08 and 61779/08), which is not final, the Court unanimously, that there had been a violation of Article 6 § 1 (right to a fair trial) of the European Convention on Human Rights in respect of both applicants.

The case concerned the applicants' complaint that the presence of a police officer on the jury, which convicted them of drugs offences, violated their right to a fair hearing.

Principal facts
The applicants, Ilyas Hanif and Bakish Allah Khan, are British nationals who were born in 1967 and 1978 respectively. At the time of lodging his application, Mr Hanif was serving an eight-year prison sentence; Mr Khan is currently serving a 15-year sentence. They were both convicted in January 2007 of conspiracy to supply heroin.

During the trial, in which they were co-defendants, Mr Hanif's defence was that a third man had left the drugs in his car. The court heard evidence from police officers, who said that they had not seen anyone else in the car. One of the jurors, AT, indicated to the judge that he was a serving police officer and that he knew one of the police officers giving evidence, MB. AT stated that he had known MB for about ten years and that on three occasions they had worked on the same incident, although not in the same team. They had never worked at the same station and did not know each other socially. The defence made an application to discharge AT but the judge rejected the application. AT subsequently became the jury foreman.

The applicants appealed their conviction arguing that the jury which convicted them was not impartial, because of the presence of the police officer. In March 2008, the Court of Appeal upheld the applicants' conviction. It referred to a recent change introduced by the Criminal Justice Act 2003 which had permitted persons in certain occupations which were previously ineligible for jury duty, including police officers, to sit on juries. It therefore considered that police officers could not be considered solely by reason of their occupation to be biased in favour of the prosecution. As the police officer sitting as juror in the applicants' case had not had any connection with the prosecution of the case, no violation of Article 6 arose.

The applicants were refused leave to appeal to the House of Lords in June 2008.

Decision of the Court
The Court referred to its consistent case-law to the effect that it is of fundamental importance in a democratic society that the courts inspire confidence in the public and the accused and emphasised the need to ensure that juries are free from bias and the appearance of bias.
It noted that the the Criminal Justice Act 2003, which for the first time allowed police officers to serve in juries in England and Wales, was also a departure from the rule followed in a number of other jurisdictions which have trial by jury. Of the jurisdictions surveyed by the Court.? only two permitted police officers to serve on juries> and in both, it was possible to challenge the inclusion of jurors without providing any reasons for the challenge. Recent public consultations in a number of jurisdictions+ had shown support for the continued exclusion of police officers from jury service. The Court therefore considered that the effect of the amendment in the circumstances of the case required particularly careful scrutiny.
Mr Hanif's defence had depended to a significant extent upon his challenge to the evidence given by the police officers, including MB. There was therefore a clear dispute between the defence and the prosecution regarding the credibility of the evidence of the police officers. The Court considered that where there was an important conflict regarding police evidence, and a police officer who was personally acquainted with the police officer giving the relevant evidence was a member of the jury, that juror might, favour the evidence of the police. In the present case, although the juror and the witness were not from the same police station, AT had known MB for ten years and had worked with him on three occasions. The Court accordingly found that Mr Hanif had not been tried by an impartial tribunal, in violation of Article 6 § 1.
The applicants had been co-defendants in one set of criminal proceedings and had been convicted by the same jury. The Court therefore considered that, having found in its examination of Mr Hanif's complaint that the jury could not be considered to constitute an "impartial tribunal" for the purpose of Article 6 § 1 in light of AT's presence, it would be artificial to reach a different conclusion regarding the "tribunal" which had tried Mr Khan. Thus the Court considered that there had also been a violation of Article 6 § 1 in respect of Mr Khan.

Article 41
Under Article 41 (just satisfaction) of the Convention, the Court decided that the finding of a violation of Article 6 constituted sufficient just satisfaction and rejected the applicants' claims in respect of non-pecuniary damage. However it held that the United Kingdom was to pay Mr Hanif 4,500 euros (EUR) and Mr Khan EUR 2,000 in respect of costs and expenses.