Racial Bias and The English Criminal Trial

Racial bias and the English criminal trial
Cambridge Law Journal
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Racial bias and the English criminal trial, C.L.J. 2005, 64(3), 678-710
For educational use only

Racial bias and the English criminal trial
Gillian Daly and Rosemary Pattenden
Table of Contents
I. INTRODUCTION
(ii) The effectiveness of a warning
V. JURY SECRECY
VI. REFORM PROPOSAL
VII. IMPLEMENTING THE PROPOSAL
VIII. CONCLUSION
Journal Article
Cambridge Law Journal
C.L.J. 2005, 64(3), 678-710
Subject
Criminal procedure
Other related subjects

Human rights
Keywords
Criminal procedure; Juries; Racism; Right to fair trial
Cases cited
R. v Mirza (Shabbir Ali) [2004] UKHL 2; [2004] 1 A.C. 1118; [2004] 1 WLUK 407 (HL)
Legislation cited
International Convention on the Elimination of All Forms of Racial Discrimination 1965 (United Nations)
European Convention on Human Rights 1950 Art.6
*C.L.J. 678 "When a man has a black face, suspicion IS proof." George Orwell, Burmese Days. 1
© 2021 Thomson Reuters. 1

I. INTRODUCTION
IN the 2001 census, nine per cent of the population of England and Wales were not classified as white.2 Racial
tensions undeniably exist and it is probable that amongst the individuals randomly selected from the electoral roll
to serve as jurors there will be some with race-related prejudices.3 By this we mean the inclination to prejudge
others using pejorative stereotypes based on perceptions of "race, colour, descent or national or ethnic origin".4
A jury that is influenced by racial stereotyping lacks impartiality.5 In this article we examine existing safeguards
to prevent verdicts tainted by racial bias, find them wanting and suggest tape-recording jury deliberations as a
viable solution. The chief (but not exclusive) source of difficulty is the decision in R v. Mirza. 6 By approving a rule
that treats evidence of matters intrinsic to the deliberations as inadmissible, the House of Lords put jury secrecy
ahead of neutralising possible juror bias. In two decisions delivered shortly afterwards, R v. Smith (Patrick) 7
and Attorney-General v. Scotcher,8 this common law rule was affirmed. In Mirza the rule meant that a plausible
post-verdict complaint by a juror about racial bias during the deliberations could neither be received as evidence
nor investigated further. If the juror was right and racial bias had caused a miscarriage of justice, it could not
be rectified.
*C.L.J. 679 We submit that this situation breached article 6 of the European Convention on Human Rights
(ECHR). In addition, because the jury secrecy rule has a disparate impact on minority race defendants,9 it may
have violated article 14 and the International Convention for the Elimination of Racial Discrimination (ICERD)10
which guarantees equal treatment in "all types of judicial proceedings including trial by jury".11
A. Does Race Influence Juries?

Empirical research about the influence of race on juries is difficult. The Contempt of Court Act 1981, section 8(1)
prevents direct investigation of jury deliberations12 and no research on jury-race issues using simulated juries is
available in this country.13 This gap will be closed when the results of a large scale project on ethnic diversity in
the jury system are published by the Department of Constitutional Affairs Research Unit. The third part of this
project, which will be completed late in 2005, examines whether and how the race of defendants affects verdicts
when juries are composed of different racial groups.14 In the meantime the only reliable information is a report
published in 2003 by Hood, Shute and Seemungal15 on ethnic minority perceptions of the criminal courts. For this
778 ethnic minority defendants were interviewed.16 Nearly a third of those tried in the Crown Court complained
of unfair treatment and a minority related this to their ethnicity: in the case of the black defendants it was one in
five and in the case of the Asians one in eight.17 Six of the thirty black defendants (20%) thought that the jury was
unsympathetic to, or racially biased against, them. A further four, whose main concern was racially *C.L.J. 680
biased sentencing, also complained about jury prejudice.18 Similar complaints were made by two of the eleven
Asians tried by juries.19 A white usher with many years' experience told the researchers that "[j]ury members
sometimes just want to see [ethnic minority defendants] go down: they're prejudiced.'20
A victim may suffer racial prejudice at the hands of a jury which may manifest itself as an unjust acquittal.21
Our table22 of reported allegations of jury racial bias includes one case23 in which the jury acquitted two white
Leeds United football players of a serious assault on an Asian. It is impossible to know whether the cause was
actually race-related. There is no reliable evidence that racial prejudice is a problem for victims. When the Hood
team asked sixty-five (mainly prosecution) Crown Court witnesses from ethnic minorities, some of whom were
victims, about bias no one said anything about the jury.24 Those who were not victims would probably have had
no way of knowing what jurors made of them. That racial prejudice can influence the assessment of a witness
who is not the accused has, however, been demonstrated by American researchers.25
B. The Myth of Impartiality

Judicial rhetoric holds that jurors "should be [metaphorically] as white as paper"26 and that juries are to approach
their task "without any preconceived ideas and by reference to the evidence alone.'27 This is not what actually

happens.28 In the jury box, as outside it, the juror's decision-making is influenced by his moral values, personal
experiences, personality, beliefs, predispositions and prejudices.29 One of the rationales for trial by jury is that the
*C.L.J. 681 defendant's conduct is assessed according to local norms by twelve ordinary people whose outlooks
have been moulded by their diverse characters, histories and life styles. The Court of Appeal recognizes that a
juror may draw inspiration from his past.30 What the law does not want is for jurors to take extra-evidential factors
into account that are a likely to cause a miscarriage of justice.31
Amongst these factors is reliance on negative32 racial stereotypes to interpret evidence and assess witness
credibility. To dismiss self-defence because those with dark skins are believed to be inclined to aggression33
is unacceptable. Other dangerous--but unfortunately all too common--stereotypes include: black people look
much the same,34 do not respect the law35 and are sexually promiscuous;36 Muslims are terrorists or terrorist
sympathizers;37 Jews are greedy;38 Asians are devious liars.39 The Mirza jury was accused of general racial
prejudice and unjustly inferring that an immigrant from Pakistan who had been settled in England since 1988
was using an interpreter as "a devious ploy to help his case".40 This inference is not apparently unusual.41 An
Indian solicitor with 14 years' experience complained to Hood et al. that "[i]f a defendant comes in and cannot
speak English as his first language and has an interpreter the perception is that the person is hiding behind an
interpreter.'42
*C.L.J. 682 C. Impartiality and Public Confidence

The relationship between decision-making impartiality and acceptance of verdicts in an adversarial legal system
is obvious; its importance more generally for public confidence in the administration of justice is a long-standing
theme of Strasbourg jurisprudence.43 Faced with an accusation of racial bias against a judge, Lord Lane C.J.
said in R v. Batth:
Justice must be rooted in confidence: and confidence is destroyed when right-minded people go away thinking:
"The judge was biased.44
The same applies to juries.45
In England and Wales the public and defendants currently trust juries: lawyers,46 judges47 and opinion polls48
agree on this. Indeed, there is evidence that ethnic minorities do: given the choice, black defendants opt for trial
by jury.49 This endorsement, however, is a fragile thing. It may evaporate if the law is seen as incapable of dealing
effectively with a plausible allegation of juror racial bias.
In the United States the moral authority of juries has been shaken by high profile cases in which the verdict
appeared to be affected by racial considerations.50 The two best known internationally are the O.J. Simpson trial
and the Rodney King case. In the former, a black American celebrity was rapidly acquitted by a predominantly
black jury of the brutal murder of his estranged white wife and her companion despite highly incriminating
evidence. Contemporary white public opinion attributed this to black juror bias.51 Conversely, a jury lacking
African-American members52 exonerated two Los Angeles police officers who were filmed beating King, a black
motorist, as he lay helpless on the road.53 The acquittals triggered race riots. *C.L.J. 683 Dershowitz, a member
of the O.J. Simpson defence team, attributes both outcomes not to racial bias but to the fact that black Americans
are justifiably more sceptical than white Americans of the police.54 In the King affair, the difficulty of proving
the necessary intent for felonious assault may have been a factor.55 Whatever the actual reasons (which may not
be knowable), these cases illustrate the point that perception of bias matters as much as--or more than--truth.
A. Legal Tests of Bias

Both domestic and Strasbourg jurisprudence require a judicial tribunal to be indifferent between prosecution and
defence. The rules are uniform; nothing turns on the nature of the bias, the nature of the decision-maker56 or the
stage of the proceedings at which the issue of bias arises.57

The common law recognises two types of bias: actual and apparent. Successful allegations of actual bias are
rare.58 It is apparent bias, that is, the reasonable appearance of bias,59 that provides the effective protection.60 In
R v. Gough 61 the test adopted was whether a reasonable person would consider bias a real danger. This test was
criticised because the reasonable person was assumed to hold the views of the court.62 A "modest adjustment" was
approved in Porter v. Magill. 63 Under the amended test, which was intended (but fails)64 to align English law
with the case law on impartiality of the European Court of Human Rights (ECtHR), the court must first ascertain
all the circumstances bearing on the suggestion of bias and then ask whether those circumstances would *C.L.J.
684 lead a "fair-minded and informed observer" to conclude that there was a real possibility that the tribunal
was biased.65
Articles 6 and 14 of the ECHR require trial before an "impartial tribunal" "without discrimination because of "race,
colour, language, religion … national or social origin". The ECtHR has developed a test of impartiality which
has a subjective and an objective element. The former is equivalent to common law actual bias and is presumed
unless there is evidence to the contrary.66 Objective impartiality is assessed from the defendant's perspective but
his belief about the jury's partiality is not conclusive. The cause of the defendant's concern is identified and the
court then decides whether, in the light of the guarantees of impartiality, his doubt is justified.67
The Human Rights Act 1998 has made the Strasbourg test part of domestic law. Therefore, when juror racial bias
is alleged, the court must consider the juror's complaint, the effect is has had on the defendant and the sufficiency
of the guarantees of juror impartiality operating in the particular circumstances.68 English law offers many
potential safeguards. In a given case, not all may be available. The judicially identified safeguards are divisible
into overlapping categories: the prophylactic (those that operate before the jury is selected or independently of an
allegation of bias) and the remedial. The former are random selection,69 challenge for cause,70 the juror's oath to
give a true verdict according to the evidence,71 warnings72 and majority verdicts.73 The latter are the discretion
to discharge,74 warnings75 and appeal.76 These safeguards will be examined to determine first, how well they
protect against racial bias and second, whether, in the context of a plausible allegation of racial bias, they meet
the requirements of article 6 for an effective response.
1. The Oath
There is evidence that reliance on racial stereotypes may be automatic and unconscious.77 An oath cannot prevent
this. When racial bias is conscious, the protection of the oath is weak because jurors know that they can express
their prejudices in the jury room without fear of exposure.78 R v. Mirza 79 confirmed a long-standing ban on
the admissibility of "intrinsic" evidence, that is, evidence of the content of the jury's deliberations or the mental
processes of deliberating jurors.80
2. Juror Selection
The Juries Act 1974 preserves the common law right to challenge a qualified juror for actual or apparent bias.81
The challenge takes place before the juror is sworn in and is tried by the judge.82 The juror may be questioned,83
but only after cause to challenge him has been shown.84 This means prima facie evidence of bias must already
exist.85 Since the United States practice of questioning members of the venire to detect prejudice is not followed,86
this is unlikely unless the juror has been heard to a make racist remark87 or bears on his person some visible sign
of racism.88 Canadian courts have accepted survey evidence or taken judicial notice of local prejudice against
visible racial minorities as prima facie evidence,89 but there is no precedent for this in English law.90
*C.L.J. 686 It is true that in exceptional circumstances, English judges have engaged in pre-emptive questioning
of the jury.91 In the 1972 Angry Brigade Trial92 the judge asked jurors with certain political affiliations to exclude
themselves. This, however, provoked a Practice Note that it was "contrary to established practice for jurors to be
excluded on … general grounds such as race, religion or political beliefs or occupation".93 The current Practice
Direction94 allows jurors to be excused who are "personally concerned in the facts of the particular case or …

closely connected with a party or prospective witness". Nevertheless in 2003, at the trial of a Muslim cleric accused
of soliciting the murder of Jews and Hindus, the trial judge asked members of the panel who were Jewish or Hindu
or married to people who were to reveal themselves with a view to de-selection.95 There was no response. It is
implicit in what Lord Hobhouse said in Mirza 96 that even this limited inquiry should not have taken place.
English courts place great faith in random selection.97 A randomly selected jury is not necessarily representative
of the local ethnic mix,98 but more importantly, it is not necessarily racially unbiased. There is a theory that juror
prejudices cancel each other out.99 When the concern is racial bias, this may not happen. People who are racially
dissimilar may share racial prejudices. Indeed, people with the same skin colour may be racially prejudiced against
one another. In R v. White 100 a black man of West Indian origin was convicted of aggravated racial harassment
of a black woman from Sierra Leone. Asians, Whites and Blacks are not homogeneous. Furthermore, we cannot
be certain that a jury does not have a majority with a shared prejudice against, for example, asylum seekers,101
Muslims, Jews or alleged terrorists.
*C.L.J. 687 3. Majority Verdicts

Since 1967 majority verdicts have been permitted in all English jury trials.102 This prevents a rogue juror from
insisting on a disagreement;103 it cannot stop one or two racially prejudiced jurors from tipping the balance or
neutralise racial bias amongst a majority. In Mirza, where the jury convicted ten to two,104 the majority verdict
legislation may have silenced a minority who opposed a racist majority. Should this situation be reversed, it is
conceivable (although unlikely) that several determined racists might wear down an indifferent majority who just
want to get the trial over.105 This is the explanation offered for jury vetting in terrorist trials.106
1. Discretion to Discharge
Before verdict, the judge may discharge the jury or up to three jurors.107 This discretion must be exercised without
undue regard to the cost of a retrial.108 Before a decision is taken, the allegation of bias must be investigated.109
Jurors may be questioned,110 if appropriate,111 but this must be done in the presence of all the jurors.112 There
was no inquiry in Sander v. United Kingdom 113 and no complaint about this omission, but this might have been
because of the then prevailing view that once the jury is empanelled all juror conversations about the case are
confidential.114 In Mirza a *C.L.J. 688 majority of the law lords confined the secrecy rule to the deliberation
stage.115 This makes sense because jurors are told not to discuss the case except in the jury room.116
If an allegation of racial bias is made by a juror during the deliberations, as in Gregory v. United Kingdom 117
and R v. Momodou,118 the secrecy rule does not stop the jury from being summoned back into court and asked
collectively119 whether anyone harbours ineradicable prejudice.120 Questions touching on the jury room debate
are, however, forbidden.121 Whether a generally directed question is helpful is questionable.122 In Sander v. the
United Kingdom, the ECtHR noted that "an open admission of racism cannot be easily expected from a person in
jury service".123 Should jurors ask for particulars of the alleged bias, the judge is put in a difficult position. He
must either take refuge in silence or reveal that a juror has complained "with obvious difficulties for the writer".124
There have been ten reported allegations of racial bias prior to verdict since 1991.125 In seven of the trials no one
was discharged; in the remaining three trials (arising from two cases) the jury was stood down. In R v. Maqbool,126
the earlier of the two, a juror complained to an usher during the deliberations. Moore J. said that the complaint
raised "strong suspicions that there is racial prejudice within the sitting jury" and discharged the jury.127 Two
consecutive juries were discharged in R v. Mudhar, a fraud case heard at Stafford Crown Court in 1999. The
defendants were an Asian and a mixed race couple. The first discharge was triggered by an anonymous telephone
call to the court clerk that a juror had made racist remarks and had decided prematurely to convict the couple.
*C.L.J. 689 When a juror confirmed that he was the caller, the jury was dismissed. A second jury was discharged
after several jurors complained about racist remarks by fellow jurors.

Had the trial judge chosen not to discharge anyone after any one of these complaints, the decision would have
been defensible under current law.128 We know from Gregory 129 that a written note from a juror accusing another
juror of racial prejudice does not prove actual bias. From Sander 130 we know that if a juror admits to having
made a racist joke but denies being prejudiced the presumption of impartiality is not rebutted. Proof of actual bias
requires "cogent and compelling" evidence.131 Turning to apparent bias, a general complaint of racial prejudice
can be dealt with by a direction.132 A more specific but unsupported allegation does not compel discharge.133
Jury retention decisions were upheld in R v. Brestovic,134 R. v. Hussain 135 and R v. Momodou. Momodou (from
Nigeria) and his co-accused, Limani (from Albania), were convicted of violent disorder following destruction of
the immigration detention centre at which they were being held. A juror accused two named jurors, both themselves
from ethnic minorities, of racial prejudice.136 This was denied by all the other jurors. Lord Justice Judge stressed
that a jury was not to be discharged just to show disapproval of racial prejudice.137
(i) The law

If apparent bias is established and the judge decides against discharging anyone, the jury must be warned to be
impartial.138 The warning does not have a prescribed format and there are no rules about timing. In R v. Gregory
139
no criticism was expressed about a warning that made no specific reference to racial prejudice.
*C.L.J. 690 A prophylactic warning may be appropriate where apparent bias is not alleged if the trial has racial
overtones.140 The cause may be either the nature of the charge or the way in which the case is presented.141 In R v.
Elias 142 the prosecutor compared a Jewish defendant charged with handling stolen computers to Fagin, a receiver
of stolen goods in Oliver Twist. Dickens portrayed Fagin143 as an offensive Jewish stereotype. The defence asked
for the jury to be discharged. The prosecutor apologised in open court, emphasising that the jury should not decide
on the basis of the defendant's ancestry, and the judge rejected the application. He later directed the jury to try the
matter on the evidence alone. The Court of Appeal, which was not persuaded of a risk of prejudice, found this
response satisfactory144 and an application to Strasbourg failed.
(ii) The effectiveness of a warning

The system of trial by jury operates on the assumption that jurors heed instructions from the judge. However,
in R v. Williams McLachlan J., speaking for the Supreme Court of Canada, admitted that "it cannot be assumed
that judicial directions to act impartially will always effectively counter racial prejudice."145 Psychological
reactance theory predicts that jurors may rebel against attempts to curb their freedom of thought.146 This theory
(which is well supported by empirical data)147 could explain why some members of the Mirza jury (allegedly)
ignored the judge's direction to "draw no adverse inferences from the defendant exercising his right to have an
interpreter".148 Since racism is widely disapproved of, an instruction to avoid prejudice may encounter *C.L.J.
691 less resistance.149 Even so, a juror may be unable to comply with a direction to be impartial for two reasons.
First, the juror may be unable to purge deeply embedded stereotypes from his unconscious thought processes.150
Second, the warning may come too late. Jurors do not listen passively to witness testimony storing it for later
analysis in the jury room. They construct stories as the evidence unfolds,151 resolving ambiguity and filling in gaps
from their understanding of life.152 When stereotypic thinking has enabled the juror to make sense of evidence,
its eradication is unlikely;153 the very absorption of information may have been impaired.154 Affirmations of
impartiality from jurors are not to be trusted. A juror who denies racial prejudice may be free of prejudice or
unaware of prejudice or lying to avoid social disapproval.155
The effectiveness of a warning may additionally be affected by:
(a) Strength of the Evidence. Kalven and Zeisel speculated that ambiguous evidence "makes it possible for the jury
to respond to sentiment by liberating it from the discipline of the evidence."156 If this is right, racial bias bites
in marginal cases and is irrelevant when the prosecution's case is overwhelming.157 This hypothesis is supported

by empirical evidence.158 The ECtHR was therefore wise in Sander v. United Kingdom 159 not to follow the
example of the Court of Appeal which treated the acquittal of a co-defendant *C.L.J. 692 against whom there
was virtually no evidence as confirmation of the jury's impartiality.160
(b) Juror Empathy. 161 In law the criminal standard of proof ("beyond reasonable doubt" or "sure") is fixed. In
practice the nature of the crime,162 and we suggest also empathy or hostility toward the defendant, influences
interpretation of evidence and readiness to convict.163 A juror sympathetic to the defendant because of shared
ethnicity may take a merciful view of the facts.164 The opposite may happen if juror sympathy lies with the victim.
(c) Crime Type. Crime type and likelihood of racial bias have been linked.165 When stereotype and charge match,
jurors are more likely to demonstrate racial bias.166
(d) Trial Issues. Aversive racism theory postulates that when racial issues are blatant (as in Momodou)167 there
is a reduced risk of racial prejudice by jurors with an internalized belief that racial prejudice is wrong.168 The
results of mock jury experiments support this.169 When racial issues are not salient, as in child sex abuse trials,170
the category to which R v. Mirza 171 belongs, white jurors "often let down their guard".172
(e) Victim and/or Defendant Non-Racial Characteristics. Individuating information (such as high status) that
contradicts a relevant racial stereotype, or which seemingly corroborates it (such as a criminal record) may
respectively, mitigate or reinforce prejudice.173
*C.L.J. 693 (f) Warning Content. Psychologists believe that jurors will respond more readily to an informative
than a prohibitive direction.174
3. Appeal
There is but one post-verdict safeguard: an appeal. This requires a conviction as biased acquittals are final.175 If
racial bias moves the jury to acquit, this, just as much as a conviction, is a miscarriage of justice which "leads to a
failure of public confidence in the justice system".176 However, the only means of addressing the bias is indirect:
to bring civil proceedings, as the families of O.J. Simpson's victims did.177 A direct solution is precluded by the
double jeopardy principle, an important safeguard against oppressive prosecutions.178
An appeal against conviction lies to the Court of Appeal, Criminal Division on any one or more of the following
grounds: erroneous exercise of the judicial discretion to discharge the jury; jury bias; lack of an evidential
foundation for a conviction.
(1) Appeal arising from a Refusal to Discharge a Juror or the Jury

For the appeal to succeed on the grounds of an erroneous refusal to discharge, the Court of Appeal must be satisfied
(i) of the possibility of racial bias (ii) that in consequence the judge should have discharged a juror or the entire
jury179 and (iii) as he did not, "the conviction is unsafe".180 The appeal presupposes the existence of evidence of
bias during the trial so the jury secrecy rule is not necessarily a problem.181 Case law suggests that persuading
appellate judges that the trial judge erred is difficult,182 particularly if the defence did not press for discharge.183
Satisfaction of the third condition follows as a matter of course once the first two are *C.L.J. 694 met. This is
because denial of a fundamental right (trial before an impartial tribunal under article 6) renders a conviction unsafe
regardless of how much evidence there may be against the appellant.184 A re-trial will probably be ordered.
(i) Actual bias

An appeal might lie on the grounds of actual or apparent bias. To establish actual bias, bias in fact must be
shown. This necessitates investigation of the subjective thought processes of jurors during the deliberations which
the jury secrecy rule forbids. The jury secrecy rule also limits investigation of apparent bias. Intrinsic evidence
is inadmissible, therefore questions about the deliberations may not be put to jurors.185 However, jurors (and

third parties) may be asked about: (i) juror characteristics or juror knowledge which pre-dated the trial and
which is inappropriate in one serving on the jury;186 (ii) improper juror-non-juror communications;187 (iii) illicit
documents in the jury room;188 and (iv) anything that occurred when the jury was not deliberating.189 In R v.
Mirza 190 and in R v. Smith (Patrick) 191 the House of Lords said that evidence might be received that the verdict
was arrived at by drawing lots192 or tossing a coin193 on the theory that these activities are not part of a genuine
process of deliberation.194
*C.L.J. 695 Jury secrecy restricts the possibility of establishing apparent racial bias to a highly circumscribed
set of factual situations. We can conceive of only four: where (i) a juror makes racist comments during a hiatus in
the trial;195 (ii) a juror is exposed to racist propaganda outside the jury room;196 (iii) a racist document is taken
into the jury room; (iv) evidence is adduced that a juror is a member of a racist organisation.197 Jurors cannot be
questioned about the impact any of these matters had on the deliberations.198
Where a juror has complained of racial bias and there is no extrinsic evidence of this, within the confines of the
jury secrecy rule and the domestic law on bias, only two approaches are possible. Both are illustrated in R. v. Mirza.
The first approach is that of the majority. The court finds that it cannot admit evidence of the jury's deliberations
and therefore there is nothing on which to base a finding of bias.199 The alternative is that of Lord Steyn in his
dissent. The court finds bias on the basis of the juror's letter alone.200 This puts the emphasis on appearances.
Neither approach is satisfactory. The first effectively ignores the allegation of bias.201 The second establishes it
on the say-so of the juror making the complaint who may have misrepresented events in the jury room.202
The majority's approach undermines the principle on which protection against bias is predicated, namely that of
uniformity.203 Protection depends, first, on the timing of the allegation. If this is during the trial, the judge can
act to neutralise juror bias.204 If it is after verdict, in a case without extrinsic evidence, nothing can be done. At
the urging of the House of Lords,205 the Court of Appeal issued a Practice Direction206 instructing judges to alert
jurors of their duty207 to bring concerns about fellow jurors to the judge's attention during the trial.208 Jurors may
not always obey: it may not dawn on the juror until after the trial that racial prejudice *C.L.J. 696 contributed to
the outcome209 or the juror may be too timid to act while other jurors are about may fear reprisals.210 It is unfair
to penalise the defendant for this. Second, the level of protection varies with the mode of trial, a matter outside
the defendant's control where the charge is serious. A post-verdict complaint of bias against lay magistrates may
be thoroughly investigated under all circumstances since the magistrates are not forbidden to disclose what was
said when the bench retired to consider the verdict.211 Third, a defendant convicted by a jury will fare better if
he complains of judicial bias212 that jury bias. The level of protection ought to be the same since judge and jury
are viewed as a composite entity for the purposes of article 6.213
(3) "Lurking Doubt" Appeals

Lack of extrinsic evidence of bias will not impede a successful appeal if the Court of Appeal can be persuaded that
there is no evidence on which a reasonable jury could have convicted.214 Jurors who hold racial prejudices are
not, however, normally so bigoted that they act without any evidence: "people have reality constraints".215 One
juror who voted for O.J. Simpson's acquittal admitted that had she been aware of some of the additional evidence
that was adduced in the later civil proceedings, she would have convicted. "I'm sorry, O.J. would have had to go
if the prosecution had presented the case differently … As a black woman, it would have hurt me. But as a human
being, I would have to do what I had to do."216
An appeal may also succeed if the appeal judges are left with a lurking doubt (in spite of some evidence for the
prosecution).217 Successful "lurking doubt" appeals are rare.218 It is difficult for a *C.L.J. 697 transcript to
induce a doubt.219 The Court of Appeal is particularly loath to quash a conviction that depends (as that in Mirza
did)220 on the credibility of witnesses: "It will require a compellingly unusual or obvious case before the court
will be prepared to go behind a verdict which is based on the jury's assessment of the evidence of witnesses".221

Yet it is in the interpretation of evidence and assessment of credibility that racial bias is most likely to lurk.222
Thagard attributes O.J. Simpson's acquittal in spite of a strong prosecution case to the emotional bias in his favour
of the black female jurors.223 This inclined them to believe his defence and disbelieve detectives who had the
opportunity and proven racist motive to frame him.224 In an account of jury service (written before the Contempt
of Court Act 1981), Cohen describes the reaction of his white co-jurors to the defence witnesses. The trial involved
white defendants who had allegedly instigated an unprovoked attack on black men in the street. Two defendants
called their fathers as alibi witnesses.
It seemed that … on looking at those two men in the witness box the jurors had seen themselves--middle-aged,
working-class white fathers, with whom they identified completely--and that they were allowing their sympathy
to sway them very strongly against a clear evaluation of the evidence as it was presented.225
Where a defendant suspects that racial stereotyping has unfairly influenced the assessment of witness credibility,
appellate intervention is unlikely. In R. v. Smith (Lance) 226 a black man appealed against a finding of causing
grievous bodily harm with intent and possessing a firearm with intent by an all-white jury. The victim was white
and, although one of Smith's companions (both of whom pleaded guilty) was also a white man, the violence had
a racial dimension.227 On appeal it was pointed out that there were inconsistencies in the evidence of white eye-
witnesses including *C.L.J. 698 failure to observe that a white male was party to the violence and there was
some forensic evidence favouring the appellant.228 The Court of Appeal nonetheless dismissed the appeal on the
grounds that there was evidence on which to convict.229
[W]e see no risk that the jury failed to approach the evidence fairly or that they did not scrutinise it carefully and
objectively … the witnesses were properly and fully cross-examined and the jury had every opportunity to assess
their credibility and reliability.230
The Court of Appeal has the same hands-off approach when the defendant is charged with an offence with a woolly
definition. This is another situation where the jury has ample opportunity to manifest racial prejudice. Gross
negligence manslaughter is a good example.231 The prosecution in R. v. Litchfield 232 arose out of a maritime
accident in which 14 lives were lost. The trial was moved to Exeter because of strong feeling about the case in
Cornwall. The jury convicted by a ten to two majority after a summing up which counsel for the appellant claimed
had been favourable to the defence. He attributed the convictions to "deep local prejudice". Simon Brown L.J.
said that fidelity to the jury system required that "[i]n this case, indeed, beyond almost any other class of case,
the jury's views ought to be regarded as well-nigh sacrosanct given that under the law it is they who decide not
merely the facts but also the point at which a breach of duty becomes the offence of manslaughter. There would
need to be compelling grounds indeed before it would be proper for this court to say that the jury has set the
standard impermissibly high."233
Back in 1976 Baldwin and McConville analysed 370 jury trials at Birmingham Crown Court of which 356 ended
in convictions.234 They found that "over 5 per cent of those found guilty by jury were convicted in questionable
circumstances and were left, for all practical purposes, without effective remedy on appeal."235 Within this group
"no fewer than eight out of fifteen involved black defendants, whereas there were only seven such defendants
out of the 41 cases in the *C.L.J. 699 questionable acquittal group".236 Although the figures are too small for
meaningful generalisations, the researchers said they "suggest … the possibility of racial prejudice by some juries
… the more so since six of the eight black defendant were charged with" violence and sexual assault.237 Leave
to appeal was sought in only 3 of the 15 doubtful conviction cases,238 despite the fact that all had professional
advice. The low figure is attributed to the known reluctance of the Court of Appeal to upset a conviction on the
grounds of jury error alone.239 Its approach today is no more liberal.240
1. Pre-verdict
When the issue of racial bias is raised before verdict, compliance with article 6 depends on the content of the
allegation and the way the domestic courts react to it. If they do not respond, we know from Remli v. France 241 that

article 6 is violated. An allegation must be investigated242 and, if it is found to be plausible, something effective
must be done about it. The options are to discharge one or more jurors or give a warning.243 Should the jury be
discharged or the conviction be quashed on appeal, enough has plainly been done. Whether discharge of one or two
jurors is an adequate response will depend upon the particular facts. The position regarding warnings is unclear.
A warning met with approval in Gregory v. United Kingdom 244 but not in Sander. 245 The distinction between
these cases seems to turn on the strength of the evidence of racial bias. Whereas in Gregory the letter to the judge
suggested merely "racial overtones",246 in Sander the letter singled out specific jurors, specific racial comments
and was corroborated by a second letter that admitted the racist remarks. This letter could not be reconciled with
the jury's collective letter refuting the allegations.247 On the basis of Sander, a warning in the face of a *C.L.J.
700 confirmed and specific allegation of racial bias is not Convention-compliant.
2. Post-verdict
The ECtHR has not yet been called upon to adjudicate a case where racial bias has been alleged by a juror for
the first time after verdict. There is no reason to think that the ECtHR will depart from its usual approach which
is to consider the defendant's doubts and whether, given the guarantees of impartiality in the particular case, they
are objectively justified.248 When the defendant learns that a juror has complained that a fellow juror was racially
prejudiced,249 the defendant will inevitably doubt the jury's impartiality. The jury secrecy rule renders the only
active safeguard at that stage--an appeal--ineffective if there is no extrinsic evidence. "A juror who complains
to a court about misconduct which is intrinsic to the jury's deliberations is in effect tendering evidence which,
on examination, turns out to be inadmissible."250 In his dissent in Mirza, Lord Steyn found the case of Remli v.
France instructive in spite of it being a pre-verdict case.251 A breach of article 6 was found because "the court
dismissed their application without even examining the evidence admitted to it, on the purely formal ground that
it was not able to take formal note of events alleged to have occurred out of its presence."252 This is analogous
to the situation in Mirza.253
How is it that the majority in Mirza avoided a finding of incompatibility with article 6? First, they argued that the
ECtHR had validated trial by jury and the jury secrecy rule in Gregory 254 rendering case by case justification for
secrecy otiose.255 This reasoning is unsound. Although jury secrecy has been approved, an absolute jury secrecy
rule has not any more than the ECtHR has endorsed an absolute rule of legal professional privilege.256 They also
pointed to the many legal safeguards against racial bias.257 Given these safeguards, post-verdict secrecy is seen as
a proportionate *C.L.J. 701 response to a legitimate aim.258 This reasoning too is flawed. As Lord Hope himself
pointed out in a Scots appeal involving jury bias, "The right of the accused to a fair trial by an independent and
impartial tribunal is unqualified. It is not to be subordinated to the public interest".259 The issue is not whether in
any abstract sense the jury secrecy rule is justified but whether in the particular case, there are sufficient safeguards
against bias to exclude legitimate doubts.260 In Mirza this issue was not squarely addressed.
The jury secrecy rule does not displace the objective test of impartiality. The secrecy rule and the unexplained
verdict affect the sufficiency of the guarantees. They operate effectively as "negatives". In Holm v. Sweden 261 the
Commission noted that the jury did not have to give reasons and held that "in such a system it is of even greater
importance to exclude any elements which could give rise to doubts as to the independence and impartiality of
the jurors."262 The ECtHR, agreeing with the Commission, found a breach of article 6 despite the existence of a
"number of safeguards"263 that included an elaborate selection process;264 juror vetting;265 and an oath.266
In his dissenting speech in Mirza, Lord Steyn dismissed the Director of Public Prosecution's submission that
English law already offers many safeguards to ensure a fair verdict with the remark that although laudable this
"does not touch on the problem."267 He agreed with the majority that the jury secrecy rule serves legitimate
ends,268 but disagreed that it is absolute. In the circumstances of the Mirza appeal, an exception was necessary: "it
would be an astonishing thing for the ECtHR to hold … that a miscarriage of justice may be ignored in the interests
of the general efficiency of the jury system."269 Had the case been argued a year later, he could have pointed out

that the majority's approach *C.L.J. 702 contradicts the Criminal Procedure Rules 2005. A criminal court must
further the overriding objective of a just trial which includes "acquitting the innocent".
V. JURY SECRECY
To evaluate the competing views expressed in MIRZA about the jury secrecy rule, its purpose deserves analysis.
The initial rationale in 1785 (when jurors rarely retired to consider their verdict) was to protect jurors against self-
incrimination.270 As jury trial became more complex this justification was superseded by a twofold raison d'etre;
to secure the finality of the jury's decision and "to protect the jury themselves and to prevent them being exposed
to pressure or inducement to explain or alter their view."271 To this has been added a third reason; "confidentiality
promotes candour and the kind of full and frank debate that is essential to this type of collegial decision making."272
Without secrecy, it is feared that jurors might not acquit unpopular defendants273 and feel driven to self-censorship
to avoid "public criticism and ridicule, or worse".274 These rationales have not gone without criticism275 but they
are cited throughout the common law world.276
It is difficult to justify the pre-verdict embargo on evidence of discussions in the jury room277 on the grounds of
either finality or preventing jurors from being harassed. Harassment is best avoided by withholding the identity of
the jurors and certainly does not warrant exclusion of evidence spontaneously volunteered by a juror to a court.278
In Attorney-General v. Scotcher 279 finality was given as a reason that matters intrinsic to the jurors' deliberations
are *C.L.J. 703 inadmissible. However, in its application to juries the finality principle has not been absolute
since jury verdicts became reviewable for errors of fact in 1908.280 The principle was sacrificed further when the
Criminal Appeal Act 1995 established the Criminal Cases Review Commission to refer cases back to the Court
of Appeal. In a system that confers generous rights of appeal, why should finality prevail when there is credible
doubt about the integrity of the verdict and no extrinsic evidence throws light on the matter?281 "Finality is a good
thing, but justice is a better".282
As for the candour argument, we think it overstated. No one doubts that confidentiality is necessary. Lord Steyn
agreed with the majority about this.283 Where they parted company was on whether it should prevail in all
circumstances. Unlimited jury secrecy is not favoured by the American Bar Association which operates in a
country with far more jury trials than this one. Its draft Principles for Juries and Jury Trial (2005) state that a
verdict may be impeached upon information provided by a juror "under exceptional circumstances".284 in New
Zealand Parliament is poised to approve the admissibility of evidence that a juror breached his duty as a juror
inside the jury room285 and Lord Justice Auld recommended allowing this.286
VI. REFORM PROPOSAL

To counter jury racial bias, we propose the routine tape-recording of all jury deliberations. This will not stifle
jury debates provided jurors are told that
1. the tapes will never be made public;
2. the parties will have access to an edited transcript from which anything identifying the jurors will have been
excised; and that
*C.L.J. 704 3. access is conditional on the Court of Appeal being satisfied of a plausible allegation of racial bias.
"Plausible" here means "a serious allegation in the context of the case" that "does not immediately appear to be
manifestly devoid of merit".287 This test will be satisfied by a complaint that bears indications of authenticity,288
is timely289 and specific and is made directly (or indirectly via an appropriate agent)290 to a court. The existence
of the tape-recording will discourage speculative post-trial approaches to jurors on behalf of convicted defendants,
a concern of Lord Rodger,291 and malicious and unscrupulous allegations by disgruntled jurors such as worried

Lord Hope.292 It will also allow the allegation to be checked without direct questioning of jurors, a prospect which
alarmed the Mirza majority.293 Jurors have nothing to fear from court appointed officials listening to the tape
because jurors cannot be made to account for anything said or done in the discharge of their office.294 If jurors
are given anonymity, there will be no wider invasion of their privacy.
Candour, it must be remembered, is not an end in itself. It is desirable to the extent that it promotes a just verdict.
Racist comments do not further this goal unless group pressure or persuasion cause the prejudice, once voiced, to
be abandoned. There is no guarantee that airing racial prejudice will have this effect. The juror in Mirza reported
that she was "shouted down".295 When one person expresses prejudice, this may liberate others to act on their own
prejudice296 and discussion may reinforce that prejudice.297 Nemeth and Goncalo claim that "[p]rejudiced people
discussing racial issues *C.L.J. 705 become more prejudiced; those less prejudiced become less prejudiced".298
In a group with opposing values this will cause polarisation and this may be what happened in Mirza.
Any deterrent effect of our proposal is likely to be slight. It will not deter remarks that the speaker does not
appreciate are racist and it is unlikely to inhibit comments by jurors engrossed in the deliberations. Research
involving jury simulations suggests that filming--a much greater invasion of jury privacy--has a negligible impact
on candour.299 In order to study blame attribution in rape cases involving intoxicants, Finch and Munro used
an unobtrusive video camera to record the deliberations of 21 juries that had been shown a film of a mock rape
trial.300 Jurors were told to expect the research to be widely disseminated but were promised anonymity. The
prospect of their discussions being published did not deter some deliberating jurors from drawing on rape myths
and stereotypic notions about how women behave301 while fully alive to the possibility that this might cause
offence.302 In the Arizona Jury Project303 in which the deliberations of 50 actual civil juries were filmed, the
experience was similar.304 This experiment differs from our proposal only in the fact that the parties could not
access information about their own case.305
VII. IMPLEMENTING THE PROPOSAL

Our proposal will require legislation. Lord Rodger was clear in Mirza that any change to the common law
jury secrecy rule was a matter for Parliament.306 The omens are bad. A consultation document issued by the
Government proposes no action because "[t]he House of Lords judgment in Mirza has made clear that the court
can consider such allegations and their potential impact on a trial subject to the common law."307 This turns a
blind eye to the fact that it is the common law that is the problem.308
*C.L.J. 706 There are two obvious objections to our proposal. First, why single out racial bias from other
bias?309 One answer is that as a source of bias race tends to be visible.310 A better answer is that racism is
"an especially corrosive form of prejudice that has come to prominence with changes in the make-up of the
British population."311 It is racial bias (including racial prejudice dressed up as religious prejudice) that poses the
gravest threat to public confidence in juries and, more generally, to the criminal justice system. Recognizing this,
elimination of racial discrimination has been designated a priority goal by the ECtHR312 and the Constitutions
of most Council of Europe member states forbid it.313 Lord Eldon, as Home Office Minister, said:
The fabric of our society is only sustainable if the mass of society consents to the criteria on which justice is
administered. If a particular discrete, identifiable and self-identifiable sector of that society believes that there is
a system of justice which is just for other people but not just for them, whether or not that belief is well founded,
the effects upon our society as a whole will be very damaging because these people will see the judicial system
not as a means of maintaining law and order but as a means of keeping "them" down and us up. This is a recipe
for internecine warfare and is very dangerous.314
The second objection is that the proposal confines scrutiny of jury deliberations to one of many forms of juror
misconduct. Why not, for example, admit evidence that a juror did not participate in the deliberations or looked
something up on the internet overnight?315 This question assumes a bright line between misconduct and accidental

error and that the former is worse than the latter. This is not so. When racial bias is unconscious, as we have
suggested it often is, it is hard to label it as misconduct. Moreover, most rules can either be misapplied knowingly
or accidentally. Evidence too can be deliberately ignored or forgotten. Telling which happened from a transcript
may be difficult, moreover, the harm to the defendant is the same whether jurors did the wrong thing inadvertently
or by design. It is illogical to investigate an allegation that jurors ignored the burden of proof but to refuse to
investigate an allegation that they misunderstood it. From the standpoint of *C.L.J. 707 ensuring the defendant
a fair trial, there is nothing special about juror misconduct. If there is to be scrutiny of the deliberations for juror
misconduct (as Lord Justice Auld has advocated),316 then there should be scrutiny for all juror error deliberate
or otherwise.
In our view, there is something special about a plausible unsolicited allegation of racial bias from a juror. This
kind of allegation has a unique capacity to undermine public confidence and create social strife. There is no
need for the claim to be substantiated for it to cause trouble. It is virtually impossible to draw the sting from the
allegation without access to intrinsic evidence, that is evidence from within the jury room. This will either dispel
the allegation or pave the way for a remedy. In this sensitive matter, which the ECtHR rightly views with special
concern, the ECtHR is unlikely to defer to national law as it normally does on issues of evidence and procedure.317
The House of Lords has decided that the Court of Appeal can investigate whether the verdict was the result of a
throw of the dice.318 There is no good reason why it should not also consider whether the verdict is tainted by
racial bias if the safeguards we have suggested are adopted. Our proposal is "a workable exception" which will
"not eat up"319 the jury secrecy rule.
If our critics concede that racial bias is a special case, there is a further problem: inspection of the transcript might
disclose an unsuspected flaw,320 for example, that jurors illicitly visited the scene of the crime. If the irregularity
is ignored, justice will not appear to have been done. If it is considered, and, once exposed it surely must be,321 a
plausible allegation of racial bias becomes a pre-requisite for admitting intrinsic evidence of other forms of juror
error and misconduct. This is the unfortunate but unavoidable consequence of allowing jurors to decide in secret.
It cannot be prevented by requiring jurors to give reasons for the verdict (as in Spain)322 because the reasons will
not necessarily disclose the error. If as a general rule, secrecy is necessary for a workable system of *C.L.J. 708
trial by jury, then this method of adjudication comes at a price.323 We have to accept that or abolish trial by jury.
VIII. CONCLUSION
Trial by jury is regarded as a bastion of the criminal justice system. That the jury is not racially biased is of the
utmost importance both for justice in individual cases and for public confidence in juries. In Mirza Lord Hope said
that "[t]he system as a whole does what it can, within the limits that are humanly possible, to ensure that juries will
indeed cast aside their prejudices to reach a true verdict according to the evidence".324 This assessment is wrong.
First, our courts place too much faith in warnings and juror assurances of impartiality. Second, the safeguard of an
appeal is sabotaged by a common law rule that prevents post-verdict examination of a statement made in the jury
room. This makes the preference for warnings over jury discharge all the more regrettable. In terms of article 6,
the post-verdict prohibition on intrinsic evidence of racial bias is neither a necessary nor, given the seriousness of
most offences tried by jury and the Court of Appeal's long-standing reluctance to reconsider jury findings of fact, a
proportionate response to the legitimate aim of protecting the institution of trial by jury. In the cause of something
as nebulous325 as public confidence, the rule puts minority defendants at risk of indirect discrimination.326 In fact,
as Lord Steyn pointed out,327 in cases of alleged racial bias, public confidence is just as easily undermined as
protected by the current jury secrecy rule. Our modest proposal, if implemented, will not redress unjust race-based
acquittals or undo all race-based convictions because racial bias might not be recognized or may go unreported.
Nevertheless, it provides a means of offering reassurance to ethnic minorities and does so without eroding the
candour of the jury's discourse or potentially flooding the Court of Appeal with additional appeals.
Racial Bias Allegations 1991-2005

Case Trial Who Minority Crime Race- Source of Jury ApplicationTrial Evidence Appeal ECtHR
complained related bias compositionto outcomeof juror/
charge? discharge jury bias
jury

Hussain 2005 juror Asian murder no jury unknown yes guilty note from CACD328 --
juror failed
during
trial
Momondou2003 juror, Nigerian violent yes jury ethnically failed note from CACD331
guilty330 unknown
& Limani defendants & disorder diverse329 juror failed
Albanian during
deliberations
Mirza 2001 juror, Asian indecent no jury unknown -- guilty note from DACD333 unknown
defendant assault juror
after & HL334
failed
verdict332
Bowyer335 2001 victim Asian GBH, yes jury all-white -- not none -- --
affray guilty
Smith 2001 defendant Black GBH, no jury all-white -- guilty none CACD336 --
possession failed
of
firearm
Mehrbahn 2000 defendants Asian ABH, no prosecutingunknown failed guilty none CACD338 --
GBH counsel337 failed
Maqboul, 2000 defendants Asian/ affray unknown jury unknown succeeded -- complaint -- --
Hameed Black340 to court
& usher
Todd339 during
jury
deliberations
Qureshi 2000 defendant Asian arson, no jury unknown -- note after CACD342 --
guilty341
obtaining verdict failed
by
deception
Brestovic 2000 juror Albanian unlawful no jury unknown failed note of
guilty343 CACD344 --
from wounding/ overheard failed
court wounding corridor
next with conversation
door, intent between
defendant jurors
before
case
started
Mudhar 1999 juror, Asian & fraud no jury unknown succeeded -- anonymous-- --
& defendants mixed phone
Ashleigh- race call to
Nicholson345 couple346 court
(first clerk
jury) which
juror later
confirmed
Mudhar 1999 jurors, Asian & fraud no jury unknown succeeded -- complaints -- --
& defendants mixed by jurors
Ashleigh- race to court
Nicholson347 couple clerk
(second at trial
jury) outset
Elias 1998 defendant Jewish handling no prosecutingunknown failed guilty none CACD349 application
stolen counsel348 failed inadmissible350
goods
Miah & 1995 defendants Asian murder, yes jury351 white & -- note from CACD354 unsuccessful355
guilty352
Akhbar violent 2 Afro- juror to failed
disorder, Caribbean defence
conspiracy 12
months
after
trial353
Sander 1995 juror, Asian conspiracy no jury unknown failed guilty note from CACD356 successful357
defendant to juror A failed
defraud during
summing-
up &

note from
juror B
admitting
racist
joke.
Gregory 1991 juror, Black robbery no jury all- failed359 guilty juror's CACD360 unsuccessful361
defendant white358 note failed
during
deliberations
Norwich Law School. The authors are grateful for helpful comments from Dr Emily Finch, Dr Cheryl Thomas,
Raymond Toney and the reviewer.
Footnotes
1 1986 edn. (London, Secker

and Warburg), at p. 8.
2 [2005] EWCA Crim 177, [69],
[2005] 2 All E.R. 571
3 Three other defendants (two
Albanians and one Nigerian)
acquitted.
4 [2005] EWCA Crim 177,
[2005] 2 All ER 571.
5 Also two notes from jury
during the trial about
the defendant's use of an
interpreter.
6 [2002] EWCA Crim 1235.
7 [2004] UKHL 2, [2004] 1 AC
1118.
8 The Independent 21 Dec.
2001, p. 1 Attack on Asian
student outside Leeds
nightclub. Defendant a well-
known white footballer.
9 [2003] EWCA Crim 283,
[2003] 1 WLR 2229.
10 Judge allowed Muslim
defence witnesses to be cross-
examined about why they
chose to affirm rather than
swear (like the complainant)
on the Koran.
11 [2001] EWCA Crim 2627.
12 Daily Mail, 10 Oct. 2000,
p. 11, The Independent 16
Oct. 2000. Victim an off-duty
policeman.
13 The Daily Mail op.cit. and
The Times 10 Oct. 2000 report
that 2 defendants were Asian;
The Independent 10 Oct. 2000
p. 7 reports that the three
defendants were Black. Given
their names, it is probable that
two were Asian and one was
Black.
14 11:1 majority.
15 [2002] 1 Cr App R 433.

16 Acquitted of more serious

charge of wounding with
intent.
17 [2003] EWCA Crim 402.
18 The Independent 10 Oct. 2000
p. 7 and Birmingham Evening
Mail 29 June 1999.
19 Ethnic origins are not reported.
p. 7.
21 Prosecutor reprimanded by the
Bar Council.
22 CACD unreported 15 Dec.
1998.
23 Application no. 48905/99,
Application held inadmissible
16 Jan. 2001.
24 Instant assumption of guilt
which may or may not have
been attributable to racial
prejudice.
25 But not on all counts: Akhbar
acquitted of conspiracy; Miah
acquitted of conspiracy and
convicted by 10:2 majority of
murder.
26 CACD questioned genuineness
of evidence, but did not allow
investigation.
27 [1997] 2 Cr App R 12.
28 Miah v. UK (1998) 26 EHRR
CD 199.
29 CACD unreported 1 Mar.
1996.
30 Sander v. UK (2000) 33 EHRR
44.
p. 2.
32 There is uncertainty about
whether the defence applied
for the jury to be discharged:
(1997) 25 EHRR 577 [11],
[46].
33 Unreported 19 Jan.1993 as to
which see (1997) 25 EHRR
577 [16]-[17].
34 Gregory v. UK (1997) 25
EHRR 577.
35 Kalunta-Crumpton, Race and
Drug Trials. There is a widely
held belief that young urban
black men are muggers and
drug dealers.
36 Kalunta-Crumpton, Race and
Drug Trials, p. 200; W. George
and L. Martinez, "Victim
Blaming in Rape: Effects of
Victim and Perpetrator Race,
Type of Rape, and Participant
Racism" (2002) 26 Psychology
of Women Quarterly 110.
37 Cp. Vidmar "When All
of US are Victims", 1153.
The London bomb attacks
in July 2005 are bound to
have boosted this type of
stereotyping.
38 C. Phillips and B Bowling,
"Racism, Ethnicity, Crime
and Criminal Justice", in
M.Maguire, R. Morgan and

R. Reiner (eds.), The Oxford

Handbook of Criminology
(3rd edn., Oxford 2002), p.
588. Cp. R. v. Elias (CA,
unreported, 15 Dec. 1998).
39 Phillips and Bowling, ibid.,
584.
40 [2004] UKHL 2, at [67].
41 See R. v. Brestovic [2001]
EWCA Crim 570, at [13].
42 Hood, Shute and Seemungal,
Ethnic Minorities in the
Criminal Courts, 91.
43 Piersack v. Belgium (1982)
5 E.H.R.R. 169, para. 30,
Gregory v. UK (1998) 25
E.H.R.R. 57, para. 43, Sander
v. UK (2000) 33 E.H.R.R. 44,
para. 22.
44 [1990] Crim. L.R. 727, taking
his cue from Metropolitan
Property Ltd. v. Lannon
[1968] 3 All E.R. 304, 310.
45 R. v. Sherratt [1991] S.C.R.
509, 525.
46 Submission of the Young
Barristers' Committee
to the Government's
Consultation on the Auld
Report, para. 12, available at
www.dca.gov.uk/criminal/
auldcom/lorg/lorg1.htm.
47 R. v. Thoron [2001] EWCA
Crim 1797, at [17]. Cp. R. v.
Mirza [2004] UKHL 2, at [7],
[144].
48 The Bar Council and
Law Society, Views on
Trial by Jury: The British
Public Takes the Stand
(Jan. 2002), available at
www.dca.gov.uk/criminal/
auldcom/lorg/14.htm.
49 C. Bootman, "Race and
Racism--the Missing
Dimensions in the Royal
Commission on Criminal
Justice", in Criminal Justice
in Crisis (Aldershot 1994), p.
95; L. Bridges et al, Ethnic
Minority Defendants and the
Right to Elect Jury Trial (CRE,
2000), p. 18.
50 H.Fukurai and R. Krooth,
Race in the Jury Box (New
York 2003), pp. 6-14, 216.
51 A. Dershowitz, Reasonable
Doubts: The OJ Simpson
Case and the Criminal Justice
System (New York 1997), p.
70.
52 The jury included one
Hispanic and one Filipino
juror.
53 People v. Powell, noted in A.
Alschuler, "The All-White
American Jury" (1995) 145
N.L.J. 1005; and N. Marder,
The Jury Process (New York
2005), pp. 251-253.

54 Dershowitz, Reasonable
Doubts, pp. 111-113. Cp. N.
King, "Postconviction Review
of Jury Discrimination:
Measuring the Effects
of Juror Race on Jury
Decisions" (1993) 92 Mich. L.
R 63, 78.
55 M. Seabrook, "Video
Hasty" (1992) 142 N.L.J.
1142. A federal jury
(containing two African-
Americans) subsequently
convicted two officers of
violating King's civil rights.
56 The rule for judges and juries
is the same: R. v. Gough
[1993] A.C. 646, 660, 670; R.
v. Brown [2001] EWCA Crim
2828.
57 R. v. Gough [1993] A.C. 646;
Remli v. France (1996) 22
E.H.R.R. 253, at [46]; Holm
v. Sweden (1994) 18 E.H.R.R.
79 para. 30, R. v. Hammans
[2001] EWCA Crim 479, at
[23].
58 Director General of Fair
Trading v. Proprietary
Association of Great Britain
(known as Re Medicaments)
[2001] 1 W.L.R. 700, at [39].
59 Ibid., at [38].
60 Locabail (UK) Ltd. v. Bayfield
Properties [2000] Q.B. 451, at
[16].
61 [1993] A.C. 646, at 670.
62 R. v. Webb (1994) 122 A.L.R.
41, 46; Doherty v. McGlennan
1997 S.L.T. 444.
63 [2001] UKHL 67, [2002] 2 AC
357.
64 S. Atrill, "Who is the Fair-
Minded and Informed
Observer? Bias after
Magill" [2003] 62 C.L.J. 279;
P. Robertshaw "Responding to
Bias Amongst Jurors" (2002)
66 J. Crim. L. 84, 91.
65 Porter v. Magill [2001] UKHL
67, at [102], [103]. The test
was applied to a jury in R. v.
Momodou [2005] EWCA Crim
177, [2005] 2 All E.R. 571, at
[80], R. v. Campbell [2005]
EWCA Crim 248, at [13] and
R. v. Evans [2005] EWCA
Crim 766.
66 De Cubber v. Belgium (1984)
7 E.H.R.R. 236, para. 25;
Holm v. Sweden (1994) 18
E.H.R.R. 79, para. 57.
67 Piersack v. Belgium (1982) 5
E.H.R.R. 169, para. 30; Sander
(2000) 33 E.H.R.R. 44, para.
27; Incal v. Turkey [1998]
E.C.H.R. 48, paras. 65, 70-73.
68 Cp. Montgomery v. H.M.
Advocate [2003] 1 A.C. 641,
669.

69 Ibid., at [22]; R. v. Mirza

[2004] UKHL 2, at [60], [140],
[154].
70 Gregory v. UK (1998) 25
E.H.R.R. 57, para. 24.
71 Gregory v. UK (1998) 25
E.H.R.R. 57, para. 44;
Crummock (Scotland) Ltd. v.
HM Advocate 2000 S.L.T. 677;
R. v. Mirza [2004] UKHL 2, at
[140], [154]; R. v. Momodou
[84].
72 R. v. Mirza [2004] UKHL 2
[140], [142], [154].
73 Gregory v. UK (1998) 25
E.H.R.R. 57, para. 28; R. v.
Mirza [2004] UKHL 2, at
[143].
74 R. v. Mirza [2004] UKHL 2, at
[60], [156].
75 Ibid., at [60], [142], [154],
[156].
76 Ibid., at [60], [133], [145].
77 Vidmar "When All of US
are Victims", 1149, 1150.
For a literature review see
P. Dempsey, Implicit Racial
Stereotyping and Social
Dominance and Orientation
Theory: Implications for
Jury Decision-making, PhD
dissertation, Union Institute
and University (2004) chs 1,
2. For judicial recognition see
R. v. Gough [1993] A.C. 646,
670; DPP v. Tobin [2001] 3
I.R. 469; R. v. Smith (Lance)
[2004] UKHL 29, at [24], [39].
78 Even in the case of a judge,
the oath is not regarded as
foolproof: Cross v. Scottish
Ministers [2004] UKHL 34,
2004 SLT 895, at [18].
79 [2004] UKHL 2. The
Contempt of Court Act 1981,
section 8(1) is not an obstacle:
see Att.-Gen. v. Scotcher
[2005] UKHL 36.
80 R. v. M [2004] UKHL 29,
at [17]; R. v. Skaf [2004]
N.S.W.C.C.A. 37, at [212].
81 Juries Act 1974, section 12(4).
82 Criminal Justice Act 1988,
section 118(2).
83 Blackstone's Criminal
Practice 2005 (Oxford 2004),
D.12.12.
84 R. v. Chandler (No.2) [1964]
2 Q.B. 322, 338. Cp. R. v.
Broderick [1970] Crim. L.R.
155.
85 The prosecution may ask
a juror to "stand by" but
according to the Attorney-
General's Guidelines on the
Exercise by the Crown of its
Right of Stand-By [1988] 3
All E.R. 1086 there must be
prior knowledge of the juror's
unsuitability.

86 US law holds that for good

reason members of a venire
may be questioned about
racial prejudice: Rosales-
Lopez v. US 451 US 182, 191
(1981); US v. Kyles 514 US
1044 (1994). This will not
always produce a bias-free
jury: B. Goode, "Religion,
Politics, Race and Ethnicity:
The Range and Limits of Voir
Dire" (2003-4) 92 Ky. L.J.
601, 688, 693.
87 E.g. Remli v. France (1996)
22 E.H.R.R. 253. Cp. R. v.
Brestovic [2001] EWCA Crim
570, and Narrainen v. Norway
[1994] I.I.H.R.L. 12.
88 P. Darbyshire et al, What Can
the English Legal System
Learn from Jury Research
Published up to 2001?
(Supplementary Paper to the
Auld Report, London 2001), p.
18.
89 R. v. Williams (1998) 124
C.C.C. (3d) 481 SCC; R. v.
Find (2001) 154 C.C.C. (3d)
97 SCC.
90 A change of venue might be
ordered, as in R. v. Litchfield
[1998] Crim. L.R. 507, but
refused in R. v. Mudhar, The
Independent, 10 Oct. 2000, p.
7; Birmingham Evening Mail,
29 June 1999, p. 4.
91 R. v. Andrews [1999] Crim.
L.R. 156; R. v. Allan [2002]
EWCA Crim 521, at [30].
92 The Guardian, 31 May 1972.
93 [1973] 1 All E.R. 240.
94 Practice Direction (Jury
service: Excusal), The Times,
24 Mar. 2005, replacing [1988]
3 All E.R. 177.
95 R. v. El Faisal (CCC, 20
Jan. 2003) reported by
C.Main, "Mad Jews, Hindus
and Englishmen" National
Review Online, 10 March
2003 available http:///
www.nationalreview.com.
96 [2004] UKHL 2, at [141]. See
also R. v. Broderick [1970]
Crim. L.R. 155, 156.
97 R. v. Ford [1988] 3 All E.R.
1777; R. v. Smith (Lance)
[2004] UKHL 29, at [35]; R. v.
Mirza [2004] UKHL 2, at [60],
[140], [154].
98 P. Darbyshire, "What can we
Learn from the Published
Jury Research? Findings
from the Criminal Court
Review" [2001] Crim. L.R.
970, 976, 977.
99 NZLRC, Juries: Issues Paper
(Wellington 1995) p. 6; Auld
L.J., A Review of the Criminal
Courts of England and Wales
(London 2001) (henceforth

"Auld Report"), 5.1, 5.59.

See also McCadden v. H.M.
Advocate 1986 S.L.T. 138,
141.
100 [2001] EWCA Crim 216,
[2001] W.L.R. 1352.
101 Cp. R. v. Momodou [2005]
EWCA Crim 177.
102 Juries Act 1974, section 17.
About 20% of all convictions
are by majority verdict.
103 Auld Report, 5.75.
104 R. v. Gregory (1988) 25
E.H.R.R. 57 was also a
majority verdict. The cause is
unknown.
105 Cp. Att.-Gen. v. Scotcher
[2005] UKHL 36, at [7]. H.
Kalven and H. Zeisel, The
American Jury (Boston 1966)
p. 488 found that a minority
rarely converts the majority
to its way of thinking. These
findings have been replicated
in research specifically
directed at the impact of race
on jury verdicts: Conley,
Turnier and Rose "The Racial
Ecology of the Courtroom",
1202, 1210.
106 Att.-Gen.'s Guidelines on Jury
Checks [1988] 3 All E.R.
1086, para. 5.
107 Juries Act 1974, section 16(1).
R. Buxton, "Challenging and
Discharging Jurors--2" [1990]
Crim. L.R. 284.
108 In R. v. Bryan [2001] EWCA
Crim 2550, at [48] the
inconvenience of a retrial was
said to be irrelevant. But in
R. v. Smith (Patrick) [2005]
UKHL 12, at [22] this view
was modified.
109 Cp. R. v. Hammans [2001]
EWCA Crim 479, at [25]
et seq.; R. v. Riasat [2004]
EWCA Crim 2227, at [20]-
[21]. See also R. v. Mirza
[2004] UKHL 2, at [141].
Contrast R. v. Brestovic
[2001] EWCA Crim 570,
at [14], [17]-[20]. In R. v.
Brown [1993] A.C. 646, the
investigation was inadequate.
110 E.g. R. v. Blackwell [1995]
2 Cr.App. R. 625; R. v.
Hammans [2001] EWCA
Crim 479, at [18]; R. v. Thoron
[2001] EWCA Crim 1797.
111 R. v. Smith (Patrick) [2005]
UKHL 12, at [20] and R. v.
Evans [2005] EWCA Crim
766, [20]-[22]. Extreme
circumspection is necessary
if racial bias is alleged: R. v.
Hussain [2005] All E.R. (D)
82 (Oct.) (where a decision not
to question a juror accused of
racial bias was approved).
112 Ibid., at [16(5)].

113 (2000) 33 E.H.R.R. 44, para.

26.
114 R. v. Miah [1997] 2 Cr. App.
R. 12, 18; R. v. Qureshi [2002]
1 W.L.R. 518, at [14].
115 [2004] UKHL 2, at [14], [16]
(Lord Steyn), [97], [107]
(Lord Hope), [134] (Lord
Hobhouse). But see [41]
(Lord Slynn) and [161] (Lord
Rodger).
116 Att.-Gen. v. Scotcher [2005]
UKHL 36, at [4]. When
jurors are sent out during the
trial, they are not sent to the
jury room but to a waiting
area where they mix with
jurors hearing other cases
(Information from Hodge
Malek QC).
117 (1998) 25 E.H.R.R. 57.
118 [2005] EWCA Crim 177.
UKHL 12.
120 This course was followed in
R. v. Sander (CA unreported,
1 March 1996) and R. v.
Momodou [2005] EWCA Crim
177, at [76].
UKHL 12, at [20]. Cp. R. v.
Scholfield [1993] Crim. L.R.
217. The ban extends to the
juror's thoughts, above n. 79.
122 Cp. R. v. S(T) [2001] EWCA
Crim 1007, at [24]. Contrast
R. v. Momodou [2005] EWCA
Crim 177, at [80], [82].
123 (2000) 33 E.H.R.R. 44, para.
29.
124 Per Buxton L.J., R. v. Smith
(Patrick) [2003] EWCA Crim
3847, at [84]. Cp. R. v. Smith
(Patrick) [2005] UKHL 12, at
[21]. Difficulties materialized
in R. v. Momodou [2005]
EWCA Crim 177, at [81], [86]
where, after being discharged
on medical grounds, the
juror who had alleged racial
bias sent a further letter
complaining of having been
threatened by two jurors for
the allegation of racism.
125 See Table at p. 709.
126 The Independent, 10 Oct.
2000, p. 7.
127 Daily Mail, 10 Oct. 2000, p.
11.
128 If the trial judge discharges
the jury where a warning
would have sufficed, the
exercise of discretion cannot
be challenged.
129 (1988) 25 E.H.R.R. 57.
130 (2000) 33 E.H.R.R. 44.
131 R. v. Mirza [2004] UKHL
2, at [9], [32], [114]. The
Commission required
"convincing" evidence of
subjective bias in Miah v. UK

(1998) 26 E.H.R.R. CD 199.

Cp. R. v. Hussain [2005] All
E.R. (D) 82 (Oct.). If actual
bias is proven, discharge is
virtually inevitable: A-G v.
Associated Newspapers [1994]
1 A.C. 238, 247.
132 R. v. Davis [2003] EWCA
Crim 402 (correct response to
prejudice against "Essex boys"
is a warning).
133 See discussion of Sander v.
UK at p. 699.
134 [2001] EWCA Crim 570.
135 [2005] All E.R. (D) 82 (Oct.).
136 "What they are actually saying
is these defendants "come to
this country to take our tax
money, buy their foods and
clothes and take our jobs and
should be deported back to
their own country"' [2005]
EWCA Crim 177, at [73]. Cp.
Narrainen v. Norway [1994]
I.I.H.R.L. 12, para. 2.5.
137 [2005] EWCA Crim 177, at
[94].
138 R. v. Mirza [2004] UKHL 2, at
[111], [141], [156].
139 Gregory v. UK (1998) 25
E.H.R.R. 57, para. 13.
140 In R. v. Momodou [2005]
EWCA Crim 177, at [68],
[70], the judge had given
warnings before juror racial
bias was alleged because of
the nature of the case. After
bias was alleged, further
directions were given [81]-
[82].
141 On the use of racial
stereotypes by counsel see
A. Kalunta-Crumpton, "The
Prosecution and Defence of
Black Defendants in Drug
Trials" (1998) 38 Br. J. Crim
561, 567 et seq.
142 The Court of Appeal's
judgment is reported in Elias
v. UK App. 48905/99 21 June
1999.
143 One of "two great anti-
Semitic personas in English
literature": W. Rees-Mogg,
"Fagin, Shylock and Blair",
The Times, 31 Jan. 2005, p. 20.
144 This non-specifc warning
may have been given to avoid
reminding jurors that the
defendant was Jewish.
145 (1998) 124 C.C.C. (3d) 481,
at [21]. See also R. v. Parks
(1994) 84 C.C.C. (3d) 353,
371.
146 S. Kassin and C. Studebaker,
"Instructions to Disregard
and the Jury: Curative and
Paradoxical Effects", in J.
Golding and C. MacLeod
(eds.), Intentional Forgetting:
Interdisciplinary Approaches

(New Jersey 1998), pp.

416, 424; S. Diamond and
N. Vidmar, "Jury Room
Ruminations on Forbidden
Topics" (2001) 87 Va. L.Rev.
1857, 1865; V. Zdrok, The
Effect of Judicial Instructions
on Jury Consideration of
Defendant's Refusal to Testify
unpublished PhD dissertation,
Drexel University, May 2003,
pp 41-52 available http://
dspace.library.drexel.edu/
retrieve/672/front.pdf. Cp.
McCadden v. H.M.Advocate
1986 S.L.T. 138, 141.
147 J. Tanford, "The Law
and Psychology of Jury
Instructions" (1990) 69 Neb.
L. Rev 71, 86.
148 R. v. Mirza [2004] UKHL 2, at
[66].
149 J. Feifer and J. Ogloff,
"Ambiguity and Guilt
Determinations: A Modern
Racism Perspective" (1991) 21
J. Applied Social Psychology
1713, found that when white
Canadian mock jurors were
warned against racial bias
against a black defendant
charged with raping a white
woman, the warning had a
mitigating effect; J. Shaw
and P. Skolnick, "Effects of
Prohibitive and Informative
Judicial Instructions on Jury
Decision Making" (1995) 23
Journal of Social Behavior and
Personality 319, 324, found
a reverse racism effect on
individual juror judgments
which was nullified by the
deliberations.
150 M. Monteith et al,
"Consequences of
Stereotype Suppression:
Stereotypes on and not
on the Rebound" (1998)
34 J. Experimental Social
Psychology 355, 356, 372 et
seq.; Diamond and Vidmar
"Jury Room Ruminations".
151 King "Postconviction Review
of Jury Discrimination",
78; A. Hastie, "Emotions in
Jurors' Decisions" (2001) 66
Brooklyn L. Rev. 991, 995 et
seq.
152 Diamond and Vidmar "Jury
Room Ruminations", 1861-2;
S. Diamond et al, "Jury
Discussions During Civil
Trials: Studying an Arizona
Innovation" (2003) 45 U. Ariz.
L. Rev. 1, 47-8.
153 Kassin and Studebaker,
"Instructions to Disregard
and the Jury", 415; Shaw
and Skolnick, "Effects of

prohibitive and informative

judicial instructions", 320.
154 R. v. Williams (1998) 124
C.C.C. (3d) 481, at [28]. Cp
submission of counsel in R. v.
Smith (Lance) [2003] EWCA
Crim 283, at [24].
155 R. v. Griffis (1993) 20 C.C.R.
(2d) 104, 108-9.
156 Kalven and Zeisel, The
American Jury, 165. See
Devine et al, "Jury Decision
Making", 700-701.
157 King "Postconviction Review
of Jury Discrimination", 86;
Gobert, "In Search of the
Impartial Jury", 324. However,
as the OJ Simpson trial shows,
what one person rates as
overwhelming may seem
questionable to another person.
158 L. Fuente, E. Fuente and J.
Garcia, "Effects of Pretrial
Juror Bias, Strength of
Evidence and Deliberation
Process on Juror Decisions:
New Validity Evidence
of the Juror Bias Scale
Scores" (2003) 9 Psychology,
Crime and Law 197, 206.
159 (1998) 25 E.H.R.R. 57, paras.
19, 31.
160 R. v. Sander, above n. 119. Cp.
R. v. Momodou [2005] EWCA
Crim 177, at [97].
161 N. Feigenson, "Sympathy
and Legal Judgment:
A Psychological
Analysis" (1997) 65 Tenn.
L Rev 1, 20, 22; Hastie,
"Emotions in Jurors'
Decisions", 992, 1006 et seq.
162 R. Arce, F. Farina and H.
Sobral, "From Juror to Jury
Decision Making: A Non-
Model Approach", in G.
Davies, Psychology, Law
and Criminal Justice (Berlin
1995), 337, 338.
163 The malleability of the
standard is reflected in the
widely differing probability
values assigned to the standard
by individual jurors in a New
Zealand study: W. Young,
N. Cameron and Y. Tinsley,
Juries in Criminal Trials PP
37 (NZLC 1999), para. 71.16.
164 J. Levine, "The Impact
of Racial Demography
on Jury Verdicts" in M.
Markowitz and D. Jones-
Brown (eds.) The System in
Black and White: Exploring
the Connections between Race,
Crime and Justice (Westport
2000), p. 156. See also King
"Postconviction Review of
Jury Discrimination", 77. See
also p. 697 below.

165 Conley, Turnier and Rose

"The Racial Ecology of the
Courtroom", 1192; C. Jones
and M. Kaplan, "The Effects
of Racially Stereotypical
Crimes on Juror Decision-
Making and Information
Processing Strategies" (2003)
25 Basic and Applied Social
Psychology 1; Sommers and
Ellsworth, "How Much Do We
Really Know About Race and
Juries?", 1007-1008.
166 Sommers and Ellsworth, "How
Much Do We Really Know
About Race and Juries?"; J.
Ross, ""He Looks Guilty':
Reforming Good Character
Evidence to Undercut the
Presumption of Guilt" (2004)
65 U. Pitt. L. Rev. 227, 264.
167 [2005] EWCA Crim 177.
168 J. Dovidio and S. Gaertner,
"Aversive Racism" (2004)
36 Experimental Social
Psychology 1, 7, 14.
169 Sommers and Ellsworth "How
About Race and Juries?",
1013, 1015, 1029.
170 B. Bottoms and S. Davis,
"Effects of Victim and
Defendant Race on Jurors'
Decisions in Child Sexual
Abuse Cases" (2004) 34 J. of
Applied Psychology 1, 3.
171 The complainant, a relative,
had accused the defendant of
sexually abusing her between
the ages of six and 15 or 16.
172 Sommers and Ellsworth "How
About Race and Juries?",
1014.
173 J. Hurwitz and M Pefley,
"Public Perceptions of Race
and Crime: The Role of
Racial Stereotypes" (1997)
41 American Journal of
Political Science 375, 381; P.
Skolnick and J. Shaw, "The
O.J. Simpson Criminal Trial
Verdict: Racism or Status
Shield?" (1997) 53 J. Social
Issues 503, 504, 514.
174 Shaw and Skolnick, "Effects
of prohibitive and informative
judicial instructions", 322,324.
This is linked to reactance
theory.
175 The exception introduced
by the Criminal Justice Act
2003, sections 75-80 is not
relevant.
176 Per Lord Hobhouse in R. v.
[132]
177 In R. v. Bowyer above n.
22 civil proceedings were
instigated: Daily Star, 18 Jan.
2004.

178 To argue that racial bias

should be left unremedied
after a conviction because it
cannot be remedied after an
acquittal, as Lord Hope did in
R. v. Mirza [2004] UKHL 2, at
[116], is to ignore the appeal
system's deliberate bias in
favour of jury acquittals.
179 In R. v. Smith (Lance) [2004]
UKHL 29, at [88] the test
applied was whether a
reasonable trial judge could
have refused to discharge the
jury.
180 Criminal Appeal Act 1968,
section 2(1). See e.g. R. v.
Evans [2005] EWCA Crim.
766.
181 Secrecy and privacy concerns
may discourage a robust
investigation, as in R. v.
Hussain [2005] All E.R. (D)
82 (Oct.).
182 Appeals failed in R. v. Elias
(above n. 37); R. v. Gregory
(1998) 25 E.H.R.R. 57; R.
v. Brestovic [2001] EWCA
Crim 570; R. v. Momodou
[2005] EWCA Crim 177; R.
v. Hussain [2005] All E.R.
(D) 82 (Oct.). In Sander v.
UK (2000) 33 E.H.R.R. 44
the applicant succeeded in
the ECtHR but not before the
Court of Appeal.
183 R. v. Smith (Lance) [2004]
UKHL 29, at [75], [88]. But
the decision to discharge or
not belongs to the judge: R. v.
Smith (Patrick) [2005] UKHL
12, at [23].
184 R. v. Hanratty [2002] EWCA
Crim 1141, at [95] Cp. Tobin
v. DPP [2001] 3 I.R. 469;
R. v. Lawson [2005] EWCA
Crim 84, at [66]. K. Malleson
and S. Roberts, "Streamlining
and Clarifying the Appellate
Process" [2002] Crim. L.R.
272, 276 point out that
Strasbourg has not once denied
a violation of article 6 because
a conviction was factually
safe.
UKHL 12, and p. 688 above.
186 R. v. Mirza [2004] UKHL
2, at [107], [134]. Examples
include Ras Behari Lal v.
King Emperor (1934) 150 L.T.
3 (juror not understanding
English); R. v. Box [1963] 3
All E.R. 240 (juror aware of
accused's bad character) R.
v. Hood [1968] 1 W.L.R. 773
(juror acquainted with witness
and possibly of defendant's
record); R. v. Chapman (1976)
63 Cr.App. R. 75 (juror hard
of hearing). The characteristics

that are inappropriate in a

serving juror are problematic:
R. v. M [2004] UKHL 29.
187 R. v. Mirza [2004] UKHL 2,
at [107]; Att.-Gen. v. Scotcher
[2005] UKHL 36, at [17]. E.g.
R. v. Brandon (1969) 53 Cr.
App. R. 466 (bailiff telling
jury of previous convictions);
R. v. McCluskey (1994) 98
Cr.App. R. 216, 221 (business
call by mobile telephone from
jury room).
188 R. v. Karakaya [2005] EWCA
Crim 346, The Times, Feb.
28 2005 (internet documents
criticising the law relating to
the offence found in jury room
after the trial). Cp. Wadle v.
People 97 P.3d 932 (2004). In
R. v. Qureshi [2002] 1 W.L.R.
518, at [14], where there was
a complaint inter alia that
newspaper reports of the trial
were taken into the jury room,
the Court of Appeal refused to
investigate.
189 R. v. Mirza [2004] UKHL 2, at
[134], [162]. See particularly
R. v. Young [1995] Q.B. 324
(contacting deceased by ouija
board during trial recess).
190 R. v. Mirza [2004] UKHL 2, at
[55], [123], Cp. [166].
191 [2005] UKHL 12, at [16(2)].
192 As in Vaise v. Delaval (1785)
1 T.R. 11.
193 In Cornish v. Daykins (1845)
5 L.T. O.S. 130 evidence was
received from non-jurors that
they had seen a juror toss a
coin with several other jurors
looking on. Affidavits from ten
jurors denying the allegation
were also received.
194 R. v. Mirza [2004] UKHL 2, at
[55] and [123].
195 E.g. Narrainen v. Norway
[1994] IIHRL 12. See also R.
v. Hussain [2005] All E.R. (D)
82 (Oct.).
196 This is comparable to exposure
to prejudicial media coverage.
Cp. R. v. Kirkham (unreported
CACD, 26 March 1996).
197 R. v. Mirza [2004] UKHL 2, at
[1].
198 R. v. K [2003] N.S.W.C.C.A.
406; R. v. Steen [2004] EWCA
Crim 2341, at [39].
199 R. v. Mirza [2004] UKHL 2, at
[129].
200 Ibid., at [26]-[29].
201 This point was made by the
applicant in Gregory v. UK
(1998) 25 E.H.R.R. 57, para.
33.
202 Objections to taking the
complaint at face value were
raised by the Mirza majority at
[54] and [117]--[118]. See also

P. Ferguson, "Jury Secrecy and

Criminal Appeals" (2004) 8
S.L.T. 43.
203 See p. 683 above.
204 See pp. 687-690 above.
205 R. v. Mirza [2004] UKHL 2
[126], [165].
206 Practice Direction [2004]
1 W.L.R. 665 approved in
Att.-Gen. v. Scotcher [2005]
UKHL 36, at [16].
207 R. v. Mirza [2004] UKHL 2
[126], [148].
208 See also, R. v. Momodou
[92]. A pre-trial video conveys
the same message.
209 N. Haralambous,
"Investigating Impropriety in
Jury Deliberations: A Recipe
for Disaster" (2004) 68 J.
Crim. L. 411, 419.
210 As alleged in R. v. Momodou
[2005] EWCA Crim 177.
211 Wetherall v. Harrison [1976]
Q.B. 773.
212 R. v. Batth [1990] Crim. L.R.
727, where the defendant was
a Sikh and the trial judge was
alleged to have made remarks
about "murderous Sikhs".
213 R. v. Mushtaq [2005] UKHL
25, [2005] 1 W.L.R. 1513, at
[19], [52], [74].
214 R. Pattenden, English
Criminal Appeals 1844-1994
(Oxford 1996), p. 143.
215 P. Thagard, "Why wasn't
O.J. convicted? Emotional
Coherence in Legal
Inference" (2003) 17
Cognition and Emotion 361,
372. That is not to say that
extreme racial bigotry is never
found. There are American
examples: see W. Dwyer, In
the Hands of the People (New
York 2002), p. 78.
216 V. Buliosi, Outrage: the five
reasons why O.J. Simpson got
away with murder (New York
1996), p. 301.
217 R. v. Cooper [1969] 1 Q.B.
267, 271. The existence of the
"lurking doubt" standard was
confirmed in R. v. Criminal
Cases Review Commission,
ex parte Pearson [1999] 3 All
E.R. 498, 503.
218 R. v. Hodnitt (unreported, CA,
8 Oct. 1998), per Brookes
L.J. See also K. Malleson,
Review of the Appeal Process
RCCJ Research Study No. 17
(HMSO, London 1993), 8, 12.
219 R. Pattenden, "Criminal
Appeals", in M. McConville
and G. Wilson (ed.), The
Handbook of the Criminal
Justice Process (Oxford 2002),
p. 494.

220 R. v. Mirza [2004] UKHL 2, at

[136].
221 R. v. Rogers [2004] EWCA
Crim 489, at [13], per Waller
L.J. See also R. v. Pendleton
[2001] UKHL 66, [2002] 1
W.L.R. 72, at [16].
222 Fuente, Fuente and Garcia,
"Effects of Pretrial Juror
Bias", 199.
223 A poll by consultants for the
defence found that virtually
every middle-aged African-
American woman supported
Simpson. News polls also
found that African-Americans,
especially women, believed
Simpson innocent. The jury
included eight black jurors
most of whom were middle-
aged women: Thagard "Why
wasn't O.J. convicted?", 371.
224 Thagard, "Why wasn't O.J.
convicted?", 372, 375. See
also Levine "The Impact of
Racial Demography on Jury
Verdicts", 164-165.
225 D. Barber and G. Gordon
(eds.), Members of the Jury
(London 1976), p. 46.
226 [2003] EWCA Crim 283, at
[41].
227 Ibid., at [16]-[17], [38].
228 Ibid., at [7], [15], [18]-[19].
229 Ibid., at [19].
230 Ibid., at [38]-[39] per Pill L.J.
On appeal it was suggested not
only that the jurors might have
been biased, but that witnesses
were influenced by racial
stereotypes.
231 The test of gross negligence
manslaughter as laid down
in R. v. Adomako [1995] 1
A.C. 171, 187 is whether "the
conduct of the defendant was
so bad in all the circumstances
as to amount in [the jury's]
judgment to a criminal act or
omission".
232 [1998] Crim L.R. 507.
233 LexisNexis transcript.
Therefore, in a case such as
R. v. Misra [2004] EWCA
Crim 2375, The Times,
October 13 2004, where two
ethnic minority doctors were
convicted of gross negligence
manslaughter of a patient, an
appeal alleging racial bias is
hopeless.
234 J. Baldwin and M.
McConville, Jury Trials
(Oxford 1979), p. 41.
235 Ibid., p. 86.
236 Ibid., p. 81.
237 Ibid.
238 Whether any of the black
defendants applied for leave to
appeal is not indicated..

239 Baldwin and McConville, Jury

Trials, p. 85.
240 S.Roberts, "The Royal
Commission on Criminal
Justice and Factual Innocence:
Remedying Wrongful
Convictions in the Court of
Appeal" (2004) 1 JUSTICE
Journal 86, 89, 92.
241 (1996) 22 E.H.R.R. 253.
242 The Digest of R. v. Hussain
[2005] All E.R. (D) 82
(Oct.) implies that article 6
is complied with if the judge
considers whether to mount an
investigation and decides that
this course is too fraught with
difficulties.
243 See pp. 687, 689 above.
244 See p. 690 above. See also R.
v. Hussain [2005] All E.R. (D)
82 (Oct.).
245 (1998) 25 E.H.R.R. 57.
246 Gregory v. UK (1998) 25
E.H.R.R. 57, para. 9. The
weakness of the evidence in
Gregory was recognised by
the court in Sander (2000) 33
E.H.R.R. 44, para. 33.
247 On the basis of the evidence
the ECtHR held Ibid., para.
26 that it had been established
that at least one member of the
jury had made racist remarks.
249 Fairness requires a court
that receives a complaint of
racial prejudice from a juror
to communicate this fact to
the defence. Doubts will arise
whether or not the defendant is
given details of the complaint.
250 Att.-Gen. v. Scotcher [2005]
UKHL 36, at [19] per Lord
Rodger.
251 R. v. Mirza [2004] UKHL 2, at
[18].
252 Remli v. France (1996) 22
E.H.R.R. 253, para. 47.
253 In Mirza the note was
received, but as soon as it was
ascertained that it related to
matters in the jury room it was
discarded.
254 Gregory v. UK (1998) 25
E.H.R.R. 57, para. 44; R. v.
[42], [52], [109], [140], [160].
See also Att.-Gen. v. Scotcher
[2005] UKHL 36, at [29].
255 R. v. Mirza [2004] UKHL 2, at
[48].
256 The two rules were compared
by Lord Hobhouse, at [146].
The ECtHR is unlikely
to approve R. v. Derby
Magistrates' Court, ex parte
B [1996] A.C. 487, the
relevant privilege case, where
this prevents a criminal

defendant from establishing

his innocence.
257 R. v. Mirza [2004] UKHL 2,
at [50], [129], [140], [145],
[154].
258 Ibid., at [51], [122], [146].
259 Montgomery v. H.M. Advocate
[2003] 1 A.C. 641, 673.
260 Holm v. Sweden (1994) 18
E.H.R.R. 79, para. 52. Cp.
Holland v. H.M.Advocate
[2005] UKPC D1, at [5], [39].
Whether the guarantees are
sufficient cannot be resolved
with "mathematical accuracy":
Montgomery v. H.M.Advocate
[2004] UKHL 255.
261 (1994) 18 E.H.R.R. 79. The
allegation of apparent bias
was based on the fact that five
of the nine jurors in this libel
action were active members
of a political party of which
the defendant was an active
member.
262 (1994) 18 E.H.R.R. 79, para.
64. See also Remli v. France
(1996) 22 E.H.R.R. 253, para.
40 where the Commission took
into account "the fact that the
jurors deliberate[d] in camera
and that their deliberations
[were] secret."
263 Ibid., para. 31.
264 Ibid., paras. 18, 61
(Committee).
265 Ibid., para. 19 (Committee).
266 Ibid., para. 31. The defence
(Ibid., para. 32) was given the
benefit of further safeguards
including an appeal not
available to the applicant.
267 [2004] UKHL 2, at [8]. Lord
Steyn did expressly apply
the ECtHR's objective test of
impartiality.
268 Ibid., at [9].
269 Mirza [2004] UKHL 2, at [19].
270 Vaise v. Delaval (1795) 1 T.R.
11.
271 Ellis v. Deheer [1922] 2 K.B.
113, 121 per Atkin L.J. The
finality rationale can be traced
back to Straker v. Graham
(1839) 4 M. & W. 721.
272 R. v. Pan [2001] 2 S.C.R. 344,
at [52] per Arbour J. See also,
Att.-Gen. v. Scotcher [2005]
UKHL 36, at [17].
273 Cp. R. v. Mirza [2004] UKHL
2, at [114]-[116]; Att.-Gen. v.
Associated Newspapers [1994]
1 A.C. 238, 247.
274 R. v. Mirza [2004] UKHL 2, at
[159] per Lord Rodger. Cp. R.
v. Pan [2004] UKHL 268, at
[50].
275 M. Cammack, "The
Jurisprudence of Jury Trials:
The No Impeachment Rule
and the Conditions for

Legitimate Legal Decision-

making" (1993) 64 U.
Colo. L. Rev. 57, 75-79; P.
Quinlan, "Secrecy of Jury
Deliberations--Is the Cost Too
High" (1993) 22 C.R. (4th)
127, 132-140.
276 McDonald v. Pless (1915) 238
US 264; R. v. Papadopoulos
[1979] 1 N.Z.L.R. 621; R. v.
Pan [2001] 2 S.C.R. 344; R.
v. Mirza [2004] UKHL 2, and
DCA CP 04/05; R. v. Skaf
[2004] N.S.W.C.C.A. 37, at
[211].
UKHL 12.
278 Cp. Att.-Gen. v. Scotcher
[2005] UKHL 36, at, [21]
where Lord Rodger said that
the principal rationale for
Contempt of Court Act 1981,
8(1) was to prevent jurors
being harassed to reveal their
deliberations. "By contrast, the
case of a juror spontaneously
communicating his worries
about the jury's deliberations
to the court authorities does
not feature in the debates as a
cause for concern."
279 [2004] UKHL 2, at [17].
280 Pattenden, English Criminal
Appeals, 141.
281 R. v. Pan [2004] UKHL 268,
at [51].
282 Ras Behari Lal v. King
Emperor (1934) 150 L.T. 3, 5,
per Lord Atkin.
283 R. v. Mirza [2004] UKHL 2, at
[9].
284 Principle 19, available at
http://www.abanet.org/
juryprojectstandards/
principles.pdf. "Exceptional
circumstances" generally
means outside influences,
however, post-verdict juror
affidavits were admitted,
and the verdict set aside,
because of racial animosity
in the jury room in Lam v.
Cheng 2001 WL 1858430
(N.Y.City Civ.Ct.). The
affidavits were admitted to
impeach the jurors' eligibility
to serve as jurors (rather than
the verdict) because bias
"disqualifies jurors for cause
"at the outset"' (Ibid., p. 7).
285 N.Z.L.R.C., Evidence: Code
and Commentary, R55, vol.
2 (1999) p. 193; Juries in
Criminal Trials R69 (2001),
pp. 170, 172. Clause 72 of
the Evidence Bill 2005 adds
to the recommendations of
the Law Commission the
additional requirement that
in the circumstances of the
particular case the public

interest in protecting the

confidentiality of the jury
deliberations is outweighed by
the public interest in avoiding
or remedying any miscarriage
of justice.
287 Cp. Remli v. France (1996) 22
E.H.R.R. 253, para. 48. The
Mirza juror's allegation was
plausible because of the way
the jurors had voted (10 to 2)
and the notes sent by the jury
to the judge about the use of
the interpreter during the trial.
Cp. People v. Rukaji 123 A.D.
2d 277, 280 (1986).
288 R. v. Robinson [2002] EWCA
Crim 2489; R. v. Smith
(Patrick) [2005] UKHL 12, at
[19].
289 Regard should be had both to
how soon after the trial it was
made and the explanation for
not making it before verdict.
290 In Att--Gen v. Scotcher [2005]
UKHL 36, at [27], Lord
Rodger listed the ways a
juror could complain after
verdict without committing
a contempt: to trial judge,
appeal court, jury bailiff,
clerk of court, sealed letter
to defendants' solicitors or
counsel or citizens' advice
bureau or similar organisation.
An inappropriately direct
complaint may result in
contempt proceedings against
the juror.
291 R. v. Mirza [2004] UKHL 2, at
[165].
292 Ibid., at [118]. See also at [32],
[53].
293 Ibid., at [54], 119], [171].
One reason was the likelihood
of inconsistent juror
recollection, but this could
be no less a problem when
extrinsic influences require
investigation.
294 Ibid., at [6].
295 Ibid., at [67].
296 Dissent may liberate others
to express their true feelings:
C. Nemeth and J. Goncalo,
"Influence and Persuasion
in Small Groups" (2004)
Institute of Industrial
Relations Working Paper
Series p 3, available at
repositories.cdlib.org/irr/
irrwps-102-04.
297 Vidmar "When All of US are
Victims", 1143, 1173. Fuente,
Fuente and Garcia, "Effects
of Pretrial Juror Bias", 206
found that with mock juries
pro-defence or pro-prosecution
group bias was reinforced by
the deliberations.

298 Nemeth and Goncalo,

"Influence and Persuasion in
Small Groups", 15. But see
Shaw and Skolnick, "Effects
of Prohibitive and Informative
Judicial Instructions", 324.
299 Diamond and Vidmar, "Jury
Room Ruminations". 1857,
1870 n. 49. Academic research
is proposed in CP 04/05 and
the use of video cameras is
not ruled out which suggests
the Government has reached a
similar conclusion.
300 From Sobriety to Stupefaction:
Intoxication and Jury
Decision-Making in Rape
Trials.
301 Personal communication
from E. Finch. See also pilot
study: E. Finch and V. Munro,
"Juror Stereotypes and Blame
Attribution in Rape Cases
Involving Intoxicants" (2005)
45 Brit. J. Criminol. 25, 37.
302 Comments to fellow jurors
were prefaced with remarks
such as, "I know you are
not going to like this,
but" (Personal communication
from E. Finch).
303 For the results see Diamond et
al, "Jury Discussions during
Civil Trials".
304 Ibid., 22-23. The participation
rate of the jurors (who
were given the option of
withdrawal) was 95 per cent.
305 Arizona jurors were assured
that only the researchers would
see the film and that steps
would be taken to prevent
identification of the trial
(as well as the jurors) in the
published literature.
306 [2004] UKHL 2, at [173].
307 CP 04/05, p. 49 (emphasis in
original). See also ibid., p. 48.
308 Mirza [2004] UKHL 2, at [94].
309 Ibid., at [77], [151], [169].
310 Auld Report, 5.59. But so is
sex.
311 R. v. Mirza [2004] UKHL 2, at
[151] per Lord Rodger.
312 Sander v. UK (2000) 33
E.H.R.R. 44, para. 23. See
also Committee of Ministers in
ECHR Protocol No. 12 (2000).
313 J. Goldston, Written Comments
on the Case of Nachova
v. Bulgaria, submission
of Open Society Justice
Initiative to the ECtHR (Nov.
2004), para. 7, available at
www.justiceiniative.org.
314 Lord Elton, 527 Hansard HL,
26 Mar. 1991 col.1038 (italics
added).
315 As in R. v. K [2003]
N.S.W.C.C.A. 406; Wadle v.
People 97 P.3d 932 (2004).


317 Saidi v. France (1993) 17 E
HRR 351, para. 43; Doorson
v. Netherlands (1996) 22
E.H.R.R. 330 para. 2; Allan v.
UK App. no. 48539/99 Five
November 2002, para. 42.
319 R. v. Mirza [2004] UKHL 2, at
[172].
320 A similar problem arose
in R. v. Zacharias (1987)
39 C.C.C. (3d) 280 when
British Columbia jurors were
questioned about a suspected
criminal offence.
321 It is illogical to consider
illicit internet research
brought to the court's attention
because the jurors carelessly
left the material behind
in the jury room (as R. v.
Karakaya [2005] EWCA
Crim 346) but to ignore the
same discovery made by
examining a transcript of the
jury deliberations for racial
bias.
322 S. Thaman, "Europe's New
Jury Systems: The Cases of
Spain and Russia" (1999) 62
Law and Contemp. Prob. 233.
323 J.Smith, Commentary to R. v.
Scholfield [1993] Crim. L.R.
217.
324 [2004] UKHL 2, at [60].
325 R. v. Mirza, commentary
[2004] Crim. L.R. 1044.
326 See n. 9 above.
327 [2004] UKHL 2, at [22].
328 [2005] All E.R. (D) 82 (Oct.).
329 Table 1 at http://
www.statistics.gov.uk/pdfdir/
ethnicity0203.pdf
330 R. v. Mirza [2004] UKHL 2,
[2004] 1 A.C. 1118, at [142],
[151].
331 ICERD, Article 1. This
definition of "race", which is
used throughout the article,
draws immigrants, asylum
seekers, minority religions and
foreigners within the concept
of racial discrimination.
332 Cp. W. Lacy, "The Possibility
of Impartiality" (2005) 25
O.J.L.S. 3, 15.
333 [2004] UKHL 2. Noted by G.
Daly, (2004) 8 E & P 186 and
J. Spencer, [2004] C.L.J. 54.
334 [2005] UKHL 12, [2005] 1
W.L.R. 704, at [16].
335 [2005] UKHL 36, at [17].
Noted by D. Corker and N.
Johnson, (2005) 155 NLJ 946.
336 This is because they are
more likely to be victims of
juror racial bias than white
defendants. Cp. Hugh Jordan
v. UK (2001) Appl. No.

24746/94, The Times, 18 May

2001, at para. 154.
337 The United Kingdom has
ratified ICERD but does not
recognise a right of petition by
individuals.
338 Narrainen v. Norway [1994]
I.I.H.R.L. 12 (15 March 1994)
para. 9.2.
339 This is under review:
DCA, Jury Research and
Impropriety, CP 04/05 21 Jan.
2005 (henceforth "CP 04/05").
340 US investigations offer limited
insights because the US has
a very different race relations
history. For a summary of
the research see J. Pfeiffer,
"Reviewing the Evidence
on Jury Racism" (1990) 69
Nebraska L. Rev. 230; S.
Sommers and P. Ellsworth,
"How Much Do We Really
Know About Race and
Juries?" (2003) 78 Chicago-
Kent L. Rev. 997.
341 In a letter Dr. Cheryl Thomas,
Director of the Project,
explained that the Project
uses lifelike films based on an
actual case which are shown to
groups of recently dismissed
jurors. The race of courtroom
participants and the evidence
is varied.
342 Ethnic Minorities in the
Criminal Courts: Perceptions
of Fairness and Equality of
Treatment Research Series No.
2/03 (March 2003).
343 The sample was skewed
towards those who were
convicted: ibid., p. 60.
344 Ibid., p. ii.
345 Ibid., p. 39-40.
346 Ibid., p. 41.
347 Ibid., p. 81.
348 K. Roach, "Challenges
for Cause and Racial
Discrimination" (1995) 37
Crim. L.Q. 410, 417; W.
George and L. Martinez,
"Victim Blaming in Rape:
Effects of Victim and
Perpetrator Race, Type
of Rape, and Participant
Racism" (2002) 26 Psychology
of Women Quarterly 110.
349 See p. 709.
350 R. v. Bowyer. The Independent,
21 Dec. 2001, p. 1.
351 Hood, Shute and Seemargal,
Ethnic Minorities in The
Criminal Courts, 67.
352 J. Conley, W. Turnier and
M. Rose, "The Racial
Ecology of the Courtroom:
An Experimental Study of
Juror Response to the Race of
Criminal Defendants" (2000)
Wis. L. Rev. 1185, 1207, 1213.

353 Mylock v. Saladine (1764)

1 W. Bl. 480, per Lord
Mansfield C.J.
354 R. v. Bryan [2001] EWCA
Crim 2550, at [48] per Waller
L.J.
355 J. Devine et al., "Jury Decision
Making, 45 years of Empirical
Research on Deliberating
Groups" (2001) 7 Psychology,
Public Policy and Law 622,
699; N. Vidmar, "When All
of US are Victims: Juror
Prejudice and "Terrorist'
Trials" (2003) 78 Chicago-
Kent L. Rev. 1143, 1148;
J. Gobert, "In Search of the
Impartial Jury" (1988) 79 J.
Crim. L. and Crim. 269, 271,
325. For judicial recognition
see State of Wisconsin v.
Shillcutt 350 N. W. 2d 686,
701 (1984), a case with issues
remarkably similar to Mirza.
356 The data collected by E. Finch
and V. Munro for the ESRC-
funded project "From Sobriety
to Stupefaction: Intoxication
and Jury Decision-Making in
Rape Trials" (unpublished c.
2004) shows that mock jurors
import all sorts of prejudices
into their decision-making.
(Personal communication from
E. Finch.). See also M. Kaplan
and L. Miller, "Reducing the
Effects of Juror Bias", in L.
Wrightsman, S. Kassin and
C. Willis (eds.), In the Jury
Box: Controversies in the
Courtroom (Beverley Hills
1987), ch. 6; P. Ellsworth,
"Some Steps between
Attitudes and Verdicts", in
R. Hastie (ed.), Inside the
Juror (Cambridge 1993), ch.
2; L. Ellis and S. Diamond,
"Race Diversity and Jury
Composition: Battering and
Bolstering Legitimacy" (2003)
78 Chicago-Kent L. Rev.
1032, 1034.
357 R. v. Smith (Lance) [2003]
EWCA Crim 283, [2003] 1
W.L.R. 2229, at [37]; R. v. M
[15]-[16].
358 The dividing line between
"acceptable ordinary
differences in expectations
and reactions based on
experience, and unacceptable
prejudice or bias" is of
course problematic: Ellis and
Diamond, "Race Diversity and
Jury Composition", 1035.
359 A positive stereotype might
cause justice to miscarry
if it leads jurors to trust an
untrustworthy witness.

360 A. Kalunta-Crumpton, Race

and Drug Trials (Aldershot
1999), pp. 184, 200.
361 A judge told an Old Bailey
jury trying a murder trial: "It
is quite difficult in this case
with the Ethiopian witnesses
because you may think they
all looked rather similar.
It was difficult to find any
distinguishing features": The
Times, 29 Feb. 2000, p. 14.
This had two ethnic minority
jurors shaking their heads
and a juror later complained
about the comment to a court
official: The Guardian, 29 Feb.
2000, p. 1.
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(ii) The effectiveness of a warning

VI. REFORM PROPOSAL

VII. IMPLEMENTING THE PROPOSAL

Cambridge Law Journal

C.L.J. 2005, 64(3), 678-710

Other related subjects

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A. Does Race Influence Juries?

B. The Myth of Impartiality

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*C.L.J. 682 C. Impartiality and Public Confidence

The same applies to juries.45

A. Legal Tests of Bias

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*C.L.J. 687 3. Majority Verdicts

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(i) The law

(ii) The effectiveness of a warning

The effectiveness of a warning may additionally be affected by:

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(1) Appeal arising from a Refusal to Discharge a Juror or the Jury

(i) Actual bias

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(3) "Lurking Doubt" Appeals

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VI. REFORM PROPOSAL

1. the tapes will never be made public;

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VII. IMPLEMENTING THE PROPOSAL

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Racial Bias Allegations 1991-2005

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© 2021 Thomson Reuters. 14

1 1986 edn. (London, Secker

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16 Acquitted of more serious

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R. Reiner (eds.), The Oxford

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69 Ibid., at [22]; R. v. Mirza

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86 US law holds that for good

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"Auld Report"), 5.1, 5.59.

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113 (2000) 33 E.H.R.R. 44, para.

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(1998) 26 E.H.R.R. CD 199.

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(New Jersey 1998), pp.

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prohibitive and informative

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165 Conley, Turnier and Rose

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