AS TO THE ADMISSIBILITY OF


                      Application No. 37401/97
                      by Badrul MIAH
                      against the United Kingdom


     The European Commission of Human Rights (First Chamber) sitting
in private on 1 July 1998, the following members being present:

           MM    M.P. PELLONPÄÄ, President
                 N. BRATZA
                 E. BUSUTTIL
                 A. WEITZEL
           Mrs   J. LIDDY
           MM    L. LOUCAIDES
                 B. MARXER
                 B. CONFORTI
                 I. BÉKÉS
                 G. RESS
                 A. PERENIC
                 C. BÎRSAN
                 K. HERNDL
                 M. VILA AMIGÓ
           Mrs   M. HION
           Mr    R. NICOLINI

           Mrs   M.F. BUQUICCHIO, Secretary to the Chamber

     Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;

     Having regard to the application introduced on 4 August 1997 by
Badrul MIAH against the United Kingdom and registered on 19 August 1997
under file No. 37401/97;

     Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;

     Having deliberated;

     Decides as follows:

THE FACTS

     The applicant is a British citizen, born in 1976 and currently
detained in HM Prison Wormwood Scrubs, London. He is represented by
JR Jones & Co., solicitors, of Ealing, West London.

     The facts, as submitted by the applicant, can be summarised as
follows.

A.   Particular circumstances of the case

     On 13 August 1994, following a series of racial incidents between
white and Asian youths in the Somers Town area of North London, a 15
year old white boy, Richard Everitt, was stabbed and killed by a gang
of Asian youths.

     The prosecution case was that following an earlier dispute, a
gang of Asian youths left the Drummond Street area of London where they
lived and went to nearby Somers Town. Their intention was to find and
inflict serious bodily injury on a Liam Coyle. It was the prosecution
case that the group initially attacked Mark Andrew, inflicting minor
injury, before attacking Richard Everitt and two friends in York Way.
Richard Everitt was stabbed once and died from his injury. The
prosecution alleged that the applicant, though not necessarily the
knife wielder, was a prominent member of the gang when the knife was
used and further, that the attack was part of a joint enterprise to
inflict really serious harm and that the applicant was a party to the
joint enterprise.

     The applicant was charged with two others, Showkat Akbar and
Abdul Hai. Nine counts were brought against the applicant in total. The
applicant was charged with conspiracy to inflict grievous bodily harm
on Liam Coyle, violent disorder, conspiracy to pervert the course of
justice and the murder of Richard Everitt, with which Abdul Hai was
also charged.

     The trial took place from 5 October 1995 until 1 November 1995
before Mrs Justice Steel.

     After the close of the prosecution case, submissions of no case
to answer were made on behalf of all three accused. Mrs Justice Steel
rejected the submissions regarding Showkat Akbar and the applicant but
accepted the submissions in respect of Abdul Hai. Consequently, she
directed the jury to return verdicts of not guilty in respect of
Abdul Hai. The jury then sent her a letter asking why they had been
directed to give this verdict. The judge explained that as a matter of
law there was insufficient evidence to convict Abdul Hai.

     The applicant and Showkat Akbar both gave evidence. The
applicant's defence was that he had not been part of the group which
had attacked Richard Everitt but had come upon them by chance and had
started to talk to them. Richard Everitt had run past him, bleeding
profusely, after being stabbed.

     The applicant was convicted unanimously on 1 November 1995 of
conspiracy to inflict grievous bodily harm and violent disorder. He was
acquitted of conspiracy to pervert the course of justice. The jury was
at that stage unable to reach a verdict on the murder charge but did
ultimately come to a majority verdict of guilty by 10 to 2.

     The applicant was sentenced to imprisonment for life for murder
with 3 years concurrent on the counts alleging conspiracy to cause
grievous bodily harm and violent disorder.

     On 5 November 1995, after the trial, the applicant's solicitor
obtained a phone call from a man subsequently identified as V..
V. stated that he was the partner of one of the jurors and that his
partner had information which might interest the solicitor. The
solicitor ended the telephone call at that point and took the advice
of counsel who advised that it was a criminal offence to reveal the
contents of jury deliberations. The solicitor passed this information
to V. but added that his partner could reveal anything which fell
outside the realms of jury deliberation.

     The applicant appealed to the Court of Appeal. The grounds of
appeal concerned the joinder of the conspiracy count with the violent
disorder and murder counts, and the direction given to the jury by the
judge regarding any lies they found that the applicant had told, his
good character and the law as to joint enterprise and intent to murder.

     On 6 November 1996, two days before the applicant's appeal was
due to be heard, the applicant's solicitor telephoned V. to verify that
there was nothing V.'s partner wanted to tell him. V. told the
applicant's solicitor that his partner had produced a document shortly
after the trial. V. brought the document to the applicant's solicitors.
The document stated, in its original form:

     "That the majority of the jury made up their minds very
     early on in the prosecutions case.

     That there seemed to be a presumption of guilt rather than
     one of innocence and that it was left to the defence to
     prove innocence instead of the prosecution proving guilt.

     At the beginning of the jurors deliberations, after the
     summing up of the judge, the jurors requested the
     transcripts of certain witnesses evidence. These were not
     given and the response from the judge was that she would
     make clear any points but that the transcripts would not be
     made available. This was upsetting to certain members of
     the jury because earlier on in the trial the judge had
     suggested to the jury that they should not write down so
     much in their note pads. As a result many desisted as they
     were reassured that they would have full access to any
     details later if requested. The jury as a result did not
     have access during their deliberations to the exact words
     of the witnesses. Something that certain of them required
     in order to exactly clarify certain points, for example
     exact timings, places and wordings.

     This meant that very little discussion took place in the
     jury room because there was no factual evidence to relate
     to. Opinions became entrenched based on assumptions.

     Aware that it is not the jurors duty to concern themselves
     with sentencing, some of the jurors were rather naive on
     the implications of awarding a guilty verdict for murder.
     Some thought that because <the applicant> was only twenty
     years old and not yet twenty one, he would:
      "probably get away with seven years and a social worker".
     They seemed unaware of the mandatory life sentence for a
     murder conviction.

     One juror during the deliberations admitted that he
     believed that <the applicant> had actually been the
     murderer who administered the fatal stab wound. As he said
     this another four or five jurors said they agreed with him,
     even though no evidence was ever put forward to support
     this allegation and that the prosecution stated clearly at
     the outset of the trial that none of the defendants
     administered the blow.

     No direct racial prejudice was spoken of or obviously
     displayed by any member of the jury, however, there was an
     instant assumption of guilt by many jurors that indicates
     certain underlying prejudice of some description.

     There was an occasion on the day that the prosecutions case
     came to an end. The jury were not in court and legal
     matters were being discussed. That morning the jury were
     discussing the case around Abdul, the third defendant. To
     juror A it was clear that there was very little evidence
     supporting a verdict of guilty for Abdul, however it became
     clear during discussions with the other jurors that many of
     them were leaning towards a guilty verdict. Juror A
     contested this saying that there was absolutely no evidence
     to support this at all, but the other jurors continued to
     slant evidence in support of a guilty verdict.
     Had a verdict been asked for at that time then it would
     have been a majority guilty one.
     Later that day the judge called the jurors in and nominated
     one of the jurors to stand up as a foreman and pronounce a
     verdict of not guilty on Abdul. This was duly done and
     Abdul left the court. The jurors were angry and confused at
     this and wrote for an explanation from the judge. The
     explanation was that there was not enough evidence to
     support the case, quite contrary to the opinion of the
     jurors.
     A comment from one of the jurors in response to this was
     "we'll make sure we get the other one then".

     The appeal was heard on 8 November 1996. The applicant argued
that the Court of Appeal ought to permit the applicant to file amended
grounds of appeal, adjourn the hearing and investigate the allegations
made by V.'s partner. These submissions were rejected.

     The Court of Appeal gave its written judgment on 9 December 1996.
It stated that there were practical and legal reasons for dismissing
the appeal. The practical reasons were clarified as follows:

     "... the material placed before us lacks substance. We are
     by no means satisfied that any juror revealed anything and
     if they have not there is nothing to enquire into. Even if
     the document annexed to <the applicant's solicitor's>
     statement is what it is alleged to be, most of the
     allegations it contains cannot be investigated further
     without contravening section 8(1) of the 1981 Act and the
     rest amount to little more than assertions about views
     expressed by individual unidentified jurors before they
     began their formal deliberations. Furthermore in reality it
     is difficult to see how an investigation initiated more
     than 12 months later could possibly yield any meaningful
     result. No one is likely to remember whether such things
     were said. Still less are they likely to be able, without
     trespassing on the forbidden ground of the deliberations
     themselves, to say anything to assist in relation to
     whether or not views or attitudes expressed at an early
     stage had any effect on the result."

     The Court of Appeal then emphasised that there was a long line
of authority which precluded investigation of deliberations conducted
by the jury.

     "..it is a settled rule of long standing that an appellate
     court will not receive evidence from jurors about
     discussions or other matters that took place in the jury
     box or jury room concerning the cases in which they were
     acting".

     On 6 February 1997, the Court of Appeal refused leave to appeal
to the House of Lords in respect of the argument relating to the jury
deliberations. However, leave was granted to appeal to the House of
Lords in respect of the direction regarding joint enterprise and intent
to murder. This appeal was withdrawn in light of the House of Lords'
judgment in Powell and Daniels (1996 1 Cr. App.R. 14) on
30 October 1997, in which the House of Lords rejected essentially the
same grounds of appeal.

B.   Relevant domestic law and practice

     Section 8 of the Contempt of Court Act 1981 provides:

     "8(1) Subject to subsection (2) below, it is a contempt of
     court to obtain, disclose or solicit any particulars of
     statements made, opinions expressed or votes cast by
     members of a jury in the course of their deliberations in
     any legal proceedings
     (2)   this section does not apply to disclosure of any
     particulars-
     (a)   in the proceedings in question for the purpose of
     enabling the jury to arrive at their verdict, or in
     connection with the delivery of that verdict... or to the
     publication of any particulars so disclosed".

     It is a long-standing rule of English law that enquiries should
not be made as to what takes place in the jury room after the jury have
retired. Case law supports this principle.

     In  Ellis v. Deheer [1922] 2 KB 113, a civil case, Atkin LJ
propounded reasons for the prohibition on inquiries into the contents
of jury deliberations noting that "the court does not admit evidence
of a juryman as to what took place in the jury room.. The reason that
evidence is not admitted is twofold, on the one hand it is in order to
secure the finality of decisions arrived at by the jury, and on the
other to protect the jurymen themselves and prevent their being exposed
to pressure to explain the reasons which actuated them in arriving at
their verdict."

     In R v. Young [1995] 2 Cr App R 379 Lord Taylor CJ held stated
that "in our judgment the court cannot, after verdict, inquire into
what passed between the jurors during their deliberations in their
retiring room in the respects specified in section 8(1)".

COMPLAINTS

     The applicant invokes Article 6 paras. 1 and 2. He states that
he was denied a fair trial since he was not tried by an impartial
tribunal. He also alleges that the jury presumed that he was guilty
from the outset. The applicant further complains that the Court of
Appeal failed to verify whether the court which tried him was "an
impartial tribunal".

THE LAW

     The applicant complains that his trial was unfair and invokes
Article 6 paras. 1 and 2 (Art. 6-1, 6-2) of the Convention which
provide, insofar as relevant, as follows

     "1.   In the determination of his civil rights and
     obligations or of any criminal charge against him, everyone
     is entitled to a fair and public hearing within a
     reasonable time by an independent and impartial tribunal
     established by law...

     2.    Everyone charged with a criminal offence shall be
     presumed innocent until proved guilty according to law."

     The applicant submits that, as disclosed by the statement of V.'s
partner, the jury which convicted him was not impartial since members
of the jury acted with personal bias against him and presumed his
guilt. Even assuming there was no subjective bias, the information was
sufficient to raise  a legitimate doubt as to the jury's impartiality.
He points to the Court of Appeal's refusal and/or inability to order
an investigation of the jury and relies on the case of Remli v. France
(Eur. Court HR judgment of 23 April 1996, Reports 1996-II, p. 559) for
the proposition that if domestic courts fail to check whether a
tribunal is impartial, thereby depriving the accused of the possibility
of remedying the situation, there is a breach of Article 6 para. 1
(Art. 6-1).

     The Commission notes, first of all, that it is of fundamental
importance in a democratic society that courts inspire confidence in
the public and in the accused. Tribunals, including juries must,
therefore, be impartial from a subjective as well as from an objective
viewpoint (Eur. Court HR, Pullar v. the United Kingdom judgment of
10 June 1996, Reports 1996-III, p. 783 at pp. 793-4, paras. 32, 38).

     The Commission finds, on examination of the material in the file,
that there is no convincing evidence of actual or subjective bias on
the part of one or more jurors. The Commission notes the reservations
of the Court of Appeal as to the source and contents of the document
allegedly derived from a juror via V. more than a year after the events
in question.

     As regards whether there were in the circumstances sufficient
guarantees to exclude any objectively justified or legitimate doubts
as to the impartiality of the jury,  the standpoint of the accused,
though important, is not decisive (Eur. Court HR, Remli v. France, op.
cit., p. 309, para. 45). Moreover, the Commission considers that the
extent of the inquiry which the domestic courts must undertake into
allegations will be dependent upon the strength of the evidence of
alleged bias.

     The Commission acknowledges that the rule governing the secrecy
of the jury deliberations is a legitimate and crucial feature of
English jury trials which serves to reinforce the jury's role as the
ultimate arbiter of fact and to guarantee open and frank deliberations
among jurors on the evidence which they have heard (Eur. Court HR
Gregory v. United Kingdom judgment of 25 February 1997, Reports 1997-I,
p. 296 at p. 309, para. 44). While the Court of Appeal considered
itself barred from investigating the jury deliberations, it did however
examine the document submitted. It was not satisfied that it was
derived from a juror but found that even if it was, due to the time
lapse, any investigation as to what was said by any juror and what role
it played in any verdict would be likely to be unhelpful. It also
assessed many of the passages as comments expressed by individual
jurors before their formal deliberations began. The Commission notes
that the jurors would at that later stage have heard the evidence as
a whole and would have been instructed by the judge as to their duties
in regard to assessing that evidence and heard the judge's summing-up
of the case.

     The Commission finds that the allegations contained in the
document were not of such a nature as to raise serious doubts as to the
impartiality of the jury. The note stated that "no direct racial
prejudice was spoken of or obviously displayed by any member of the
jury". Although the purported juror, V.'s partner, felt that the jury
members were prejudiced in favour of a guilty verdict from the outset,
this is subjective supposition. Indeed, the fact that the jury members
were concerned by the judge's refusal to provide a transcript of the
evidence suggests that the jury took their task of analysing evidence
seriously. It is noteworthy that none of jurors made any attempt to
write a note to the judge to convey any concerns about the manner in
which the jury were deliberating. Moreover, both juror A, who,
according to the note, was the most perspicacious about the weight of
evidence against Abdul Hai, and the juror who was V.'s partner, must
have voted in favour of guilty verdicts on the applicant in respect of
conspiracy to commit grievous bodily harm on Liam Coyle and violent
disorder.

      In the circumstances of the present case, the Commission
considers that the analysis undertaken by the Court of Appeal, in
assessing the strength of the allegations of alleged bias and therefore
the merits of the applicant's appeal regarding the jury, was sufficient
to dispel any objectively-held misgivings about the impartiality of the
jury and provide the applicant with a fair hearing complying with the
requirements of Article 6 para. 1 (Art. 6-1) of the Convention. Nor in
these circumstances does it appear that the principle of the
presumption of innocence was infringed during the proceedings.

     The Commission therefore finds that there was no appearance of
a violation of Article 6 paras. 1 or  2 (Art. 6-1, 6-2) of the
Convention. It follows that the application should be rejected as
manifestly ill-founded pursuant to Article 27 para. 2 (Art. 27-2) of
the Convention.

     For these reasons, the Commission, unanimously,

     DECLARES THE APPLICATION INADMISSIBLE.

  M.F. BUQUICCHIO                            M.P. PELLONPÄÄ
     Secretary                                  President
to the First Chamber                      of the First Chamber