Appeal

Discharge of jury – Defendant being convicted – Defendant appealing

R v Pouladian-Kari: Court of Appeal, Criminal Division: 22 February 2013

The defendant grew up in Iran and was educated in the UK with a degree in electrical engineering and a doctorate in pulsed powered technology. In 1992, he returned to Iran to help his father who founded a company, ITC. Eventually, the defendant returned to the UK and became involved with a company, GTC. He subsequently became the managing director. GTC began as a procurement handling company for ITC supplying electrical switchgear for use in industry.

In 2009, the defendant, through GTC, was charged with attempting to export restricted goods, namely electrical switchgear, contrary to section 68(2) of the Customs and Excise Management Act 1979 (the 1979 act). The defendant denied the offence and faced trial in November 2011. On the second day of the trial, the judge was passed a note from one of the jurors. The note stated that the juror was afraid that his professional endeavours might have an effect on his view of the case. The juror's role meant that he was confronted with the supervision of similar export transactions to the one covered in the case. There had been several details that would have entailed automatic rejection of the transaction on compliance grounds at the juror's institution.

The juror had found it difficult to forget about specific details of the case that, at least in his professional environment, were definite 'red signals'. The judge was asked to consider whether the concerns raised by the juror were of no effect to the fairness of the process for the defendant. The matter was brought to the attention of trial counsel. Counsel for the defence submitted that there was strong indication of bias, a danger of some contamination with other jurors having already occurred, and that situation could not be cured by a robust direction to the jury. Counsel for the defence submitted that the whole jury had to be discharged.

The judge held, amongst other things, that the fact the juror had brought the information to the court's attention in the most careful and fair-minded way dispelled any possibility that he was biased and that case had to be tried on the evidence given in the courtroom and not on any other evidence. The case was ordered to carry on. Subsequently, the defendant was convicted of being knowingly concerned in an attempt to export prohibited or restricted goods contrary to section 68(2) of the 1979 act. He was sentenced to 12 months' imprisonment suspended for 2 years with a 200-hour unpaid work requirement. The defendant appealed against conviction. He contended, amongst other things, that judge had erred in dismissing the application to discharge the jury. Accordingly, the conviction was unsafe. The appeal would be allowed.

Although the juror had not been biased against the defendant, that did not resolve the question of whether a fair-minded and informed observer would have concluded that there had been a real possibility of unconscious bias. The judge's direction that the case had to be tried on the evidence given in the courtroom and not on other evidence had been correct. However, it was insufficient in the context of a full understanding of the contents of the note and the underlying possible risk of unconscious bias inherent within it. The juror's special knowledge and experience was directly related to the issue which had arisen for decision in the trial.

The jury had had to decide whether, in the circumstances, the defendant had been entitled to act as he had done or whether his actions had been prohibited. In the juror's professional knowledge and experience, his unconscious prejudice had been that there were 'definite red signals' and there would have been 'automatic rejection' of the transaction such that the defendant's actions would have been prohibited. That issue had not been addressed in either the decision to permit the juror to remain on the jury or in the direction to the whole jury once a decision had been taken to permit the juror to remain on the jury. Accordingly, due to the real possibility of unconscious jury bias a fair trial had not been possible and the safety of the conviction could not be sustained. (see [82], [84], [85] of the judgment). The conviction would be quashed (see [85] of the judgment).

Clare Montgomery QC and Fiona Jackson (instructed by Peters & Peters Solicitors LLP) for the defendant; Andrew Marshall (instructed by the Crown Prosecution Service) for the Crown.