Robert Bryan considers the question “Has Justice being seen to be done died?”

28 July 2023

A century after Lord Hewart CJ coined one of the best-known principles of English law, “it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done[1] has the Court of Appeal now consigned that to history[2]?

In February 2023 Jordan Hernandez stood trial; during the Jury selection process a potential juror passed a note, it read

After discussing my forthcoming juror duty with my wife, I realise that I was deluded in believing that I could come to an unbiased decision.

Thirty years’ service as a police officer (I retired ten years ago) has left me with the unshakeable belief that if both the investigating police officers and the Crown Prosecution Service feel that the evidence is sufficient to charge, then the individual is most definitely guilty of the offence(s).

I suspect that my time in the jury room after the evidence has been heard will be spent just persuading the other jurors of the defendant’s guilt.

I am willing to answer the summons and perform jury service, but believe it is only fair that I point out the bias that I now realise I hold.

I apologise for any inconvenience caused.

The Judge agreed to question the Juror.  As the Court of Appeal said, in its judgment,

Juror 11 was accordingly brought back into court. The judge reminded him of the contents of his letter, emphasised that jury service is an important civic duty, read to him the words of the affirmation he would be asked to make, and asked whether Juror 11 was prepared to make the affirmation and give a true verdict according to the evidence.

The Juror remained firm

I think that, after 30 years’ service and spending a lot of time in trials, that I am biased without a doubt. I should have realised this when I first got it, my service, my summons through. I submitted that letter some two weeks before being here. I also sent an email through to the Central Jury Summoning Service stating the same thing and thought that I will probably be told that I wouldn’t come here.

To many this might indicate that he had not only given this considerable thought, but also, as he expressed, he knew not only the task he would have to perform but the oath he would need to take. 

However, the Judge pointed out that the Juror had not answered his question.  He repeated,

Are you prepared to abide by the affirmation, which is: ‘I do solemnly, sincerely and truly declare and affirm that I will faithfully try the defendant and give a true verdict according to the evidence’? Are you prepared to abide by that affirmation?

The Juror then agreed that if he took the affirmation he would abide by it, casting aside any preconceptions or bias.  As was pointed out to the Court of Appeal this echo of the “Denial of Peter” was hardly ringing.

The Court of Appeal considered

The judge ruled that it was appropriate for Juror 11 to serve as a juror. He referred to the need for persons to abide by the public service commitment of acting as jurors, and to his experience that many persons may approach jury service with preconceived ideas, but properly put them to one side once they take the juror’s affirmation. He noted that Juror 11 had twice stated clearly that he was prepared to abide by the terms of the affirmation and to return a true verdict according to the evidence. In those circumstances the judge ruled that the Porter v Magill [2001] UKHL 67 test was not made out.


The Judge was right not to take the letter at face value and to stand Juror 11 down without further inquiry. As he correctly observed, jury service is a very important public duty and not something which a person summoned for jury service need only do if he or she feels like it…. It is of course important that an accused person is not tried by a jury which includes a person who is genuinely incapable of returning a true verdict in accordance with the evidence in the case. But judges must be alive to the risk that a prospective juror who asserts an irremediable bias either for or against all persons accused of crime, whatever the circumstances and whatever the evidence, may merely be looking for a means of avoiding his duty.

The position here was quite different though; no-one considered that the Juror was seeking to avoid Jury service.  Pausing for a moment, here was a potential juror who had not only taken the time to think about Jury service, had spent 30 years working in the field of Criminal Justice and said he was willing to perform the Jury service.

To continue

[The Judge] conducted what we respectfully commend as a careful and thorough inquiry, which gave Juror 11 every opportunity to state, if it were the case, that he could not abide by the juror affirmation, or to answer the judge’s questions in a manner which cast doubt upon his ability to do so.

On the other hand, the Juror had twice expressed his bias in Court, had written a letter (after discussions with his wife) – he had clearly thought about it.  One wonders what more the Juror could have said, or whether it is unexpected that a Juror did not remain resolute when being quizzed by a Judge in Open Court.

Many Advocates will have guessed what came next:

An inquiry of that nature is a case-specific inquiry, in which much will turn on the nature of the case, the issues in the trial and the nature of and reasons for the asserted or suggested bias… Moreover, a judge conducting such an inquiry is in the best position to judge the reliability of a prospective juror’s responses, the manner and tone in which the questions are answered, and the strength or weakness of an asserted willingness and intention to abide by the juror affirmation. This court will therefore be slow to interfere in the judge’s assessment… In this case, we have no doubt that the judge was entitled to reach the conclusion he did.

The general response to this case has been concern: why on earth was the Juror permitted to remain when it was wholly unnecessary?  That said the conclusion probably is not a surprise.  Let us hope that this case remains “case-specific”, and it does not become precedent for something far more sinister.  Was Justice seen to be done in this case?  I’ll leave that to the Reader to decide.

[1] R. v. Sussex Justices, Ex parte McCarthy [1924] 1 KB 256

[2] R. v. Hernandez [2023] EWCA Crim 814

28 July 2023


Robert Bryan

Call 1992

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