Communicated on 15 January 2015
Application no. 59703/13
Lee Anthony ROBERTS
against the United Kingdom
lodged on 17 September 2013
STATEMENT OF FACTS
The applicant, Mr Lee Anthony Roberts, is a British national, who was born in 1975 and is currently detained at HM Prison Grendon in Aylesbury.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. The background facts
(a) The attack
On the afternoon of 15 March 2011 the applicant was drinking with D.W. at the latter’s guest house in Blackpool. The applicant subsequently attacked D.W., stabbing him several times.
The applicant was subsequently charged with attempted murder. He admitted to the police that he had stabbed D.W. but denied that he had intended to kill him.
(b) The applicant’s trial in the Crown Court
The applicant’s trial took place in April 2011 in the Crown Court before a jury. Before the trial commenced, the jury were shown a video about their role as jurors, setting out what they should and should not do. At the start of the trial, the judge reiterated the instructions given in the video and expressly instructed the jury members that they should not look up information relevant to the case on the Internet.
The applicant’s defence at trial was that although he had intended to cause serious bodily injury to D.W. he had not intended to kill him. He pleaded guilty to an offence of wounding with intent. Whether he had intent to kill was therefore the only contested issue at trial.
The trial judge’s summing-up and directions to the jury set out in detail the factors that the jury was required to take into account when deciding whether the prosecution had proved its case that the wounding was done with intent to kill. The jury then retired to consider its verdict. No verdict was reached that day and the jury was sent home for the evening.
The next morning the jury was asked to retire again. Ten minutes later the jury members sent the judge a note which read:
“Can the judge give the jury any guidance on the factors to be taken into account in deciding whether the defendant intended to murder D.W. with particular onus on the definition of intent?”
With the agreement of counsel for the prosecution and the defence, the judge decided to give the jury a written extract from the relevant section of her summing-up where she had discussed intent. The jury was recalled and given a copy of the relevant extract. The judge also read the passage out to the jury members. She gave additional details at some length as to the circumstances that needed to be considered.
The jury was unable to reach a unanimous verdict. A majority direction was subsequently given.
On 19 April 2011 the applicant was convicted of attempted murder by a majority verdict of the jury (ten jurors to two). On 23 September 2011 he was sentenced to indefinite imprisonment for public protection with a tariff period (i.e. minimum term) of seven years, less time spent on remand.
2. Subsequent developments
(a) The email from the juror
Meanwhile, on 21 September 2011, A.O., who had been a juror at the applicant’s trial, sent an email to the Crown Court alleging a number of shortcomings in the conduct of his fellow jurors and others who had had contact with them during their deliberations. In particular, he alleged that information had been obtained from the Internet by three jurors and had been disclosed to fellow jurors.
The trial judge informed counsel for the prosecution and the defence that allegations of jury irregularities had been made by a juror.
(b) The appeal to the Court of Appeal (Criminal Division)
The applicant subsequently sought leave to appeal his conviction and sentence, alleging that his trial was unfair. He relied on the email from A.O. which he argued gave reason to believe that significant jury irregularities had occurred.
On 13 January 2012 the Court of Appeal directed that the Criminal Cases Review Commission (“CCRC”) be asked to investigate the allegations. Specifically, it instructed the CCRC to interview the jurors in the case to ask whether extraneous material had been provided to them by other jurors and if so, what the material was and who had provided it.
(i) The CCRC investigation
The CCRC began by investigating and interviewing A.O. and sought further details of his claim that three jurors had conducted Internet research. In particular, A.O. claimed that Juror C, the foreman and a solicitor, had researched sentencing tariffs in similar cases and shared the information he discovered with his fellow jurors. The CCRC interviewed the other jurors in the case. It emerged from the information obtained that there was some support for the contention that the jury foreman might have acted inappropriately. In its report of 12 February 2013 the CCRC summarised statements from three other jurors alleging that the jury foreman had looked up the definition of “attempted murder”, had looked at information concerning the question of intent and had looked up the sentencing guidelines for attempted murder. Seven of the jurors had no recollection of the alleged improper conduct having taken place. None of the jurors supported the claim that two further jurors had undertaken Internet research.
The CCRC subsequently interviewed the jury foreman under caution. After receiving legal advice, the jury foreman gave a prepared statement and refused to answer questions. In his statement he confirmed that there had been some uncertainty as to the law on intent, for which further direction had been required from and provided by the trial judge; and that the issue of possible sentences had arisen. The statement neither confirmed nor denied that the foreman had conducted Internet searches relating to the case.
The CCRC report noted that A.O.’s allegations in interview appeared to be not “quite so stark” as those made in his initial email. It further noted that there was no support for the majority of his allegations. However, it accepted that there was some corroboration from three fellow jurors for the more general allegations that the jury foreman had conducted case-related research. It explained:
“42. ... While two of those jurors referred to the subject of the research being related to the question of intent, the third recorded it having regarded relative Sentencing Guidelines. It is at least worthy of note that all three jurors suggested that such research was both related, in general terms, to differences between wounding with intent and attempted murder.
43. ... The jurors interviewed by the Commission however have not been able to recall whether the information provided by the foreman in relation to such was provided before, or after, the judge’s further direction.”
The report ended:
“44. In conclusion the Commission is of the view that there is at least some evidence to suggest that the jury foreman may have conducted his own case related research, outside of the court process and judicial directions, and provided information in relation to such to his fellow jurors. The Commission is further of the view that such research appears to have related to either the question of the differing elements of intent as between the offences under consideration, or the different sentences which might arise. The Commission also considers it at least possible that such information could have related to both issues. The Commission would observe that the issue of relative intent appears to have been a matter of some difficulty for the jury evidenced by their note and the need for further direction from the judge.”
(ii) The Court of Appeal’s judgment
On 1 July 2013 the Court of Appeal granted leave to appeal against conviction and refused leave to appeal against sentence.
In its judgment on the merits of the appeal against conviction, the court began by summarising the trial process. It noted that the summing-up by the trial judge had been “impeccable” and had not been criticised by the applicant. It referred to the jury’s question during deliberations regarding the law on intent and noted the trial judge’s response, explaining:
“It was very thorough and the jury cannot have had any doubt as to the correct directions in law and the factors to which they should have regard.”
The court agreed with the parties that it should proceed on the basis that an irregularity had occurred at trial given the findings reported by the CCRC. It considered that two matters had to be examined: first, the information introduced to the jury in relation to the requirements to establish the intent to kill; and second, the information introduced concerning applicable sentences.
As to the former, the Court of Appeal considered the sequence of events and continued:
“29. There are, it seems to us, only two likely scenarios. First, either on the fourth day of the trial [when the jury first retired] the solicitor had already looked matters up and explained it then, or had done so – although we think this unlikely – in the short period between the jury being sent out and coming back with the question on the fifth day ... Or, that once that the judge had the directions, the discussion had continued and the solicitor had said what he said in the period prior to [the judge providing written copies of her directions to the jury].
30. It seems to us inconceivable that when the judge had handed in typescript to all the answers to the questions, that this jury would have paid any attention whatsoever to what had been said by the solicitor/foreman.”
The court rejected the applicant’s submission that it could not be presumed in his case that the jurors would follow directions since three of them had failed to report what had happened during deliberations. It explained that there was “a world of difference” between jurors not wishing to report misconduct of fellow jurors and a juror ignoring the directions of the judge. It said:
“32. ... Had the judge not handed this detailed direction to the jury, there would have been, in our minds more doubt but, in our judgment, having considered the timing, the probabilities and having carefully seen how the judge had provided a written document to the jury, we have no doubt whatever that the jury followed the direction of the judge and ignored, in relation to the direction on intent and what had to be proved, what the foreman of the jury had said.”
On the question of what was said regarding sentencing guidelines, the Court of Appeal accepted that it should bear in mind the potential effect that a jury knowing the range of sentences could have on their attitude towards conviction. However, it continued:
“35. But we must look at the reality of this case. As we have explained, there was one narrow issue before the jury, namely whether the Crown had proved, in addition to the intent to cause really serious bodily injury ... an intent to kill. It must have been obvious to the jury that the reason why the Crown was proceeding with the trial was that they did not consider that a plea to wounding with intent was sufficient to enable the judge to pass a severe enough sentence. It must have been obvious to the jury that by proceeding to seek a verdict on the count of attempted murder, the Crown were interested in establishing the more serious offence, so that the punishment could be the more serious. Thus, the fact that the foreman explained to the jury that sentences for attempted murder were more serious than for wounding with intent cannot have any effect ...
36. It seems to us that it must have been obvious to the jury that they were tasked with deciding whether the Crown had proved the intent to kill, that if they did so the sentence would be more severe and therefore the introduction by the foreman of that further material can have had no material effect upon their decision to convict ...”
For these reasons, the court dismissed the appeal against conviction.
(c) Counsel’s advice on appeal
The applicant did not ask the Court of Appeal to certify a question of general public importance to enable him to apply for leave to appeal to the Supreme Court.
In response to a request from the Registry, the applicant provided a copy of counsel’s advice dated 14 March 2014. The advice explained:
“At the hearing of the appeal it was accepted ... that extraneous material had been introduced into the jury’s deliberations, and that the material related at least in part to the ingredients of the offence of attempted murder. There was no dispute as to the relevant law. It was accepted that the introduction of such material prima facie constituted a material irregularity in the trial process. The issue to be determined on appeal was whether that irregularity affected the safety of the appellant’s conviction.
Following full argument, [the Court of Appeal] expressed the opinion that the appeal concerned the fact-specific issue of considering whether, in the light of the admitted irregularities, the appellant’s conviction was safe ...
The issue at appeal ... was wholly fact-specific ... As there was no dispute between the parties on any point of law it was not possible to request a certification of a point of law of general public importance, and I regret to inform Mr Roberts that there are no further domestic avenues of appeal.”
B. Relevant domestic law and practice
1. Instructions and directions to the jury
Upon responding to a summons, jury members are sent a leaflet called “Your Guide to Jury Service”. The leaflet explains that jurors’ discussions are private and that jurors should not discuss any aspects of the trial with anyone other than fellow jurors. It sets out that the verdict must be that of the jurors alone and reminds jurors that their role is to reach a verdict on the evidence presented in the court room at trial. The leaflet also notes that it is an offence for anyone outside the jury to try and influence them.
Once selected for jury duty, jurors must swear an oath or affirmation that they will:
“faithfully try the defendant and give a true verdict according to the evidence.”
At the outset of the trial, the jury are conventionally given a direction to the effect that they must try the case on the evidence alone, which is what they hear in court. They are instructed that they must not discuss the case with family, friends or anyone else or conduct their own research into the case.
2. Investigation of irregularities after a verdict has been given
The rule governing the secrecy of jury deliberations is set out in the Contempt of Court Act 1981. Section 8(1) of the Act states that it is a contempt of court to obtain, disclose or solicit any particulars of any statements made, opinions expressed, arguments advanced or votes cast by members of the jury in the course of their deliberations.
Section 23A of the Criminal Appeals Act 1968 enables the Court of Appeal to direct the CCRC, in the context of an appeal against conviction, to investigate and report to the court on any matter deemed relevant to the resolution of the appeal.
In R. v Thompson and others  EWCA Crim 1623, the Court of Appeal, addressing the matter of jury irregularities, explained:
“2. Much more difficult problems arise when after the verdict has been returned, attention is drawn to alleged irregularities. This may take the form of a complaint from a defendant, or his solicitors, or in a very few cases it may emerge from one or more jurors, or indeed from information revealed by the jury bailiff. It is then beyond the jurisdiction of the trial judge to intervene. Responsibility for investigating any irregularity must be assumed by this court. In performing its responsibilities, it is bound to apply the principle that the deliberations of the jury are confidential. Except with the authority of the trial judge during the trial, or this court after the verdict, inquiries into jury deliberations are “forbidden territory” ... If any complaint about jury deliberations is received by the trial court after verdict it is immediately referred to this court and whether the complaint has been received from the court of trial or by this court directly, the practice is to examine each case to see whether or not, exceptionally, further inquiries ought to be made, and if so, to invite the assistance of the Criminal Cases Review Commission to conduct the necessary inquiry. ”
The court confirmed that the rule that jury deliberations were confidential was subject to two narrow exceptions. The first arose if it emerged that there might have been a complete repudiation of the oath taken by the jurors to try the case according to the evidence (for example, a decision arrived at by the toss of a coin). The second exception arose in cases where extraneous material had been introduced into the jury deliberations. Where the complaint was made that the jury had considered non-evidential material, the court was entitled to examine the evidence (possibly after investigation by the CCRC) to ascertain the facts.
3. Appeals in criminal cases
Section 1 of the Criminal Appeal Act 1968 (as amended) provides that a person convicted of an offence on indictment may appeal to the Court of Appeal against his conviction. An appeal can only proceed with the leave of the Court of Appeal or if the judge of the court of trial grants a certificate that the case is fit for appeal.
Section 2(1) of the 1968 Act provides that the Court of Appeal:
“(a) shall allow an appeal against conviction if they think that the conviction is unsafe; and
(b) shall dismiss such an appeal in any other case.”
Pursuant to section 33(1) of the 1968 Act, a defendant has the right to appeal to the Supreme Court against a decision of the Court of Appeal (Criminal Division). Section 33(2) clarifies that the leave of the Court of Appeal or the Supreme Court is required and that leave will not be granted unless it is certified by the Court of Appeal that a point of law of general public importance is involved in the decision and it appears to the Court of Appeal or the Supreme Court (as the case may be) that the point is one which ought to be considered by the latter court.
The applicant complains under Article 6 of the Convention that the introduction to the jury deliberations by the jury foreman of extraneous evidence obtained through Internet research rendered his trial unfair.
QUESTIONS TO THE PARTIES
1. Has the applicant exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention? In particular, was the applicant required to seek certification of a question of general public importance from the Court of Appeal in order to pursue an application for leave to appeal to the Supreme Court?
2. Did the applicant have a fair hearing in the determination of the criminal charge against him, in accordance with Article 6 § 1 of the Convention?