England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM H.H JUDGE TETLOW
(MANCHESTER COUNTY COURT)

		Royal Courts of Justice Strand, London, WC2A 2LL Wednesday 20th June 2001

LORD JUSTICE KENNEDY:

1. This appeal concerns the decision of a trial judge to permit a jury hearing a civil action, after it had answered all four questions asked of it, to reconsider its answer to the fourth question and then to return a different answer to that question.

Facts

2. For the purposes of the appeal the facts can be briefly stated. The claimant, Mr Igwemma, owned a building at Chorley Old Road, Bolton. On the ground floor there was a shop, and on the first and second floors there were two flats, let to tenants. On 1^st April 1996 Mr Paul Eckersley, the tenant of the second floor flat, decided to move out. He was assisted by his brother Neil, and they opened a rear door on the ground floor. That activated a burglar alarm. The claimant and his brother in law, Chris Smith, went to see what was happening, and there was then an incident involving the landlord on the one side and the tenant and his brother on the other side. The Police were called, and PC Parker was one of the two police officers who arrived. He arrested the claimant, who was taken to the police station and handed over to the custody officer, Sergeant Kenyon. The claimant was charged with conduct likely to cause a breach of the peace, and was detained for a time. The prosecution was later discontinued, and the claimant brought proceedings against the Chief Constable for false imprisonment and malicious prosecution. He claimed that PC Parker failed properly to investigate when he first arrived, and jumped to the wrong conclusion as to the cause of the trouble. He further claimed that the officer continued to detain him when he knew from his enquiries that the claimant should be released.

Trial

3. At the trial four questions were formulated for the consideration of the jury. They were as follows –

"1. Has the defendant proved that it is more likely than not that PC Parker honestly believed that the claimant would commit a breach of the peace if he did not arrest the claimant?

2. Has the defendant proved that it is more likely than not that PC Parker informed the claimant that he was under arrest when he arrested the claimant?

3. Has the defendant proved that it is more likely than not that PC Parker informed the claimant of the reason for his arrest when he arrested the claimant?

4. Has the claimant proved that it is more likely than not that after he had interviewed the Eckersleys at the police station PC Parker did not honestly believe that the claimant had committed a breach of the peace?"

4. In retrospect it can be said that it might have been better if the questions had referred to "Mr Igwemma" rather than the "Claimant", and if the references to "he" and "PC Parker" in question 4 had been transposed.
5. When directing the jury the judge made it clear that questions 1 to 3 related to false imprisonment, where the burden of proof lay upon the defendant, whereas question 4 related to malicious prosecution, where the burden of proof was upon the claimant. There is no criticism of the conduct of the trial up to the point at which the jury answered all four questions in the affirmative. However it is worth noting that after retiring and before answering the four questions the jury did send a note to the judge which asked –

"Can we as a group state that (a) procedures were not followed when Mr Igwemma was incarcerated, locked up; (b) treated unfairly as a result of?"

6. Apparently that question was asked when the jury had already reached conclusions in relation to the four questions they had been asked to consider, but had not yet revealed their conclusions. After considering the note with counsel the judge answered the jury's question in the negative and then, having obtained confirmation that the jury was ready to answer the four questions they had been asked to consider, those questions were put to the jury and the foreman answered each question in the affirmative, and stated that the decisions were unanimous. The jury's own question does not appear for present purposes to be of any relevance.
7. As the judge pointed out, the effect of the jury's answers was that the claim of false imprisonment failed, but the allegation of malicious prosecution succeeded, and it became a matter for the judge to assess damages. There was a further issue arising out of the claimant's detention at the police station, and the judge said to the jury -

"There is the one issue which you were deprived of because it was not an issue before you and that is the question of whether the detention in the police station –whether he should have been released after he had been charged at 12.15 or whether the custody sergeant was right on what he had to keep him there. That is curiously a question of law for me. If you want to sit and listen to it all you are very welcome to do that or if you want to go you are free to go, you need not be unanimous on that, I can tell you that now. So sit and listen, you are entitled to, you have, as it were, brought in the answers, this is another part of the matter, but you are finished in your function so entirely as you like to do. If you want to go feel free to do, if you want to stay, stay. You do not have to be unanimous on that."

8. Counsel for the claimant then asked for a couple of minutes to discuss the position with his client, saying, "I am fairly certain that he did not actually understand what has happened in the last few minutes". The judge said –

"No, he may not do. He has won on one, he has lost on t'other, it is as simple as that, unless the jury have got it wrong themselves. Yes, you want to stay?"

9. The final question was apparently addressed to the jury, and a juror then said something which the shorthand writer has been unable to decipher, after which the exchanges continued as follows –

"Judge: Did you give me the wrong answer?

The Foreman: I think maybe that we misunderstood the four questions.

Judge: Oh, right. I just wondered – can I explain it, the way you said yes to the last question, the burden on the claimant …

The Foreman: We were led to believe that the claimant was – on the fourth question – was the police.

Judge: It is not the police, it is the claimant.

The Foreman: That is what we were led to believe.

Counsel for the defendant: I am sorry I am afraid it is probably the fact that I did not put claimant and defendant at the top of the sheet when the questions were drafted, but the claimant is Mr Igwemma and the defendant in respect of all the questions is the police.

Judge: Well you understood the defendant was the police?

The Foreman: On three parts we realised …

Judge: Well, just a minute, I had better ask you to retire. The fourth question is: 'Has Mr Igwemma proved it is more likely than not after he had interviewed the Eckersleys at the police station that Police Constable Parker did not honestly believe that the claimant had committed a breach of the peace?' Do you want to just retire for a moment just to clarify that? Because yes, obviously if –at the moment – let me put it this way, by answering yes to the fourth, if that is what you meant, that means that Mr Igwemma – Police Constable Parker did not believe that he was guilty of a breach of the peace after he had interviewed the Eckersleys. Now if that is not what you mean – retire for a moment and see what it is, but the claimant is Mr Igwemma anyway. So you are happy about the first three, that is all right?

The Foreman: Yes.

Judge: Good."

10. The jury then retired again and when they returned four minutes later the transcript reads –

"Judge: Ladies and Gentlemen of the Jury, you have now sorted it out have you?

The Foreman: Yes we have.

Judge: I think what I am going to do is I will ask the clerk to ask question 4 again and get the answer whichever way it is.

The Clerk: Question 4 is 'has the claimant proved that it is more likely than not that after he had interviewed the Eckersleys at the police station PC Parker did not honestly believe that the claimant had committed a breach of the peace?' What is your answer?

The Foreman: No.

Judge: And that is the answer of you all?

The Foreman: That is the answer of us all.

Judge: Thank you very much indeed. Well thank you very much for bringing that to our attention otherwise it would have – that is all right, that is all right. I apologise probably on behalf of the drafter and myself for not making it clear. It can be very confusing, it is easy for us we are used to the phraseology, so do not feel embarrassed at all."

11. Mr Thomas, who has appeared for the appellant before us, but who did not appear in the court below, takes three points in relation to the facts. First, he points out that after the jury returned their original answers they were in effect discharged. That I accept. They were told that they were finished in their function and were free to go. Secondly, Mr Thomas points out that even when the jury knew the effect of their answers initially they expressed no unease until the judge, when seeking to encapsulate the effect of the jury's answers for the benefit of the claimant, added "unless the jury have got it wrong themselves". At that point, Mr Thomas submits, the judge wrongly opened the door to further consideration by the jury of their existing decision. I accept that the judge's suggestion that the jury may have got it wrong was unfortunate, but it may well have been prompted by some visible jury unease. A few minutes later, in the absence of the jury, the judge said that it was clear that the man in the back row was unhappy, so it is difficult to accept that the Judge's suggestion was of any particular significance, and even if it was it can only have encouraged members of the jury to say something which patently some of them, at least, wanted to say. No one even now suggests that the judge was pressing the jury to reach a different conclusion. Thirdly Mr Thomas submits that when the jury foreman said, "I think that maybe we misunderstood the four questions" the judge wrongly focussed only on question 4. Mr Smith, for the respondents, believes that the foreman may actually have said, "we misunderstood the fourth question". In the absence of agreement between counsel I cannot so read the transcript, but I note that counsel who appeared for the appellant in the court below did not suggest that the jury should be invited to reconsider questions 1 to 3, and before sending the jury out for the last time the judge prudently obtained the foreman's confirmation that the jury was content with the answers given in relation to questions 1 to 3. I therefore conclude that whatever the foreman may have said initially the jury never sought to re-open their answers to those earlier questions.

Ground of Appeal

12. The sole ground of appeal is that –

"The learned judge erred in law and further or in the alternative in the exercise or purported exercise of his judicial discretion, by permitting the jury to alter the answers it had initially returned to the questions posed of it, when having received the verdict of the jury he permitted the jury to further discuss the consequences of their verdict after the verdict was announced by the foreman of the jury in open court."

13. On 11^th April 2000 the trial judge refused permission to appeal on the basis that the matter was within the proper exercise of his discretion, and permission to appeal was granted by the single Lord Justice on 22^nd June 2000.

Law

14. There is no civil procedure rule which lays down what is to happen when, as in this case, almost immediately after giving its decision a civil jury indicates that it is unhappy with what has been said. So far as counsel have been able to ascertain there is no statutory provision and there is no decided case which bears directly upon the point, but it is worth bearing in mind the over-riding objective of the Civil Procedure Rules set out in Rule 1, which is to enable the court to deal with cases justly, with no unnecessary expenditure on costs.
15. Both counsel submit, and I accept, that some assistance can be gained from authorities in the criminal field. In R v Parkin [1824] 1 Mood 45 the Court of Crown Cases Reserved considered a case of larceny where the defendant contended that he had found a stolen bank note long after it was stolen. The jury said they found the defendant guilty of having the note in his possession, but how he got it they could not say. The judge asked if they thought he might have found it, one juror said "yes" and the judge said that amounted to an acquittal and a verdict of not guilty was recorded. The judge admonished the defendant and ordered the bank note to be given to the prosecutor. Some jurors then, within three or four minutes of the verdict of not guilty being recorded, said they did not agree with the answer which had been given, and that the juror who gave it had no authority to answer as he did. The judge asked the jury to retire again, and the jury then returned a verdict of guilty. The Court of Crown Cases Reserved held that "the mistake in the verdict might be corrected".
16. R v Vodden [1853] 23 LJMC 7 was another decision of the Court of Crown Cases Reserved in relation to a charge of larceny. Both the Clerk of the Peace and the Chairman of Quarter Sessions understood the jury spokesman to have returned a verdict of not guilty, but when the prisoner was discharged other jurors said the verdict was guilty. The prisoner was returned to the dock, and all twelve jurors then said the verdict was guilty, including the original spokesman, who said that was what he had originally said. A verdict of guilty was recorded, and Pollock C.B. said that the court was all of the opinion that the conviction was right. "The mistake was corrected within a reasonable time and on the very occasion on which it was made."
17. In R v Carter and Canavan [1964] 2 QB1 the two appellants were alleged to have held a razor to the face of a man in order to rob him. There was an issue as to the use of the razor, and prosecuting counsel finally submitted that if the jury was not satisfied about its use they could acquit of the offence charged, and find the defendants guilty of the lesser offence of aggravated robbery. In summing up the judge did not expressly leave that alternative to the jury. When a verdict of not guilty was returned the defendants were discharged. The foreman then explained that the jury wished to convict of the lesser charge. In the Court of Criminal Appeal Lord Parker CJ said at 6 –

"A verdict is not complete until a jury have dealt with all the possible verdicts on the indictment, and if a judge discharges a prisoner before the jury have completed their verdict, in the view of this court that discharge is a complete nullity."

18. So in both of the nineteenth century cases and in Carter and Canavan, what appeared to be a verdict of not guilty was changed into one of guilty when it emerged within a short space of time that the original verdict did not represent the real intentions of the jury. Furthermore in Carter and Canavan the court was able to overcome the difficulty created by the fact that the defendants had been discharged.
19. It seems that none the three authorities to which I have referred thus far were cited to the Court of Appeal Criminal Division in R v Russell [1984] 148 JP 765, a decision on which Mr Thomas now places some reliance. In that case the defendant was charged with obstructing a police officer contrary to section 23(4) of the Misuse of Drugs Act 1971. The jury was given a majority direction, and when brought back to court about two hours later, at 3.16 pm, was still unable to reach a decision. The judge then told the jury that there was no need to rush, but indicated that he would bring the jury back to court at about 4 pm unless they reached a decision before then. The jury was in fact brought back to court at 4.07 pm, and when asked if they had reached a verdict on which at least 10 of them agreed the foreman said "no". The members of the jury were not asked if they were likely to reach a verdict and were simply discharged. A few minutes later the jury bailiff came into court and said that the jury wanted more time. The court was reconvened at 4.15 pm, and the judge permitted the jury to deliberate further. At 4.40 pm they returned a verdict of guilty. Popplewell J giving the judgment of the court, said at 768 –

"The primary point that is taken in this appeal is that once the jury has been discharged by the Assistant Recorder no agreement by his counsel to the continuation to the trial could put the matter right. That argument is not founded on any authority that counsel could have been able to find. Counsel for the prosecution, in helpful address to the court, has submitted that once the jury have been told that they are discharged from reaching a verdict in the matter that is the end of that particular trial, and that any subsequent proceedings are a nullity because the jury, having been discharged, are functus officio.

In our judgment that is a good argument. When the jury returned the Assistant Recorder should have asked them whether there was any sensible prospect of their reaching agreement if they had more time."

20. In her note on the decision in 1984 CLR 426 Professor Birch is critical, pointing out how much seems to have been hung on the fact that the jury had been discharged, a matter which (albeit in relation to the defendants) was not found to be an insuperable obstacle in Carter and Canavan.
21. Eighteen months later another division of the Court of Appeal Criminal Division, presided over by Lord Lane CJ, considered the appeal of Paul Andrews [1985] 82 Cr App R 148. The appellant and his wife were charged with cruelty to a five-year-old child. The jury convicted the wife of positive acts of cruelty, but in relation to the appellant returned a verdict of not guilty. A police officer gave evidence of the wife's antecedent history and her counsel began to address the court. The jury then passed a note to the court which read: "We thought we had found Paul Andrews guilty of wilful neglect, what happens now?" About ten minutes had elapsed since the verdict of not guilty had been returned. The judge then accepted an amended verdict de bene esse, and in the Court of Appeal Simon Brown J, having referred to the two 19^th century cases, said at 154 –

"It seems to this Court, both on those two authorities and as a matter of general principle, that the position in law is as follows: where the jury seeks to alter a verdict which has been pronounced by the foreman, the judge has a discretion whether to allow the alteration to be made. In exercising that discretion he will, it goes without saying, take into account all the circumstances of the case; in particular the important considerations will be the length of time which has elapsed between the original verdict and the moment when the jury expressed their wish to alter it, the probable reason for the initial mistake, the necessity to ensure that justice is done not only to the defendant but also to the prosecution. The fact that the defendant has been discharged from custody is one of the factors but is not necessarily fatal to the judge's discretion to alter the verdict to one of guilty. If the jury has been discharged and a fortiori if they have dispersed, it might well be impossible for the judge to allow the verdict to be changed. That however it is unnecessary to decide upon the instant appeal. Clearly if there were any question of the jury's verdict being altered as a result of anything they heard after returning their initial verdict, then there could be no question of allowing a fresh verdict to be returned."

22. In Follen [1994] CLR 225 a jury which had been given a majority direction said that there were no counts on which at least ten of them were agreed, and that there was no realistic prospect of verdicts if more time were allowed. They were then discharged, and the judge indicated that there would have to be a fresh trial. That was all somewhat surprising, because shortly before being brought back into court the jury had sent a note to the judge indicating that ten of them were agreed in relation to one unspecified count. There was then a disturbance in the public gallery, and some disturbance in the jury box. The judge's impression was that there had been a misunderstanding, so he asked the jury to retire again. A few minutes later they came back into court, and indicated that ten of them were agreed in relation to one count, a count of buggery, of which they then convicted. In the Court of Appeal both Russell and Andrews were considered, and Watkins LJ said at page 9 D of the transcript -

"We do not doubt that there is no fixed rule of principle or of law to the effect that it inevitably follows that once a judge has made an order discharging a jury from returning a verdict there cannot arise some circumstance which permits a judge to set aside that order and thereby to allow the jury further consideration of the responses they have made to questions asked of them as to their verdicts either by the clerk of the court or by the judge himself or both. But in our view it is only in the very rare circumstances that that might be done."

23. In that case the Court of Appeal concluded that the judge was wrong to set aside the discharge and the appeal was allowed.
24. Bills [1995] 2 Cr App R 643 is the next authority on which Mr Thomas relies. In that case the jury acquitted the defendant of wounding with intent to do grievous bodily harm, but convicted him of unlawful wounding. They remained in the jury box whilst the court was told of his previous convictions, and they were then discharged. A juror then told the usher that the foreman had given the wrong verdict. The jury was re-assembled and asked to explain. Through their foreman they indicated that they had intended to convict of the more serious charge, and the judge accepted that verdict. In the Court of Appeal Follen was referred to, and at 647 F Russell LJ said –

"In our judgment it cannot be gain said that the jury, before returning the verdict which the judge accepted and upon which he sentenced the appellant, had heard evidence which they had no right to hear in the trial process. Namely previous convictions of the appellant. We bear in mind in determining whether to quash the section 18 verdict that the original verdict returned was plain and unequivocal. We do not understand how there could have been any misunderstanding as suggested by the foreman. The summing up had been clear, and there was no indication of dissent when the section 20 verdict was announced. Wherever the truth lies, of course this appellant is understandably convinced that the truth lies in the jury hearing his previous convictions. We are satisfied that the verdict under section 18 is an unsafe and unsatisfactory verdict. The judge should not have permitted it to be returned in the particular circumstances of this case. "

25. Mr Thomas submits that in the present case the original answers were plain and unequivocal, the judge's direction had been clear, and there was no immediate indication of dissent when the answers were given.
26. The next decision to which we were referred is Aylott [1996] 2 Cr App R 169. Together with a co-accused, Clarke, Aylott was charged on an indictment which alleged murder, with manslaughter as an alternative. After being given a majority direction the jury sent a note to the judge which contained voting figures, so the judge did not show the note to counsel. When brought back to court the jury indicated that even if allowed more time they were unlikely to agree to the requisite extent. What they did not indicate clearly was that they were only in disagreement as to one part of the indictment. They were then discharged. The judge rose and went to his room, and almost at once he was told by the court clerk or by an usher that the jury had reached a verdict. Having discussed the situation with counsel he concluded that he may have misunderstood the note. He then received a second note from the jury which read -

"As directed we have viewed the two defendants separately. The case of Aylott we have reached a unanimous verdict. The case of Clarke we have reached a unanimous verdict on the first count, but are hung on the second count the alternative charge of manslaughter."

27. That note was considered with counsel. When they returned to court the jury indicated, in answer to a question from the judge, that they had reached their conclusion in relation to Aylott before sending any note, and since being discharged they had spoken to no one outside their number. Aylott was then convicted of murder, Clarke was acquitted, and in Clarke's case, the jury being unable to agree in relation to the alternative count of manslaughter, he was discharged. In the Court of Appeal the authorities were extensively considered, and at 177 B Pill LJ said –

"In the judgment of this court it is open to the court to uphold the conduct of a judge who has discharged a jury and later taken a verdict from them. There is no fixed rule of principle or of law to the effect that once a jury have been discharged from returning a verdict there cannot arise some circumstance which permits the judge to set aside the order of discharge.

The discharge in the present case was based on a fundamental mistake. When discharged by the judge, the jury had reached a verdict. The judge was entitled, in the circumstances, to proceed to consider the question and to take verdicts, in effect setting aside the discharge which he himself had ordered. As in Steadman, it was plain in this case that the jury had remained together and had not spoken to anyone outside their number.

We have considered whether there is a principle underlying the cases to which we have been referred. The principle which emerges, in our view, is the fundamental concern of the courts to ensure that proceedings are fair and do justice in a particular case. Fairness is important to defendants and also to the public."

28. The Appeal was dismissed. Mr Smith, for the respondent before us, invites our attention to the last sentence which I have cited.
29. In Maloney [1996] 2 Cr App R 303, when a jury which had received a majority direction returned its verdict, the clerk of the court omitted to ask how many of them agreed and how many dissented. Section 17(3) of the Juries Act 1974 provides that –

"The Crown Court shall not accept a verdict of guilty … unless the foreman of the jury has stated in open court the number of jurors who respectively agreed to and dissented from the verdict."

30. The jury was allowed to go, and the omission was then spotted. After the weekend the jury was re-assembled and answered the question which should have been put to them on the previous Friday. In the Court of Appeal it was pointed out that prior to the passing of the Criminal Justice and Public Order Act 1994 dispersal of the jury would have been fatal, but on the Monday no further deliberation was required. The foreman simply said in the presence of the other jurors what the position had been when the verdict was returned, so as to enable the court to accept the verdict, and the appeal was dismissed.
31. The most recent decision of which we are aware is Alowi, 8^th March 1999, unreported. The appellant had faced an indictment containing seven counts. The jury convicted of counts 4 to 7 and was given a majority direction in relation to counts 1 to 3. Later the jury sent a note which led the judge to believe that no agreement was likely in relation to counts 1 and 3. They were brought back to court and they convicted on count 2. They were not asked if, given time, they would be able to return verdicts on counts 1 and 3. They were simply discharged from returning verdicts on those counts. There was some inconclusive discussion between the judge and counsel about what would happen next, and the jury returned to their room to collect their belongings. They also took the opportunity to continue their discussions. They told the court clerk what they were doing, and he told the judge. He decided to set aside his order discharging the jury, and they then convicted on count 1. They were unable to agree in relation to count 3. In the Court of Appeal Judge LJ said, at page 8 of the transcript –

"It is necessary to revert to first principles. In our judgment those are clear. Once the judge has discharged the jury, normally speaking, it is functus officio. The principle is not absolute or immutable, and there are some very limited circumstances where the judge is permitted to set aside the order and seek further assistance from the jury, either to provide their verdict or to explain some aspects of it. Counsel submitted that this was a matter in effect of broad discretion. The judge had to exercise careful judgment but he was entitled to set aside the discharge if, following discharge, first, he was satisfied that there were no extraneous reasons which may have affected the jury's further consideration of the case, that nothing was said in court which might have affected their deliberations, and that there was no reason to believe that anything had happened to the jury physically in the sense that there was any ground for concern about whether they had properly remained together and gone straight back to their jury room to resume their discussions. We recognise the force of those points, and no doubt in a case where the discretion is being exercised they form a sensible basis for a judge's consideration about how to reach his decision, in the light of all the particular features of the individual case. What we have done however is to consider the authorities which bear on the point where, exceptionally, the jury was permitted to return a verdict after it had been discharged by the judge. These occasions are very limited indeed. If, before discharge, the jury has in fact reached verdicts, and they have been discharged accidentally without being invited to deliver their verdicts, then the judge is entitled to set aside the discharge and accept the verdicts which the jury have already reached. That seems to us to be well demonstrated by the cases of Carter and Canavan, Aylott, and Steadman. Similarly where the court has made a procedural error in the taking of majority verdicts and, let it be noted in the context of a majority verdict of guilty, and the mistake was rectified, there was no problem in setting aside the discharge. The jury were invited to return to court and give the court the precise figures on which the majority verdicts had been based – Maloney. But it is clearly established by Russell and again Follen that once discharged the jury cannot return a verdict which is the result of further debate. For that purpose the verdict is a nullity and so far as Follen is concerned, the verdict was set aside because there had been discussion in court in the presence of the jury about a possible retrial.

In our judgment, looking at the facts of this case overall, the jury was discharged; having been discharged they listened to discussions in open court about the possible consequences of the verdicts which they had reached; they then returned to their room; they continued discussing the outstanding counts without any of the normal arrangements which apply to a jury in retirement, and having discussed these matters at some length, they then returned to court and returned verdicts which they had been discharged from giving. We do not think that it was open to the judge to set aside the order discharging the jury from further considering those counts. This was not a case in which a jury were simply recording verdicts which they had in truth already reached."

Submissions and Conclusions

32. Mr Thomas submits that where a verdict has been returned it can be re-visited where there has been a plain and obvious mistake. Whether it should be re-visited depends on the time lapse before the jury raises any complaint, whether that complaint has been instigated by anyone else, whether during that interval the jury has heard anything it should not have heard, and whether there is any good and obvious reason for the jury's apparent change of mind. Mr Thomas further submits that, despite the weight of authority to the contrary, once the jury is discharged the trial is at an end, and no fresh verdict can be received.
33. Mr Smith submits that what matters is the integrity of the trial process, whether there is any real risk that the jury has changed its mind as a result of things said or done after it has delivered its original verdict. The object should be to achieve justice without too much weight being attached to the formal step of discharging the jury.
34. In my judgment it is important not to lose sight of what, in any jury trial, criminal or civil, the court is attempting to achieve. The object is to do justice between the parties, without unnecessary delay or expense. The function of the jury is to make findings in relation to those issues which the jury are asked to resolve, and it is important that the jury's findings should then be effectively transmitted to and understood by the court. If there has been, or may have been, some misunderstanding, that must be investigated and put right, if that can be done without injustice to either party. So, in one sense, a judge does have a wide discretion. He can allow an alteration to be made in a verdict which has been returned or an answer which has been given, even after the jury has been discharged, but only where the interests of justice make it appropriate for him to do so. In considering whether or not the interests of justice favour that course the judge will necessarily look carefully at -

(1) The time that has elapsed since the original verdicts or answers were returned:

(2) Why it is said to be appropriate to seek further assistance from the jury. It will, for example, be easier to seek further assistance from a jury where, as here, the jury itself raises the possibility of a misunderstanding in circumstances where there was scope for misunderstanding, as opposed to the situation where there seems to be no misunderstanding and no obvious scope for misunderstanding or other apparent acceptable reason to alter what has already been said.

(3) Whether the jury may have been persuaded to change its view by anything said or done since it gave its original verdicts or answers, especially if anything has emerged which would not normally be heard by a jury during a contested trial.

35. In the present case the time scale was short, and, despite the clear direction, the possibility of a misunderstanding was implicit in question 4. That there may have been a misunderstanding was raised by the jury before its members separated and before they had heard anything they should not have heard. In those circumstances, in my judgment, the judge was fully entitled to set aside the discharge and to allow the jury to deliberate further under properly controlled circumstances, in order to enable them to give the answer they wished to give to question 4 in the first place. In Alowi it was said, obiter, that "once discharged the jury cannot return a verdict which is the result of further debate". The authorities relied upon do not seem to me to support that wide proposition, which in my judgment is an unnecessary fetter on the judicial discretion. If there has been a misunderstanding it can only be eliminated by at least some further debate, and that, as it seems to me, is all that happened here. That is why, in my judgment, it was right for the judge to proceed as he did, and in consequence it was right for us to dismiss this appeal.

LORD JUSTICE RIX:

36. I agree. I gratefully adopt Lord Justice Kennedy's statement of the facts and review of the authorities in the criminal field. I add some thoughts of my own because of the importance and interest of the issue raised by this appeal.
37. It is interesting to observe how the authorities have proceeded cautiously from stage to stage, but also how, with the exception of Russell, the courts have not in general regarded the discharge of the jury (or of the defendant) as an insuperable difficulty.
38. The essential basis of the jurisdiction to accept a corrected verdict appears to be that a mistake has occurred which the jury itself identifies and wishes to put right. But mistakes come in different forms. In the earliest case which has come to light, that of Parkin (1824) 1 Mood CC 45, the mistake appears to have been that the judge mistook the single juror who said "yes" as answering for the jury as a whole. The jury retired and may well have continued their deliberations. In that case the verdict had been given, or at any rate taken, without the jury's authority. In the next case, Vodden (1853) Dears 229, the mistake was a simple one of mishearing (or possibly a slip of the foreman's tongue). The mistake was corrected, even though the defendant had been discharged, but nothing appears to have been made of that. Pollock CB said (at 231):

"We do not think the court is called upon to say at what interval of time a correction should be made. All we do is to say that in the present case the interval was not too long. Nothing has been done but what daily takes place in the ordinary transactions of life; namely a mistake is corrected within a reasonable time, and on the very spot on which it was made."

39. In Carter and Canavan [1964] 2 QB 1, (1964) 48 Cr App R 122, the mistake was one of omission: the jury had determined on a verdict on an alternative count, but had not been asked for it. The court held that in the circumstances the verdict that had so far been taken was incomplete and that the defendant's discharge was therefore a nullity. The discharge had been relied on as rendering the trial over and the jury and judge as functus officio. That theory, however, begged the practical question: if the verdict was incomplete and the trial was not over, then the discharge was itself founded on a mistake and could be treated as a nullity.
40. Russell [1984] Crim LR 425 was the first case in which the discharge of the jury was relied on as an insuperable barrier. In the absence of citation of any previous authority the court accepted the submission that it was, and that anything thereafter was a nullity. The court did not consider what might have been the position if the jury's discharge had not been an insuperable bar. However, the decision was rendered in ignorance of Carter and Canavan, which was dealing with an analogous argument derived from the discharge of the defendant, and has not stood the test of time: see Follen, Bills, Aylott, Maloney and Alowi. In the first of those cases Watkins LJ said that there is no fixed rule of principle or of law to the effect that the discharge of the jury can never be set aside, and in Aylott and Maloney that dictum was acted upon.
41. Immediately subsequent to Russell, however, came Andrews (1986) 82 Cr App R 148, another case where the defendant rather than the jury had been discharged. There is no mention of Russell, nor even of Carter and Canavan, which would have been directly in point, but on the basis of Parkin and Vodden the court held that "where the jury seeks to alter a verdict which has been pronounced by the foreman, the judge has a discretion whether or not to allow the alteration to be made". It was another case where the jury had determined to convict on an alternative count on which a verdict had not been taken. Nothing very much appears to have been made of the defendant's discharge, which Simon Brown J said was not fatal to the judge's discretion but was "one of the factors" for him to take into account (at 154). However, Simon Brown J expressly reserved the case where a jury had been discharged.
42. It was just such a case that next came forward for consideration in Follen [1994] Crim LR 225. There the jury could not agree on a verdict, and were then discharged. It was only following a disturbance in the public gallery and after or coincident with that some dissension among the jurors that the judge took it upon himself to ask the jury to retire again to consider their verdict. They returned with a verdict of guilty. That verdict was set aside, not because the proceedings after the jury's discharge were a nullity (it was in response to such a submission based on Russell that Watkins LJ said that there was no fixed rule to that effect) but because the court was not satisfied that there had been any mistake on the jury's part in their original answer that they were unable to reach even a majority verdict. Given the absence of any mistake on the part of the jury and the obvious concern that the jury had been influenced by the disturbance in the gallery, the verdict of guilty was unsafe. The case is briefly reported in [1994] Crim LR 225, but we have been able to consult the full transcript.
43. Bills (1995) 2 Cr App R 169 was another case in which the jury had been discharged, the court accepted that there was nevertheless a discretion to accept a further verdict from the jury, but that verdict was quashed. There the jury purported after discharge to convict on a charge of wounding with intent even though they had originally acquitted the defendant on that charge and had convicted on only the lesser alternative of unlawful wounding. As in Follen, the court was not satisfied that a mistake had occurred. Russell LJ said "We do not understand how there could have been any misunderstanding as suggested by the foreman" (at 647). Again, there was concern that the jury had been influenced by subsequent events, namely hearing about the defendant's previous convictions.
44. Aylott (1996) 2 Cr App R 169 was the first case in which exercise of the discretion to accept a new verdict even after the jury's discharge was upheld at the appeal stage. It was a case of mistake, in the sense of a misunderstanding between jury and court. The judge thought that the jury were saying that they were unable to bring in any verdict: in fact they had already determined that Aylott's co-defendant was guilty of murder, and that Aylott was not guilty of murder. The only matter on which they were unresolved was whether Aylott was guilty or not of the alternative offence of manslaughter. When almost immediately after their discharge that mistake was brought to light, the jury's true verdict was taken. Pill LJ reasoned that, as the discharge itself had proceeded on a fundamental mistake, it could be set aside. He also emphasised that the principle emerging from the authorities which he had reviewed was the court's fundamental concern for fairness and justice.
45. Within a few months of the decision in Aylott it was joined by another case in which a new verdict after the jury's discharge was upheld on appeal, namely Maloney. It is interesting to note that the court in Maloney did not have Aylott cited to it, so that it proceeded by considering the authorities afresh. The problem in Maloney was (so far) unique in that it did not proceed from any mistake on the jury's part or from any misunderstanding of the jury's answers, nor was it the jury which drew attention in due course to the problem. What happened was that after the jury had returned a majority verdict of guilty the clerk of the court forgot to ask the foreman for the numbers of the majority and the dissent. Under statute that verdict was therefore vitiated. The judge and counsel realised the error too late to recall the jury, and, since it was a Friday evening, the jury could not be reassembled until the following Monday, when a verdict of 11 to 1 was recorded. It was held that the discharge of the jury was no bar to rectification of their verdict, and that in the circumstances not even the jury's dispersal nor the intervention of the weekend upset the validity of what had been done. Of course, it was not so much a case of the verdict being rectified, as of it being completed. The case perhaps illustrates the good sense of stating a rule which permits the justice of the particular cause to be achieved in preference to a formal rule of nullity; and also demonstrates how difficult it is to state any principle, such as that essayed at the beginning of paragraph 37 above, without allowing for exceptions.
46. Finally, in Alowi (unreported, 8 March 1999) the court on appeal quashed a verdict of guilty where the judge had allowed the jury to continue their discussions even after he had discharged them from returning a verdict on a particular count which they had then been unable to resolve. It appears that the judge had been under the misapprehension that they had no hopes of resolving it. On appeal it was held that although, if it was a matter of discretion, there was force in a submission that in the circumstances of the case the judge had exercised such a discretion lawfully, nevertheless the verdict was a nullity. Kennedy LJ has set out a full extract from the judgment of Judge LJ. I would merely emphasise the passages where Judge LJ said -

"But it is clearly established by Russell and again Follen that once discharged the jury cannot return a verdict which is the result of further debate. For that purpose the verdict is a nullity…We do not think it was open to the judge to set aside the order discharging the jury from further considering those counts. This was not a case in which a jury were simply recording verdicts which they had in truth already reached."

47. In the present case, there is I think no question of further consideration of a verdict not yet arrived at. I will revert to this below. It may be that, properly understood, Alowi is a decision on its facts. Nevertheless, I think it right to say, in agreement with Kennedy LJ, that the nullity rule propounded in Alowi, although narrower than the blanket rule stated in Russell, is not justified on the authorities, and that the true rule, and the better rule, is that ultimately it is all a matter of discretion.
48. I would accept that the case where the jury has arrived at a decision which is misstated or misunderstood, and which simply needs to be rectified, if that can properly be done without unfairness or injustice, is more straightforward; and that the case where a jury has failed to reach a decision before discharge and where the jury must therefore deliberate further if their true decision is to be rendered is more open to attack. Nevertheless, I would not for myself exclude the latter case under a formal rule of nullity, but would prefer, if that is consistent with the authorities, to look to fairness and justice and to the integrity of the trial process and of the jury's role within that as my touchstones. Thus, take the following example. A jury is misunderstood to be indicating that it cannot resolve the charge laid before it. Prior to it being discharged, however, the misunderstanding is clarified and the jury is asked to retire again. In principle there is nothing wrong with that. Now suppose, however, that the jury was discharged immediately before the misunderstanding came to light. Provided that the jury had heard nothing in the interim, on the basis that it had laid aside its office, which it should not have done, then I do not see why the trial must be aborted. Take another example. A foreman states a verdict under the mistaken belief that all jurors were agreed with it. It immediately becomes obvious that that was not the case. I do not see why the trial cannot continue: the unauthorised verdict is simply set aside, and the jury retires to continue its incomplete deliberations. Now again suppose, however, that the jury was discharged immediately before this mistake came to light. The discharge is a factor, but I do not see why an automatic rule of nullity must be interposed. In as much as the jury's discharge is a formal impediment to anything further being done in the name of the jury, the authorities indicate that, if the merits demand it, the discharge can be set aside.
49. Do the authorities permit such a view? I believe that they do. Starting with Follen, both the cases which quash the disputed verdicts (Follen and Bills) and those which uphold them (Aylott and Maloney) state a rule of discretion, not of nullity. Russell is not in its terms authority for a narrow rule of nullity that a jury once discharged cannot return a verdict which is the result of further debate (although on the facts the jury had been discharged from returning a verdict before going on to reach one), even if it could be reinterpreted to that effect. Follen does not proceed on the basis that further debate is necessarily a nullity, only that for a judge to set aside his discharge of the jury is "something which cannot be lightly undertaken…only a very rare circumstance can bring that about".
50. In any event, as indicated above, I do not consider the present case to be one where the jury did deliberate further. The foreman indicated that the jury had made a mistake in dealing with the fourth question, but did not want to revisit the first three. When the jury retired again, they were only gone for a period of four minutes. In as much as there was any further discussion between the jurors, I am satisfied that it must have been solely for the purpose of clarifying that they had always intended in truth to answer question four as "No" rather than "Yes". Otherwise it is very difficult to believe that a complete reconsideration of question four, leading to a volte face, could have been achieved in such a short period.
51. In such circumstances the authorities indicate that the guiding principle must be that of fairness and justice, or what can be called the interests of justice. Second only to that, or indeed as part and parcel of that principle, is the consideration that the integrity of the trial process and of the jury's role in that process should not be compromised. Among the leading factors to take into account in giving effect to those principles, is whether the court is satisfied that some plain or obvious mistake or misunderstanding has occurred, and thus whether there is some satisfactory explanation for it. Save in an exceptional case such as Maloney, it is for the jurors themselves to raise the issue of their mistake or of the court's misunderstanding of them, and to do so as promptly as possible. If the court is not satisfied that a mistake or misunderstanding has occurred, if the court is concerned that rather the jury is revisiting a matter they have already decided, then it will not be right to exercise its discretion in favour of permitting a further verdict. For these purposes, it will always be relevant to ask whether the jury may have been influenced by anything that they may have seen or heard since they gave their original decision, a fortiori if such new matter would have been inadmissible for the purposes of trial. Particularly in a civil case, the factor of costs cannot be divorced from the interests of justice. Discharge of the jury will always be a relevant factor, and may of course lead to events which would compromise the integrity of the process or of the jury's role in it: but, other things being equal, the mere fact of discharge of the jury is not critical.
52. I agree that on the facts of the present case the application of these principles supports the exercise of the judge's discretion to permit the jury to rectify its mistake. I see no reason to interfere in the exercise of that discretion. The appeal must therefore be dismissed.
ORDER: Appeal Dismissed. (Order does not form part of approved Judgment)