England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CROWN COURT AT CANTERBURY
HHJ NASH AND A JURY

		Royal Courts of Justice Strand, London, WC2A 2LL
		16/02/2005

Lord Justice Judge:

1. This is an appeal by Adem Karakaya who, on 28th November 2003, in the Crown Court at Canterbury, before HHJ Nash and a jury, was convicted of indecent assault and rape of his 17 year old daughter between January and June 2002.
2. The jury was unable to verdicts on counts 3 and 4 specimen counts alleging continuing rape between July and December 2002 and January 2003 and June 2003 respectively.
3. On 2nd February we allowed the appeal, quashed the conviction, and ordered a new trial.
4. To appreciate the reasons for our decision it is not necessary to describe the facts which led to the appellant's prosecution and conviction. No criticism is made of the conduct of the trial or the summing up. The issue in the appeal arises from the introduction of extraneous material into the jury room after their retirement.
5. The trial began on 24th November 2003. On 27th November, after a summing up in which, as Mr Stephen Hockman QC for the Crown pointed out, the judge had repeatedly directed the jury to decide the case according to the evidence, the jury retired at 11.40 am. Shortly after 2.45 pm the jury returned to court. In answer to a question about the translation of a note written originally in Turkish, the judge reminded the jury that they had heard all the evidence in the case, and "we cannot go adding to it now". At 3.17 the jury was given what is usually referred to as the "majority" direction. At 4.20, the jury's deliberations were adjourned for the day. Before they dispersed the judge directed them not to discuss the case among themselves when they left court. He pointed out that there had been instances where jurors telephoned each other and he directed them not to "go down that road". "All your deliberations must of course be in the presence of each other. That is the way the system has to work. My advice to you is to forget about it entirely and come back refreshed tomorrow morning".
6. The jury resumed deliberations at just after 10 am on 28th November. At some time before 12.41 pm the judge received an indication that the jury had reached a verdict on count 1. They asked judge to remind them how they should approach the remaining counts once they had reached a verdict on count 1. The judge gave an appropriate direction, ending it by reminding the jury that their findings on a particular count could be used as supporting evidence, but it was not a "substitution for evidence that is not otherwise there".
7. The jury was ready with a verdict on count 2 at about 4.10. The verdicts on counts 1 and 2 were taken at 4.19. Both were majority verdicts, on count 1, indecent assault, 11 to 1; on count 2, rape, 10 to 2. The jury was discharged from giving verdicts on counts 3 and 4.
8. After the jury left court, the jury bailiff discovered a number of documents in the jury room. It is virtually certain that they were brought into existence after the overnight adjournment on 27th November by a member of the jury, who downloaded the material from internet sites. The jury bailiff drew the documents to the attention of the judge. He studied them. When the court next convened, in his chambers, the judge informed counsel of what the jury bailiff had found.
9. The introduction and presence of this material in the jury room provides the essential basis for the present appeal. No enquiry has been made of any member of the jury about the circumstances in which the documents came to be downloaded, or whether and if so how they were used during the jury's deliberations. Mr Hockman reminded us that apart from the juror who had been personally responsible for downloading the documents, we could not be sure how many members of the jury actually saw them. In the event, however, we were able to decide the appeal without making any further investigation or enquiry of the jury about them.
10. The documents fall into two groups. There are two typed documents, the first described as "The feminist position on rape", and the second, from Colchester Rape Crisis Line, "Rape and the Criminal Justice System". In addition, notes were made in handwriting on the back of the second document. We proceeded on the basis that the notes were made by the juror who had visited the internet and obtained the typed material.
11. The typed material was described to us by Mr Ian Glen QC for the appellant as tendentious and inaccurate, which on proper analysis, should be treated as arguing that the credibility of complainants in rape cases ought in general to be supported. That description is not unfair. Some of the material is indeed inaccurate. For example, it suggests that before the case reached the Crown Court it would have been examined by three magistrates who would have considered whether, and by implication decided, that there was enough evidence "for a jury to convict on". The material underlined the problem faced by witnesses making two court appearances, which might traumatise a witness and lead to the withdrawal of her complaint. Another passage was critical of judges who were "known to try to influence the jury when summing up". In effect the material might have served to undermine the confidence of the jury in the fairness of the summing up, and the accuracy of the judge's directions of law. One final example will complete the picture. It was argued that the conviction rates in rape cases were low, and by implication at any rate, disappointing. We need not provide any further outline of these documents. Mr Glen QC submitted that they included a number of points which the prosecution could not and would not have made either in evidence, or in an address to the jury. We agree. We cannot accept that the documents should be approached as if they were no more, or not much more, than an exhortation for an unbiased assessment of the credibility of rape victims.
12. It was agreed between counsel that, consistently with decision of the House of Lords in R v Mirza; R v Connor and Rollock [2004] 1 AC 1118, we were entitled to examine the material, which was wholly extraneous to the evidence presented at trial, and was brought into existence by a juror when he, or she, was not at court, either hearing evidence or deliberating with colleagues.
13. The handwritten note on the back of one of the papers presented a greater problem. Mr Hockman wanted us to look at the note to support his contention that it showed that the juror who had downloaded the material from the internet had not abdicated his responsibility of trying the case according to the evidence. We doubted whether we should consider the document at all. However we were persuaded to examine it at least to form a preliminary view whether it might have any bearing on the issue before us. If the note clearly recorded or purported to record anything of the deliberations of the jury, we might then have had to decide how, if at all, it could be used by us, and whether and if so, how properly to seek information about it. Although the note looks as though it may have been a summary of the material made by the juror who had downloaded the texts, or by another juror to whom the texts had been shown, we do not know, and for the purposes of this appeal we do not need to know. We are however sure that the note has no bearing on the outcome of the appeal.
14. The downloading of this material and its use by not less than one member of the jury after the jury had retired contravened very well established principles. In Owen [1952] 36 CAR 16, the trial judge allowed a doctor who had already given evidence in the case, to be recalled to give evidence in answer to a question raised by the jury after its retirement. The subsequent conviction was quashed on the basis that:

"… Once the summing up is concluded, no further evidence ought to be given. The jury can be instructed in reply to any question they may put on any matter on which evidence has been given, but no further evidence should be allowed." (Per Lord Goddard CJ.)

15. Lord Goddard returned to the same point in Wilson [1957] 41 CAR 226. He reasserted:

"The principle that, once the summing up is concluded, no further evidence ought to be given, must be maintained in every case, and, if further evidence is allowed at that stage, … the conviction will be quashed."

16. In Sanderson [1953] 37 CAR 32, the Court of Criminal Appeal presided over by Lord Goddard CJ held that it was permissible for the evidence for a witness for the defence to be taken after the summing up had been completed, but before the jury had retired. The judgment emphasised that the witness in question was a defence witness. Well-established principles governed the very limited circumstances in which the prosecution may call further evidence after closing its case. Nevertheless, Sanderson represents something of a relaxation of the absolute principle laid down in Owen.
17. After Sanderson, in Gearing [1966] 50 CAR 18, Lord Parker CJ expressed the principle in terms which reiterated the analysis in Owen and Wilson, but made allowance for the decision in Sanderson. He said:

"It has always been a very strict rule of this court that no evidence whatever must be introduced after the jury have retired."

18. In Davis [1976] 62 CAR 194, the absolute nature of the observation that the conviction would inevitably be quashed in such circumstances, was questioned, not on the basis that the principle was in doubt, but whether every breach of it would result in the quashing of the conviction. The breach would be an irregularity, which depending on the circumstances might or might not result in the application of the proviso to s 2(1) of the Criminal Appeal Act 1968. The question now is whether the conviction could continue to be regarded as safe. We can, for example, envisage circumstances in which the material would be put before the jury at the request of the defendant on the basis that it advanced or purported to advance his case. If so, a later complaint would be unlikely to receive much sympathy.
19. Davis made clear that the principle applies equally to documentary evidence as it does to oral testimony. After retirement, the jury requested, and was inadvertently supplied with a copy of a statement made by a witness to the police. The statement had been used by defence counsel for the purposes of cross-examination, but the document itself had not been exhibited. Consistently with Owen and Wilson, it was held that this amounted to a material irregularity, although the proviso was applied.
20. The principle has continued to be applied both in relation to oral testimony and documentary evidence. Perhaps we should note Maggs [1990] 91 CAR 243, doubting part of the decision in Stewart and Sappleton [1989] 89 CAR 273, which held that the principle would extend to a request by the jury for equipment which would enable them to carry out experiments of a kind which had not been examined during the course of the trial, but accepted that they might be provided with equipment of the kind which a member of the jury might have in his pocket, such as a magnify glass or a tape measure. In the present context, we would distinguish, for example, between research into publications and literature which might provide detailed information on the very subject under consideration by the jury, and a juror checking the correct meaning of a word by using a dictionary. Lord Lane CJ nevertheless asserted the essential principle that it was "well-established that no fresh evidence can be given to the jury after they have retired."
21. These considerations led the court in Oliver [1996] 2 CAR 514 to give guidance about the way in which the trial judge should direct the jury when exercising the then new discretion provided by s 43 of the Criminal Justice and Public Order Act 1994, to allow the jury to separate after they had retired to consider their verdict. The elements to be included in such a direction included:

"1. That the jury must decide the case on the evidence and the arguments which they have seen and heard in court, and not on anything they may have seen or heard or may see or hear outside the court.

2. That the evidence has been completed and that it would be wrong for any juror to seek for or to receive further evidence or information of any sort about the case …".

22. We must briefly return to Stewart and Sappleton, where reference was made to a then recent decision, and the observations of Tasker Watkins LJ in Thomas The Times, 9th February 1987, which touched on the reason for the rule. He said:

"It is hardly necessary to say that an action of this kind runs counter to all the guidance which this court has given from time to time … It can never be right for a jury to be provided with something which has not been part of the evidence in the trial."

23. In Fricker, The Times, 13th July 1999, [1999] EWCA Crim 1773, where the defendant was charged with attempting to handle stolen tyres, a juror, with highly specialised knowledge of tyre manufacturing asked, after retirement, and was allowed by the judge to take this knowledge into account. The appeal was allowed on the basis that the juror in question was not allowed to introduce entirely new evidence when neither party had been provided with an opportunity to examine it. The jury should therefore have been discharged.
24. It is easy, but superficial, to dismiss these rules as purely technical or procedural. In truth, they reflect something much more fundamental. If material is obtained or used by the jury privately, whether before or after retirement, two linked principles, bedrocks of the administration of criminal justice, and indeed the rule of law, are contravened. The first is open justice, that the defendant in particular, but the public too, is entitled to know of the evidential material considered by the decision making body; so indeed should everyone with a responsibility for the outcome of the trial, including counsel and the judge, and in an appropriate case, the Court of Appeal Criminal Division. This leads to the second principle, the entitlement of both the prosecution and the defence to a fair opportunity to address all the material considered by the jury when reaching its verdict. Such an opportunity is essential to our concept of a fair trial. These principles are too basic to require elaboration. Occasionally, however, we need to remind ourselves of them.
25. On analysis these are the principles which govern the first direction which the judge gives to the jury at the beginning of every trial. The jury of course bring their own experience and knowledge of the world with them into court, and far from directing them to ignore everything that life has taught them, the judge encourages the jury to use and share their knowledge and understanding with their colleagues as they examine the evidence and reach informed judgments on it. He also, and most significantly for the purposes of this appeal, gives a clear and unequivocal warning to the jury that they should not discuss the case with anyone outside their own number nor allow anyone who is not a member of the jury to talk to them about the case. Again, the reason is simple. The case is to be decided on the evidence produced before the jury in court after they have heard counsel's arguments and the judge's directions. If a juror speaks to anyone about the case, even to someone precious and dear to him, indeed the more so if it is an individual whose thoughts and comments are valued, that person may say something which could influence the judgment of the juror and the outcome of the case. It will have happened in the absence of the prosecution and the defence and the trial judge and remaining members of the jury. None of them will know. Neither side will be able to call evidence to deal with the point or direct arguments to demonstrate that the point may be wrong. The verdict is then reached not only on the evidence produced in court, but on the observations and comments of the individual to whom the juror has spoken. That will not be a true verdict according to the evidence. It will be a verdict according to the evidence, as supplemented by the views and comments of outsiders without responsibility for the verdict.
26. Just as a juror should not speak about a case to anyone other than another juror and for precisely the same reason of principle, he or she should not conduct private research for information which may have a bearing on the trial. The internet has many benefits, and we do not mean to diminish its value. Of course, not every site is always right. Some sites seek to persuade. The contents of some are inconsistent with the assertions made in another. The internet cannot discuss the case. It can however provide material which may influence a juror's views. If used for research purposes during the trial it can just as easily influence the juror's mind as a discussion with a friend or neighbour. And if so, the verdict is no more a true verdict according to the evidence than a verdict in which one or more members of the jury have taken account of something said to them out of court.
27. Applying these principles to the present case, the material obtained by the juror from the internet after the jury had retired, contravened the principles which prohibit the use of information, potentially relevant to the outcome of the case, privately obtained out of court by a juror, as well as the reception of further material after the jury's retirement. Having considered the material, we are not satisfied that these convictions are safe.
28. We should add that the Judicial Studies Board is currently considering whether it would be helpful to prepare broad guidance to assist in the formulation of appropriate judicial directions. These might usefully include an explanation to the jury (a) why they should not discuss the case with anyone other than other members of the jury, nor allow anyone outside their number to discuss the case with them, and (b) why they should not endeavour to do their own research during the course of the trial, for example, by researching the internet, or elsewhere; and assist the jury if they become concerned at possible manifestations of prejudice by another member of the jury; in short, brief guidance about how best to give effect to the decision of the House of Lords in R v Mirza; R v Connor and Rollock, and the Practice Direction relating to guidance for jurors issued by the Lord Chief Justice on 23rd February 2004.