England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2
		16th January 2008

1. LORD JUSTICE HUGHES: While this appellant was being tried for an offence of unlawful wounding, one or more of the jurors spotted that his name also appeared on the court list for mention later in the week. One of the jurors, in the presence of another, asked the usher in charge of the jury a question about that listing. It was a case in which the appellant's bad character was in evidence at the trial. The judge was asked to discharge the jury, but concluded as a matter of discretion that he should not do so, although the Crown supported the appellant's application. In this appeal the question is in effect whether the judge was entitled so to conclude, en route to the question whether the conviction is unsafe.
2. The charge of unlawful wounding on which the appellant was being tried arose from an altercation late at night. The injured party, who was a man called Andrew Martin, together with his girlfriend, was visiting the flat of the appellant, whom they knew quite well. Quite late on an argument broke out between the two men. It apparently had to do with how some damage had on a previous occasion come to be occasioned to the appellant's fish tank.
3. By the end of the ensuing struggle, the visiting Mr Martin had a series of rather unpleasant looking cuts, albeit in the end fortunately superficial, principally to the top of his head, but also elsewhere. Martin's case was that he had been attacked by the appellant using a hammer, a knife and a wooden stick or pole. By contrast, the appellant's case was that it had been Martin who was the aggressor. Martin, he said, had brandished a knife and, said the appellant, he had done no more than to act in reasonable self-defence when under attack. In other words, the short issue for the jury was whether the Crown had disproved self-defence. A great deal depended, as we have rightly been reminded, on the credibility or impact of the evidence of the two principals, plus the complainant's lady companion.
4. Independently of that allegation, the appellant was being prosecuted for an allegation, framed originally as assault occasioning actual bodily harm, which had involved the use by him of a metal bar in the street against a different victim and about five months earlier than the incident we have just described.
5. The two indictments were listed, for reasons which in this case made perfectly good sense, for the same week at the Crown Court. There ensued the kind of discussions between counsel out of court which are helpful to the administration of justice. As a result of it, the assault occasioning actual bodily harm count, the metal pole in the street case, was listed for trial on the Monday, with the possibility of the wounding count involving Mr Martin following the next day, on Tuesday. That proved to be wise planning. On the Monday, the Crown added a count charging affray to the assault occasioning actual bodily harm indictment. The appellant pleaded guilty to it and the Crown accepted that that was a realistic disposal of that case.
6. The result of that was that the unlawful wounding trial, which is our present concern, began the following day, Tuesday. The other indictment, now properly described as the affray, remained in the list to follow, because of course eventually the appellant would have to be sentenced upon it. It was shown in the list with a different number, inevitably, to that of the trial with which we are concerned. It was referred to in the list not as an appearance "for sentence", but as "for mention".
7. In this Crown Court, as in many others nowadays, the list is displayed on a television or computer monitor screen in a number of places, which include the jury assembly area. We think we should say, however, that the issues which arise remain exactly the same as they always used to be when the list was pinned up in typed form on court notice boards.
8. At the end of the first day of the trial, the Tuesday, the Crown case was almost completed. The judge was alerted by the jury usher to a question which had been asked by one of the jurors in the presence of a second. The juror concerned had spotted from the monitor in the jury assembly area that the appellant appeared twice on the list, and that the second entry had a different number to the case which they were trying. He asked the jury usher why. The usher, very sensibly, replied in a non-committal fashion, saying in effect that sometimes judges liked to list things in that way. The usher then did exactly the right thing and alerted the judge to the conversation that the juror had initiated. The judge also did exactly the right thing and told counsel.
9. The following morning, counsel for the appellant applied to discharge the jury. Counsel for the Crown, as he has told us out of caution, supported the application.
10. It emerged, and as we understand it is now common ground, that the jury trying the appellant was part of a panel of jurors which had also been at court on the Monday. On that day the list had shown the appellant as listed for trial on both indictments, with two different numbers. It follows that it is possible, but no one knows, that one or more jurors who eventually formed the trial jury had been conscious of that, and could have deduced, or perhaps been told on the Monday, that the reason why they were not needed was because the appellant that they had been going to try had pleaded guilty. As to that one simply does not know. This Crown Court is not a large one. There are two courts, as we understand it. So it is possible, at least, that the jurors might, if they had been alert and if they had been interested enough to notice the names of those who were appearing, have known that on the Monday as well.
11. Whether to discharge a jury is a question for the judgment and discretion of the trial judge. This court will not substitute its own view on balance, though, if the judge's decision was one which was not properly open to him, it may well follow, though it will not necessarily do so, that the conviction will as a result be unsafe.
12. It is common ground that the test to be applied in such circumstances is that of the reasonable apprehension of bias: see the well-known case of In re Medicaments (No 2) [2001] 1 WLR 700. The question on that test is whether a fair-minded and informed observer would conclude that there is a real possibility or a real danger, those two things being the same, that the jury would be biased.
13. Next, where inadmissible material is inadvertently disclosed to a jury and it is capable or more than one reasonable interpretation by jurors, that test ought to be applied on the basis of the most damaging reasonable interpretation. For that see R v Docherty [1999] 1 Cr App R 274 (BAILII: [1998] EWCA Crim 1916 ).
14. As to those principles, the judge directed himself correctly. The question for us is whether he nevertheless got it plainly wrong and arrived at a conclusion which was not properly open to him.
15. In ruling against the application to discharge the jury, the judge adverted seriatim to a number of points which he enumerated. First, he observed that since television screens of this kind had been installed, this was a situation which arose in this Crown Court routinely and no doubt in others. Secondly, he observed that the list was also published these days on the internet and the jury could find it there if they chose to look. Thirdly, he pointed out that the recent expansion of the class of persons eligible to serve on juries to include legal professionals means that juries are likely to have more knowledge of, as he put it, the intricacies of the law than traditionally was to be expected. Fourthly, he said that there was no evidence that the juror had gone any further than making the non-committal enquiry which he had or than accepting the non-committal reply. Next and fifthly, he directed himself that it would be wrong to treat the jury as if it would not pay proper attention to the directions which were given to it. Sixthly, and as it seems to us principally, he concluded that in this case it beggared common sense to say that the jury was not going to know quite enough about the appellant's bad character in any event for it to make any difference.
16. If the matters in this case had stood only on the first four of those propositions, we think we should have had some little doubt about the soundness of the judge's ruling. As to point 1 and 2, the fact that jurors might find out inadmissible material if they choose to look, for example, on the internet is not, as it seems to us, a sufficient reason to ignore plain proof that they have in fact been confronted with such material. We will say a little more about the general practice of the publication of lists at the end of this judgment.
17. Next, as to point 3, we are not for ourselves clear what is the relevance of the possibility that a jury might nowadays include lawyers and other legal professionals. If it means that such people might be more likely to notice material such as the material spotted in this case, then that is the same that point we have already dealt with. If it means that potential jurors of that kind can more safely be relied upon to clear their minds of irrelevant information, that may well be so, but it still leaves open the problem of what to do if there is a real risk that there are others who cannot.
18. As to the judge's fourth proposition, that seems to us to be at some risk of not applying the Docherty principle of erring on the side of assuming the worst.
19. The judge was, however, as it seems to us on very much firmer ground when he came to his last two and, as it seems to us, decisive propositions. The judge expressly invited submissions from counsel as to whether, given what had happened, he should confront the jury with the enquiry and give them an explicit direction about its irrelevance. He received the answer from counsel for the appellant that he preferred this not to be done, on the grounds that it would draw too much attention to it.
20. For our part, we entirely understand the dilemma with which counsel was faced unexpectedly. With hindsight, our view is that it would have been very much better if the issue had been tackled face on by the judge, whatever the submissions made on behalf of the appellant. It was plainly at least possible that one or more jurors might work out that the appellant faced some other charge. The better course, as it seems to us, would have been to say either that they should pay no attention to something which might well have an explanation in the technology, or that whether he faced another charge or not was entirely irrelevant to the question which they had conscientiously sworn to try, namely whether he had done what was alleged in this case.
21. That said, given the submission that was made on behalf of the appellant, what the judge actually did was to accede to it. We do not criticise him for that, albeit that with hindsight we would have preferred it if it had been done otherwise. The direction which the judge gave was a firm one:

As I told you at the beginning of the case and I repeat now, you must decide this case only on the evidence which has been placed before you. The evidence in this case is, as I have told you, what you see and hear when sitting as the jury of twelve together in court. That is all. There will be no more evidence ..."

And then he added these words:

"... you must not speculate about what other evidence there might have been or upon matters which have not been canvassed in court."

22. Indeed, he went on effectively to repeat much of that. That, as we recognise, was undoubtedly a firming up of what otherwise might be regarded as a more or less standard direction. It was a sensible tailoring of the direction to the needs of the individual case. It must have sent to any juror who had made the enquiry about the listing the very clear message that they were to concentrate on this case and this case only, and not worry about anything else that there might be.
23. Moreover, and as it seems to us very importantly, this was a case, as the judge went on to reason, where the jury, as by then he knew, was inevitably going to know that the appellant had several previous convictions for violence. There had been an application by the Crown on the first day of the trial, sensibly not right at the beginning of the trial but during the first day to admit evidence of bad character as evidence of propensity to offend as charged; that is to say, under gateway (d) of section 101 of the Criminal Justice Act. Among a long list of other convictions, the appellant had five, between 1998 and 2006, for assault or violence of one kind or another. He had two, additionally, for possession of bladed articles in a public place, those relating to a sword on one occasion and a lock knife on the other. All that evidence was admitted by the judge as evidence of propensity under the new Criminal Justice Act 2003 provisions.
24. We ought to add that, as it seems to us, if it had not been admitted under gateway (d), this was a case where the appellant's case entirely depended on an attack on the complainant's character. His assertion was that he had been attacked by the injured man, that the injured man had brandished a knife and, moreover, said the appellant, "Here was a man attacking me, who I understood to be on bail for an assault on someone else." On the appellant's behalf, counsel had either made, or signalled that he was about to make, an application to adduce the bad character of the complainant. In those circumstances, if the appellant's bad character had not been admitted under gateway (d), as it seems to us it would inevitably have been admitted under gateway (g): see section 101(1)(g) and section 106(2).
25. On behalf of the appellant, Mr Smith's submission about that is that the bad character evidence which the judge had admitted did not include the evidence of the affray which he had admitted on the Monday of that week. Says Mr Smith, once you take the interpretation of the listing information at its most damaging, the effect of the judge's decision not to discharge the jury was to admit by the back door evidence of the affray which he had declined to admit by the front.
26. The difficulty about that is that the judge had only declined to admit the affray as part of the appellant's bad character only because, firstly, it had not been included in the Crown's written application and, secondly, he took the view that as yet the facts of that case had not been finally determined. In fact we are told that they were uncontroversial and perfectly plain. In other words, this was not a case where the judge had decided that there would be unfairness to the appellant in admitting the evidence of Monday's affray. He simply had not extended his leave to the Crown to adduce bad character evidence to that for those particular reasons.
27. As it seems to us, the fact that the appellant's bad character for violence was squarely before the jury is highly relevant to the question of whether a reasonable, objective observer would apprehend a real danger that the jury would be biased by either knowledge or suspicion that there was some other unspecified charge pending, and it is that which was the inference that might be drawn from the listing information which two of the jurors had spotted. We have some doubt about whether the judge's conclusion would be right in the absence of the fact that this bad character evidence was before the jury in any event. However, since it was, we are absolutely satisfied that the judge's decision was open to him and indeed right.
28. The remaining theoretical possibility that a jury might conclude that there was something worse pending does, as it seems to us, reinforce the desirability of the judge facing the issue with the jury. But we do not believe that any reasonable impartial observer would conclude that a jury which know of the history of violence which we have already outlined would be unfairly prejudiced (that is to say biased) by knowledge or suspicion that he had some other unspecified charge pending.
29. For that reason, this appeal is dismissed. We are satisfied that this conviction is safe.
30. We add only this. We are conscious that the publication of lists in the Crown Court is now done by electronic means. We are conscious that the same list has to be published both to the public at large and to professionals, who may need to have their attention specifically drawn to the name of an individual whose case is before the court. It is not for us to attempt to analyse the software which is used, but we draw attention to the fact that the problem which occurred in this case is one against which care ought to be taken. Where a defendant who is on trial also has to be listed for other different matters, care should be taken that the list in the form accessible by jurors does not reveal that fact. Precisely how it is done is for those who have charge of the listing of cases. In the past it was invariably done by reference to the subsequent case on an acceptable list by initial or number alone. Precisely how it is done we do not dictate, but we make it clear that the problem which arose in the present case is one which ought to be capable of being avoided and steps should be taken to ensure that it is.
31. Thank you both very much indeed.
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