England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		Friday, 30th July 2010

1. LORD JUSTICE MOORE-BICK: On 6th October 2009 in the Crown Court at Wood Green before His Honour Judge Winstanley the appellant was convicted of possessing a controlled drug of Class A (cocaine), possessing a controlled drug of Class B (amphetamine), possessing another controlled drug of Class A (Ecstasy), possessing a controlled drug of Class C (cannabis in herbal resin form) and possessing a prohibited weapon (a CS gas canister). The jury were discharged from returning a verdict on count 1, which charged him with possession of almost 1 kg of cannabis resin with intent to supply.
2. On 6th November 2009 he was fined in the total sum of £800 in respect of the drugs offences and sentenced to 9 months' imprisonment in respect of the possession of the CS gas canister. The sentence for the latter offence was subsequently reduced on appeal to one of 6 months' imprisonment. He now appeals against conviction by leave of the Full Court which also granted the necessary extension of time.
3. For the purposes of this appeal the circumstances giving rise to the convictions can be described quite briefly. Between 26th July and 4th December 2007 the appellant was under surveillance by officers from the Middle Market Drugs Partnership. On 15th January 2008 that surveillance recommenced. At about 12.36 that morning the appellant was seen returning to his home address in a white Peugeot motor vehicle which he parked behind a Vauxhall Astra van. Both drivers got out of their vehicles and they walked onto the pavement opposite. Shortly thereafter, as the appellant walked back towards his home, he was jumped upon, forced to the ground and handcuffed by one of the surveillance officers, DC Marwick. Count 1 of the indictment, which charged the appellant with possession of cannabis resin with intent to supply, concerned the alleged transfer of a parcel of drugs in a bag between the appellant and the man who had been driving the Vauxhall Astra van.
4. The appellant sustained a number of injuries in the course of his arrest and as a result an ambulance was called.
5. While waiting for the ambulance the police searched the appellant's house and found the drugs which were the subject of the counts in the indictment on which he was convicted and the CS gas canister. The cocaine they found was not pure, having been cut with neutral agents, Phenacetin and boric acid. The appellant said they were for his personal use. Under the sink in the kitchen the police also found a substantial quantity of creatine monohydrate, which the appellant said he used as a supplement to build up his dogs.
6. At the trial the defence case was that the appellant was not aware of the existence of the drugs found in his kitchen. He said his wife must have tidied them away without his knowledge. He said that although he did on occasions take cocaine and cannabis, he had never taken or bought amphetamine or Ecstasy. He denied ever using a cutting agent and said that he had never heard of Phenacetin or boric acid. He had no idea where the substances had come from and did not know they were in his kitchen cupboards.
7. His case in relation to the CS gas canister was that it belonged to his wife, who had been given it by an ex-boyfriend some years earlier for self-protection. The appellant said that she usually carried it in her handbag and that he had not been aware that it was on the window ledge by the front door where the police had found it.
8. The issue for the jury, therefore, was whether the appellant knew of the presence in his home of the drugs and the gas canister so as to be in possession of them.
9. The grounds of appeal in this case concern a problem that is regrettably becoming increasingly frequent, namely, the use of the internet by individual jurors to carry out their own investigations into some aspect of the case before them.
10. At an early stage in his summing-up the judge told the jury to try the case only on the evidence that had been placed before them. They retired to consider their verdicts on Thursday 1st October. Before he sent them home for the weekend at the end of that day he specifically asked them not to seek any further information about the case from any source. However, on the following Tuesday morning the jury bailiff tidying up the retiring room after the jury had deliberated for a further day noticed a piece of paper in a plastic folder with the word "Wikipedia" on it. Further investigations revealed that the jury had in their possession the first five pages of a seven page article on boric acid that had been printed from the Wikipedia website, a news item headed "Cancer chemical in street cocaine" taken from the BBC website, which referred to Phenacetin being used as a cutting agent for cocaine, and a single page from a brochure, perhaps a brochure issued to security staff, which described the penalties imposed for drugs offences.
11. When the jury returned to court the judge addressed them as follows:

"Is there any other printed material of that sort that you obtained externally to the case which wasn't an exhibit that is in your retiring room? Because we have only taken the obvious. We didn't want to go searching through your papers. That is not appropriate. Would you address that first. If there is any material of that sort, would you please more or less immediately give it to our jury bailiff who will show it to me if there is no writing on it and will just tell me generally what it is if there is some writing on it. That is step one. If there is any material other than I've mentioned, please sort that out and give it to our jury bailiff. The second set is, and of course we're concerned with whether you might made have made other similar enquiries that aren't reflected in printed paper work, you can look at things on the screen in the knowledge. So here is the question I want you to deal with in a note in due course to me: have the jury made any further researches from the Internet or any source apart from the three I've told you about. Question 2: if yes, please set out in writing the detail of those further researches."

The jury answered the questions as follows:

"One of our number has checked the definition of 'denial as a defence' and one looked up creatine monohydrate on Wikipedia. The information was not shared with the rest of the jury."

13. As a result of these various disclosures counsel for the appellant made an application for the jury to be discharged on the basis that they had ignored the judge's direction to try the case on the evidence before them and not to seek information from any external source. The judge rejected that application. He said he had considered the material from the most damaging point of view from the appellant's perspective. He considered that the article on boric acid could not have any negative implications as it did not mention its use as a cutting agent for illegal drugs. Although the BBC News article referred to cocaine being diluted to purities as low as 30 per cent (as was the case with many of the wraps found in the appellant's house), that was done by dealers for the purpose of selling cocaine to users. Therefore, he said, it would not assist in relation to the issue of possession. Information about the penalties imposed for drugs offences, which was contained in the brochure, came before juries from time to time, he said, and could be dealt with by way of an appropriate direction.
14. The judge accepted that the jury had disobeyed his direction not to obtain material from any external source and he noted that that offence had been compounded by the fact that, having obtained such material, no one on the jury had disclosed the fact. Nonetheless, he ruled that the situation could be remedied by a strong warning to the jury.
15. Finally, referring to the response he had received to his enquiry whether the jury had received any other information the judge recognised that the situation was unsatisfactory, but considered it could be remedied by an appropriate direction.
16. Mr Meredith, who appeared for the appellant, has raised a number of grounds of appeal but, in the end, they really all come down to one point, namely, whether there is a real possibility that one of the jurors may have been improperly influenced by the material in question to convict the appellant so that the convictions are unsafe.
17. There have been a number of cases relating to this type of problem to which Mr Meredith has helpfully drawn our attention, but the proper approach to the use by juries of this kind of material from the internet has been considered very recently in the case of R v Thompson [2010] EWCA Crim 1623, in which all the earlier cases were considered. In the circumstances we think it deals sufficiently with the issues which arise on this appeal and that it is unnecessary to refer to any of those authorities. In that case a member of the jury, with the support of apparently several other members, wrote to the judge after the conclusion of the trial raising a number of matters which had caused them concern. One complaint was that one of their number had "pulled five pages of questions" from researches he had made on the internet relating to the case and to legal terminology, completely disregarding the judge's instructions to refrain from taking steps of that kind.
18. Giving the judgment of the court the Lord Chief Justice said in relation to the approach that this court will take to an allegation of that kind (we quote from paragraph 11 of the judgment):

"Just as it would in any other instance where it was satisfied that extraneous material had been introduced, the approach of this court is to make inquiries into the material. If, on examination, this material strikes at the fairness of the trial, because the jury has considered material adverse to the defendant with which he has had no or no proper opportunity to deal, the conviction is likely to be unsafe (R v Karakaya [2005] EWCA Crim 346 ). If the material does not affect the safety of the conviction, the appeal will fail."

20. When the court came to consider the case of Thompson himself, the Lord Chief justice said in paragraph 29:

"The use of the internet would, for the reasons we have given, have constituted an irregularity. Assuming that the allegation is correct, the juror had disregarded unequivocal instructions by the judge. The letter does not suggest that the juror, or anything he or she said to the other members of the jury, led them, in dereliction of their duty, do other than follow the directions in law given by the judge, as supplemented by him in answer to the numerous notes in which the jury sought further directions. Given the detailed way in which the letter is expressed, we are satisfied that if there had been any reason to believe that the verdict of the jury had been reached on the basis of the researches conducted by the juror on the internet rather than the judicial directions (which were impeccable) the letter would not have ignored such an important consideration.

On the basis of the material in the letter which it is permissible for us to consider, we were satisfied that notwithstanding the irregularity drawn to our attention, no further investigation of the misuse of the internet is required. The jury verdict is not unsafe. The appeal is dismissed."

21. In our view, trial judges faced with a situation of this kind should take the same approach, that is, investigate the position and consider whether there is reason to think that the jury might be influenced to reach a decision otherwise than on the evidence in the case.
22. There are five related aspects of the matter which, in our view, need to be considered in this case. The first, and obviously most important, is the material itself; the second, the fact that private researches were carried out contrary to judge's directions; third, consideration of what, if any, other material may have been viewed that potentially affected the jury's decision; fourth, whether there was a risk that the conduct would be repeated; and fifth, what, if any, steps were taken by the judge to remedy the position. We think it necessary to have regard not simply to the logical relevance of the material but also to the possibility that the jury might have been adversely influenced by information that is not logically probative but nonetheless potentially prejudicial.
23. We have been provided with copies of the documents which were taken from the jury room and we find it convenient to begin by considering each piece of material. First, the Wikipedia entry on boric acid. It is entirely factual and had no relevance to the case the jury had to consider. In our view it has no prejudicial potential.
24. Second, the BBC News article. The article refers to the typical purity of cocaine as being 30 per cent at the stage of supply to users and to the use by dealers of Phenacetin as a cutting agent. It does not contain any information that is of any probative force one way or the other as far as the issue of possession is concerned, but the fact that it refers to the use of Phenacetin by dealers was potentially damaging because the fact that Phenacetin was found in the appellant's house might have led the jury to think that he was a drug dealer and to be prejudiced against him for that reason. However, it must be remembered that the prosecution, as the jury were aware, had been brought as a result of co-operation between the Serious Crime Prevention Agency (SOCA) (to which reference was also made in the article) and the police. On count 1 it was the Crown's case that the appellant was indeed a drug dealer, although in cannabis rather than cocaine. It follows that his counsel had ample opportunity to address the jury on that broad question and the fact that the jury was unable to agree on count 1 suggests that they were unimpressed by that part of the Crown's case.
25. The quantity of free Phenacetin found in the appellant's house was very small, under 2 gms, not the kind of quantity to suggest use by a dealer for cutting drugs for the purpose of retail supply. In those circumstances, we think that the prejudicial effect of the article cannot have been very great and that any potential prejudice could have been dealt with satisfactorily by a clear direction of the judge.
26. Next we come to the brochure. The information contained in the brochure relating to sentencing for drugs offences and the maximum sentences provided by law. As such it was of a kind that is widely available. It had no bearing on the issues that the jury had to decide and we do not think it can have operated to the disadvantage of the appellant. It was capable of being satisfactorily dealt with by a clear direction from the judge that the jury should not concern themselves with matters of sentence. We shall return to that aspect of the matter a little later.

Next there is the investigation of "denial as a defence". We find it difficult to know what is meant by that expression or and what might have lead to that particular enquiry. Nor do we know what it produced. However, it is difficult to see that it could have produced anything prejudicial to the appellant. It must be borne in mind that the nature of the appellant's case was that he was unaware of the presence of drugs in his home. He had said as much in his evidence. His counsel had reminded the jury of that in his speech and the judge had reminded them of it in the course of his summing-up. Everyone must have been aware that his case was not one of mere denial, in the sense of putting the prosecution to proof. Whatever the somewhat cryptic expression "denial as a defence" was intended to mean, we do not think there are grounds for thinking that the information could have prejudiced the appellant or materially affected the jury's deliberations, since it had not been communicated to them. If necessary the matter could have been dealt with by a clear reiteration of the directions on the law.

27. As to creatine monohydrate, we think it safe to assume that simple curiosity was probably the reason for the enquiry and there is no positive reason to think that it produced anything prejudicial to the appellant. The Crown's expert had already told the jury that the substance could be used for cutting drugs, but it was also common ground that it could be used as a dietary supplement, so an explanation had been given by the appellant for its presence in a large quantity that was accepted to be plausible.
28. It might be said that where there is any uncertainty about what the jury may have investigated they should be discharged because there is a risk that they may have discovered something that might redound to the disadvantage of the accused. However, if that were correct, and if the mere use of the internet to obtain information relating to the case were for that reason sufficient ground for discharging the jury, it would follow that whenever there was evidence that one member had made enquiries of the internet it would be necessary to discharge the whole jury, even if those researches had not been communicated to others and even if there was no reason to think the jury as a whole had relied on what had been discovered. Yet that was not the approach taken in Thompson, since the court in not dissimilar circumstances held that no further investigation of the use of the internet was required and that the conviction was not unsafe.
29. Apart from a firm direction to decide the case by reference to the evidence alone, we do not think that any further steps were called for. The fact that some members of the jury had carried out private researches, contrary to the judge's express directions, is undoubtedly troubling, but it is not by itself a reason to discharge the jury, unless either there are grounds for thinking that they have acquired information that might have led them to reach a verdict otherwise than on the evidence in the case, or there are grounds for thinking that one or more of them might disregard a clear warning from the judge not to repeat the process. We do not think that either was the case here.
30. In some cases the very nature of the enquiries might give cause to think that in the course of them one or more members of the jury may have been given access to material which is prejudicial to the defendant. However, we think that the court ought to have some firm basis for reaching that conclusion and should not act on the basis of speculation.
31. At this point it is necessary to consider how the judge directed the jury in the light of the developments in this case. Having canvassed the matter in some detail with counsel, he said:

"We have looked into the matter of the further information you have sought and obtained from the Internet and other sources. I am afraid the first thing I have to say is you shouldn't have done this. You shouldn't have sought and obtained this further information. It flies in the face of my instruction to you not to seek further information about the case from external sources. Also I told you at an early stage of my summing-up to try the case only on the evidence put before you in court. You must put out of your minds the information you gained from the Internet and other sources external to the case. You must not bring this external information into the balance when you are deliberating on your verdicts. The reason, as I have said, is that it is not fair to the defence, it is not fair to the defendants, it is not fair to the prosecution. They have no chance to make representations to you about such material. That is why you must not seek it and obtain it.

Can I ask you to please continue your deliberations but as you do so you must put this external material that you have obtained out of your minds. Above all I have to say of course don't do it again. Don't seek any further information external to the case, from external sources in connection with this case. Consider only the evidence put before you in court by the parties and reach your verdicts only on that evidence that was put before you."

33. We have considered carefully whether that direction was sufficient in the circumstances of this case. In our view, two aspects of the external material might have called for some specific comment from the judge: the BBC News article, which might have raised suspicions that the appellant was a drug dealer, and the brochure which gave information about sentencing. The judge did not refer to either of them specifically, confining himself to the general direction to which we have just referred. We have therefore considered anxiously whether the failure to do so is sufficient to render the convictions unsafe. In the end we have come to the conclusion that it does not. It is difficult to see how the sentencing information can have any adverse effect on the jury's decision. It referred to the maximum sentences for drugs offences and, if anything, might have caused the jury to think even more carefully before convicting the appellant. In any event, as a result of exchanges between counsel and the judge, it appears to have been accepted that more harm than good might have been done by referring to it specifically. The potential of the BBC News story to cast a prejudicial shadow over the appellant can, in our view, be exaggerated having regard to the particular circumstances of the case. The issue for the jury was whether he was aware of the presence of drugs in his house, not whether they were for his personal consumption or supply to others. The reference to the use of Phenacetin by dealers to cut cocaine was essentially neutral where small quantities of drugs, such as were found in this case, are involved, in the absence of any reason to think that the person in possession of the drugs had cut them himself. The position might have been different if a substantial quantity of Phenacetin had been found for which no other explanation could be put forward, but that was not this case.
34. In these circumstances, we are satisfied that notwithstanding the irregularities the convictions are safe and the appeal must be dismissed.
35. MR MEREDITH: My Lord, I am grateful. Might I crave your Lordship's indulgence for a moment in this regard. We have been giving consideration to whether or not a point of law of general public importance is involved in this decision. I am led to believe that the Lord Chief Justice has in fact certified a question along these lines in relation to the case of Benjamin Thompson & Ors. I am not entirely sure what the question is because it has not been published as yet. So I was wondering if your Lordships would perhaps grant a short adjournment this morning so that we can locate that question and come back before you.
36. LORD JUSTICE MOORE-BICK: It would not be possible to formulate a question that went beyond Thompson, would it, because effectively what we have done is to apply Thompson to the facts of this case. It would not give rise to any other question.
37. MR MEREDITH: My Lord, I have only learned of these matters this morning I must confess, but I am led to believe that the Lord Chief Justice has, in effect, certified a point.
38. LORD JUSTICE MOORE-BICK: If a point has been certified the Registrar will know that and the form of the question will be available.
(The Bench conferred with the Registrar)
39. MR MEREDITH: That is my understanding, it has not as yet been published or pronounced.
40. LORD JUSTICE MOORE-BICK: It has not happened. It appears that someone has made an application and that the court is considering it, but whether the court will certify the question is as yet unknown.
41. MR MEREDITH: Yes, the difficulty that I am labouring under this morning is what I am being told does not seem to accord with what has been written by the editors of the Criminal Law Week, who have described the decision by the Lord Chief Justice apparently so to certify the point as "incredible". Now if that is the case--
42. LORD JUSTICE MOORE-BICK: They have their own way of describing this.
43. MR MEREDITH: If that is the case, it seems to indicate there has been a pronouncement on the matter.
(The Bench conferred with the Registrar)
44. LORD JUSTICE MOORE-BICK: Mr Meredith, I do not think we can help you much further on this because you have probably overheard what I was being told.
45. MR MEREDITH: Yes my Lord, some of it.
46. LORD JUSTICE MOORE-BICK: All I think we can do is leave it to you to make whatever enquiries that you wish to make and, if you wish to make an application, then I think we would want to see some indication of the question that you want us to certify. I am afraid I had not expected the application and therefore have not given any advance thought to it myself. I do not suppose either of my Lords have either. Drafting on the hoof is not usually very successful. You might like to bear in mind that the court is not expected to sit for the whole of the day. The list is not sufficient for that. One of its members does not live in London and does not wish to be kept waiting for an application.
47. MR MEREDITH: I would not seek to detain your Lordships in those circumstances, given this is the last day of term as well. Might I respectfully invite your Lordship to grant an extension which we can, under the Act, where the application has been made by the appellant?
48. LORD JUSTICE MOORE-BICK: We ran into this earlier this morning.
49. MR MEREDITH: Not where it has made by the prosecution or respondent and the 28 day rule applies.
50. LORD JUSTICE MOORE-BICK: What kind of extension do you want?
51. MR MEREDITH: Can I ask for, taking into account the vacation, ask for the end of September please, 30th September.
52. LORD JUSTICE MOORE-BICK: If we are going to give you 2 months, you might as well have time to look at in October.
(The Bench Conferred)
53. LORD JUSTICE MOORE-BICK: Well, this will be really a piggyback on Thompson.
54. MR MEREDITH: It would my Lord, I am guessing.
55. LORD JUSTICE MOORE-BICK: We are willing to extend your time and we all think that if we are going to extend it to the end of the long vacation, it is sensible to add on a couple of weeks into the new term, so that we are not trying to rush round on the first day to deal with it. We will extend your time to 15th October, that gives two weeks into the new term--
56. MR MEREDITH: My Lord I am very grateful.
57. LORD JUSTICE MOORE-BICK: -- to get various bits and pieces together.
58. MR MEREDITH: Thank you. My Lord, I omitted to say that the application is made under section 34(2) of the Criminal Appeal Act 1968 for that extension.
59. LORD JUSTICE MOORE-BICK: Thank you very much. Thank you both for your help on an interesting case.