England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		26 July 2012

1. MRS JUSTICE DOBBS: On 23rd January 2012 at the Isleworth Crown Court, this 49-year-old appellant was convicted of assault occasioning actual bodily harm on PS Rose and common assault on PC Morrice. He was acquitted on count 1 of the indictment which was an allegation of actual bodily harm on PC Morrice. He was sentenced to concurrent suspended sentence orders. In relation to the assault occasioning actual bodily harm, to nine months' imprisonment suspended for two years with an unpaid work requirement of 150 hours to be completed within 12 months and a six month curfew requirement between 8.00 pm and 6.00 am and on the count of common assault, to three months' imprisonment suspended for two years with the same requirements. He also pleaded guilty to using a vehicle without insurance. He was disqualified from driving for six months, fined £100 and a £15 victim surcharge. He was ordered to pay £200 compensation to PS Rose.
2. The facts can be shortly stated. The defendant was stopped by police on suspicion of driving whilst under the influence of drink or drugs. There were a number of passengers in the car including the appellant's partner and her two teenage children. After the appellant got out of the vehicle and on being told that he was under arrest, a fracas ensued during which the two officers were injured, as well as the appellant who received a number of blows from the police batons. Some members of the car also became involved in the fracas. Other officers attended the scene and CS gas was used to subdue the appellant.
3. The Crown's case was that the appellant was resisting arrest and had become violent. When a handcuff was placed on his wrist he punched one officer in the face and bit the other. The officers drew their batons in order to carry out the lawful arrest. PS Rose hit the appellant on the head with a baton to prevent him from biting the other officer's forearm. The wound to the appellant's head required stitches. Thereafter the appellant continued to punch and attempt to bite the officers and also spat blood at them. The other occupants of the car also tried to stop the officers from carrying out the lawful arrest. PS Rose suffered a chip tooth and bruising to his left eye and temple area - that was the basis of the count of assault occasioning actual bodily harm. PC Morrice had a small cut behind his right ear and broken skin on his forearm - that was the count of common assault.
4. The defence case was that the officers had been hostile from the start, one pulling him out of the car and striking him on the head for no apparent reason. Although he had been drinking, he was not drunk and did not smell of alcohol. The reading from the breathalyser which showed him to be nearly double the drink-drive limit some six hours later might have been faulty. So far as the officers were concerned he had done no more than defend himself. He had not punched or bitten the officer and had spat out blood which had run into his mouth from his head wound, rather than splitting blood at the officers. His partner, Anne Francoise, also gave evidence. The defence relied on CCTV evidence which they said was inconsistent with the prosecution's account.
5. The ground of appeal relates to an incident which occurred in the closing stages of the trial. The background to this event is as follows. During the empanelling of the jury one member of the jury panel informed the court that her son was a police officer based at Holborn. The officers in this case were based in Southall and, in light of recent authority, the appellant's counsel rightly did not consider that there was a valid basis for challenge. The juror was therefore sworn and the jury put in charge of the appellant.
6. On the afternoon of 19th January 2012 the summing-up began. By the end of the court day the judge had given the directions of law. He indicated that he would give a brief summary of the evidence the following morning. On the following morning, the learned judge received a note from the juror who had identified herself at the start of the trial as being the mother of a police officer. Her note reads as follows:

"I was leaving last night when I took the wrong turning and walked face into the family of the court I am involved in Mr Johnson. I quickly turned away whilst going out of the foyer. I clearly heard Anne Francoise say bite him hard and kill him. I presumed they were commenting on the case and for my benefit because of my relation to a police constable.

My judgment had already been made and consequently confirmed my decision. But I don't think how it would go if I was to go into the deliberation with what I know. But I would only go as I have with the evidence as what I heard was hearsay. Also I think to be more discretionate you judge and your defence should ask before going into courts who is connected to the police. I do not wish to voice what I heard in the docks and I put myself in a very vulnerable position."

7. The learned judge invited counsel's observations and then made arrangements to bring the juror to court. Prior to this she had not been kept apart from the rest of the jury; she was waiting outside court with the rest of the jury members. The jury were taken back to the jury assembly area and the single juror brought to court.
8. The judge did not investigate the substance of what had been overheard by the juror or in what circumstance it had taken place, rather, having reminded her that she had to try the case only on the evidence and not to be in any way affected by anything outside court which may or may not be the fault or connected in the slightest way with the defendant himself, asked the juror whether she felt, in the light of what had occurred and in the light of her own feelings, whether she could still fairly and dispassionately and without bias deliberate on the matter. The juror indicated that she had already come to her conclusion when the judge summed up, so the incident did not change anything. She had to go on the evidence, not on what she heard. She definitely would not be affected by what had occurred. She had not mentioned what had transpired to any other juror. She would not do that as it would be some kind of influence and it would not be fair on Mr Johnson. She gave an undertaking saying that she would swear on oath that she would not influence or say anything about the incident. Counsel had no questions they wished the judge to ask.
9. The judge gave defence counsel time to take instructions and submissions were then made. The prosecution did not seek the discharge of the juror, bearing in mind the undertaking the juror had given. The defence made application for the discharge of the juror on the basis that whilst it was not expressly stated in her note, it could be inferred what her decision was and that if she came under pressure to justify her opinion during jury discussion, notwithstanding her undertaking to the court, she might well have reveal her experience to fellow jurors which would inevitably affect their deliberations as a whole. Further, that this might emerge later as a result of a note from another juror in which case it might be necessary to discharge the whole of the jury.
10. The judge declined to discharge the juror. His reasons were as follows:

A. It was clear that there was nothing to suggest that the words, which were ambiguous, were spoken on behalf of or at the behest of the defendant, nor was he in the vicinity when the words were spoken.

B. The juror was an intelligent woman who had given a clear indication of her responsibilities as a juror.

C. Her mind had already been made up before the incident and the incident had not influenced her decision, save to confirm it.

D. She had given an assurance that what had occurred would not affect her thoughts as to what should be the result in the case.

E. She gave assurances that she had not and would not mention the incident to other jury members. She should be trusted to keep to those assurances, just as the jury are trusted to fulfil their duties generally.

The judge concluded that there was not a sufficiently good reason for discharging the jury.

11. On behalf of the appellant, counsel submits that the judge erred in failing to exercise his discretion to discharge the jury and that the failure was a material irregularity in the case. The decision meant, at the very least, that there was the possibility of potentially prejudicial and improper material having been considered by the jury in their deliberations and accordingly the conviction is unsafe.
12. In support of his grounds, Mr Cassie, counsel for the appellant, submits that the judge failed to conduct a proper investigation in that he chose not to investigate in detail the substance of the juror's out of court experience as related in her note. The note was not clearly expressed and it would be surprising if it had been exhaustive in its description of what had taken place. The juror was concerned that hostility towards the police had been in some way directed to herself and thus it would be inevitable that the incident, or the juror's perception of the incident, could cause potential prejudice to the appellant in this case. Even if the juror had already made up her mind, the incident had the potential capacity to influence a verdict in this case. The juror had said it confirmed her decision so it clearly had an effect on her.
13. Given that the jury deliberated for 9 hours before returning their 10:2 majority verdicts, it may reasonably be inferred that there was considerable discussion amongst the jurors during that time. There could be no certainty that the juror's experience was not disclosed or that any prejudice arising from her experience was not aired in the course of such discussions. The effect of the prejudicial material having been discussed during deliberation need only have swayed one juror to have materially affected the outcome of the case.
14. Mr Cassie today in court makes the point that even if the juror had not mentioned the incident, "poison had entered the jury room" and that, even without disclosing the incident itself, the juror may have argued more forcefully in relation to her position than may have been the case absent the incident.
15. Reliance is placed on R v Tygano [2008] EWCA Crim. 2545 which involved a juror switching on a mobile telephone exhibit which had been heard to ring by the jury bailiff. The appeal was based on a material irregularity which had occurred which cast doubt on the safety of the conviction. Relying on the observations of Moses LJ in paragraphs 8 and 9 of the judgment, the appellant submits that in this case there was a real as opposed to a fanciful risk that the jury may have heard material outside the lawful parameters of the trial which may have influenced them in such a way that the court can say the verdicts are unsafe. In the case of Tygano the strength of the case was expressly disregarded. The instant case, submits counsel, was not one where the prosecution case was overwhelming, as is evident from the length of deliberations and the majority verdict.

Discharge of the juror

16. The following principles are pertinent. The court has a discretion to discharge a juror or jury but only where necessity is established - see Windsor v R (1866) LR 1 QB 289. The court should take appropriate steps to investigate any irregularity which occurs during the trial. The investigation may require questioning of the juror or the jury. It is desirable to sequester an individually affected juror if possible. The questioning should be limited to the issue of the possible compromising of the juror or jury, not to the jury's deliberations. The court should ask itself whether a fair-minded and informed observer would conclude that there was a real risk of bias on the part of the juror. In this case the judge had the additional task of needing to be satisfied that there would be no contamination of the rest of the jury as a result of the incident.

The application and principles

17. In this case the judge immediately took steps to investigate the matter drawn to his attention that morning. Although the note was not written in the clearest terms, the essence of it was clear. The juror heard material which she thought was directed towards her because of her relationship to a police officer but which, according to the juror, had no effect on her decision because (a) she had already made up her mind on the evidence and (b) what she heard was hearsay - in other words not evidence in the case. As to the circumstances of the incident, it was clearly a short lived one. Whilst there might have been questioning to ascertain exactly what was said, the fact of the matter was that the juror believed that the comments may have been made because of who she was. Whether or not the juror's belief as to why the comments were made was reasonable, was not something which needed to be investigated. It was not relevant. At the end of questioning of the juror both counsel were asked by the judge whether they wished the judge to ask anything else and both responded in the negative. Their approach is unsurprising because, there was in our judgment, no need for the judge to have made any further enquiries including into the incident itself.
18. The focus of the judge's investigation was to (a) the ability of the juror to reach a decision uninfluenced by the incident and (b) the importance of the juror not speaking to the other jurors about the incident so as not to prejudice the defendant. He received assurances from the juror as to both aspects. The juror demonstrated that she was quite alive to the importance of not tainting the other jurors with the information she had because, as she herself said, it would not be fair on the defendant. She had also, as the judge noted, demonstrated responsibility as a juror in reporting the incident. The fact that the juror had indicated that she had reached a conclusion, suggested by the defence as being an adverse one, does not in our judgment change the situation. She had made it quite clear that her decision would be based on the evidence and not what she heard during the incident.
19. The judge had made it clear in his introductory remarks to the juror the importance of deciding the case on the evidence. The juror made it quite clear that she understood this requirement and also understood the importance of not communicating anything to the jury not based on the evidence which might prejudice the defendant. Having received such firm assurances from the juror, it is difficult to see how the judge could ignore them. The judge had to consider the impact of the incident. He did so. Whilst the judge did not articulate the "fair minded informed observer test", it is clear from his reasons that he did have regard to the features of the case which might give rise to a perception of the real risk of bias and consequently any risk of an unsafe conviction.
20. We are unable to find therefore that the decision of the judge when exercising his discretion not to discharge the juror was one that was outside the range of reasonable responses to the issue he had to deal with. It follows therefore that this appeal against conviction is dismissed.