England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Case: No: 201300403 B3 Royal Courts of Justice Strand London, WC2A 2LL
		3rd December 2013

LORD JUSTICE TREACY:

1. This appeal is concerned with a jury irregularity.
2. On 19th December 2012, in the Crown Court at Truro, this appellant was convicted unanimously of affray. He was sentenced on the following day to a 12 month community order with a curfew requirement. A co-accused was acquitted of affray.
3. The nature of this appeal is such that it is not necessary to go into the facts. All we need to say is that the charge arose out of a fight in a public house in Helston on 11th December 2011. Much of the incident was recorded on CCTV. A man had suffered a fractured jaw.
4. The case is concerned with what happened after the jury retired. They had been sent out to consider their verdicts at approximately 12.20 pm on 19th December. They returned at 4.03 pm with unanimous verdicts. However, on the following day, shortly before the appellant was due to be sentenced, a note was sent to the judge by one of the jury. She stated that whilst the jury had returned a unanimous guilty verdict in the case of the appellant, her agreement was secured because she felt that she had no choice in the matter. She explained:

"We tried to send you a note explaining but the usher told us you would not accept it and that we would have to 'stay here until you all agree'. When I asked for clarity I was told 'for as long as it takes' or until the judge sees fit to go with the majority anyway."

5. The juror referred to the frustration of other jurors and said that she had felt that the situation was futile and intimidating. She spoke of being "forced to go with the majority".
6. At the end of his summing-up on 19th December, just before sending the jury out, the Recorder had said this:

"You may have heard about majority verdicts, but there is no question of a majority verdict at this stage. You should do your best to reach a unanimous verdict - that is one on which you are all agreed - as to whether each defendant is guilty of the charge brought against him. If you have got any questions, then please send me a note and I will do my best to help."

7. When the juror's note was drawn to the Recorder's attention on the following morning, he rightly felt that there was nothing he could do at that stage and proceeded to sentence. However, the jury bailiff was asked to provide a note of what had taken place and he did so on the same day. We have a copy of that note. It starts by saying:

"On the 19th December 2012 I acted as jury foreman on the above case."

That is clearly a slip, but a somewhat ironic one in the circumstances. The relevant part of the note reads as follows:

"I was summoned to the jury deliberating room at about 3pm and was handed a jury note. I explained the procedure that I would get the note down to the Judge and they would then be called back into court for their question to be answered. Though it may take a little while as he was part way through dealing with another case at that time."

So far, so good. But the note continues:

"I looked at the note which read something like, 'We have a unanimous decision on Mitchell and we are currently 11 to 1 on Mole. Can we have some guidance?' I said to them that they have been asked to try to reach unanimous verdicts at the present time and that the judge may well ask them to continue to try to reach unanimous verdicts and that the Judge would normally decide when the time is right to give them majority directions. With that I was told not to bother with the note."

8. Based on that note, the appellant submits that the jury bailiff acted in contravention of his oath and had communicated inappropriately with the jury. He had prevented appropriate communication taking place between judge and jury in relation to a note which set out legitimate concerns relevant to the jury's deliberations. The bailiff had given the jury incorrect information to the effect that they would have to remain in the jury room until all agreed and/or for "as long as it takes". These actions may have prejudiced the appellant or amounted to undue pressure upon a juror or jurors.
9. There is some conflict between what the juror says took place and the bailiff's account. It might have been necessary for further enquiries to be made in order for that apparent conflict to be resolved, albeit that enquiries of this sort are only rarely and exceptionally to be embarked on: see R v Adams [2007] 1 Cr App R 34. However, it seems to us that in the circumstances we do not need to embark upon an enquiry of that nature. The words of the jury bailiff's oath are:

"I will not suffer any person to speak to them, nor will I speak to them myself unless it be to ask them if they are agreed upon their verdicts."

The Crown Court Manual makes clear that the only time that a jury bailiff may speak to the jury after taking the oath is at the direction of the court or to ask them if they have agreed upon their verdict or wish to return to court. Whilst there is no doubt implicit authorisation from the court for a jury bailiff to speak to jurors about administrative or logistical matters wholly unrelated to the substance of the case being tried, the oath must otherwise be strictly observed.

10. It seems to us that on the bailiff's own account, having initially dealt appropriately with the jury when they indicated that they had a note for the judge, he then took it upon himself to cross the prohibited line once he said what he did after he had looked at the note and saw that it related to a question of a majority verdict on this appellant.
11. The jury were seeking guidance from the judge, they were not seeking guidance from the jury bailiff. By the time the note was provided the minimum period for the giving of a majority direction had in fact elapsed. What the bailiff did was to interpose himself between the judge and jury in a way that should not have occurred. The jury were entitled to the assistance of the judge once it was convenient for the judge to have the jury back into court. The judge was entitled to know the state of the jury's deliberations and to make a decision for himself at that point as to what course to take. This necessary part of the process was pre-empted by the bailiff, who in effect usurped the judge's position, reiterated part of the judge's directions and predicted how the judge would seek to deal with the jury's note.
12. The respondent's position is that the bailiff, assuming his version is correct, did no more than repeat the judge's instructions to the jury in the summing-up and that what he had said could not be treated as a threat or undue pressure. Moreover, once the bailiff had spoken, according to his note the jury no longer wanted the note to be forwarded to the judge. It seems to us that this last observation is beside the point. If the jury bailiff should not have spoken as he did, the jury's reaction is irrelevant, being consequent on a prohibited conversation.
13. It was also argued that the jury in any event had ample opportunity before delivering a unanimous verdict to express any concerns and none had in fact been raised. Whilst it is true that this court will be highly sceptical about complaints raised after verdict by a juror (see R v Lewis and others [2013] EWCA Crim 776 and R v Adams at paragraph 25), we consider that the situation is different in this case.
14. We are not proposing to deal with the matter on the basis of what the juror said at all. The jury bailiff's note demonstrates that there is substance in the claim of irregularity raised by the appellant. This is not a situation where the court is enquiring into the nature and detail of the jury's deliberations, it is a situation in which the court is examining whether appropriate procedures surrounding the jury deliberations were followed. It is no different from the sort of enquiry that might follow, for example, if there were an assertion that papers revealing matters not in evidence before the jury had mistakenly entered the jury room. We therefore do not accept the argument that this should simply be treated as a post-verdict complaint as to interaction between jurors in the jury room and thus disregard it.
15. It is also submitted by the respondent that in any event the conviction should be regarded as safe because it is clear that the juror who wrote the note was in the minority and, had she maintained her position, a valid guilty verdict could still have been returned after a majority direction. It is submitted that in effect the breach of the rules by the jury bailiff was no more than a technical one.
16. That is not a line of reasoning which we are prepared to countenance. The prohibition on improper communication with a jury whilst deliberating is a strong one. A jury bailiff cannot trespass upon territory which is reserved for the judge. One of the protections available to a defendant is that proceedings take place in open court and are recorded so that anything said about the case in the presence of the jury is known to all. A communication by a bailiff to the jury in their retiring room touching on the substance of the case defeats the object of open justice. It can be no answer to say that the result would probably have been the same in circumstances where the integrity of the process has been compromised, as it was here. Moreover, there are necessary formalities for a majority verdict under the Juries Act 1974 which have not been complied with.
17. The effect of the bailiff's intervention was, as we have pointed out, one which interfered with the free communication between judge and jury. On the bailiff's own account, his interjection had an effect upon the conduct of the jury. In the circumstances we consider that the only option is to hold that there was a very serious irregularity in this trial which of itself renders the verdict unsafe.
18. Nothing we have said goes behind the clear common law rule affirmed by the House of Lords in R v Mirza [2004] 1 AC 1118, to the effect that evidence after verdicts directed to matters intrinsic to the deliberations of jurors is inadmissible. Our decision is based not on the matters asserted by the juror in her note, but on the accepted evidence of what the jury bailiff did and said in contravention of his oath. The distinction between the inpermissible enquiry into matters intrinsic to the jury's deliberations and matters which are extrinsic to those deliberations may not always be easy to define. It is, however, clear to us on which side of the line this case falls. Accordingly, we quash the conviction.
19. We have heard submissions from the parties as to whether there should be a re-trial. We note that the offence is one which is alleged to have taken place some two years ago and that the trial took place one year ago. We note that in the intervening period this appellant has in fact been subject to a community order and that he has within that period been subject to a curfew requirement of some three months. In the circumstances we do not consider that there the interests of justice require a re-trial and we decline to order one.