England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2A 2LL
		11 December 2013

LORD JUSTICE JACKSON:

1. This judgment is in four parts, namely:

Part 1. Introduction;

Part 2. The facts;

Part 3. The criminal proceedings;

Part 4. The Appeal to the Court of Appeal.

Part 1. Introduction

2. This is an appeal against conviction and an application for leave to appeal against sentence. The central issue in the appeal is whether there was a jury irregularity which renders the appellant's conviction on one count unsafe.
3. There is now available to judges guidance contained in the Criminal Practice Direction (Trial) 39M. The prosecution have kindly drawn our attention to these provisions in their skeleton argument. However, this practice direction and the protocol which preceded it did not exist at the time of the trial with which we are concerned. Therefore we shall say no more about those provisions.
4. Having dealt with those matters by way of background, we must now turn to the facts.

Part 2. The facts

5. In November 2011 the police were looking for a man called Shepherd, who was suspected of driving his car at a police officer and knocking her to the ground. The police believed that Shepherd may be at 27 Batsman Close, Cradley in the West Midlands. A number of police officers arrived at 27 Batsman Close at 5.30am on 30 November 2011. Sergeant Webster knocked loudly on the front door. He also called through the letter box that the police were there and wished to enter. Only one person was in the house, namely Mr Luke Hazell, the appellant in the present proceedings. His brother was the owner of the property, but the appellant was staying their alone that night. The appellant heard the knocking on the front door and looked out of an upstairs window. The police asked him to open the front door, which he did after some delay.
6. On entering the house the police discovered that Shepherd was not there. They did, however, find a collection of live ammunition in the sitting room. They arrested the appellant for the offence of possessing ammunition without a firearm certificate and took him to the police station. Police officers subsequently searched the house. They found a revolver handgun in the kitchen bin. It was loaded. They also found paraphernalia for drug dealing elsewhere in the kitchen. In the appellant's bedroom they found small quantities of heroin, ecstasy and TFMPP (a Class C controlled drug). They also found £2,200 cash in that bedroom. In the loft the police found 198 grams of heroin.
7. The police interviewed the appellant about all these matters. His responses were "no comment". Unsurprisingly, the police did not find this explanation satisfactory. Criminal proceedings followed.

Part 3. The Criminal Proceedings

8. The appellant was charged on an indictment containing six counts: possessing a prohibited firearm without authority, contrary to section 5(1) of the Firearms Act 1968 (count 1); possessing ammunition without a firearm certificate, contrary to section 1 of the Firearms Act 1968 (count 2); possessing a Class A controlled drug with intent (the 198 grams of heroin found at the house), contrary to section 5(3) of the Misuse of Drugs Act 1971 (count 3); possession of a small quantity of crack cocaine (found in the appellant's bedroom) (count 4); possession of MDMA, a Class A drug (count 5); and possession of TFMPP, a controlled Class C drug (count 6). He pleaded not guilty to counts 1 to 3. He pleaded guilty to counts 4 to 6 on the basis that the three separate drugs found in his bedroom were in small quantities and were for his personal use.
9. In relation to the three contested counts the appellant stood trial at Wolverhampton Crown Court before His Honour Judge Challinor and a jury in April 2012. The appellant's defence was that on 29 and 30 November 2011 he was staying at his brother's house overnight. He did not know that there was a gun and ammunition in the house. He did not know that there was a quantity of heroin in the loft. He had no intention to supply that heroin to anyone. He admitted possessing the small quantities of drugs in his bedroom, but maintained that they were for his personal use.
10. At the end of the case the judge summed up. No complaint is made about the summing-up. The jury retired to consider their verdict. At 3.14pm on Thursday 19 April 2012 the jury returned with verdicts of guilty on counts 1 and 2. Those guilty verdicts were unanimous. The judge then gave the jury a majority direction in respect of count 3. At 4.13pm that afternoon the judge sent the jury home for the night. He asked them to return at 10am the following morning.
11. The jury duly returned into court at 10.02am on Friday 20 April. The judge asked them to retire and continue their deliberations.
12. The judge and counsel remained in court in order to discuss what would be a mutually convenient date for the sentencing hearing. By then the appellant had been convicted on two counts, and so on any view there would be a separate sentencing hearing.
13. During the discussion between the judge and counsel the usher brought in a note from a juror which read as follows:

"Last night I was in the reception. I was standing waiting for a lift and one of the public gallery approached me and stared me out and made me feel very uncomfortable and I didn't want to leave the building."

14. The trial judge said that he would make enquiries through security staff about what had happened. There was further brief discussion between the judge and counsel about other matters. The court adjourned. Soon after that adjournment, shortly before 10.20am, a message was sent through that the jury had reached a verdict. The court convened. Defence counsel applied for the jury to be discharged on the basis that one of their number had been subjected to intimidation; other jurors may be aware of it; and in those circumstances the jury might have been influenced and they should not be permitted to return the verdict which apparently they had already reached. In making his application defence counsel did not know whether the verdict was guilty or not guilty. Prosecution counsel, Mr Sapwell, opposed the application to discharge the jury. He pointed out that, in sending the note in question, the juror had complied with the judge's direction to draw to his attention any irregularity which occurred. There was no reason to doubt the safety of the verdict and no reason to doubt that the jury had completed their deliberations properly and in accordance with their oaths.
15. After considering the submissions of counsel the judge ruled as follows:

"It seems to me that the juror, as you say, is acting in accordance with the direction that I gave that in the event that anyone sought to speak to them or communicate with them, which I suppose this would be said to be, they must report it and that is outside the question of deliberation. As to whether or not that has had any effect upon the juror in question, I am not able to say and I am not prepared to make the enquiry. In a lot of trials things happen. There are reactions from the public gallery. Judges often have to deal with them. I was not able to deal with this because I did not know about it. But we all agreed last night that a rest overnight may well clear the air for the jury and we may get a verdict this morning and I remember both of you appeared to assent to that.

In relation to whether or not I discharge the jury, there has to be a real need. It does not seem to me that there is a real need in this case to discharge the jury and although I will make enquiries about this in relation to whether there has been jury interference, I am not prepared to take any further course and I shall take the verdict now."

16. The jury then filed back into court. They delivered their verdict on count 3; it was a unanimous verdict of guilty.
17. In due course the judge proceeded to pass sentence. He imposed a sentence of eight years imprisonment on count 1, five years imprisonment concurrently on count 2, and five years imprisonment consecutively on count 3. He imposed no separate penalty on counts 4 to 6. In the result, therefore, the judge imposed a total sentence of thirteen years imprisonment. The judge explained his reasoning in his sentencing remarks. In his opening paragraph the judge said:

"Possession of prohibited weapons when found connected to drugs supply is extremely serious. Your culpability I find to be very high. This was a deliberate arming of yourself in order to protect your drug trafficking. The harm and foreseeable harm is very considerable; not only were you in possession of a significant amount of heroin, which causes immense damage to our community, but you were in possession of a loaded gun ready to use to protect your stash by the use of potentially lethal force."

18. In relation to count 3 the judge said that he regarded the culpability of the appellant as significant. He was a trusted and armed guardian. The judge took the view that he had played a significant role. By reference to the sentencing guidelines the judge noted that this was a category 3 case. It was a Class A drug. The appellant had played a significant role. The starting point provided in the guidelines is a term of four years six months imprisonment, with a range from three years six months to seven years imprisonment. The judge looked at the seriousness and the circumstances of the offending and he alighted upon a consecutive sentence of five years imprisonment for count 3.
19. The appellant was aggrieved by his conviction on count 3, and by the sentence imposed. Accordingly, he appealed to the Court of Appeal.

Part 4. The Appeal to the Court of Appeal

20. The appellant served a Notice of Appeal in which he challenged his conviction on count 3 on the ground that there was a jury irregularity before the verdict on that count had been returned. The grounds of appeal contended that the judge erred in proceeding to take the jury's verdict without first investigating the incident described in the juror's note. In relation to sentence, the appellant contended that the sentence on count 3 was too long and that the total term of thirteen years was too long. The appellant obtained the leave of the full court to pursue the appeal against conviction. His application for leave to appeal against sentence was left over for a decision by this court today, leave having been refused by the single judge.
21. We turn to the appeal against conviction. Mr Francis Laird QC, who appears for the appellant, draws our attention to the decision of the House of Lords in Re Medicaments and Related Classes of Goods (No 2) [2001] 1 WLR 700, and to the decision of the House of Lords in Porter v Magill [2002] 2 AC 357. The House of Lords laid down a now well-known test for bias and apparent bias in Porter v Magill. That case arose out of the well-known homes for votes saga in Westminster. Westminster City Council's auditor certified that certain councillors had caused approximately £31 million loss to the council by their wilful misconduct. The House of Lords held that the auditor's decision was valid. Despite the fact that the auditor had issued a press statement in the course of his investigations, the House of Lords dismissed the allegations of bias or apparent bias against the auditor. In reaching this conclusion the House of Lords modified the common law test for bias in the light of the Strasbourg jurisprudence on article 6 of the European Convention on Human Rights. In paragraph 88 of his speech, Lord Hope noted that there was a close relationship between the concepts of independence and impartiality. He continued:

"In both cases the concept requires not only that the tribunal must be truly independent and free from actual bias, proof of which is likely to be very difficult, but also that it must not appear in the objective sense to lack these essential qualities."

Lord Hope formulated the test for apparent bias in these terms:

"103. .... The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased."

Mr Laird submits that in this case the fair-minded and informed observer would consider that there was a real possibility that the jury was biased; accordingly, the conviction is unsafe.

22. Mr Laird began his submissions by contending that probably the whole jury became aware of the incident which had concerned the single juror who wrote the note. As Holroyde J pointed out in argument, that by no means follows. The standard direction which the judge gives to the jury is that if there is an incident of the kind that occurred here, the juror affected should send a note to the judge without reporting the matter to his fellow jurors or discussing it with them. We have no reason to doubt that the juror in this case complied with the judge's directions.
23. It is a significant feature of this case that, so far as we can see, the jury were diligent in complying with the directions that they were given. They were told that if they had a query on a matter of law they could send a note to the judge about it. They did have a query concerning the mental elements involved in count 3, namely possession and intent to supply. They dutifully sent a note to the judge and they received his correct explanation of the two elements of intent which had to be proved. One juror was subjected to the incident described in his note. It was by no means the worst instance of intimidation which occurs in the Crown Courts. That juror dutifully sent a note to the judge recording what had occurred. Therefore we have no reason to believe that the juror did discuss the matter with his fellow jurors.
24. On the other hand, even if he did discuss it, one must look at this matter realistically and in its proper context. The incident occurred after the jury had returned verdicts of guilty on counts 1 and 2. We are told that friends and associates of the appellant were in the public gallery. It is understandable that they were displeased by the verdicts on counts 1 and 2. It appears from the juror's note that one of the persons in the gallery took the opportunity after the close of business that day to stare at one juror in the public area of the court. Of course, it was an unfortunate incident. The juror was right to report it. The judge was right to say that he would make enquiries of security, no doubt to find out what the security officers had seen and, hopefully, to identify the perpetrator. However, this was not as serious an incident of jury intimidation as many other such incidents which, unfortunately, have had to be considered by the criminal courts.
25. It appears that such intimidation as there was did not sway the juror in question, or, if they knew it, any other jurors to acquit the appellant. They unanimously returned a verdict of guilty on count 3. That shows that none of them had, in fact, been intimidated. The question remains, however, whether the incident of staring caused the jury to be hostile to the appellant, prejudiced against him, and to return a guilty verdict which otherwise they might not have returned.
26. Mr Laird submits that the judge fell into error in not properly investigating the matter; the judge should have called the individual juror into court and made enquiries of him in order to ascertain whether he had told his colleagues; the judge should then have enquired of that juror, and of all of the jurors, whether, despite the incident which had occurred, they were in a position to return a true verdict according to the evidence and in accordance with their oaths. In making this submission, Mr Laird very fairly accepts that the judge was not assisted by counsel. No counsel drew the judge's attention to the authorities which Mr Laird has cited to us both in his skeleton argument and in his oral submissions. Furthermore, the relevant protocol for dealing for such matters, did not exist in April 2012 at the time of the appellant's trial.
27. We think that the judge was in a difficult position. He was quite right in the first instance to investigate the facts by making the enquiries which he set in train through the security officers. But events moved quickly. We can see from the transcript that, soon after the judge indicated that the security officers should make enquiries, the jury sent a message to the effect that they had arrived at a verdict.
28. It is more difficult, and a more delicate matter, for a judge to make enquiry of individual jurors, or of all the jurors, once they have sent a message to the effect that they have reached their verdict on all remaining counts in the indictment. In this case there was only one count, namely count 3. Mr Laird draws our attention to one sentence in the judge's ruling, in which the judge acknowledged that he did not know whether the incident had any effect on the juror. That sentence is relevant to consider, but we must read it in the context of what follows, where the judge pointed out that in trials lots of things happen; there are reactions from the public gallery; the jurors have all had a rest overnight, and so forth. It is quite clear that the judge came to the conclusion that the incident which had occurred was not such as to impair the jury's ability to return a true verdict on the basis of the evidence and in accordance with their oaths. The judge was well placed to reach this conclusion, having presided over the trial, having seen who was in the public gallery, and having observed the appellant, the jury and everyone else involved in the case.
29. We do not accept that the judge fell into error in the circumstances in which he found himself in proceeding to take a verdict.
30. The question remains, would the "fair-minded and informed observer" sitting in court on 20 April 2012 have come to the conclusion that the jury was biased? That fair-minded and informed observer would be someone who had sat through the whole of the trial. We know from other authorities that the fair-minded and informed observer is deemed to have all the relevant background knowledge. He would have heard the contents of the juror's note read out. He would have noted that very soon afterwards the jury were in a position to return a verdict. There was no indication that the jury felt unable to return a verdict. The fair-minded and informed observer would take note of the fact that the jury seemed to have diligently complied with all the directions given to them by the judge.
31. It is always difficult to ascertain what a fictional character would have decided in a particular situation. This is, however, a test which courts are required to undertake in a number of situations. An allegation of apparent bias is one of them. In our view there is no evidence to suggest that the jury were or might have been biased. We do not think that the fair-minded and informed observer in this particular case would have come to the conclusion that there was a real possibility that the jury was biased. We think that the judge was entirely correct to proceed to take the verdict. We regard the verdict as safe and we dismiss the appeal against conviction.
32. We turn to the application for leave to appeal against sentence. Mr Laird developed his submissions on this aspect clearly and concisely. He accepted that he could not challenge the eight year sentence imposed on count 1 or the five year sentence imposed on 2. He merely observed that it was at the top of the bracket. Mr Laird submitted that on count 3 the term of five years imprisonment was excessive. He drew our attention to the sentencing guidelines. He accepted that the starting point for the appellant, if in category 3, was four years six months' imprisonment. He submitted that the appellant did not, in fact, have a significant role, as the judge said, and that therefore it was not appropriate to take that starting point.
33. We do not agree. We think that someone in possession of a loaded revolver with spare rounds of ammunition, who is spending the night in a house guarding a consignment of heroin of high value, intended for onward supply, is performing a significant role. In our view there can be no doubt but that the correct starting point for count 3 was four and a half years.
34. It seems to us that this was a particularly serious case of possession with intent to supply. The appellant was, as the judge observed, an armed custodian of the quantity of heroin. Mr Laird submitted that, even if in isolation five years were correct for count 3, there should have been some reduction for totality. Mr Laird put his submissions moderately. He did not say that there should be any substantial discount for totality; he recognised that there had to be a consecutive sentence. The way he put it was that the judge should have made a "small discount" in order to reflect the totality principle.
35. We stand back from this case and look at the total sentence of thirteen years imprisonment for the package of offending comprised in counts 1 to 3. It must be recognised that the combination of guns and drugs make for very serious offences and merit substantial sentences. As we say, the appellant was guarding a valuable consignment of heroin. He was guarding it with a loaded revolver, with spare rounds of ammunition. This is precisely the kind of situation which can often lead to yet more serious offending.
36. We accept that a total sentence of thirteen years imprisonment may well be at the top end of the appropriate sentencing range. However, we do not regard it as arguable that a total sentence of thirteen years imprisonment is manifestly excessive. In the result, therefore, we refuse the renewed application for leave to appeal against sentence.

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