England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT LEWES
His Honour Judge Gold Q.C.
T20157296

		Royal Courts of Justice Strand, London, WC2A 2LL
		06/04/2017

Sir Brian Leveson P :

1. The criminal justice system exists to try those against whom allegations of crime are made so that, in the event of a conviction, sentence is be passed for the purposes of punishment with appropriate consideration given to deterrence and rehabilitation.  All this is to provide a mechanism to ensure the maintenance of minimum standards of behaviour by those who live in or visit this country, taking advantage of what it has to offer.  Victims are at the centre of the system and an important part of the process has been developed to ensure that they have a voice not only as witnesses, if necessary, but also to inform the court about the harm that the offending has caused and the impact that it has had on their lives.  Critical to the process, however, is that trials are neither initiated nor pursued against those who have died.
2. On 9 May 2016, in the Crown Court at Lewes before His Honour Judge Gold Q.C. and a jury, Darren Turk stood trial for one offence of rape, one offence of indecency with a child, 13 offences of indecent assault on a male person and four offences of possessing indecent images of a child.  Some five weeks later on 14 June, the jury retired to consider its verdicts.  On the following day, in a note to the judge (not disclosed to counsel), the jury indicated it had reached unanimous verdicts on some counts.  The judge decided not to take those verdicts at that stage but to send the jury home to resume their deliberations the following day.
3. The following morning, the judge was informed that, overnight, Mr Turk had taken his own life.  Following discussion with counsel, Judge Gold invited the jury foreman to return such unanimous verdicts as the jury had already reached.  The jury then returned guilty verdicts on six offences of indecent assault on a male person (under16) and four offences of possessing indecent images of a child.  Verdicts of not guilty were returned in relation to six offences of indecent assault on a male person.  The jury was then discharged from giving verdicts on the three remaining counts (which included rape, indecency with a child and indecent assault).  The judge then ordered that the indictment be of no legal effect and it was endorsed in terms:

"The Court being satisfied that this defendant is dead, has declared this Indictment to be no longer of legal effect, and has directed that the file be closed."

4. Following Mr Turk's death, his mother, Mrs Jasmine Botting, sought permission on behalf of her late son to apply on his behalf for leave to appeal pursuant to s. 44A of the Criminal Appeal Act 1968 on the basis that the judge was not entitled to proceed as he did and that the verdicts which were returned are a nullity or of no effect.  On 8 September 2016, Lloyd Jones LJ approved the application and the Registrar has since referred the application to the full court.   

The Facts

5. In April 1996, Mr Turk joined the care staff at Frewen College, a privately-run boarding and day school, approved by the Department of Education.  At the time of the offences, between 1996 and 2002, the school specialised in the secondary education of boys with specific learning difficulties such as autism, Aspergers Syndrome, dyslexia and speech and language difficulties.  Approximately half of the pupils were weekly boarders.  Mr Turk was employed initially as a Boarding Assistant but, in 1997, he was promoted to Head of Care, a position which carried with it a flat within the boarding accommodation at the school.
6. On 11 February 2002, one of the pupils at the school, JK, disclosed to his mother that he had been sexually abused at the school by Mr Turk over the previous two-year period.  He was arrested and denied the offences when interviewed by the police.  No prosecution was the instituted but, having been suspended from the school following the allegations, he did not thereafter return.  Over the intervening years, however, police enquiries continued into Mr Turk's conduct at the school and culminated in his prosecution in 2016 for 15 offences of sexual abuse of five pupils.  He also faced four offences of possessing films purchased in 2007 and 2008 depicting indecent images of young boys. 
7. Following a plea of not guilty to each count, the trial was undertaken as we have outlined: all five complainants gave evidence (one of whom required an intermediary), as did Mr Turk.  Following speeches and summing up, the jury retired to consider their verdicts at 11.20 am on 14 June.  At 2.20 pm on the following day, the jury sent a note which, because of its terms, was not disclosed to counsel.  It stated that they had reached unanimous verdicts on thirteen counts, that they could not agree on the remaining six counts and that there were "differences on (sic) opinions that cannot currently be resolved by further discussion today".  The note gave voting figures for those remaining six counts which, had the majority direction been given, would have represented valid majority verdicts.  
8. Judge Gold decided not to give the jury such a direction until during the course of the following morning.  The jury were asked whether they wished to be given further time that afternoon or to be sent home to continue their deliberations the following day.  Following the receipt of a further note from them, at 2.40 pm, indicating that they were deadlocked, they were released from further deliberation that day.  At that time, they had been in retirement for 7 hours 39 minutes, less 50 minutes for breaks.  That night, Mr Turk committed suicide.
9. The next morning, 16 June, the jury were not brought into court to be sent out to resume their deliberations.  The court sat in chambers to consider how to proceed.  It was argued by the defence that the trial had been brought to an end on the death of the applicant and that the jury should be discharged.  The Judge was invited to adopt the prescribed procedure, that is to say to hear evidence of the death and mark the indictment as having no further legal effect.  The prosecution maintained a neutral position.  
10. The judge decided to receive the unanimous verdicts which the jury had indicated had already been reached. He ruled, with an expressed degree of hesitation, that, in 2016, there was a public interest, both for the complainants and for society at large, in the jury returning the verdicts they had reached the day before so that the results could be known. 
11. Judge Gold acknowledged that the decision was a very difficult one but that in the light of the particular circumstances of this case, namely that the jury had indicated, whilst the applicant was still alive, that they had reached unanimous verdicts, those verdicts should be taken.  He went on to observe, however, that it would be quite wrong and artificial to give a majority verdict direction because it was not appropriate that there should be further discussion. He went on:

"I take on board Miss Hales' submission that this is not a public enquiry and there is nothing really to be gained by taking these verdicts because there is no defendant alive to be dealt with … but I think that in 2016 it is perhaps an overly one-sided view of the realities of trials of historic sexual abuse such as we have in this case. The five complainants have been through what one must acknowledge is the ordeal of the court process, they have given their account, an independent jury of twelve has apparently reached verdicts in relation to some of those counts, and it seems to me that there is a public interest in those complainants in particular, and indeed society at large, knowing what those verdicts are.  "

12. As a result, the jury were brought into court at 11.56 am and told that their verdicts would be taken.  They were sent out again briefly to collect their papers.  They came back to court at 12.02 pm, having then been in retirement for 7 hours 43 minutes (less 50 minutes for breaks).  They returned 16 unanimous verdicts (ten convictions and 6 acquittals), three more than indicated in their note.  After delivering those verdicts, they were informed of the applicant's death and they were then discharged.  It should be noted that in relation to certain complainants, there were mixed verdicts both in relation to complainants and allegations.
13. Later that day, Judge Gold heard formal evidence of the death and, following the well established procedure (on which see D15.90 Blackstone's Criminal Practice 2017, 3.238, Archbold, Criminal Pleading Evidence and Practice) ordered that the indictment be endorsed as having no legal effect. He declined to certify the case as fit for appeal pursuant to s. 1(2)(b) of the Criminal Appeal Act 1968 on the basis that the defendant "genuinely was not prejudiced" by the course which he took.

The Appeal

14. In support of this appeal, Sally-Ann Hales Q.C. argues there is no basis either in statute or at common law for the prosecution, or continued prosecution, of a person who has died.  By analogy, she points to the provisions of the s. 1(1) of the Law Reform (Miscellaneous Provisions) Act 1934 which specifically abolished the common law rule that actions in tort did not survive for the benefit of or against the estate of a deceased person. Further, in connection with the operation of criminal law and practice, Parliament has explicitly made provision for the pursuit of a confiscation order against the estate of a defendant who dies before the order is satisfied: see s. 25A Proceeds of Crime Act 2002 as inserted by s. 8(3) of the Serious Crime Act 2015.
15. Miss Hales recognises that there is no authority directly on point but correctly identifies that a criminal trial starts when the jury are sworn and the defendant is put in their charge (see ex parte Guardian Newspapers [1999] 1 Cr App R 284 at 288E) and continues until verdicts have been returned or the jury has been discharged from returning verdicts (R v Gorman (1987) 85 Cr App R 121 at 124). Verdicts must be delivered in open court so that the note has no effect (see, for example, R v Robinson (1974) 60 Cr App R 108 at 113) and it is the verdict that constitutes the conviction for the purposes of the Criminal Appeal Act: see R v Drew (1985) 81 Cr App R 190 at 195. Thus, at the time of Mr Turk's death, there was no subsisting verdict whether conviction or acquittal and there was simply no basis for continuing after death. Furthermore, Ms Hales underlines that, in this case, the fact of the delivery of a verdict in open court was one of substance, not form: there was a difference between what was expressed in the note and the verdicts eventually delivered.
16. Louis Mably Q.C. (who now appears for the Crown but did not appear in the court below) submits that there was a jurisdictional basis on which the jury could properly return lawful verdicts and that it was for the judge to decide whether or not to receive those verdicts. He argued that the death of a defendant did not extinguish the legal effect of the indictment which remained in force unless and until the judge declared it to be of no legal effect. As a result, the decision whether and when to make such a declaration involved the exercise of judicial discretion and that there could be rare and exceptional cases where it was permissible to permit a jury to return verdicts after the defendant's death.
17. In the context of this case, given that the jury had indicated that they had reached a number of verdicts and that the inability of the defendant to participate in the proceedings had no bearing on its proper progress, there was nothing to suggest that any guilty verdicts would be unsafe. Mr Mably also echoed the clear and obvious public interest (which included the interests of the complainants and their families) in charges being determined by the jury.

Discussion

18. It is easy to see the attraction of the view that the judge took. After five weeks, it is obvious that the complainants would seek some degree of clarity if not closure and that is so, perhaps, whatever the verdicts that were returned. On the other hand, two aspects of the judge's reasoning are open to question. First, given that more verdicts were returned than the jury had indicated were agreed at the time they described themselves as deadlocked, it is more than a possibility that they continued to deliberate while waiting during the morning as legal argument took place: the judge himself observed that continued deliberations after death would not be appropriate. Secondly, it is wrong to say that Mr Turk was genuinely not prejudiced by the verdicts: it is sufficient to refer to s. 11 of the Civil Evidence Act 1968 in relation to the effect of a conviction in civil proceedings to undermine that contention.
19. It is beyond argument that, prior to s. 44A of the Criminal Appeal Act 1968, permitting the family or personal representative of a deceased defendant to pursue an appeal to the Court of Appeal (Criminal Division), there was no power to do so. In R v Jefferies (1968) 52 Cr App R 654, the appellant died pending his appeal being heard and his widow wished to pursue a challenge to the order for payment of prosecution costs. It was held that the powers of this court were derived from statute and did not permit such a course. Widgery LJ (as he then was) observed (at 657):

"We take it to be a general principle that whenever a party to proceedings dies, the proceedings must abate, unless his personal representatives both have an interest in the subject matter and can by virtue of the express terms of a statute (or from rules of court made by virtue of jurisdiction given by a statute) take the appropriate steps to have themselves substituted for the deceased as a party to the proceedings."

That decision was endorsed and approved in R v Kearley No 2 (1994) 99 Cr App R 335, Lord Jauncey observing (at 340) that he would have reached the same view even if he had been untrammelled by authority.

20. We recognise that the Crown Court is not governed by the same statutory provisions as the Court of Appeal (Criminal Division) but it has not been suggested to us that there is any statutory authority or rule of court which permits continuation of proceedings in the Crown Court and there is no reason why the same general principle should not apply.
21. In any event, it is important that there is a 'bright line' rule which can be applied whatever the circumstances. The difficulty of proceeding otherwise is obvious. Thus, in this case, the judge knew that the jury had reached verdicts on an identified number of counts. What would have been the case had he not received a note? If he had a discretion which it was open to him to exercise, it is inconceivable that it should make a difference simply because he does not know how far the jury have reached in their deliberations. If the critical feature is that the defendant has no further part to play in the trial, why is it not appropriate to allow deliberations to continue until some question arises upon which counsel's assistance is required? What is the principled reason for not allowing the jury to deliberate, if all that is left before sending them out is a direction to appoint a foreman?
22. Quite apart from the fact that there is no statutory or common law authority which justifies the way in which the judge proceeded in this case, these questions all lead to the conclusion that in order to preserve the bright line that criminal prosecutions are not pursued against those who have died, there is no discretion as to the course of action then to be taken. As soon as a judge learns that a defendant has died, it is his duty to take no further step in the case against that defendant save for receiving proof of death whereupon the indictment as far as it concerns that defendant must be declared of no effect. For the avoidance of doubt, that is not to say that the indictment cannot proceed against other defendants depending, of course, on all the circumstances.
23. We agree with Mr Mably that there is nothing to suggest that any of the verdicts returned in this case is unsafe: this applies equally to those verdicts which had been reached while Mr Turk was alive as to those reached after he had, in fact, died (which, in any event, we cannot identify). The verdicts are, however, irregular. In our judgment, there is no discretion as to the course which the judge should follow in these circumstances; he was not entitled to continue simply because he thought that obtaining verdicts from the jury justified that course.
24. In the light of our conclusions, these verdicts were wrongfully returned and must be set aside as a nullity with the convictions annulled. This course is taken pursuant to the inherent jurisdiction of the court: see R v Booth, Wood and Molland [1999] 1 Cr App R 457.
25. Before leaving the case, we add this. We appreciate that, in relation to many of the allegations pursued at trial, complainants may well consider that they had been vindicated and that, by this decision, there was important recognition of their position; so far as the record is concerned, that would be lost. We recognise that entirely understandable view but we repeat that it is critical to maintain an approach to criminal justice that is consistent and even-handed, maintaining a definitive position that the death of a defendant brings any criminal prosecution of that defendant to an end.