Case Commentaries
| Author | Rosemary Pattenden |
| Published date | 01 October 2010 |
| Date | 01 October 2010 |
| DOI | http://doi.org/10.1350/ijep.2010.14.4.365 |
| Subject Matter | Article |
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Investigating jury irregularities—United Kingdom (England and Wales)
In RvThompson [2010] EWCA Crim 1623, the Court of Appeal was confronted with
some of the difficulties created by the jury secrecy rule which the House of Lords
endorsed in RvMirza [2004] UKHL 2, [2004] 1 AC 1118 in RvThompson[2010] EWCA
Crim 1623. The judgment concerns six unrelated cases in all of which some sort of
jury irregularity was alleged. In Thompson’s case, jurors wrote a number of letters
after the trial which complained of stress and mental exhaustion during the delib-
erations, aggressive juror behaviour and pressure from self-employed jurors to
reach a verdict and that one juror lacked coherent communication skills and fell
asleep (it is unclear when) and another juror did research about the case on the
internet. In Crawford’s case, a member of a jury which had unanimously
convicted said that she had been put under immense pressure by the other jurors
to agree and was unhappy with the verdict. In Gomulu’s case, it was alleged that
the victim’s brother had spoken with a juror during the trial; the Court of Appeal
found the allegation unfounded. In Allen’s case, an usher reported that a juror
had asked whether it was true that there was a ‘five-week trial following this one?’.
The appellant took this as a reference to a second case pending against him in the
same courthouse before another jury. In Blake’s case, a juror was intercepted
taking a pair of clippers into court which he said he intended to use to demon-
strate a point to the jury. Finally, in Kasunga’s case, a juror wrote to the judge
complaining that the basis on which the judge had sentenced the appellant was
not the one on which the jury had convicted.
Not all of these cases raise a Mirza point but many did. The Lord Chief Justice began
by pointing out that in Mirza the House of Lords laid down a rule of admissibility:
evidence about the deliberations of the jury is inadmissible. This means that
inquiries about events in the jury room are not forbidden, though an inquiry is
pointless if the evidence obtained is inadmissible. However, this will not always be
the case. The Mirza rule is subject to two ‘narrow exceptions’ (at [4]). First, where
the jurors completely repudiate their oaths, for example, by casting lots or tossing
a coin or using a Ouija board to reach the verdict. Secondly, if ‘extraneous … that is
non-evidential material’ (at [5]) has got into the jury room. The examples given are
ddoi:10.1350/ijep.2010.14.4.365
362 (2010) 14 E&P 362–385 THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF
‘telephone calls into or out of the jury room, papers mistakenly included in the
jury bundle, discussions between jurors and relatives or friends about the case and
… information derived from the internet’. The Court of Appeal may undertake its
own investigation:
[if] there are serious grounds for believing that … a repudiation may
have taken place, … this court will inquire into it, and may hear, de
bene esse, evidence, including the evidence of jurors themselves, in
order to decide whether it has happened. (at [4])
Alternatively, the Court of Appeal may invite the Criminal Cases Review
Commission to ascertain the facts first, at any rate, where access to extraneous
non-evidential material is alleged. It did so in the cases of Gomulu and Allen.
An appeal concerning the jury’s deliberations will get nowhere if there is no
evidence of repudiation (and there was none in any of the cases) unless there is
evidence not only of access to, but also reliance on, extraneous non-evidential
material. In Thompson, the only arguable point was the fact that a juror had
disobeyed the direction of the judge not to seek information from the internet.
According to a letter from jurors, the juror in question had distilled research
relating to the case and legal terminology into five pages of questions. The appeal
was rejected because:
[t]he 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, [to] 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 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.
No reason is given for preferring speculation to direct evidence, for example, a
copy of the questions taken into the jury room (if it still existed) or evidence from
the juror about the websites visited. Perhaps the Court of Appeal felt that this
would disclose what was being discussed in the jury room. One of the weaknesses
of the second Mirza exception is that a full investigation may be impossible
because it will reveal, at least by implication, inadmissible information.
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