Jury Deliberations: Secrecy
| Author | Laura McGowan |
| DOI | 10.1350/jcla.2006.70.1.19 |
| Published date | 01 February 2006 |
| Date | 01 February 2006 |
| Subject Matter | Court of Appeal |
The real issue here centres on what constitutes genuine acceptance of
the advice given. A suspect who does not wish to answer questions in
interview because he has no explanation to give, or none that will stand
up to scrutiny, may well breathe a sigh of relief on hearing his legal
adviser counsel silence. But any suspect who seeks to shield himself
from an adverse inference in these circumstances surely cannot be
regarded as having genuinely accepted the advice he was given. Here, the
advice is being used merely as a device to shield his inability to provide
an explanation. It follows that if the jury conclude that it would have
been reasonable to expect the defendant to mention when questioned
the facts he is now relying on at trial, then an adverse inference may be
drawn. The difficult task for the jury will be to distinguish between the
genuine acceptance and the ‘sham’ acceptance of advice.
Simon Cooper
Jury Deliberations: Secrecy
R v Momodou and another [2005] EWCA Crim 177,
[2005] 2 All ER 571
The defendant was involved in a serious disturbance at Yarl’s Wood
Immigration Detention Centre. The outbreak of violence lasted for
several hours; the building was set on fire and half of it was effectively
raised to the ground. The disturbance had received widespread press
coverage, some of which the trial judge thought was scandalous. At the
beginning of the trial and in summing up the judge emphasised to the
jury that they must try the case only on the evidence and leave any
prejudice aside.
On the second day of jury deliberations the judge received a note
alleging that two of the jurors were being discriminatory and prejudiced.
It was alleged that the jurors said that the defendants ‘come to this
country to take our tax money, buy their food and clothes and take our
jobs and should be deported back to their own country’. Defence coun-
sel made an application for the jury to be discharged; it was refused.
The judge invited the jury into court. He expressed his grave concerns
about the note. They were provided with an edited copy and asked to
retire to consider it and decide whether they felt able to continue
deliberating together, without prejudice. They were asked to consider if
their collective ability to give an impartial verdict had been compro-
mised. The judge informed them that he could only accept a response in
general terms.
After retiring to contemplate this instruction the jury returned saying
that they could try the case impartially and fairly but that the person
who made the allegation wished to resign from the case, if possible. As
Jury Deliberations: Secrecy
19
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