R v Gorman
| Jurisdiction | England & Wales |
| Judge | THE LORD CHIEF JUSTICE,JUDGE PRESTT |
| Judgment Date | 09 March 1987 |
| Judgment citation (vLex) | [1987] EWCA Crim J0309-1 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | No. 1298/F/86 |
| Date | 09 March 1987 |
[1987] EWCA Crim J0309-1
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Lord Chief Justice of England (Lord Lane)
Mr. Justice Kennedy
and
Mr. Justice Roch
No. 1298/F/86
MR. H. LAING appeared on behalf of the Appellant.
MR. A. RUSSELL appeared on behalf of the Crown.
On 31st January last year in the Crown Court at Manchester before His Honour Judge Prestt, this appellant was convicted by a majority verdict of ten to two of rape and was sentenced to four years' imprisonment.
He now appeals by leave of the full Court against that conviction.
The circumstances of the appeal are somewhat unusual. The verdict was the result of a retrial, and the sole issue which arises in the case is as to the way in which the trial Judge dealt at the first abortive trial with a note from the jury, which resulted in the Judge discharging that jury. Hence the retrial.
It seems, from the information before us, that the appellant was arraigned on 6th January. The jury on the first trial retired at 11.36 on 9th January. They were given a majority direction at 14.40. They sent their note to the trial Judge at 15.05. The Judge having re-assembled the Court, told counsel that the note which he had received was to the effect that the jury was deadlocked. It is perhaps expedient to read the transcript of the proceedings from that point of the trial:
"Mr. Russell and Mr. Laing, I have had a note from the Foreman of the jury which indicates that the jury are split and that the jury will be incapable of reaching a verdict.
Yes.
"Without referring to the nature of the division, it is said that they are adamant and will not change their minds. I can see no alternative other than to discharge the jury from giving a verdict.
Yes.
I would think that is so.
"If it is confirmed that there is no possibility of them ever reaching a verdict.
Indeed, if that be the case, my Lord, I entirely agree.
"I do not see any alternative. Bring the jury back into Court, please."
The jury returned at 3.04 p.m.
"THE CLERK: Would the Foreman please stand? Mr. Foreman, would you please answer my question either yes or no. Have at least ten of you reached a verdict upon which you all agree?
"THE FOREMAN: No, sir.
"THE CLERK: Sit down, please.
"Mr. Foreman, from your note, am I right in saying that the view taken by you and the jury is that it will be impossible in this case, no matter how long you deliberate for, to reach a verdict upon which at least ten of you are agreed?
"THE FOREMAN: Yes, sir."
I interpolate, it is to be noted that there was no voice of dissent from any member of the jury there present in Court.
"In that situation there seems no purpose at all in detaining you further, and I discharge you from giving a verdict." That for the time being was the end of that.
The retrial started on 27th January. After the appellant had been convicted and sentenced, it transpired that the appellant's mother had been told by one of the jurors in the first trial that the jury had been split nine to three in favour of an acquittal, that is to say in favour of the appellant's case.
From then on certain inquiries were made. The Judge was asked for the note of the jury, which he properly declined to produce until ordered by this Court to do so. In due course, on the instructions of this Court, it was disclosed. How the note read was as follows: "The jury at 14.40 hrs. has reached a majority decision of 9/3 in favour of the accused. 9/3 not guilty. The other 3 are adamant and will not change." That was the note.
Now it is submitted by Mr. Laing on behalf of the appellant that a material irregularity took place at that first hearing, which renders this conviction at the second trial unsafe and unsatisfactory and indeed that it is a conviction which we ought to quash.
The basis of the appeal put forward by Mr. Laing is first of all that the Judge erred in failing to disclose the actual note he had received from the jury to counsel; secondly, when exercising his discretion, having not disclosed the note to counsel, he gave insufficient indication as to the contents of the note for counsel to be able to give a considered opinion as to what should happen; and finally, when exercising the matter of discharging the jury, failed to exercise his discretion judicially by not indicating to counsel and the public in open court that there were one or more other factors on his mind besides the note.
It seems to us that three separate problems arise in this case for our decision. The first is whether this Court has any jurisdiction to review any alleged material irregularity in a trial by a jury when after the irregularity is alleged to have taken place that jury has been discharged. The second problem is whether, once a Judge has decided to discharge a jury, there is any way in which that decision can properly be challenged in this Court. Finally, the problem how the Judge should react when he receives from the jury a note which indicates not only that the jury are deadlocked, but also indicates the voting figures amongst the members of the jury.
So far as the first problem is concerned, the jurisdiction of this Court is of course a statutory jurisdiction. It only arises when a person is convicted of an offence. Section 1(1) of the Criminal Appeal Act 1968 reads as follows: "A person convicted of an offence on indictment may appeal to the Court of Appeal against his conviction."
Section 2(1) reads: "Except as provided by this Act, the Court of Appeal shall allow an appeal against conviction if they think – (a) that the verdict of the jury should be set aside on the ground that under all the circumstances of the case it is unsafe or unsatisfactory; or (b) that that the judgment of the court of trial should be set aside on the ground of a wrong decision of any question of law; or (c) that there was a material irregularity in the course of the trial, and in any other case shall dismiss the appeal …".
It can be argued that the statute only refers to one jury, because only one jury returns a verdict. It can also be argued that the trial begins when the defendant is first arraigned, and only ends when the verdict is returned, be it by the first jury or by the second jury. One receives little assistance from section 51, which is the definition section. In that section the court of trial is defined as follows: "in relation to an appeal, means the court from which the appeal lies". The judge of the court of trial is defined as follows: "… the person who was the judge of that court".
Whilst we have some considerable doubt whether this Court has jurisdiction to review a procedural irregularity occurring in a trial prior to the discharge of the first jury, we are prepared to assume in favour of the appellant in this case, and solely for the purpose of this case, that there is such a power.
That leads us to the second point, and that is the question of whether the decision to discharge a jury is reviewable in this Court.
It seems to be clear from the authorities that the decision to discharge is not itself a decision which any appellate court has ever undertaken to review. In Winsor v. The queen (1866) L.R. 1 Q.B. 390, which was a motion for a writ of error, the Court of Queen's Bench held that such a decision "is not made subject to review by any legal tribunal". That was in the days before the Court of Criminal Appeal existed.
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