R v Lafayette (Anthony Lascelles)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE LATHAM,MR JUSTICE FORBES,LORD JUSTICE HOOPER,MR JUSTICE FLAUX |
| Judgment Date | 18 December 2008 |
| Neutral Citation | [2008] EWCA Crim 2284,[2008] EWCA Crim 3238,[2008] EWCA Crim 1684 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | No: 200800931 C3,No: 2008/00931/C3,No: 2008/0931/C3 |
| Date | 18 December 2008 |
[2008] EWCA Crim 1684
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
Lady Justice Latham (Vice President Of The Court Of Appeal, Criminal Division)
Mr Justice Forbes
Mr Justice Underhill
No: 2008/00931/C3
Mr DRB Whitehouse QC appeared on behalf of the Applicant
Mr PE Kyte QC appeared on behalf of the Crown
The first issue that we have to deal with in this particular application is the question of whether any directions should be given, and if so what directions, arising out of the receipt by counsel acting on behalf of the applicant of a letter from a member of the jury which raised the question of whether or not the jury had been informed of the possible sentencing consequences of any particular conviction.
The submission of Mr Whitehouse on behalf of the applicant is that that is an issue which this court is entitled to investigate. This court has on previous occasions indicated that if there is material suggesting that the jury has been informed of sentencing consequences, that is capable at least of being considered material which should not have formed part of their deliberations and accordingly could have infected the verdict.
The submission continues that all that is being asked at this stage is for questions to be asked of one or more members of the jury to determine whether that sort of information was elicited in the course of the deliberations. The only way in which that could be established, it is conceded by Mr Whitehouse as we have indicated, is by asking questions as to what was said between the jurors in the jury room. He submits that, although accepting that the common law rule of confidentiality in relation to jury deliberations was clearly explored and upheld by the House of Lords in R v Mirza [2004] 2 WLR 201, he is seeking to do no more than lay a factual foundation before the court that an extraneous consideration had been at least before the jury, whatever they may have thought of it.
It seems to us that that submission is fraught with difficulty. Whilst accepting that the court has in the past been prepared to accept evidence indicating that the jury may have been affected by extrinsic (if one can use that word for the moment in a shorthand form) considerations, the court has only done so where there is material other than what was said between jurors within the jury room, such as the discovery of written material in the jury room after the jury has delivered its verdict.
It seems to us that therein lies the true distinction between the case where the court is able to establish that that extrinsic material has gone before the jury without infringing the rule against confidentiality and the request in this case, which in our view requires a breach of the rule of confidentiality for the reason implicit in what we have said about the way in which the evidence would have to be obtained in order to establish whether extrinsic material was considered by the jury.
In our view, it is beyond argument that in seeking to obtain that material, the only way it can be obtained is by asking questions about what the jury discussed between themselves, which is precisely what the rule of confidentiality is intended to protect.
We would accordingly rule that the proposed ground based upon the information obtained from the juror is one which cannot be pursued by way of any questions that Mr Whitehouse has sought to ask us to ask the jury. In those circumstances, I anticipate that there is no other basis upon which ground 4 in his four grounds of appeal could be pursued.
Then, Mr Whitehouse, can we look at the other three grounds?
MR WHITEHOUSE: Yes, my Lord.
LORD JUSTICE LATHAM: We have your submissions.
MR WHITEHOUSE: Yes.
LORD JUSTICE LATHAM: At the moment, this is an application and we are not proposing to do more than deal with it as an application.
MR WHITEHOUSE: My Lords, I understood this was a directions hearing, not an application for leave hearing.
LORD JUSTICE LATHAM: So you are not wishing us to deal with the matter today. I thought that I indicated that we would deal with the other grounds today, not as an appeal, but as an application for leave. If I have been misunderstood and you think that that would put your client at a disadvantage because you have not come properly prepared to deal with that, I would respect that and would not seek to press you to deal with the matters that you have not come prepared to deal with.
MR WHITEHOUSE: My Lord, I am afraid I have not.
LORD JUSTICE LATHAM: End of question. I am not going to ask, because it is far too important, this is a case where a man has been convicted of murder, and I would not dream of pressing on in that….
Mr Whitehouse, in view of our ruling, I left it slightly Delphically that that would mean that there would appear to be no basis on which you could pursue ground 4.
MR WHITEHOUSE: Yes.
LORD JUSTICE LATHAM: Shall we rule that on that ground or will you withdraw or that ground? It does not matter which.
MR WHITEHOUSE: I think I would ask you to rule on it, my Lord, so that….
LORD JUSTICE LATHAM: Yes. Then in the light of the ruling that we've made as to the directions, there can be no material put before this court which could support ground 4 in the applicant's grounds of appeal, and accordingly, in so far as the application is based upon that ground, it is dismissed.
MR WHITEHOUSE: My Lord, I am grateful.
LORD JUSTICE LATHAM: As far as the other three grounds are concerned, we will adjourn that matter to be dealt with as soon as possible —
MR WHITEHOUSE: I am very grateful.
LORD JUSTICE LATHAM: —as an application.
MR WHITEHOUSE: Could I ask for directions as to a connected matter? My client does not even know about the letter from the juror.
LORD JUSTICE LATHAM: I know.
MR WHITEHOUSE: But it seems to me only fair that he should at least know in general terms the nature of it. I do not think it is appropriate ( inaudible).
LORD JUSTICE LATHAM: It seems to me, we have given a judgment in open court —
MR WHITEHOUSE: Yes.
LORD JUSTICE LATHAM: —which does give an indication of the nature of the letter.
MR WHITEHOUSE: Yes.
LORD JUSTICE LATHAM: It seems to me that that is what your client can be told.
MR WHITEHOUSE: My Lord, I am very grateful. Would you direct that a transcript of that should be communicated to the defendant?
LORD JUSTICE LATHAM: Yes.
MR WHITEHOUSE: Then I will show him grounds which edit that ground out or that edit out any information which would enable that juror to be identified.
LORD JUSTICE LATHAM: That is the point. For the purpose of the judgment we had to identify at least a bit of what it was about. So that will be the sensible way forward.
MR WHITEHOUSE: Will your Lordships be content then if I amend the skeleton so that Mr Lafayette understands the nature of the argument but has no material which would enable him or anybody else to identify the juror in question.
LORD JUSTICE LATHAM: Yes, and any more details of what we say other than that which is contained in the judgment.
MR WHITEHOUSE: My Lord, I am sure that will be very easily done.
LORD JUSTICE LATHAM: Good, thank you very much.
My Lord, just to ensure that I have not misunderstood things. Grounds 1, 2 and 3 —
LORD JUSTICE LATHAM: Are pursued.
You have granted an adjournment in relation to them to be pursued for Mr Whitehouse to make an application for leave.
LORD JUSTICE LATHAM: Yes. It seems to me that it would probably be appropriate in the circumstances, rather than having you both come back twice, if, unusually in a criminal case, we were to say that it should be listed as an application for leave, but with the appeal to follow if leave granted.
MR WHITEHOUSE: Thank you very much.
LORD JUSTICE LATHAM: I think that would be a sensible way forward.
One assumes in those circumstances, the applicant himself has evinced a desire to attend will do so.
LORD JUSTICE LATHAM: He should attend for that purpose.
MR WHITEHOUSE: Thank you very much.
LORD JUSTICE LATHAM: There are just two matters that I wish to raise. First of all, Mr Kyte, I am sorry that I felt it necessary to —
No, my Lord, we have had a terrible problem in my other case, but thank you. I fully appreciate there is nothing this court can do.
LORD JUSTICE LATHAM: We did what we could, which is to come to sit at ten and get you back as soon as we could.
Mr Whitehouse, your solicitors, are they in court?
MR WHITEHOUSE: No, my Lord, I am instructed by the Registrar for the purposes of the application.
LORD JUSTICE LATHAM: But I think that the matter has been dealt with very well, if I may say so.
MR WHITEHOUSE: Can I pass that on to them?
LORD JUSTICE LATHAM: Yes.
MR WHITEHOUSE: I am grateful.
LORD JUSTICE LATHAM: That is what we felt.
MR WHITEHOUSE: My Lord, would your Lordships consider then it proper and appropriate for me to go to see Mr Lafayette in prison to explain to him the result or….
LORD JUSTICE LATHAM: Of course you can.
MR WHITEHOUSE: Normally that would not be covered by the —
LORD JUSTICE LATHAM: That is the point you wish to make, really, is it not, Mr Whitehouse?
MR WHITEHOUSE: Yes.
LORD JUSTICE LATHAM: I think that in the circumstances, because of the way this has developed, it will be appropriate for you to go to...
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