R v Smith (Patrick); R v Merceica (Joesph)
| Jurisdiction | England & Wales |
| Judge | LORD BINGHAM OF CORNHILL,LORD STEYN,LORD RODGER OF EARLSFERRY,LORD WALKER OF GESTINGTHORPE,LORD CARSWELL |
| Judgment Date | 16 February 2005 |
| Neutral Citation | [2005] UKHL 12 |
| Date | 16 February 2005 |
| Court | House of Lords |
[2005] UKHL 12
HOUSE OF LORDS
The Appellate Committee comprised:
Lord Bingham of Cornhill
Lord Steyn
Lord Rodger of Earlsferry
Lord Walker of Gestingthorpe
Lord Carswell
(2004) (No 2) (On Appeal from the Court of Appeal (Criminal Division))
(On Appeal from the Court of Appeal (Criminal Division))
My Lords,
I have had the benefit of reading in draft the opinions of my noble and learned friends Lord Rodger of Earlsferry and Lord Carswell, with which I am in full agreement. For the reasons they give I would allow these appeals, make the orders which they propose and answer both certified questions in the negative.
My Lords,
For the reasons contained in paragraph 26 of the opinion of my noble and learned friend Lord Carswell, I would also allow the appeals, quash the convictions and remit the case to the Court of Appeal to decide whether to order a new trial.
My Lords,
On the morning of 29 May 2002 counsel for Mr Smith showed him an anonymised copy of a letter detailing the alleged failures of certain members of the jury to comply with the judge's directions. As counsel explained in his affidavit in the proceedings before the Court of Criminal Appeal, his own view was that, absent tactical considerations, he should apply to discharge the jury. From the point of view of Mr Smith, there were, however, certain tactical arguments in favour of simply having the judge give the jury further directions. From what was said in the letter, it seemed likely that, if the trial went ahead, the jury would convict him of the two lesser counts, 1 and 2, but acquit him of, or be unable to reach a verdict on, the charges of kidnapping and murder in counts 3 and 4. On the other hand, if the jury were discharged and a new trial ordered, Mr Smith would again face all the charges, including those of murder and kidnapping. Counsel explained this to Mr Smith who understood the position. The affidavit records:
"In the circumstances Mr Smith took the decision not to seek the discharge of the jury in the belief that any verdicts the jury returned would effectively clear him of murder and kidnapping. Mr Smith was, understandably, unwilling to expose himself to any continued risk of being convicted of murder or kidnapping on any retrial."
It is abundantly clear that Mr Smith took a tactical decision which, on advice, he thought would work to his advantage. The decision was not to seek a discharge, but to proceed with the trial after further directions to the jury. His counsel addressed the judge on that basis. Mr Smith is entitled to say that he assumed that the directions would be appropriately rigorous. In the event, for the reasons given by my noble and learned friend, Lord Carswell, they did not meet the required standard. Mr Smith can legitimately complain on that score and I accordingly agree that his appeal should be allowed.
I would wish to reserve my opinion, however, on whether, if the directions had been satisfactory, Mr Smith could have appealed and contended that the jury should have been discharged. The point is one of considerable general importance which was not fully argued. There is, with respect, considerable force in the observation of Woolf LJ in R v Lucas [1991] Crim LR 844; transcript, p 11 that an appellant should not be able to blow hot and cold in this way. Here Mr Smith knew about the two possible remedies and their respective advantages and disadvantages, so far as his own self-interest was concerned. Armed with that knowledge, in the furtherance of his self-interest, he quite deliberately chose not to ask for the jury to be discharged because he wanted to avoid the risk of a new trial on all the charges. That decision is not hard to understand. But it is by no means obvious to me that it would be in the interests of justice for Mr Smith to be able later to contradict that deliberate decision and assert that the judge should have discharged the jury. It so happens that in this case the anticipated tactical advantage failed to materialise and Mr Smith was convicted on all four counts. But the point could also have arisen if the jury had convicted him on the first two counts only.
My Lords,
I have had the advantage of reading in draft the opinions of my noble and learned friends Lord Rodger of Earlsferry and Lord Carswell. I am in full agreement with them and for the reasons given by Lord Carswell I would allow these appeals and make the orders which he proposes.
My Lords,
The institution of jury trial, with all its imperfections, is still trusted by the public as a method of determining the guilt of persons charged with criminal offences. Two important factors in retaining that trust are concerned in this appeal. The first is the maintenance of the sanctity of the jury's deliberations, so that its members will continue to feel confident that they can discuss the issues in the case before them with complete candour. Their individual views or arguments will not be revealed to the court, which will be informed simply of the jury's laconic verdict. This encourages the collective and cohesive deliberation and reconciliation of differing views which Lord Hobhouse described in R v Mirza [2004] 1 AC 1118 at paragraph 143 as an important feature of the jury's work. It also protects individual jurors from exposure to pressure to explain the reasons which had actuated them individually to arrive at their verdicts: Ellis v Deheer [1922] 2 KB 113 at 121, per Atkin LJ. The second factor is that in those fortunately rare cases where the court is informed that there has been some misconduct on the part of jurors or irregularity in the way in which their deliberations have been carried out, it should have as effective means as the circumstances will permit of ascertaining what has gone wrong and taking steps to rectify it. The present appeal concerns the second of these factors and the way in which such investigation can be carried out while preserving the first factor intact.
The appellants were convicted on 30 May 2002 at the Central Criminal Court after a trial before His Honour Judge Stokes QC and a jury on four counts:
Count 1: conspiracy to cause grievous bodily harm;
Count 2: false imprisonment;
Count 3: kidnapping;
Count 4: murder.
They were each sentenced to imprisonment for life on count 4 and to seven years' imprisonment on each of the first three counts, to run concurrently.
The Crown case against the appellants was that the victim Mark Levy was on 27 January 2000 lured by one David Checkley to a house where he was held for a time, before being taken by the appellants in the boot of a car to a wood at Denham, Buckinghamshire, where he was murdered by them. The case depended very largely upon the testimony of an accomplice, Arpit Kumar Patel, who gave evidence for the Crown. The admissibility of his evidence was strongly challenged by counsel for each defendant, and that issue formed the substance of much of the argument before the Court of Appeal, which on 19 December 2003 dismissed the appellants' appeals on all grounds. The issue was not the subject of the appeal before the House, which turned solely on the question of the action taken by the judge on receipt of a complaint from a juror.
The trial which ended on 30 May 2002 was a retrial. The appellants and three other defendants had been tried in a trial which lasted for six months in 2001, but ended with the discharge of the jury on account of an irregularity (unconnected with the defendants) before they reached their final verdicts. The appellants were the only two defendants in the retrial, which occupied some three months in 2002. The events after the judge completed his summing up were somewhat protracted. The jury were sent out to consider their verdict on Wednesday 15 May 2002. One juror then took ill and the house of another was burgled, with the result that they did not resume their deliberations until Tuesday 21 May. On that morning the judge assured them that there was no pressure of time and at their request gave them a reminder of the definition of conspiracy. He gave them more directions on the morning of 22 May and they continued their deliberations for that day and the next. On the afternoon of Friday 24 May the judge gave them a majority direction. The jury continued to deliberate on Monday 27 May. The judge had to be elsewhere on 28 May, so there was no sitting that day.
On 29 May at 9.30 am a letter was handed to the judge by a member of the court staff. It had been written the previous day by a juror, who gave her name and address in the letter. The text of the letter was as follows:
"My Lord this is my first experience of Jury Service and based on your directions in your Summing Up I feel that it is important that you are made aware of the conducts of certain Jurors during the deliberation process.
In my understanding of your instructions of how to come to a decision, which should be based on the evidence presented in court, I feel that your directions have not been taken into account. I say this because of the behaviour of several jury members during these proceedings, which has greatly concerned me.
I feel that during the deliberating process Jurors are being badgered, coerced and intimidated into changing their verdict to that which a certain group of Jurors deem to be the right verdict regardless of what the evidence shows.
For example, certain jurors would sneer and pour scorn on another juror's verdict by making comments such as:
"The CPS would not have brought the case if they did not think that the defendants were guilty";
"Do you want a re-trial at the tax...
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