R v Thompson and Others
| Jurisdiction | England & Wales |
| Judgment Date | 14 July 2010 |
| Neutral Citation | [2010] EWCA Crim 1623 |
| Docket Number | Case No: 2009/06970/B3 (1) 2008/5587/D3 (3) 2009/4255/B4 (4) 2009/04705/B2 (5) 2010/0939/B1 (6) |
| Court | Court of Appeal (Criminal Division) |
| Date | 14 July 2010 |
[2010] EWCA Crim 1623
Mr Justice Saunders
His Honour Judge Greenwood
His Honour Judge Beaumont Qc
His Honour Judge White
His Honour Judge Faulks
His Honour Judge Browne Qc
Before: The Lord Chief Justice of England and Wales
Lord Justice Hughes
and
Mr Justice Bean
Case No: 2009/06970/B3 (1)
2010/00944/B1 (2)
2008/5587/D3 (3)
2009/4255/B4 (4)
2009/04705/B2 (5)
2010/0939/B1 (6)
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT OXFORD (1)
ON APPEAL FROM THE CROWN COURT AT HARROW (2)
ON APPEAL FROM THE CENTRAL CRIMINAL COURT (3)
ON APPEAL FROM THE CROWN COURT AT NEWPORT ISLE OF WIGHT (4)
ON APPEAL FROM THE CROWN COURT AT NEWCASTLE UPON TYNE (5)
ON APPEAL FROM THE CROWN COURT AT WOOD GREEN (6)
Mr M. Swift QC and Mr P.J. Stage for the Appellant
Mr A. Edis QC for the Crown (1)
Mr J. Israel for the Appellant
Mr A. Edis QC and Mr G.E. Heimler for the Crown (2)
Mr A. Metzer for the Appellant
Mr J. Rees QC for the Crown (3)
Mr R. Germain for the Appellant
Mr A Edis and Miss K. Lumsdon for the Respondent (4)
Mr T. Moran for the Appellant
Mr J. Smith for the Respondent (5)
Mr M. Swift QC and Mr M. Aslam for the Appellant
Mr A. Edis QC for the Crown (6)
Hearing dates: 25 th -27 th May 2010
Lord Chief Justice of England and Wales:
The common features of these six cases is alleged jury irregularity. They were heard together. We emphasise at the outset that allegations of this kind rarely trouble the Court of Appeal. The overwhelming majority of jury trials proceed without jury irregularities. Generally speaking, if these problems become apparent during the course of the trial itself, they must be addressed and handled by the trial judge. Depending on the context he may give further directions to the jury, if necessary in severe and unequivocal language ( R v Smith [2005] 1WLR 704), which he may or may not combine with discharging an individual juror or indeed, in the ultimate analysis, the entire jury. It is therefore to be expected that any irregularity will have been addressed and cured during and as part of the trial itself.
Much more difficult problems arise when after the verdict has been returned, attention is drawn to alleged irregularities. This may take the form of a complaint from a defendant, or his solicitors, or in a very few cases it may emerge from one or more jurors, or indeed from information revealed by the jury bailiff. It is then beyond the jurisdiction of the trial judge to intervene. Responsibility for investigating any irregularity must be assumed by this court. In performing its responsibilities, it is bound to apply the principle that the deliberations of the jury are confidential. Except with the authority of the trial judge during the trial, or this court after the verdict, inquiries into jury deliberations are “forbidden territory” (per Gage LJ in R v Adams [2007] 1 Cr App R 449). If any complaint about jury deliberations is received by the trial court after verdict it is immediately referred to this court and whether the complaint has been received from the court of trial or by this court directly, the practice is to examine each case to see whether or not, exceptionally, further inquiries ought to be made, and if so, to invite the assistance of the Criminal Cases Review Commission to conduct the necessary inquiry.
In R v Mirza; R v Connor and Rollock [2004] 1 AC 1118, the House of Lords explained the reasons which underpin this rule in terms which require no repetition in this judgment. (See, in particular, Lord Slynn at paras 47–55, Lord Hope, at paras 113–123, Lord Hobhouse at paras 142–146, and Lord Rodger, at paras 163–172). The rule against any investigation or inquiry into jury deliberations is a rule of admissibility; evidence about the deliberations of the jury is therefore inadmissible.
The rule is subject to two narrow exceptions. The first arises if it emerges that there may have been a complete repudiation of the oath taken by the jurors to try the case according to the evidence; examples include a decision arrived at by the casting of lots or the toss of a coin, or the well-known case of the use, or rather misuse, of an Ouija board. If there are serious grounds for believing that such 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. If it has, the verdict will inevitably be unsafe, and any resulting conviction will be quashed.
The second exception arises in cases where extraneous material has been introduced into the jury deliberations. The verdict must be reached, according to the jury oath, in accordance with the evidence. For this purpose each juror brings to the decision-making process, his or her own experience of life and general knowledge of the way things work in the real world; that is part of the stock in trade of the jury process, and the combination of the experience of a randomly selected group of twelve individuals, exercising their civic responsibility as a collective body, provides an essential strength of the system. However, the introduction of extraneous material, that is non-evidential material, constitutes an irregularity. Examples are provided by earlier decisions of this court. They include 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 in recent years, information derived by one or more jurors from the internet. All this is familiar territory, and no citation of authority is needed. Where the complaint is made that the jury has considered non-evidential material, the court is entitled to examine the evidence (possibly after investigation by the CCRC) to ascertain the facts. If extraneous material has been introduced into the decision making process, the conviction may be quashed.
Collective Responsibility
The verdict of the jury, whatever it is, is delivered in open court in their presence. It is the verdict of them all (or where appropriate, the statutory majority). They have collective responsibility for the verdict. What has perhaps not been sufficiently emphasised thus far is that the collective responsibility of the jury is not confined to the verdict. It begins as soon as the members of the jury have been sworn. From that moment onwards, there is a collective responsibility for ensuring that the conduct of each member is consistent with the jury oath and that the directions of the trial judge about the discharge of their responsibilities are followed. Where it appears that a member of the jury may be misconducting himself or herself, this must immediately be drawn to the attention of the trial judge by another, or the other members of the jury. So, if for example, an individual juror were to be heard saying that he proposed to decide the case in a particular way regardless of his oath to try it on the evidence, or he were demonstrating a bias based on racism or some other improper prejudice, whether against a witness or the defendant, these things must be reported to the trial judge. So must outside interference, such as imparting information or views apparently gathered from family or friends, or using a mobile telephone during deliberations, or conducting research on the internet. The collective responsibility of the jury for its own conduct must be regarded as an integral part of the trial itself.
Recent research (Thomas: Are Juries Fair?, February 2010) addressed the risk that a substantial proportion of jurors may not know, or be uncertain about what they should do if they are concerned that something improper or irregular has occurred or is occurring amongst them. With this concern in mind we have examined both the material sent to potential jurors before trial and the directions commonly given by judges at trial, after the jury is sworn, as exemplified by those given in the cases now before us. None was unfair or deficient. We believe, however, that the material supplied to potential jurors could with advantage be strengthened. We invite Her Majesty's Court Service to consult the Judicial Studies Board (JSB) on how best to explain the collective responsibility of jurors examined in the previous paragraph.
The directions given by trial judges should underline unequivocally the collective responsibility of jurors for their own conduct. We do not attempt to lay down a standard form of words. We anticipate that an appropriate explanation of this responsibility can usually be combined with the kind of general introduction to the duties of the jury which judges deliver immediately after the jury is sworn. This fits naturally with the explanation of the basic rule, that they have just taken an oath to try the case on the evidence heard in court. It fits equally comfortably with the explanation to jurors that their discussions will always be respected as confidential, but must be confined to themselves, and not extended to include family and friends. The direction to report any concern or possible irregularity among their own number can be combined readily with a similar direction to report any approach made to them by any third party, and the anxieties that such directions are capable of generating can be allayed, if the judge thinks it helpful, by explaining that such occurrences are rarely encountered. Jurors should readily understand that any...
To continue reading
Request your trial
-
R v Gul
...the CCRC 67 In our view, no such enquiry was necessary. The approach to any post-trial allegations of jury misconduct is set out in R v Thompson and Others [2011] 2 All ER 833; [2010] EWCA Crim 1623. In giving guidance, the Lord Chief Justice stated that :— "2. Much more difficult problems......
-
R v Jason Davey
...or another member of the Court of Appeal. 14 The Practice Direction is based on the guideline decision of this court in the case of R v Thompson and others [2010] EWCA Crim. 1623 in which the court presided over by Lord Judge considered a number of appeals and gave guidance as to how courts......
-
R v Matthew Deny and Another
...be quashed as unsafe. 46 The issue has arisen in a different context as a result of material introduced by a juror from the internet, see Thompson [2010] 2 Cr App R 27 para 11 per Lord Judge LCJ cited in McDonnell [2011] 1 Cr App R 28 at para 17: "Just as it would in any other instance wher......
- Attorney General v Fraill and another ; R v Knox
-
Wiping the Slate Clean: Reforming Scots Law's Approach to Evidence of the Accused's Bad Character
...point than the SLC’s Draft Bill.173 Contempt of Court Act 1981, s 8; Clow vHM Advocate [2007] HCJAC 24; 2007 SLT 517; RvThompson [2010] EWCA Crim 1623; [2011] 1 WLR 200.174 English trial judges must give reasons for their decisions on bad character evidence: 2003 Act,s 110.Findlay Stark© 20......
-
Judicial Management of Juror Impropriety
...retention and application. They make jurors more satisfied and efficient and they participate in higher quality deliberations.7569 [2010] EWCA Crim 1623.70 Judicial College, above n. 63 at 8. 71 Horan, above n. 61 at ch. 5. For further information on how jurors use the internet during a t......
-
Case Commentaries
...CASE COMMENTARIESCASE COMMENTARIESCASE COMMENTARIESInvestigating jury irregularities—United Kingdom (England and Wales)In RvThompson [2010] EWCA Crim 1623, the Court of Appeal was confronted withsome of the difficulties created by the jury secrecy rule which the House of Lordsendorsed in Rv......